Information & Ethics Committee on Oct. 24th, 2022

[The Chair, Conservative, John Brassard]

I call this meeting to order.

Welcome to meeting number 41 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Therefore, members can attend in person in the room and remotely by using the Zoom application. Should any technical challenges arise, please advise me. Please note that we may need to suspend for a few minutes, as we need to ensure that all members are able to participate fully.

Pursuant to Standing Order 108(3) and the motion adopted by the committee on Monday, May 16, 2022, the committee is resuming its study of access to information and privacy systems.

Go ahead, Monsieur Villemure.

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

Mr. Chair, can you tell me whether the sound checks were done?

[The Chair, Conservative, John Brassard]

Madam Clerk, did the witnesses go through the sound checks?

[The Clerk of the Committee, Ms. Nancy Vohl]

We have only one witness, and he is here, in person, so there was no need for a sound check.

[The Chair, Conservative, John Brassard]

Merci.

Thank you, Mr. Villemure.

I would now like to welcome our witness today. Michel W. Drapeau is a professor in the faculty of law at the University of Ottawa.

The floor is yours, Monsieur Drapeau, for a five-minute opening statement. We'll follow that with questions and answers.

Please proceed, Monsieur Drapeau.

[Colonel, Retired) Michel Drapeau (Adjunct Professor, As an Individual]

Thank you for having me.

As a published author of an annotated legal text on access to information for the past 20 years, and as a frequent user under the access to information regime for the past 30 years, I've come across every frustration possible. However, I believe that today we have reached a new level. The right of access is now without a destiny, as it no longer serves its intended purposes.

Fortunately, there are some solutions at hand. I covered some of those in a recent article I wrote that was published by the Macdonald-Laurier Institute.

For the right to know to have any meaning, timing is everything. It is not only crucial, but it is also the most important factor in ensuring that the electorate has meaningful access to information in government records. Both transparency and accountability promises in public administration are meaningless unless swift access to records can be guaranteed.

Today the access process is increasingly bogged down in impermissible long delays, not so much at the federal institutional level but at the level of the Office of the Information Commissioner, whose sole purpose in life is to investigate complaints involving a possible contravention of the act. Let me explain.

Year in and year out, approximately 70% of the access requests are closed within the legislated timelines by federal institutions. This includes extensions. So that part of the ship is not yet at a critical level; far from it. However, at the level of the Office of the Information Commissioner, it is not unusual to wait a minimum of two years for them to complete their investigation of a complaint. To illustrate, let me give you three examples experienced by my own law office during this month of October.

Over the past three weeks, my office received results from the Office of the Information Commissioner for a complaint filed in 2012, and another one concerning a complaint filed in 2018. During the same period, an OIC investigator advised us that she had just now been assigned to investigate one of our refusal complaints that had been filed in 2020. By the time that investigation is completed, we will have been waiting well over two years to get the results, and maybe to get some records.

These are not isolated cases. They are typical of the responses being experienced with our complaints.

Such delays are unacceptable because they have a very negative impact on users. What's worse is that users have no recourse except to wait, since the law dictates that the OIC must first publish its investigative report before the complainant can apply to the Federal Court. Fortunately, however, the time taken to be heard by the Federal Court is measured in months, not years like the OIC.

In my opinion, there is an urgent need to have the Auditor General conduct a system-wide audit to ascertain whether there are sufficient resources at both the Office of the Information Commissioner and the federal institution level to respond in a timely manner to users exercising their right of access.

In the 39 years since the access regime has been enacted, there has never been any such audit of a system that consumes $90 million a year.

First is the information office, the Office of the Information Commissioner. The office is currently funded with a staff of 93 to accomplish the single task of an investigation of complaint. To perform that task, its senior leadership team is currently composed of one commissioner, three assistant commissioners and five senior executives at the EX level. This is one senior executive for every 10 employees. This seems to be a particularly top-heavy organization.

Further, more than 50% of the allotted personnel at the Office of the Information Commissioner are employed in leadership, management, legal and public affairs functions, leaving only 40 investigators to handle complaints. There's a reason we're waiting so long.

Separate and apart from a system audit, I think there's also a need to consider whether the OIC should be subject to a time limit to respond to a complaint. In my estimation, I propose a one-year limit on the OIC to submit a decision.

Second, there is a need for the Auditor General to review whether each federal institution is properly staffed to undertake the volume of requests.

Additionally, there is a need to revisit the current 30-day calendar. My proposition is to modify the act to enable federal institutions to respond within 30 business days as opposed to 30 calendar days. This might significantly improve the performance level of institutions. We're waiting, in any event, 45 days and more to get a response for a single request, so why not adjust the time factor to make it more convenient and more realistic?

Having said that, I'd be happy to respond to your questions on any of my recommendations.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Drapeau.

We did allow for a little extra time during your testimony. You're the only witness for this session and we wanted to hear what you had to say. I appreciate that, sir. Thank you.

We're going to go to a six-minute round first.

Mr. Kurek, you're up.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you very much.

Thank you to the witness for joining us here today. Also, if I could note, thank you for your service to our country in the armed forces. I know that the work you do in your law practice is unique in this country, so thank you for that.

Access to information is fundamental to democracy and accountable government.

On October 17, the Macdonald-Laurier Institute published an article that you wrote, entitled “Access to information: A quasi-constitutional right in peril”. You listed six steps for ATIP reform, three of which you believe can be implemented immediately.

I'd like to give you the opportunity to expand on those six as quickly as possible, and as I know time is limited, specifically on those three that could be implemented immediately.

[Col (Ret'd) Michel Drapeau]

The first one is that last year, 52% of the access requests overall were directed to Immigration, Refugees and Citizenship Canada. It was an explosion of requests that I had never seen before. There were 145,000 directed to that particular department.

I think it would be fair to say that it's a bit of an abuse of process. Access requests are not designed to provide records or access to records to applicants for immigration and so on and so forth. There is a less complex, less busy, less procedural system that could respond to their need to have access to their records. That will unburden the access regime.

If we go back two years and use that as a typical year, then I think the system is reasonably equipped to deal with it. Last year was unprecedented. It also resulted in—

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

I'm sorry. My understanding of the system is that the RCMP faced a similar challenge when it came to a change in administrative process regarding records as well.

[Col (Ret'd) Michel Drapeau]

It did, but not to the same extent.

At the same time, the Information Commissioner received 10,000 complaints, as opposed to the 5,000 or 6,000 they would have in a normal year. You have a system that's bogged down at the federal institution level and the OIC.

Last year was a disaster year. It was basically that all parts of it were off. If you can take 52% of the requests and use a more administratively friendly request that doesn't have the kind of impediment, the kind of restrictions or the kind of exemptions that the access act has, it will bring it down to a more measurable level and something we can do.

That's my first recommendation. We can do this. I think they are working at the moment on a way to develop an alternative approach within that particular department. They should be pressed to do that.

My second recommendation—I'm trying to go through them quickly—is you should get the Auditor General to do a report. Each department basically begs for assistance—each ATIP section within a given department—from the deputy ministers in order to get sufficient resources to meet the volume of requests that they get year in, year out. In some cases, they are successful. In other cases, they have to line up, because the department is short of resources.

We—this committee, or even the OIC— have absolutely no idea at the collective level of what a fair number is or the type of people we need at each institution to handle the volume that we have. Through time, we'll come up with it.

I'm using the RCMP as a good case in point. They are grossly understaffed. As a result, as users, when we try to get access to records in the pursuit of sealed litigation or in the pursuit of interests of the clients who come to us, we have to line up for months, and sometimes for years, before we have it. If we get ahead of the queue, we're only displacing the problem someplace else.

I think the Auditor General ought to do a review, a system audit, to see whether or not we have an adequate number of people and to see what that number is.

Before we can impose upon each one of those ATIP coordinators the type of criticism we see in annual reports, and sometimes in the media and so on, that they're not doing their job.... I think they are doing as good a job as they can be permitted to do with the personnel that they have. As I've said, 70% of the requests are responded to within the established deadlines.

The third point is user fees. At the moment, one pays $5 to submit a request. That $5 amount was instituted back in 1983. In today's value, that's $15. To me, spending $90 million of public funds—this, of course, without any contributions from the users—is passé. I, as a frequent user, don't mind paying, because I'm getting a service for free at the moment. Not only am I getting a service for free, but in 2015, the then-government made the access regime much friendlier than it was. At the time, before 2015, you had to pay so much if your request generated more than five hours of access search time. If you had to pay for photocopies—

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

I apologize. I'm basically out of time.

I'll request that the you submit that article to this committee, because I know it unpacks some of those things. I look forward to the other questions, but if you would be willing to submit that information, I think it would be very helpful.

I am out of time. That's the challenge we face here.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Kurek.

For the next round, we'll go to Ms. Khalid for six minutes.

Go ahead, Iqra.

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

Thank you very much, Chair.

Thank you, Mr. Drapeau, for being here today. We really appreciate it.

I will continue down the path of what you were just talking about with respect to user fees. In 2016, you stated that you don't believe there should be any fees, but now you're saying that the fees should be adjusted to the cost of inflation.

Can you help us understand how you got to that conclusion from where you were in 2016?

[Col (Ret'd) Michel Drapeau]

It's truly from a practical perspective. I'm in the business of law. We have deadlines that we are facing. We have to go to court and to make a plea. I use access on a regular basis in the pursuit of our files, whether they are for military or veterans or whatever. I depend on it. I have a quasi-constitutional right to have it, but as I said, that right is in peril. I'm not getting any results. I'm not only not getting the records I'm after, but if I were to make a complaint, I would have to line up for two or four or six years.

By having a fee—a genre de ticket modérateur—perhaps fewer people, or those committed to using the access act for their own personal needs, would be prepared to pay a minimum fee. That will, in fact, increase the possibility of the deputy ministers increasing their staff responding to it because it is a public service.

Most provinces charge a fee. It's in excess, in fact, of what I'm proposing. I, as a business, even propose that we could be charged a little bit higher fees if for no other reason than to accelerate the process and for no other to reason than to respond truly to what is a quasi-constitutional right. At the moment it's not.

Christmas is upon us soon. I don't expect that the staff in a federal institution or the information commission will double overnight. It won't happen. One way to do it is perhaps have the user pay for some of the services. It's nowhere near $90 million, but it's going to discipline the process and at the same time provide some welcome financial relief in these days.

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

Thanks very much.

Continuing on that, you did mention the ever-increasing number of requests for information that you're receiving now.

How many of those requests for information do you believe are vexatious or frivolous and clogging up the system? I know Mr. Kurek has said before that he's put forward 300 requests for information. How does that equate to how effective your office is?

[Col (Ret'd) Michel Drapeau]

I don't know. I frankly don't know. The Information Commissioner may know.

Up until the recent amendment to the act, one could not qualify any of the requests as vexatious. The federal court of appeal had long ago declared that the motive of the requester is immaterial. Regardless of his motive or the frequency of it, you had to respond.

That has been disciplined from the last time the act was amended. I think it can be disciplined more, for the benefit of the user community that uses it for a practical, honourable purpose, by having a fee. That's my approach to it.

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

You think that increasing the fee would limit some of those vexatious claims.

What is the impact of having an online button now so that people can file their claims online? How is that impacting the number of claims we're receiving?

[Col (Ret'd) Michel Drapeau]

I don't know. The Information Commissioner should be able to answer that.

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

You mentioned in your opening remarks.... I missed the number. I thought I heard that about 60% of the requests relate to IRCC.

[Col (Ret'd) Michel Drapeau]

Can you ask the question again?

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

You mentioned in your opening remarks that about 60% of the total that you receive are with regard to the immigration department. Is that correct?

[Col (Ret'd) Michel Drapeau]

This year and this year only, 52% of requests were submitted to that particular department.

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

Do you think there's a correlation between the number of requests you get per department and the delays or the backlogs within service delivery within that department?

[Col (Ret'd) Michel Drapeau]

I don't think so. I think, historically, for the past 30 years and more, the departments that received the highest numbers tended to be the same from one year to the next. CRA is one. The Department of National Defence is another. The RCMP is another. Those departments tend to rank within the first five.

I don't think that the climate or the public issues have had a dramatic impact upon the volume of requests received by each one of these departments.