Information & Ethics Committee on Nov. 23rd, 2022

[Mike Larsen]

Our remarks today are based on a comparative scan of the provincial freedom of information and access to information mechanisms, with reference to some international ones.

One of the things we find as a standard for robust and effective transparency laws is the inclusion of a public interest override that allows for information that is deemed to be in the public interest to be released—indeed, requires it to be released, in some instances proactively released—and overrides exceptions and exemptions that would otherwise apply to certain categories of information.

There are lots of instances in which this could arise, but it's been reported that this is one of the defining features of meaningful transparency laws, and we do want to see this in Canada. Right now we do have, in the Canadian Access to Information Act, a very limited public interest override in section 20 that pertains exclusively to third party information, so expanding that at bare minimum to cover all of the other grounds on which information can be withheld would be a really important step in the right direction.

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

I appreciate that.

I want to switch gears a little bit.

Mr. Larsen, technology has changed a lot, and we see a massive increase in the types of communications. Of course, it used to be files in filing cabinets and letters sent between departments via messengers and that sort of thing. Now we have a wide diversity of what communications look like, especially within government.

I am wondering if you have any comments about how access to information should be updated in light of the widening scope of types of communication and some opportunities to make access to information better when it comes to utilizing technology databases, proactive disclosure and things like that. I'm going to ask you to answer in 30 to 45 seconds.

Then I have a couple of questions for Mr. Barnes.

[Mike Larsen]

Excellent. I'll keep this very close.

I think it's a good idea for the committee to look at New Zealand's Public Records Act of 2005, which embeds a requirement for the documentation of government work. It requires that people who are working for government create and maintain adequate records of their activities.

There are a variety of ways to go about doing that, but I think not only a legislative requirement is needed, but also a standard, so that there isn't an ad hoc approach that deals with each new emerging kind of technology. It seems that we're always chasing new technologies rather than having a standard that we use for documentation. That would certainly be a starting point.

I think modernizing the systems we use for information management is a vital component of this entire process here, so that things are easily searchable and retrievable. Have things like an organized information architecture that incorporates new forms of technologies, including the ones we're using today. Expand the idea of “record” notionally beyond the idea of textual documents, because of course the act applies to all manner of different kinds of records. Make sure that people are easily able to not only store those records and organize them within government but actually understand what is available and be able to access them from the outside too.

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

Thank you. I apologize for having to cut you off, but time is short. If there's any further detail, please feel free to submit it, including specific recommendations.

Mr. Barnes, with your unique experience around declassification, I'd invite you to provide for the committee—in about a minute—some context on the processes you would recommend be adopted to ensure that there is an adequate and appropriate framework for declassification within Canada.

[Alan Barnes]

In fact, that's a huge question, and it's exactly what the declassification project has been working on for the last couple of years.

I think there needs to be, at the first instance, a much clearer idea within government of what is actually sensitive and what isn't. Right now there is really no guidance within the Canadian government on the classification process, which is different from our allies.

In the American situation, there are manuals of a couple of hundred pages saying what is sensitive and how it should be classified. That doesn't exist in Canada.

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

If I could just ask a quick, practical follow-up, who writes those manuals in our allied jurisdictions?

[Alan Barnes]

In the U.S., it's the Director of National Intelligence. They have a much more robust structure for organizing their community.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Kurek.

Ms. Laba has had to take some time away from the committee meeting for other business, so she's no longer on the call with us at this moment. I just wanted to make the committee aware of that.

Next I have Mr. Fergus for five minutes. I will remind Mr. Fergus that we did leave off with an unanswered question from Ms. Saks that I'm sure she would like to have responded to by Mr. Barnes.

If you want to take some time to do that, I will give you a little extra time. Thank you.

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

You're very generous, Mr. Chair.

Mr. Barnes, do you recall the last question from my colleague, Ms. Saks?

[Alan Barnes]

Yes. You were talking about some other mechanism for addressing large requests.

I must say that I have been somewhat critical of LAC, and I think it's for good reason. At the same time, I think LAC has been trying, with some positive steps.

With these very large requests, I think if there is discussion between the requester and the institution, there is often great scope for focusing on what is going to be most useful for the requester.

The Information Commissioner now has some scope to weigh in on the question of vexatious requests on so on. I'm not sure if your question relates to that sort of situation. There is a mechanism to address that.

I think, to a large extent, the most effective way to do that is by having a useful exchange between the requester and the institution.

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

Duly noted, Mr. Barnes.

In the same vein, in our last meeting, Mr. Wernick, the former clerk of the Privy Council, testified here. He made reference to the fact that he would want us to be very concerned about narrowing the scope of the national security exceptions to the release of information. The reason was that there could be foreign bad actors who would be quite happy to understand what the process was or what the sources were of Canada's information.

Mr. Barnes, given that you worked in the domain inside government and now you're outside seeking rightful information, I think you could provide this committee with a balanced view on this aspect. Do we have to be concerned? Is there a measure of concern that we should have in terms of narrowing down the scope of the national security provisions?

[Alan Barnes]

I think there is—

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

It's for prohibiting the release of information. Let me make sure that this is clear.

[Alan Barnes]

I think there is some room to narrow the exemptions and be much more specific, especially given the passage of time. That is sort of theoretically taken into account in the act as it stands, but it really isn't exercised to any great extent.

I certainly see a need to protect the some information, current information, because there are bad actors, but what the system seems to neglect is the fact that what might be sensitive today is much less sensitive 20, 30 or 40 years later. There has to be some mechanism to recognize that evolution and, even for information that is currently significant, I think there are probably some ways to narrow the scope of what is truly sensitive and what the bureaucracy would prefer others not know about. There's a difference between bureaucratic desire for confidentiality and true threats to national security.

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

Should time be the only factor by which you should determine whether or not material should be released?

Sometimes, as you know, history doesn't repeat, but it rhymes, and there might be some issues that were an issue at a particular time, and then, let's say 60 years later, due to the provisions of the act, it would be released, but that issue has resurfaced, and it might be sensitive at that time, or controversial. Is that just one of those things that you have to live with?

[Alan Barnes]

I mean, I think that's a possibility, but the likelihood is really quite low. You can't base decisions on releasability only in terms of time, but I think time is a very important factor in that consideration.

There certainly will be some things that continue to be sensitive over a longer period of time, but those are very narrow, and I think, when reasonable people look at it, it becomes immediately apparent. What's happening now is that a lot of these redactions are made basically on a whim, on a very subjective view, and even people within the system will disagree on whether it's sensitive or not. In my view, something that's truly sensitive should be immediately apparent to any reasonable person.

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

[Inaudible—Editor] for the lapse—

[The Chair, Conservative, John Brassard]

I gave you an extra minute here.

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

I appreciate that, and I'll try to get this last question in.

If time should not be the only factor and not just releasability should be a factor, does this call for the importance of standardizing who does the evaluation of what should be released, and when, rather than leaving it up to a series of people who occupy that post within government for whatever sins they've committed in their previous careers?

[Alan Barnes]

Exactly, and I think that's why it's so important to have a systematic process for the declassification of records after a given period of time. Then you would have people who are familiar with these records and all of these issues who could handle records from a variety of departments rather than each department trying to interpret things themselves. I think that would be an important positive element of a proper declassification process.

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

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Fergus.

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

[Mario Simard, Bloc, Jonquière, QC]

Thank you.

Mr. Larsen, you made an analogy in your presentation to an onion, when you talked about many layers. You mentioned the duty to document, updating the legislation and developing a culture of transparency. These are all things that take a long time to achieve.

Do you have a pragmatic proposal that could be applied in the short term to improve access to information?

[Mike Larsen]

Yes, absolutely. I would say that the ones that you mentioned have been mentioned many times in the past, so there is a moment to start working on this, even if we won't see the results immediately.

I think that strengthening proactive disclosure is a really important mechanism, because ultimately people are seeking information and using the access to information law, not necessarily as a means of last resort but because there are no other avenues that are readily available.

There are a lot of requests for routine categories of information, and there's not as much guidance as there should be in the federal law around processes for proactively releasing certain categories and making them readily available. I do think—and we see this in some other jurisdictions—that doing this in a better way will alleviate some of the pressure on the system, and it's something that can happen right off the bat, really, if we start working on it immediately.

[Mario Simard, Bloc, Jonquière, QC]

I'll ask Mr. Koltun the same question with regard to IRCC.

Mr. Koltun, what could be done in the short term to improve access to information?