Information & Ethics Committee on Nov. 21st, 2022

[Kirk LaPointe]

Yes, they have that full right.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Are there any other countries or jurisdictions that you believe Canada should emulate when we look at access to information legislation—other best practices worldwide?

[Kirk LaPointe]

I've used the American law hundreds of times, and I think there is simply a different culture of disclosure in the United States with it's government. There is, I think, kind of an inherent...whether it's libertarianism or a certain suspicion of the power of government. As a result, it's freedom of information law, which predates ours—I think it goes back to 1971—is a far more fulsome provider of information to the public.

As journalists, we often will ask for the same information on both sides of the border when there is a cross-border issue, and the Americans always come out on top in terms of providing information, so at least.... I like many aspects of the American law and its culture.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you. That's very helpful.

What aspect of the current access to information regime do you believe creates the most barriers for journalists in this country?

[Kirk LaPointe]

Oh, I don't know. I think there's a 15-way tie for first place on that one.

I don't know that there's necessarily one that is a barrier. It used to be cost. Now, I think it would be delays, because the act seems to serve as a slightly better tool of history than of journalism. I think that, in some cases, even the disclosure of all requests by individual departments serves as a little bit of an impediment, because it permits other researchers and other journalists to see what has been requested. As a result, a great many investigative works that are done by journalist organizations will try to find other ways to secure that information, that access to information, so as not to, essentially, tip off the competition about what is going on.

It's a small price to pay if the larger reward is that we get faster service in all of this, but I would say delays are now the largest issue for us.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Okay.

You've lived and worked right across Canada. Do you see any regional variation, for example, being in British Columbia? Do you see access to information playing out differently in the regions, or does it have the same impact right across the country?

[Kirk LaPointe]

Well, when it comes to the cabinet confidences, in British Columbia they are 15-year confidences. They're not 20 years, the way they are federally. That permits us to look at records that cabinet would have deliberated on or decided upon earlier; we can go back 15 years.

One of the central problems is that outside of that Toronto-Montreal-Ottawa window, the law isn't used all that much out here. My counterparts out here barely use the federal law. We use provincial and municipal laws here in order to gain access to information. I think that should tell us something, that there is generally a belief that the law doesn't work and so it's not worth trying.

It used to be that I could walk into someone's office and talk about the requests I had with them, and deal with them locally on something. Now, of course, that's an impossibility being three time zones away. I think other researchers out here just shrug and don't use the law.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

That's very helpful.

This is my final question, because I know the chair of the committee will be shutting me down shortly.

Should more information be provided to Canadians on how the process works, how to handle responses, so that generally Canadians can also have a better understanding of the access to information regime and how to navigate it?

[Kirk LaPointe]

I teach it, and I can tell you that in three hours, it's very difficult, even with graduate-level students, to walk them through the process. I can only imagine what it's like for a typical citizen to try to wade through all of this.

Tutorials, any number of videos, any number of how-tos, I think would be helpful for the average citizen to try to work through it. Quite honestly, I think there ought to be almost the equivalent of a help desk in order to help people frame their requests so that they're going to be well received.

I know of instances where groups of public servants have gathered around a request on a table and decided the words that were essentially tripwires to permit them to not disclose material. I think, again, it's something that would assist the public in order to do it. We have all kinds of other government help desks to help you file your taxes and do a number of things. This ought to be one of those as well.

[The Chair, Conservative, John Brassard]

Thank you, Mr. LaPointe. That was a little more time than usual.

We are now going to the second round. Each member will have five minutes to ask questions.

We'll begin with you, Mr. Gourde.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

Thank you to the witnesses here with us today. Your presence is very important to us.

As part of government activities, decisions are no doubt made every day. When Canadians or journalists want to obtain additional information about certain decisions or actions, they use the Access to Information Act. Unfortunately, the responses received are all too often redacted or don't say much.

Do you feel that there has been an overuse of redaction to hide information that is really not in any serious need of being protected?

Here, we can get on with our work. If there is abuse somewhere, we can invite people to appear to explain themselves. We often, in fact, agree with people who come here to explain why they made certain decisions. On the other hand, the fact that so much information is hidden may perhaps explain why people are so disenchanted with the public service.

Could each of you in turn tell us if the amount of information being hidden is excessive?

Let's start with you, Mr. Wernick.

[Michael Wernick]

I think that people in good faith in the departments are trying to comply with the requests and then sort out the various exemptions and reasons why there would be a need for confidentiality or withholding. It could be legal advice. It could be something like evidence in a harassment complaint, evidence given by residential school survivors in an adjudication hearing, tax returns and business.... There are all kinds of reasons.

I agree with Mr. LaPointe that the onus of the law could be flipped to disclose unless and justify that, but that means you need some precision about definitions around national security, cabinet confidences and so on, but I do think the regime could be flipped over.

I do want to make the point that journalists are not the only users of the act. They are, of course, important ones. Ultimately, this is for citizens, voters and taxpayers, but the act is heavily used by brokers and resellers. It's used by lawyers suing the government. It's used by lobbyists and special interests trying to block a government initiative, or torque legislation or regulation. It's heavily used by businesses trying to get information on their competition, and it is used by foreign governments.

We can't be completely naive about the purposes of access to information requests and the need to do careful screening at some point in the process, but I do agree that it could be flipped over to an onus to disclose unless.

[Kirk LaPointe]

I would agree with Mr. Wernick about, of course, the usage. I would say, however, that probably one of the reasons journalists only comprise around 10% of the user base of the law is that they feel frustration with it, and they largely just don't try.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

In your statement, you made a number of recommendations. Of these, which would like to see included in the committee's report if you had to choose just two or three?

[Michael Wernick]

I believe that for a system to be transparent, there are two important factors. The first is a legislative framework that establishes all the obligations and practices for proactive disclosure.

There is nothing stopping the next government from rolling back, curtailing or making exemptions from all of these practices of proactive disclosure. You should put it in the law and make it painful to repeal and painful to backslide.

I think adding proactive disclosure to the act would be helpful. I agree with Mr. LaPointe that giving the commissioner a help desk function would be useful to assist Canadians in making requests. I think it's very important that the act be extended to taxpayer-funded political staff.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

And what about you, Mr. LaPointe?

[Kirk LaPointe]

I would simply repeat a couple of them that I think are the most important ones.

One has to do with the sense of delay and the investment that's necessary in order to make sure there is the infrastructure to make the provision of the law more efficient.

The second part, I think, would have to do with proactive disclosure across a wider range of documentation and records to make sure that journalists and other researchers don't have to resort to using the law for things that ought to be rather routinely available.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Gourde.

Next I have Ms. Saks.

[Ya'ara Saks, Liberal, York Centre, ON]

Thank you, Mr. Chair.

I'm going to follow along the lines of my previous colleague.

Mr. Wernick and Mr. LaPointe, you both mentioned that not only journalists access ATIP requests, but it could also be historians, researchers and individuals who are looking at legal cases. Canadians have lots of questions, not just about the issues of the day but about the historical issues of the past when they file for ATIP requests.

In August of this year, B'nai Brith put out a statement that it had submitted an ATIP request about Nazi war criminals who had potentially entered Canada and whose names had been reviewed under the Deschênes report commissioned in 1985. They put in an ATIP request for all of those names and the background information of that report. Their request was denied and deemed unreasonable because it would take an estimated 1,285 days, more than three and a half years, to answer the documentation of their request, so here we have a situation of historical record in archives.

Mr. Wernick or Mr. LaPointe, whoever would like to start, do you have any suggestions as to how we manage questions and requests like that, which are of a historical interest to communities or also potentially have legal ramifications?

[Michael Wernick]

No government that I've ever worked for has really taken record storage management or retrieval seriously. I worked as the deputy minister at the department of aboriginal affairs, and we were often called upon in litigation and other proceedings to go back to documents from the last century and the century before.

I don't know how you imagine that government record-keeping works, but it's scattered across over 300 organizations, thousands of work places, and different technical formats. Some of it is on paper, and some of it is in the software of the 1970s and 1980s. There has never been a serious investment in digitizing and catching up on historical records. They are the hardest to manage and retrieve, and they don't lend themselves to scanning for search words and keywords. There's a very expensive, labour-intensive, manual process involved in going back to anything that's more than about 20 years old.

[Kirk LaPointe]

It's my hope that as we start to get greater and greater machine learning in AI.... I know that we're seeing some research out here on the west coast from our universities about how certain documents will be able to be scanned and read with it, but we're still some time away. All you can start to do now is to build a better system that is going to enable better record-keeping and more clearly accessible record-keeping. Then you have to catch up later on what has been filed across, as Mr. Wernick says, 300 different organizations.

[Ya'ara Saks, Liberal, York Centre, ON]

Thank you to both the witnesses.

Barely a month before this news release by B'nai Brith, the Information Commissioner's special report on archives made light of an interdepartmental working group to advise on proactive declassification of historical records as part of its thought process.

Again, it's almost like it's all being funnelled through this one channel of ATIP. Would there be any wisdom in having some kind of classification process of priority records or the types of records being asked for so that they could be better managed, especially when it's interdepartmental communications that are being sought or historical records? Do you have any thoughts on that?

[Michael Wernick]

I think you could weave some of that language into a proactive disclosure chapter of the act if there is a part of the act that covers proactive disclosure and there's an onus to disclose unless you can provide a reason not to. Subject to the limitations of the records system, some of that would speed up considerably.

[Ya'ara Saks, Liberal, York Centre, ON]

Mr. LaPointe, do you have anything to add to that?

[Kirk LaPointe]

Having used [Technical difficulty—Editor] national archives many times, I can say that there probably is some kind of a relationship between ATIP and archive law to facilitate, perhaps, a greater declassification of records as they enter the archives.