Information & Ethics Committee on Oct. 26th, 2022

[The Chair, Conservative, John Brassard]

I call this meeting to order.

I want to welcome everyone to meeting number 42 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 Thursday, June 23, 2022. Therefore, members are attending in person in the room and remotely using the Zoom application.

Mr. Villemure has assured me that the sound tests have all been completed with the witnesses.

Should any technical challenges arise, please advise me immediately, and please note that we may to suspend for a few minutes as we need to ensure that all members are able to formally participate.

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

I'd like to now welcome our witnesses today.

We have Mr. Ken Rubin, an investigative researcher and transparency advocate, who is appearing as an individual. From Canadians for Accountability, we have Mr. Allan Cutler, who is the former president. From Democracy Watch, we have Mr. Duff Conacher, who is the co-founder.

Mr. Rubin, the floor is yours for a five-minute opening statement, sir.

[Ken Rubin, Investigative Researcher and Transparency Advocate, As an Individual]

Thank you, Mr. Chair and members of the committee.

Your committee has invited me to give testimony about the state of access to information in Canada. Let me share my experiences with you. This is the 15th review, by the way, and I have given over 15 presentations on this topic out of some 40 or more to Parliament on public interest matters. I've been around the block.

My public interest quest to get access to information records started a decade and a half before the Access to Information Act regime was adopted 40 years ago. All that the access legislation that was adopted did was place more roadblocks in the way for me and others who are intent on exposing how Ottawa really operates.

Since the Access to Information Act's passage, officials have been saying, with a straight face, that the act has always worked pretty well, needing only occasional minor tweaking. Its most consistent need, they say, is for more millions of dollars—for them, of course—but those extra resources received unfortunately go to further propping themselves up while only permitting Canadians to receive severed materials that lessen our freedom to know.

I offer some evidence of how such rigged access mainly serves the vested interests of those wanting Canadians to know very little, if anything.

The first is hiding unmarked children's graves at disgraceful, racist residential schools. Second is covering up bribery and influence, from the CPR scandal to the sponsorship mess to the current SNC-Lavalin debacle. Third is ignoring for far too long Hockey Canada's, the armed forces' and the RCMP's disgraceful conduct of turning away from handling—and even encouraging—sexual assault and injury cases, all done under the eyes of government officials. Fourth is repressing the public knowing about the workings of the bread price-fixing scandal and downplaying the high-pressure sales stakes Canadians face at the big banks as the banks make record-breaking profits. Fifth is keeping Canadians in the dark about policies that give us the highest cellphone prices in the world, and about the behind-the-scenes lobbying that has given Canadians some of the highest drug and food prices in the world. It's hard to get at those things.

Further, it is more than sad and disgusting that our frontline health workers did not get fuller information and less confusing data from authorities during the pandemic. I personally witnessed the suppression of whistle-blower information of the kind Pierre Blais and Shiv Chopra had when they tried to alert the public of health hazards, and I received severed records after delays and complaints about officials actively assisting and funding the lethal asbestos and tobacco industries in Canada and abroad. I've seen highly redacted records—having gotten the consent of Maher Arar and Monia Mazigh—in which authorities' twisted misinformation led to the rendition of Maher Arar to Syrian torturers.

I and others have fought for records that highlight the wasted billions of dollars spent on information technologies that barely work. Just see the partial revelations coming out about the millions poured into the ArriveCAN app while cheap, known alternatives were ignored.

All of this is made possible because of a system of oppressive cabinet confidences; policy, legal and economic advice; commercial confidentiality; and the sleight of hand that buries, for instance, the real costs and beneficiaries of large contracts, like the multi-billion-dollar combat naval ship program.

[The Chair, Conservative, John Brassard]

You have one minute, Mr. Rubin.

[Ken Rubin]

Ours is a relatively young country, but we are well known for our secrecy and corruption worldwide. Canada places low down when ranked for disclosure capabilities. Other countries, however, like New Zealand, quickly release cabinet records.

I've suggested many solutions, but they've been ignored. What we need is an automatic, quick, thorough disclosure, guaranteed under freedom of expression and constitutional rights, and a duty to serve and strong penalties built into right-to-know legislation.

Let's get on with ending the culture and corruption in Canada so that we can get real data and not spins and spits of information fed to us by the feds. No doubt, though, I and others still will have to make use of our greatly improved right to information should that happen. Otherwise, as in the past, I and others will continue struggling to get tidbits of data against many odds and barriers.

More need to join us. As my website says, “What people do not know can often hurt them.”

Finally—

[The Chair, Conservative, John Brassard]

Thank you, Mr. Rubin. I know you have a lot more to cover—

[Ken Rubin]

Just a final paragraph...?

[The Chair, Conservative, John Brassard]

Okay. I'll give you another couple of seconds.

[Ken Rubin]

It's your turn and Canadians' turn to pull back the curtains and make us truly have the right to information, as should be the case in a real democracy.

Thank you very much.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Rubin. I'm sure there will be lots of questions for you as well.

Next we have Mr. Allan Cutler, from Canadians for Accountability.

Mr. Cutler, I understand that you're not working off notes. I'm just going to ask that you speak clearly, legibly and slowly, so that the interpreters are able to follow you.

Thank you, sir. You have five minutes.

[Allan Cutler, Former President, Canadians for Accountability]

Thank you.

Unlike Mr. Rubin, I'm not going to talk about what needs to be done. I'm going to tell you how it exists and the reality of the situation for whistle-blowers, for people who are trying to find out what's going on.

ATIP is supposed to help, not be the guardians of the castle drawbridge who won't put it down. They're supposed to help, and they don't. Many ATIPs, and I've had this experience, are over a year old. I have one right now that is five years old. The statement I have from them is that they don't know when they'll get around to it; they have other priorities. That tells you the way they look at ATIPs.

I have also had an ATIP officer just bluntly say that if you have a problem, complain to the Information Commissioner. Why do they say that? It's because they know that the Information Commissioner is so overloaded that it could be two to three years before she or he and their executives get around to looking at the situation. You have a real problem.

Michael Dagg unfortunately has passed away now, but he was very active in the ATIP industry. I have a copy of a letter that was sent to him by archives. I have two letters, actually. One was on a particular request. They said they needed a thousand-day extension beyond the 30-day statutory time. The second letter I have is the one telling him it would be an 80-year extension. They put it in writing that it would take 80 years to get him the information.

The other thing that goes on is this. Michael and I were both dealing with Brad Birkenfeld and the Department of Justice in trying to get the documents that Brad gave them in 2008. We even had letters that said we were authorized to get the information. The Department of Justice would not give us the information. At two different times they said there were zero files. Another time they were suddenly up at 6,000-plus files. They were all over the place.

Finally, I asked them why they now, eight years later, have sent documents to CRA. All of a sudden there was this access request that came in from CRA, and they answered it. Well, they must have told CRA what to write. I asked them why they had sent it after eight years of doing nothing with it. They just simply said to me, “We don't understand the question.” I'm waiting for documents to tell me why they just sat and did nothing: “We don't understand the question.” That tells you the attitude they have. Of course they don't want us to have the information at all. They are really avoiding us.

ATIP officers are supposed to help, by legislation. They don't. For example, an RCMP officer says to me, “The ATIP branch does not answer questions. If I say I'm looking for particular information on a document, it's, 'If you have questions that you need to answer, route them to the media relations office.' ”

The other thing is that when I say what I'm looking for, I hear, “That's information. If you would tell me the document....” But I can't tell you the document. I can tell you what I want and what's on the document; I just can't tell you it's document 4 in this file. How am I to know that? The RCMP just turned me down—oh, and that one has gone to the Information Commissioner. It's in abeyance. It's been about a year now. Eventually it will get looked at. I know that.

[The Chair, Conservative, John Brassard]

You have one minute, sir.

[Allan Cutler]

Okay.

Quickly speaking, whistle-blowers can't wait for these long delays. They don't go through access anymore. There's no point. They're exposed. The longer it sits as a request, the more likely it is that they are going to be spotted and exposed, so they don't want to go there. They won't go there anymore. We do everything we can to work around it. We don't do that.

As Ken said, when we get the information, it's vetted to the point of uselessness. Let's say you get an access; you get this huge stream of exemptions. One, I'm not a lawyer, so I'm not able to look at what all these exemptions are. Two, I'm not allowed to challenge an exemption, because I'm not allowed to look at what the information was that was part of the exemption. Again, it's back to the Information Commissioner: Wait in line. Suffice it to say that it's broken.

The external whistle-blowers I use and I deal with nowadays say—and more than one has said to me—there are long delays and documents are being destroyed. They consider government corruption just part of doing business now.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Cutler.

I don't want to sound rude to any of our witnesses, and certainly not to any members of the committee, but as the chair I am going to get into the habit of giving one-minute warnings on the time—and we'll do that as we go around as well—to be fair.

Next is Mr. Duff Conacher, the co-founder of Democracy Watch.

Mr. Conacher, you have five minutes for your opening statement.

[Duff Conacher, Co-Founder, Democracy Watch]

Thank you very much, Chair and committee members, for this opportunity to appear before you today.

Like Ken Rubin, I've been here several times before on this and other issues, and on this issue it was dating back 20 years. What I'm going to do today in my statement is summarize 18 key changes needed to the act and the enforcement system, and then I'll welcome your questions about them.

The 18 changes are mainly based upon this committee's unanimous June 2016 report, the former information commissioner's March 2015 report and the current commissioner's January 2021 report, which have all called for key changes and, of course, the December 2021 report by the government, which was the result of its public consultations conducted last year that made it clear that all stakeholders support 10 key changes.

The first changes needed are to the rules. The Access to Information Act is broken, as all of these reports and the two other witnesses have noted.

Initially it should be changed to cover fully all government institutions, publicly funded institutions and public-purpose institutions, including cabinet offices. That's been recommended by many stakeholders and experts and commissioners. As well, the other recommendations I'll be going through have also been called for by stakeholders for years.

Second is to require every institution to create detailed records of decisions and actions. There's no reason that this cannot be done and uploaded onto a searchable website as meetings and communication decisions are ongoing in government. It's very simple to do and to set that up as an electronic system.

Third, there should be routine disclosure of not only those communications, meetings and decision-making processes, but of all records online that can be disclosed and are in the public interest to disclose. There should be routine disclosure on a searchable online database, which would reduce the need to make requests.

Fourth, there should be requirements for all institutions to respond to access requests as soon as possible, with permission required from the commissioner to extend beyond the 30-day time limit and a maximum extension of 60 days.

Number five, all exceptions to disclosure should be clearly and narrowly defined, and limited to areas in which secrecy is actually required in the public interest.

Number six, the commissioner should be allowed to review all denials of disclosure and to order disclosure if it would not cause harm or is in the public interest. If records are not disclosed because of a public interest exception, they should be required to be disclosed no longer than 20 years later, and less than that for cabinet records.

Number seven is that anyone who does factual or policy research for the government in an area not covered by an exception should be allowed to speak to the media publicly about the topic, their findings and their conclusions without being required to first seek approval from anyone.

Number eight, the act should be changed to allow for filing of an access request from anyone, even if they don't live in Canada.

Number nine, the $5 request fee should be eliminated and institutions should be prohibited from charging search fees for records that have not been maintained in a way that facilitates access.

However, no law enforces itself, so changes are needed to strengthen the enforcement. The enforcement system has been revealed to not be strong enough to stop delay and denial of the public's right to know.

Therefore, as number 10, the commissioner first should be given explicit powers to require systemic changes in institutions to improve compliance with the act, including managing records effectively.

As number 11, the commissioner should be empowered and mandated to penalize violations, with a sliding scale of fines depending on the seriousness of the violation, for things like intentionally obstructing access, not creating records, not maintaining records properly or delaying responding to a request.

[The Chair, Conservative, John Brassard]

You have one minute, Mr. Conacher.

[Duff Conacher]

Thank you.

The number 12 recommendation is that the penalties should include, for government officials attempting to escape penalties by resigning or retiring, loss or partial clawback of any severance or pension payments.

Number 13, the commissioner should be required to issue a public ruling on a searchable website for every complaint they receive and every situation they review, and there must be a clear right for any member of the public to appeal a decision to court.

Number 14, the commissioner is currently chosen by the ruling party cabinet through a secretive partisan process. The Federal Court of Appeal has ruled that the cabinet is biased when making these kinds of appointments. A fully independent, non-partisan appointments commission should be established to search for and nominate qualified candidates that would be approved by an all-party committee of the House for these kinds of positions.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Conacher.

[Duff Conacher]

In answering questions, I'll also go into other key changes to ensure adequate resources and strong enforcement that's timely and effective to protect and uphold the public's right to know.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Conacher.

Before we start our questioning, I've been advised that there will be votes at 5:50, which means bells are at 5:20. When the bells ring, I'll seek the guidance of the group here on what we want to do. My preference is to get through the first round.

Go ahead, Mr. Barrett.

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

Mr. Chair, I'm wondering if you would find consensus around the table for us to try to complete two rounds by 5:40, which would give members 10 minutes to get to the House—I'm not sure if that's enough time—at which time you could potentially adjourn the meeting with all parties having had two full rounds.

Instead of interrupting at 5:20, once the bells ring, perhaps you could canvass the room for that.

[The Chair, Conservative, John Brassard]

I'll seek consent of the room for that. That's fair, so we'll get through two rounds. That means I'm going to stick to tight timelines here.

Mr. Kurek, you have six minutes in the first round, followed by Ms. Hepfner.

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

Thank you very much, and thank you to the witnesses. Before I get into my questioning, I would just note for the witnesses to feel free to send further information, including specific recommendations. I know that a number of them have been outlined here today.

I have a couple of yes-or-no questions to all three witnesses in fairly rapid succession.

The first question is, “Is an effective access to information system essential in a modern democracy?”

We'll start with Mr. Cutler.

[Allan Cutler]

Yes.

[Ken Rubin]

Definitely.

[Duff Conacher]

Yes, very much so.