Information & Ethics Committee on Oct. 24th, 2022

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

If I do still have time, you've mentioned that you've wanted more oversight over the access to information system. Now you're appearing before our committee today to help us in reviewing the system as it is.

Are there any very specific recommendations that you think are your top priority that should dominate how we frame this report?

[Col (Ret'd) Michel Drapeau]

Right from the get-go, we decided as a country, after a white paper on access, that the way to go was to have an Information Commissioner. We did not need to do this. The white paper had other options. In the States, for instance, you don't. You put in a request to an agency, and if you're not happy with it, you complain to the agency. If you're not happy with a response, you go to federal court.

In Canada, we had an ombudsman style with the Information Commissioner. It was designed with basically three roles. The first one was to investigate the complaint; the second was to monitor and enforce the act upon the various federal institutions, and the third was to report to Parliament, but the primary task and the only role is to investigate complaints.

Now we find, years afterward, over the past decade or so, that it has grown so top-heavy that we have less than 50% of the staff who investigate complaints, 40 out of the 93 people, and when we find four commissioners.... Pardon me—do we need four commissioners and five executives and so on? All of that is at the expense of their sole function of investigating complaints, and that's what I want. If a department doesn't give me or excludes information and records, for example, my only avenue is going to the Information Commissioner.

I'm in the business of law. If I don't get an answer from that, then I have the ability to go to the Federal Court and get the Federal Court to adjudicate my request, except I have to wait until the Information Commissioner issues a report. At the moment, I have to wait four years, six years or eight years, so it's killing us if we need to have access to these records through the only legal but quasi-constitutional mode, which is the access regime.

[The Chair, Conservative, John Brassard]

I didn't want to stop you, Mr. Drapeau, because you were on a roll there, but we are over time on this round of questioning.

We will now start the next round.

Mr. Villemure, from the Bloc Québécois, you may go ahead. You have six minutes.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you, Mr. Chair.

Thank you for being here, Mr. Drapeau.

On October 5, I asked Ms. Maynard, the Information Commissioner of Canada, whether the federal administration had a culture of secrecy or a culture of openness. Basically, she said that staff didn't always know what information they should be disclosing.

Do you think the federal administration has a culture of secrecy or openness?

[Col (Ret'd) Michel Drapeau]

I think it has a culture of secrecy, but that's a function of being a public servant, whether the person is in the RCMP, the Canadian Armed Forces or another organization. They are asked to keep information confidential and share it only with those who have authorization. That's what public servants do every day. They protect the interests of the Crown. That's their job.

The act sets out 13 exemptions, or situations in which government employees may refuse to disclose a record, in order to protect information that should remain confidential. Almost as a matter of practice, they determine that certain information is personal or confidential, and that's where the commissioner comes into the equation. When the requester believes that they should have access to the record, which is often clear just from reading the document, they can file a complaint. Then, they have to wait for a decision by the commissioner, who has access to the full record.

[René Villemure, Bloc, Trois-Rivières, QC]

In March, Foreign Affairs magazine published an article on disclosure in the U.S., which is very different from the situation in Canada. According to the article, public servants preferred not to disclose too much information so as not to risk getting into trouble. Do you think it's the same here?

[Col (Ret'd) Michel Drapeau]

Fundamentally, yes I do.

In Canada, every department has its own access to information team. Those are the people who have the experience. They have a duty not just to apply the act, but also to help those requesting information. For example, they can suggest to requesters that they rephrase their request in order to access more information, receive the records more quickly or trigger fewer exemptions.

The access to information team in each department plays a key role, serving as the intermediary between requesters and public servants.

[René Villemure, Bloc, Trois-Rivières, QC]

Would you say the culture of secrecy is more obvious at Immigration, Refugees and Citizenship Canada, the Canada Border Services Agency and the RCMP? Is it more entrenched in those organizations, or is it no different than it is at the Canada Revenue Agency?

[Col (Ret'd) Michel Drapeau]

I couldn't tell you.

[René Villemure, Bloc, Trois-Rivières, QC]

All right.

Under what circumstances can the government cite national security when it comes to the awarding of government contracts?

[Col (Ret'd) Michel Drapeau]

That is possible in a wide range of circumstances. I'm not a public safety expert, but depending on the nature, purpose or requirements of the contract, it may be in the government's interest not to disclose certain information, such as the value of the contract, the parties involved or the scope of the contract. Each case is unique.

[René Villemure, Bloc, Trois-Rivières, QC]

Some records are highly confidential, and it's obvious why, but other records are more general. Are some situations more valid than others when national security is cited as the reason for not disclosing a record?

[Col (Ret'd) Michel Drapeau]

The answer is yes.

As I pointed out, the Access to Information Act sets out 13 exemptions, including national security in all its glory. Those exemptions are interpreted differently and can apply to cabinet confidence or certain personal information.

When an ATI request involves national security, I expect all government employees, including those who work in access to information, to take a very careful and conservative approach, disclosing only what is possible, practical, relevant and legal to disclose.

[René Villemure, Bloc, Trois-Rivières, QC]

You are talking about disclosure on a need-to-know basis.

[Col (Ret'd) Michel Drapeau]

It's not just on a need-to-know basis, but also on a legal need-to-know basis, as per the act.

[René Villemure, Bloc, Trois-Rivières, QC]

I'll give you an example that will amuse my fellow members.

Does leasing land along the border and setting up trailers on that land fall under the umbrella of national security?

[Col (Ret'd) Michel Drapeau]

I'm amused, as well.

I couldn't say. I'd have to know what the trailers were being used for. I'd need more specifics.

[René Villemure, Bloc, Trois-Rivières, QC]

All right.

You talked about how long people have to wait for their ATI requests to be answered. Does the Office of the Information Commissioner have enough tools to deal with complaints related to wait times? Is it a matter of funding or a lack of will?

[Col (Ret'd) Michel Drapeau]

I don't think the commissioner's office lacks funding. It has a sizable budget.

My position is simple: when less than half the people at the commissioner's office are assigned to the administrative task of reviewing complaints, there's a problem from the outset. Let's start by fixing that problem.

Then we can turn our attention to the funding the office has to work with. To be fair and frank, I don't even think the Information Commissioner can determine what she needs in terms of resources. She can make recommendations, but it really requires the expertise of an outside organization, in this case, the Office of the Auditor General. The Office of the Auditor General has the capacity to examine how many complaints come in and how long it takes to review them. Some complaints are obviously more complex than others, but the Office of the Auditor General can determine whether there's a better way to do things and whether more staff is needed to handle complaints.

[René Villemure, Bloc, Trois-Rivières, QC]

That's great. Thank you.

I'm done, Mr. Chair.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Villemure and Mr. Drapeau.

The next round is Mr. Green from the NDP. Matthew, you have the floor for six minutes.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you very much, Mr. Chair. Welcome to committee in your first official capacity. Through you to the witness, the witness raised some very important questions. I would like to explore the difference between what the causation and the correlation is with some of the inconsistencies and inefficiencies that he's identified with the entire process.

He referenced specifically just the sheer volume through the immigration cases. I would ask through you, Mr. Chair, to the witness, if he would care to comment on whether or not he sees a correlation between failures in specific ministries to adequately address basic public inquiries with the rise in the rate of ATIPS. In short, is this a failure of a ministerial department that is causing the ATIPS, or is there another theory that he has, given his overview of the—

[Col (Ret'd) Michel Drapeau]

I'm not equipped to answer this question because I don't have the statistics for each one of the departments for their performance level in any given year, so I cannot address that.

[Matthew Green, NDP, Hamilton Centre, ON]

But it was acknowledged that in your opinion the managerial staff is top-heavy and that the operational staff, that complement, needs to be more vigorous and complete in terms of their full-time equivalents.

[Col (Ret'd) Michel Drapeau]

I would have no hesitation to answer your question in regard to the Office of the Information Commissioner, where these figures are public. For each one of the federal institutions, I would need more data before I could pronounce on it, and it's data that I don't have.