Information & Ethics Committee on Nov. 23rd, 2022

[The Chair, Conservative, John Brassard]

I call the meeting to order. Good afternoon, everyone.

Welcome to meeting number 48 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, and 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)(h) and the motion adopted by the committee on Monday, May 16, 2022, the committee is resuming its study on the access to information and privacy system.

In accordance with the committee's routine motion concerning connection tests for witnesses, I'm informing the committee that all witnesses have completed the required connection tests in advance of the meeting.

I would now like to welcome our witnesses today, and this is the order in which they will be speaking.

From the B.C. Freedom of Information and Privacy Association, we have Mr. Mike Larsen, president. From the Canadian Foreign Intelligence History Project, we have Alan Barnes, senior fellow, Norman Paterson School of International Affairs. From the Canadian Immigration Lawyers Association, we have Andrew Walter Laszlo Koltun, and from the Union of British Columbia Indian Chiefs, we have Robyn Laba, senior researcher; Jody Woods, administrative director, research director; and Kukpi7 Wilson, who is the secretary treasurer.

We are pleased to have with us again today Mr. Simard, who is standing in for Mr. Villemure. Welcome, Mr. Simard.

Mr. Larsen, you have five minutes. The floor is yours for an opening statement, sir.

[Mike Larsen, President, BC Freedom of Information and Privacy Association]

Hello, everyone. Thank you very much for inviting us today.

My name is Mike Larsen. I am a faculty member and co-chair of the criminology department at Kwantlen Polytechnic University. I'm appearing today on behalf the B.C. Freedom of Information and Privacy Association, or FIPA, in my capacity as president.

I'm joining you from my office here on the unceded traditional and ancestral lands of the Kwantlen, Katzie, Semiahmoo and Tsawwassen peoples.

FIPA welcomes this opportunity to speak today about Canada's access to information and privacy system. We commend the members of this committee, both past and present, for launching this study and inviting representations from groups such as ours.

I would be remiss, however, if I did not comment on the quick turnaround nature of this invitation, received on Monday with scant time to prepare for a Wednesday appearance. We have heard from several allied groups that are involved in right-to-information advocacy in Canada that found the turnaround time to be unreasonable, and we think that the committee's work is poorer for the absence of their voices.

That said, my remarks are accompanied by a written brief outlining our analysis and recommendations, and they are guided by a question and by a visual metaphor.

The question for me today is, what would a strong and effective access to information system for Canada look like?

In answering this question, it is helpful to imagine the image of an onion. We all know that onions contain layers and that the health of each layer impacts the health of other layers. We also know that onions can look good on the outside while concealing rotten layers when you open them up.

Just like a healthy onion, a strong and effective access to information system for Canada would have several layers. At the core, we would see a robust duty to document embedded in legislation and backed by enforcement measures. All of the other layers of our transparency system depend on the production of complete and accurate documentation of decisions made and processes followed by government.

Moving outwards, the next layer of our transparency onion would be a clear and well-resourced information management framework that makes it possible to efficiently locate and retrieve records. Such a framework would need to support organized record management within government while also serving as the basis for an accessible and public-facing road map of information holdings of public bodies, like a finding aid.

Building upon the core components of a duty to document and an effective records management framework, the next layer of the transparency onion would be an updated and modern Access to Information Act. Such an act would need to be informed by a deep commitment to the idea that the right to information is integral to the functioning of a democracy. It would need to be broad in scope and encompass the full spectrum of government organizations, including ministers' offices and entities substantively funded or controlled by government.

It would need to be timely and embrace the principle that access delayed is access denied, by imposing clear caps on the length of request extensions. It would need to be accessible, without tollgate application fees or vast in-process fee estimates that function as barriers for transparency. It would be guided by a strong public interest clause that would act as an override for all exemptions in cases where the public interest in disclosure outweighs the interests of secrecy.

Beyond this, it would truly limit the application of exceptions and exemptions, ensuring, for example, that over-broad interpretations of policy advice do not allow important information to be withheld from the public. Importantly, such an act would need to be supported by an Office of the Information Commissioner with strong investigative, order-making and enforcement powers.

The next layer of the transparency onion would be a thriving access culture characterized by sincere commitments to transparency at the highest levels of government, by the effective resourcing of access to information and privacy offices within public bodies and by adequate training. Senior leadership would need to set the tone by taking responsibility for transforming organizational cultures of secrecy that treat access to information as a risk to cultures of transparency that recognize access to information as a right.

Finally, we get to the outer layer of the onion, a proactive disclosure framework that builds upon all of the layers below by requiring public bodies to routinely and proactively disclose categories of records that are frequently requested and records whose release is a matter of public interest. Such a framework could do much to alleviate systematic delays and backlogs by satisfying the need for transparency without relying on a request-response dynamic.

I have sought to briefly describe the features of a strong and effective access to information system and to do so in a way that emphasizes their interconnected nature. Our existing access to information system, alas, bears little resemblance to this vision. It lacks a legislated duty to document. It does not encompass the full terrain of government. It is characterized by delays and backlogs and by exemptions for cabinet confidences, policy advice and more and by fees that inhibit transparency. It is underfunded, under-resourced and undermined by a culture of secrecy. There is, to stretch this metaphor, a lot of obvious rot in this onion.

In closing, I urge the committee to be bold and aspirational and to call for robust and much-needed reforms to the laws governing the right to information in Canada.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Larsen.

Next we are going to Mr. Barnes.

Thank you for joining us in person. You have five minutes.

[Alan Barnes, Senior Fellow, Norman Paterson School of International Affairs, Canadian Foreign Intelligence History Project]

Mr. Chairman and members of the committee, thank you for this opportunity to address you on the important subject of access to information.

I would like to raise a topic that has received little attention so far, which is the difficulty of accessing historic government records. The discussion of access to information has largely focused on problems of accessing current records, but there are also major impediments to obtaining government records that are many decades old. The access system was never designed to deal with such historical records. When the act was first implemented, it was not intended to replace existing mechanisms for accessing government records, but in practice, that is what's happened.

Today there is no mechanism for the declassification and release of government records after a certain period of time. The so-called 30-year rule does not exist in Canada. Canada is the only member of the Five Eyes intelligence alliance that does not have a system for declassifying historic records.

My particular field of study is intelligence history, but this problem affects a wide range of historical records on intelligence, security, international affairs and defence. Most Canadian government records on intelligence and international affairs since the 1950s will therefore remain closed until someone makes a specific request for them via ATIP. These requests are then reviewed through the same process that is used for current records. Reviewing officers have no knowledge of the historical context of the records and generally apply the same considerations of what to redact, even though any sensitivity has diminished substantially over time.

The government has no mechanism to track the historic records that have already been released, so departments spend considerable time re-reviewing records that have been released elsewhere. Frequently, this review takes years to complete and in many cases results in complaints to the Information Commissioner because of unreasonable redactions.

The current system creates a major problem for Library and Archives Canada because it means that the great majority of government records on intelligence, international affairs and defence will never be accessible to researchers, who are forced to use the ATIP process. This means that they can only nibble at the edges of the vast quantity of government records held by LAC.

The problem also affects other departments, which continue to hold substantial archives of historic records, including the Privy Council Office and Global Affairs. These records have not yet been transferred to LAC, even though most of them are decades old. For example, the Privy Council Office still holds records from the Second World War.

The answer to this situation is obvious. Canada should establish a declassification framework, separate from the overtaxed ATIP process, that would proactively review and release records after a set period of time. Our allies have already shown how this can be done. In fact, some limited steps have been taken in this direction. Public Safety Canada is leading an interdepartmental declassification project looking at ways to make historic documents on intelligence and security available to the public. So far, however, this effort has not resulted in the release of any records.

I believe this committee should consider inviting officials from Public Safety Canada to provide testimony on the work being done by the declassification project and on the prospects for making more historical records on intelligence and security available to Canadians.

The government has rightly emphasized the importance of transparency concerning intelligence and security matters in order to build public confidence in the work of these agencies. Making more historical records available would help to enhance such transparency.

Canadians deserve a sound understanding of their history, including in the fields of intelligence, international affairs and defence. Proper access to historical records is vital to such an understanding, but these records are currently being kept hidden by an act of Parliament so restrictive that researchers cannot do their work.

Thank you. I look forward to your questions.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Barnes. You were under time, which is great.

Next we are going to Mr. Koltun, from the Canadian Immigration Lawyers Association.

Sir, you have five minutes for your opening statement.

[Andrew Koltun, Canadian Immigration Lawyers Association]

Thank you, Mr. Chair and members of the committee, for the opportunity to appear before you.

My name is Andrew Koltun, and I am appearing on behalf of the Canadian Immigration Lawyers Association, or CILA.

CILA advocates improvements to immigration-related policies and departmental operations and represents hundreds of immigration lawyers across the country.

I'm here today to explain that for immigration applicants, the ATIP system is broken. It's broken by lengthy and unreasonable delays. These delays obstruct access to justice and are overburdening the federal court system. The solution is to impose a statutory 30-day time limit on extensions.

My submissions today will cover four parts: one, how immigration applicants use the system; two, the problems they encounter; three, how these problems impose access to justice barriers; and four, recommendations.

This brings me now to section one.

Immigration, Refugees and Citizenship Canada, IRCC, is the federal department that receives the most access to information requests. Approximately 75% of all ATIP requests in the federal government go to IRCC. However, unlike other departments, 98.9% of these ATIP requests are for an individual's personal data held by the department. Immigration applicants are often requesting their immigration files and officers' notes on those files. This is because when IRCC refuses a decision, IRCC does not provide the reasons for the refusal. These must be obtained either by an ATIP request or by challenging the decision, often in Federal Court.

This brings me to section two. There are two main problems that immigration applicants encounter within the ATIP system.

The first problem is an increasing failure by IRCC to process ATIP requests within the statutory 30 days and a failure to even seek extensions.

Historically, the majority of ATIP requests for the refusal reasons were processed within the statutory 30 days. During COVID, this slipped to beyond 60 days. However, over the last few months, a worrying trend has arisen. IRCC has both stopped meeting the 30-day deadline and stopped even sending extension notices when the deadline cannot be met. Instead, IRCC merely does not provide the results, and applicants are left wondering if their ATIP will be processed at all.

This brings me to problem two. Even when an extension is provided, it's often lengthy and beyond all justification. In many cases, IRCC imposes blanket 365-day extensions to provide a copy an applicant's complete immigration record. Such an extension is often divorced from the actual time needed to produce that record. When the same request for the same application documents is made by the Federal Court to IRCC, IRCC can produce a copy within one to two weeks.

This brings me to section three.

The delays and extensions by IRCC impose steep barriers for access to justice for immigration applicants. There is currently the highest volume of immigration cases at the Federal Court of any time in its history.

When IRCC does not provide the reasons for refusal by ATIP within the statutory 30 days, applicants are often forced to challenge the refusal at the Federal Court, merely to use the court's power for requests of records to obtain the reasons for refusal. Through its ATIP processing complacency, IRCC is turning Federal Court judges and clerks into ATIP processing officers.

This all comes at great expense. It's expensive for the applicant, who has to pay for court fees and legal fees, and it's expensive for the Federal Court, which often requires more registry staff than ever to handle the increased volume.

This brings me to section four, our recommendations. To address issues with delays, we recommend that the act be amended to impose a strict 30-day limit on the length of an extension that can be applied. As many other witnesses have identified to this committee, access delayed is access denied.

This concludes my opening remarks, and I welcome your questions.

[The Chair, Conservative, John Brassard]

Thank you very much, Mr. Koltun.

All of these opening remarks are under time, which is great. It will give us more time for questions.

Next, from the Union of British Columbia Indian Chiefs, I would like to welcome Robyn Laba, Jody Woods and Kukpi7 Wilson, secretary treasurer.

I understand, Kukpi7, that you'll be speaking.

You have five minutes for opening remarks. Please go ahead.

[Chief Judy Wilson, Secretary Treasurer, Union of British Columbia Indian Chiefs]

Thank you.

I'm calling from the Tseil-Waututh, Musqueam and Squamish nations, and I give territorial acknowledgement. I'm the secretary-treasurer of the Union of B.C. Indian Chiefs and co-chair of the B.C. specific claims working group. I'm going to speak about how federal access to information affects first nations' access to justice in the resolution of specific claims against Canada.

Specific claims are historical grievances brought against the federal government by first nations when Canada fails to fulfill its lawful obligations, as set out in statutes, treaties, agreements or the Crown's reserve creation policies. The federal specific claims process and specific claims tribunal require first nations to submit documentary evidence to support their claims against the Crown. Most of this evidence is controlled by federal government departments and institutions, such as Crown-Indigenous Relations, Indigenous Services Canada, and Library and Archives Canada.

First nations must rely on the Access to Information Act and Privacy Act to obtain records held by the federal government in order to meet the specific claims policy requirement for filing claims. Since first nations are required to obtain thousands of records held by federal government departments to substantiate their claims against the Crown, the right to access to information is a fundamental component of first nations' access to justice.

Just and fair redress for historical losses—a right articulated in article 28 of the United Nations Declaration on the Rights of Indigenous Peoples—is a political imperative if we are to move toward reconciliation. Reconciliation has been deemed by the courts and all levels of government to be of public interest and a political priority. First nations have unique rights to data sovereignty that are supported by the UN declaration and embedded within first nations laws, protocols and governance structures.

Among the types of information included in the accepted definition of “first nations data” is information about first nations reserve and traditional lands, waters, resources and the environment. The federal government has a legal obligation, through the United Nations Declaration on the Rights of Indigenous Peoples Act, to ensure that all necessary measures are taken to uphold the UN declaration and meet its objectives.

The Prime Minister's December 16, 2021, mandate letters to the ministers direct each of them to implement the UN declaration and work in partnership with indigenous peoples to advance their rights. This entails upholding the honour of the Crown in all dealings with first nations. Ensuring first nations have full access to records they require to substantiate their claims is necessary to uphold the law and serve the public interest.

Specific claims arise when Canada fails to fulfill its legal obligations to first nations. Canada's specific claims policy requires first nations to substantiate their claims with documentary evidence. Most of the historical evidence first nations require to support their claim is controlled by Canada and federal government institutions. Since Canada controls access to the evidence, first nations are required to substantiate their historical claims against the Crown through the Access to Information Act and Privacy Act. This is an unfair and untenable conflict of interest. Canada's conflict of interest is the overarching barrier to first nations' full and equitable access to justice. Systemic problems with access to information processes that impede first nations' access to justice include delays, broad or inconsistently applied exemptions and ineffective legislative remedies.

Canada's commitment to meaningfully engage with first nations has fallen far too short of expectations and minimum standards for obtaining first nations' free, prior and informed consent, as articulated in article 40 of the UN declaration. Human rights principles—such as self-determination, respect for first nations rights and titleholders, and obtaining first nations' free, prior and informed consent—must be incorporated into, and underpin, all processes for developing, reviewing and amending federal access to information legislation and associated regulatory administrative processes.

Canada's conflict of interest in controlling first nations' access to records must be fully eliminated. The Treasury Board and the Department of Justice must work in full partnership with first nations and their respective organizations toward developing a new information management regime. This information management regime must uphold first nations' rights, as articulated under the UN declaration.

In the interim, Canada must recognize its duty to full disclosure and uphold the honour of the Crown by working in full partnership with first nations to develop a mechanism of independent oversight that ensures first nations' full and timely access to records.

Canada must make first nations claims researchers' requests for access to information a priority by hiring additional dedicated staff to expedite existing and impending requests.

Canada's information analysts and staff must be informed about first nations-specific claims and first nations' right of redress and information rights, as well as imperative Crown-indigenous reconciliation.

Canada must make meaningful and direct dialogue with first nations and their representative organizations a priority from the outset of all future policy work.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Kukpi7 Wilson.

We will now begin the rounds of questions.

Mr. Gourde, you will be starting things off. You have six minutes.

Go ahead, Mr. Gourde.

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

Thank you, Mr. Chair.

Thank you to all the witnesses for being here today.

My first question is for Mr. Barnes.

I'm fascinated by the historical records aspect and the 30‑year rule. Do our neighbours to the south have any practices we can look to? How long do they wait before declassifying records?

[Alan Barnes]

The American declassification system is really quite complicated and there are various categories, and I'm not as familiar with that system as I am with the British system. In the British system, there is a legislated requirement that government records be reviewed after 30 years and in large part declassified and transferred to their National Archives. There are some exceptions for materials to be retained for longer than that, but it's a general practice that once they're 30 years old, they are transferred to the archives.

The difference in the U.K. is that when they're transferred to the archives, they're automatically open, whereas in Canada, many of the government records that are transferred to the archives are still restricted. Therefore, LAC has to consult with the originating departments on whether they can be released. It's a much more complicated process.

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

As far as historical records are concerned, are there any sectors or aspects of Canadian history that are still fairly well hidden?

We don't have access to records that would prove certain events, for instance.

[Alan Barnes]

Yes, exactly.

There are wide ranges of history that are still restricted. I broadly categorize those as intelligence, security, international affairs and defence. Essentially, it's any of those areas of history that are affected by section 15 of the Access to Information Act, which allows for exemptions for anything that could be harmful to Canadian international affairs, defence and so on.

A very wide range of historical matters remain restricted, including events in most of the Cold War and since the Cold War. There are many other diplomatic issues and so on for which it's much more difficult to get records.

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

Thank you, Mr. Barnes.

My next question is for Mr. Koltun. It has to do with immigration.

Do certain immigrants experience—or will they experience—almost irreversible harm as a result of waiting too long for their applications to be processed?

When they submit an access to information request to have their file reviewed as a way to remedy fairly minor issues, sometimes a document or signature is missing. Can that hurt people who wanted to immigrate to Canada?

[Andrew Koltun]

Thank you. That's an excellent question.

Not having access to their immigration file and specifically to the documents that IRCC already holds can have many negative impacts when an applicant is doing a subsequent application.

When an applicant submits an application online using the CIC portal, they are not given a copy of what they submitted. Once it's in government hands, it stays with the government.

Increasingly, when you have digital applications, hard drives crash, computers are exchanged and applicants can easily lose track of what they have submitted. When an applicant cannot access their previous files, they can't understand why their application was refused. Without notes, they don't know what the officer's reasoning is without access to the files to do their own due diligence and review whether a signature was missed. They can't determine that.

Thus, when there's a very long delay and an applicant is refused, they have to wait the entirety of the delay until they can apply again so that they can make a strong application that will overcome the reason for refusal.

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

The wait times have actually grown longer in the past two or three years. A 30‑day deadline would be good. As members, we help a lot of people with immigration issues at our constituency offices. Sometimes, people wait six months, a year or a year and a half. It has even taken some four years to go through the whole process, before they can immigrate to Canada.

Do you see the same wait times on your end?

[Andrew Koltun]

Yes, we see it on our end as well.

In particular, when applicants receive, for example, procedural fairness letters from IRCC asking them to explain a discrepancy between the new application and the old application, IRCC does not provide a copy of the old application. It falls to the applicant to make an ATIP request for their old application, and then to continually seek extensions to respond to IRCC's letter by saying, “I have not received my ATIP request. I cannot respond to your letter right now.”

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

I have one last question for you. If you could wave a magic wand to find a way to streamline or shorten the process at IRCC, what would you do?

[Andrew Koltun]

There would be two parts, one that falls within the purview of this committee and one that actually falls within the purview of the immigration committee.

The first part would be the 30-day timeline that says that extensions cannot go beyond 30 days. That would help many immigration applicants, because often there's a time limit to respond to refusals and challenge them. A 30-day extension limitation would keep them within that time limit.

Second—and you could discuss this with your colleagues on the citizenship and immigration committee—the solution is for IRCC to automatically provide the reasons for refusal in their refusal letters. IRCC promised that they would explore this initiative when they responded to the Information Commissioner's systemic investigation back in 2018 through 2020. That result has not yet appeared.

Similarly, IRCC has not consulted with stakeholders or immigration lawyers on making that a reality—

[The Chair, Conservative, John Brassard]

Thank you, Mr. Koltun. I'm sure this issue will come up again through questioning.

Thank you, Mr. Gourde.

Next we're going to go to Mr. Bains for six minutes.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you, Mr. Chair.

Thank you to all of our guests for taking the time to join us today on our committee.

My questions are coming from the traditional territories of the Musqueam. My first question is to Mr. Barnes.

You talked a little bit about the history. What other aspects of Canada's information laws are preventing researchers from studying Canada's history?

[Alan Barnes]

There are various aspects of the current arrangements that make it very difficult to access historical records.

A large part of that is that the government really doesn't know what it has already released. These records are in various different departments. In some cases, I've been able to obtain records, and then I've asked for a similar file from another department. They have no way of tracking what has already been released by a different department, so they're spending an awful lot of time re-reviewing these records that have already been released. They're just not aware of what's already out there, and they still have a very narrow view of what they think can be released.

That's a problem when departments are complaining that they're overwhelmed with work when they're essentially creating additional work for themselves.

The other fundamental problems are more linked to information management and so on, but that feeds into the access process, because if the researcher isn't aware that a particular file exists, they can't really ask for it. Requests for general information on a given subject are very awkward. It doesn't usually provide useful information. It's much more effective to request a specific archival file, but as I said, if the researcher isn't aware that it exists, then a specific request can't be made.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Okay. Thank you.

To Mr. Koltun, we heard early in this study that IRCC now receives most of the requests under the access to information system. Were you encouraged by the report by the Information Commissioner that they are adopting improved methods to expedite requests?

[Andrew Koltun]

In practice, those methods have yet to materialize. Right now, as I understand it, IRCC opened its ATIP modernization office in 2020. It has yet to release a minimum viable product that proactively produces refusal reasons to applicants and proactively releases the entirety of the refusal reasons and GCMS notes.

I'm encouraged that IRCC recognizes that there are problems; I am discouraged by the pace of which they are responding to them.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

I appreciate that.

The next question is to our representatives from the Union of British Columbia Indian Chiefs.

Indigenous peoples should have ready access to information and data relevant to them without the need to submit ATI requests. Do you have any suggestions on how to best implement this practically?

I believe you're on mute.