Information & Ethics Committee on Oct. 24th, 2022

[The Chair, Conservative, John Brassard]

You're making it easy on me. Thank you, Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Mr. Drapeau, I greatly appreciate your being with us today, and thank you for appearing a number of times in relation to the Access to Information Act. Your extensive knowledge and expertise are very helpful to the committee.

We know that 70% of requests are responded to by the deadline, so let's set those aside and focus on the other 30%. The number of complaints has been on the rise for years, especially since everyone turned to electronic sources.

The Information Commissioner said that some requests were vexatious, and you mentioned that in your opening remarks. She also suggested that government employees needed to learn how to manage the emails in their inboxes. Requests that come in by email are often looked at by the entire team, and those emails can be repetitive. Sometimes employees get the same information five or six times.

Certainly, there's a better way to manage data. Given your experience, do you know of any countries whose government institutions do a good job of managing electronic data so that it's easier to respond to ATI requests?

[Col (Ret'd) Michel Drapeau]

I don't think so. I would say the problem is universal. In Canada, it's the same for a firm as it is for a public servant. Not all requests a public servant receives are equally important or of equal priority. Some emails are just friendly communications, depending on the situation. A public servant writing an email today certainly isn't thinking about the fact that the email could be part of a chain that ends up being disclosed under the Access to Information Act. If they did, they would be more disciplined in their communications, and there might be more substance in the records.

That's how it is nowadays, so we have no choice but to deal with these situations. In the case of a dispute, you might have a lengthy email chain that needs to be redacted because it contains information that is personal or subject to solicitor-client privilege. That has led to considerably more work for those responsible for access to information. Compared with the days of handwritten memos and documents, today, the volume of interpersonal communications is significantly higher.

That's the world we live in, and I don't think we can escape it. That's the sort of bureaucracy that has to be expected when an ATI request is made and when it's processed.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

If you were the Information Commissioner, what advice would you give public servants to help them manage data more effectively and to cut down on the number of emails?

[Col (Ret'd) Michel Drapeau]

Annual seminars in all departments would remind them that one of their legal responsibilities is to comply with the Access to Information Act, which has quasi-constitutional value.

Public servants have a duty to the public, who pay their salaries. It was Parliament that wanted this law to exist. Everything that civil servants produce in the course of their daily work must therefore be accessible. Some information may be exempted, but in principle everything that civil servants produce must be accessible, as they are publicly accountable for their responsibilities and workload, among other things.

No one should be surprised or offended that an access to information request is made. Yet these requests are mostly perceived as an annoyance or something that upsets the bureaucratic order. However, these requests stem from the fact that we live in a democracy that respects the citizens who pay the salaries of civil servants, who finance public institutions and who want to obtain answers. The right to access information, the right to know, is a quasi-constitutional right that has been granted to citizens. Facilitating this right is a duty for institutions, civil servants, parliamentarians and the public.

We have not yet reconciled these opposite sides. The viewpoint varies depending on which side you are on. While we may want as much information as possible to be released to us, the typical public servant aims for the exact opposite, wanting to protect everything they can. Most departments have not yet adopted the mindset that there is nothing wrong or offensive about an individual making an access to information request, and that they must respond to it to using the resources available to each department.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Drapeau and Mr. Fergus.

Mr. Villemure, you have the floor for two and a half minutes.

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

Thank you, Mr. Chair.

Good afternoon, Mr. Drapeau.

You mentioned section 20, which I believe covers trade secrets. Given the use of it today, would you say that this section is too restrictive?

[Col (Ret'd) Michel Drapeau]

More than any other, section 20 is the one that has been critically examined by the courts, which have considered all possible interpretations. The act contains a mechanism for handling third party information. If a request involves information provided to the department by a third party, the third party must be consulted and has a say. The third party may even require that certain information be treated as a trade or business secret.

This is often disputed. Even if the commissioner, the access to information official, decides to release some of this information despite the representations made by the third party, the third party can and often does take the case to court. That is a problem. There is a whole body of case law around this provision, which makes it cumbersome in terms of its application.

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

Is the section interpreted too broadly or too narrowly, in your opinion?

[Col (Ret'd) Michel Drapeau]

I think it's a mixture of the two.

The courts know and respect the ultimate purpose of the Access to Information Act, which is to make information public. However, the rights of third parties must be respected and certain secrets, including trade secrets, must be protected. The courts, including the Supreme Court, have struck a certain balance in this regard.

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

Do you believe that enough government entities are subject to the Access to Information Act, or are there entities or agencies that are exempt and should be subject to it?

[Col (Ret'd) Michel Drapeau]

There are still some who are exempt, but not many. Over the past 10 years, more and more public organizations, including the CBC and Canada Post, have become subject to it. And, as you know, parts of the House of Commons, the Senate and the courts are now subject to the act. The right to know has advanced considerably in the last decade or so, and that is good.

On the other hand, the Governor General and the Office of the Secretary to the Governor General are still not subject to it, and I wonder about that.

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

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Drapeau and Mr. Villemure.

Mr. Green, you have two and a half minutes, please.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

I want to carry on in the spirit of the line of questioning of my friend from the Bloc with regard to potential interference with the access to information process.

There are many limits to enforcement due to confidentiality obligations. The Information Commissioner can only disclose information in the course of a prosecution or disclose to the Attorney General if there is evidence of a director, officer or employee of a government institution commissioning any offence against a law of Canada or of a province.

This excludes, however, ministerial exempt staff, consultants, and contractors hired by government institutions, and former directors, officers, and employees of government institutions.

Do you have any recommendations to address these limitations to enforcement?

[Col (Ret'd) Michel Drapeau]

Not at the moment. It's not something that I have paid particular attention to. I've come to live with this situation and have come to expect that some of those are excluded from disclosure.

However, if you look at the access regime as being allegedly universal, then I would tend to reach across to you and say that although that's probably a noble goal, this goal ought to be on you here, if any place. I haven't seen any movement among myself or colleagues to extend the right of access.

Of course, the ideal would be that it be 100%, but nothing has 100% coverage, whether it's within the court or even here in the House of Commons.

Those people, at the moment, are excluded, and the decision of whether or not to include them under the act belongs to parliament. That's where, I think, it is fair and proper that it be addressed.

[Matthew Green, NDP, Hamilton Centre, ON]

You have recommended restructuring the Office of the Information Commissioner so that it only serves its mandated investigative functions. Are there any specific additional functions of the OIC that you believe are currently hindering the capabilities of the investigative branch significantly?

[Col (Ret'd) Michel Drapeau]

I think the OIC has a big enough job to investigate complaints, and there are a sufficient number of them, about 6,000. Given its backlog, it wants to concentrate, to the greatest extent possible, all of its resources on investigating these. I don't see the need to provide the Information Commissioner with any additional tasks. Some other predecessors spent a significant amount of time and resources in presenting before this committee legislative changes that consume a lot of resources. Fortunately, we're beyond that at the moment.

I think the OIC should concentrate all of its available resources on the investigations and complaints to try to reduce, if not eliminate, the backlog. This will serve the ultimate purpose of the act.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Drapeau.

Thank you, Mr. Green.

We're going to move to five-minute rounds now.

We're going to start with Mr. Barrett from the Conservative Party.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks, Mr. Chair.

Thank you, sir, for joining us today.

You've noted previously on the topic of our discussions that the staggering delays in ATIPs can render them effectively useless. While we have heard that some may be perceived to be vexatious, though not found to actually be so, or perhaps someone might say some are frivolous, it's evident that government uses tactics to delay the information so that it's perhaps less damaging to them. What's the remedy for that?

I can give you an example, sir. One access to information request I filed, a very simple one, has been in process for over a year. One extension was sought, and then the department just simply stopped replying to me on requests for information on the status of that access to information request.

When there are apparent efforts by government, or those working in government, to not provide information because it's unflattering to the government, what's the remedy for that?

[Col (Ret'd) Michel Drapeau]

The remedy is with the Information Commissioner. You must have the ability to put a request in, and if your request comes as part of a pattern in a given department on a given subject with a given number of requests, then the Information Commissioner should have the ability to say she's going to be investigating this as a systemic complaint—that this subject or this department or the request from a specific user appears to be targeted for an absence of service.

I would expect the Information Commissioner to have the capacity, in fact, to react—not all the time, but react when such a need manifests itself—and be able to allocate some investigative resources or try to get to the bottom of it in defence of the reputation of the access regime, and also of your access rights.

However, at the moment, if you have the audacity to put in a complaint to the Information Commissioner, you'll have to line up and wait two years or more before you have an answer, whether or not your request is founded and whether or not it has been turned down or not addressed because it has been deemed to be vexatious.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

We've seen varying amounts of time the information will take to be produced. There was an article about a well-known case in which it would take 80 years to unseal RCMP records. The proponent articulated before his passing that he knew he would be dead before he got that information.

Is it reasonable that with a 30-day limit, these fulfillments are being stretched for years and even decades for simple requests? This is when the government is allocating tens of millions of dollars to the system with no noticeable improvement for those who are exercising their right to request the information.

What is the next step? What do we do now to address this? It's two years to make a complaint and 80 years to get your information, or a decade for them to do a simple keyword search on what a reasonable person would find were not confidential or sensitive documents. What do we do?

[The Chair, Conservative, John Brassard]

You have a minute.

[Col (Ret'd) Michel Drapeau]

My answer to you for that question, which I've published in my Macdonald-Laurier Institute article, is that the OIC, first and foremost, would be given a one-year limit to decide on the given complaint—one year. If within one year they haven't decided or they haven't completed it, then the user has the right to go to court. Then you have a real outline to provide you with the capacity to have your right respected, so go to court.

As I said, in the States there's no information commissioner. You put in a complaint to the agency where you first requested records, and if they don't respond to your request, then you go to court. In Canada, you have to line up and wait until the Information Commissioner provides you with a report of their findings. That could be six or seven or eight years, so hold the Information Commissioner to produce a report within one year. Surely they can do that, and they should. Then if they don't provide you the records that you're after, you have the ability to go to court in order to ensure that your quasi-constitutional right is respected.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Barrett.

We're going to move to the last five-minute lines of questioning now. Ms. Hepfner, you have the floor.