Information & Ethics Committee on Nov. 28th, 2022

[Matt Malone]

What I've seen from the access to information request I referenced, which is 2018-00247, GC Strategies had very regular contact with the chief technology officer of Canada. There's a reference in an email that they typically touch base once a quarter. I can produce the records for the committee, which are essentially just pitches they would pose as an intermediary company, where a third party technology company would provide services. For example, they pitched a project to the chief technology officer to reform the access to information's search function on the Open Canada website.

As a starting point, I would like to get the correspondence and dates of the calendar meetings between those individuals. I think that's really important. There is a registration function for lobbyists, which I think probably should be the case for entities like this. Within the access to information system, the sort of manual itself, I think there should be clearly enunciated rules that subcontracts in these types of situations should be open.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Malone.

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

Chair, during Mr. Malone's response, he offered documents. Is that something that we can have the clerk collect?

[The Chair, Conservative, John Brassard]

We can certainly have the clerk follow up with Mr. Malone on that.

Thank you, Mr. Barrett.

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

Thank you.

[The Chair, Conservative, John Brassard]

Ms. Khalid, you have two and a half minutes, please.

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

Thank you, Chair. I appreciate it.

I'll start with Ms. Wylie.

Have you used the ArriveCAN app?

[Bianca Wylie]

No, I haven't.

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

Mr. Malone, have you used the app?

[Matt Malone]

Yes, I've used it five to 10 times.

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

Thank you.

Ms. Wylie, in your opening remarks, you gave a couple of recommendations. You said that digital must be complemented with non-digital and that public service should not be delivered through apps or web-based applications.

When it came to the government protecting the personal health data of Canadians, do you think that having electronic apps that processed 30 million submissions would be safer than having paper-based records? What measures do you think would be more protective of paper-based as opposed to digital records?

[Bianca Wylie]

This is good, because I get to complete a thought from earlier. Web-based apps, being able to use the Internet to go.... ArriveCAN had three options. You could use it on your computer, just by logging in with an email, or you could use it through Apple or Google operating systems. This version where you work through the web is the one that is the most open. It is the one where the protocols are the most accessible to everybody and where, from a technical design perspective, we have a better shot at doing digital, without the constraints imposed on us by Google and Apple through the app stores.

I'm not saying there should be no digital. What I'm saying is that the web application, mobile design that's responsive to the web, is an option for sure.

To your point, yes, there may be improvements in the fidelity of the data collection, or whatever else, through using these things, but no matter what we do, we can always improve our public services as well to make sure that whatever.... How we improve accuracy for things we receive on forms or at kiosks, or whatever else, those are improvements we need to make concurrently.

I'll stop there.

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

Thanks, Mr. Chair.

Those are all the questions I have.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Khalid.

On behalf of Canadians, I want to thank both of our witnesses, Mr. Malone and Ms. Wylie, for being here today. I think you provided the committee with some valuable information.

I will remind committee members that we are going to come back and resume with the access to information study.

I'm going to suspend for a few minutes, but before I do, keep in mind that in terms of the microphones, sometimes there is a little bit of a delay, a couple of seconds. When asking questions, be mindful of that. It will help the interpreters.

The meeting is suspended until we get set up for the next half of the meeting.

[The Chair, Conservative, John Brassard]

We are now resuming.

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.

Madam Clerk, this is just to confirm that all of the witnesses have been tested, from a hearing and speaking standpoint.

[The Clerk]

Yes.

[The Chair, Conservative, John Brassard]

Thank you.

I'd like to now call our witnesses for this afternoon.

First of all, we have, as an individual, Mary Francoli, associate dean and director of the Arthur Kroeger College of Public Affairs. As well, we have, as an individual, Mr. Patrick White.

Again, this is about access to information.

Ms. Francoli, the floor is yours. You have five minutes to address the committee.

Thank you.

[Prof. Mary Francoli, Director, Arthur Kroeger College of Public Affairs and Associate Dean, Faculty of Public Affairs, Carleton University, As an Individual]

Thank you so much for having me.

I want to start today by saying that my own work is on transparency and open government more broadly. Access to information is certainly an important cornerstone, but transparency itself is more extensive. I think that will be useful because the motion that passed to initiate your study refers to the “access to information and privacy system”, not specifically to the Access to Information Act, which is, to me, a little bit more specific.

I don’t want to repeat any of the points made by previous witnesses regarding the Access to Information Act itself. This has to be one of the mostly widely studied pieces of legislation there are, and I think there's been a great deal of agreement, obviously not unanimous, on the problems surrounding the act and what could be done to improve them. I’m happy to speak to that during questions and I’ll reinforce many of the points you’ve already heard.

I thought I would use my opening remarks to draw on my experience as the chair of the Open Government Partnership’s international experts panel and my experience over the last three years with the national security transparency advisory group, or the NS-TAG, as we’ve come to be known.

I will start by saying there is no clear or very coordinated transparency strategy in Canada, but I think this committee should note that a lot of activities are taking place—in many cases they are actually quite siloed—that are meant to improve the quantity and quality of information and data disclosure, and to improve transparency and accountability in government. If done well, these things should, theoretically, help to ease pressure on the ATIP system itself.

Canada has submitted five action plans to the Open Government Partnership, which include a range of commitments to improve openness. Some of the 2015 improvements to access to information mentioned by previous witnesses here were the result of commitments included in early plans to the Open Government Partnership. The plans engage a wide range of government departments and agencies and they have helped to release information and data via the creation of mechanisms like the open science and data platform.

Library and Archives has done a lot of interesting transparency work, in spite of the fact that it's been heavily criticized for compliance with the Access to Information Act.

The government has elaborated a national security transparency commitment. The NS-TAG has a role in helping to advance this. We’ve released three reports to date. The first was kind of to simply say what we heard in our first year. The second looked at building transparency into national security institutions. The third looked at how national security institutions engaged with racialized communities. From what I understand, the government is also working on an open government strategy for the OECD.

For me, a full study of the access to information and privacy system—again, I'm stressing the word “system”—needs to go well beyond the act itself. It needs to include these other activities. It needs to include offices beyond just the Information Commissioner and the Privacy Commissioner.

Just to wrap up, my recommendations would be to have a Government of Canada transparency strategy that brings these sorts of dispersed initiatives together. The structure around the strategy and things like access to information, Library and Archives and systems of information management, all need to be included. That includes looking at things like storage and retrieval and the need for all of these things to be resourced properly.

Emphasis should be put on proactive disclosure and open by default where appropriate. One thing that the NS- TAG has recommended to the national security community is the development of a statement committing to transparency, including what it means to the different security institutions and how it will be measured. This would be helpful across government. Transparency is something that really needs to be baked into the function and culture of government in a way that it currently isn’t, including in times of crises.

I will just leave it there. Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Francoli. You're under time, which is always appreciated by the committee.

Patrick White, as an individual, is next.

Sir, you have five minutes to address the committee.

[Patrick White, As an Individual]

Mr. Chair, members of the committee, thank you for inviting me.

Thank you for the opportunity to contribute to the committee's study on the access to information and privacy, or ATIP, regime.

I am here in my capacity as a citizen of Canada.

Before I begin my remarks, I would like to acknowledge that I make this presentation before the committee today despite fully expecting reprisals or attempts at reprisals from the Canadian Armed Forces and the Department of National Defence.

There is a group of individuals that has been ignored and forgotten during discussions on the ATIP regime. They are the victims and survivors of the abuse of power and sexual misconduct crisis in the Canadian Armed Forces. My evidence today will focus on the interactions of such individuals with the ATIP regime.

To properly understand how problematic the current ATIP regime is, Parliament must understand that the most vulnerable types of CAF members rely on it for access to essential information and records that are needed to make informed decisions about their legal rights and to file fulsome and well-supported complaints. These individuals could be victims of rape or aggravated sexual assault. They could be victims of threats and abuses from reprisals perpetrated by the chain of command. They could be members wrongfully denied employment opportunities or reimbursement for expenses. They could be the 16-year-old who cannot legally drink, smoke or vote, but who received parental consent to join the CAF while completing high school. They could be any combination of the above.

Briefly, I offer some of my credentials and experience. I am a graduate of the Ivey Business School honours business administration program and the McGill University Juris Doctor and Bachelor of Civil Law program. I am an attorney licensed by the Law Society of Ontario, with experience working in corporate law firms in Canada and the United States. I have served Canada for over 13 years as a naval warfare officer in the naval reserve, during which I gained direct familiarity with the ATIP regime. Finally, when it comes to being subjected to sexual misconduct and abuse of power reprisals in the Canadian Armed Forces, I will simply say, me too.

As to the reforms of the system, and to assist victims and survivors, I recommend that the committee consider the following points.

Conduct a stand-alone study of the abuses of the access to information and privacy regime by the Department of National Defence and the Canadian Armed Forces.

Create real penalties for departments that breach ATIP requirements, and provide real remedies for victims, survivors and complainants.

Consider creating a fast-track system under the ATIP regime for identified victims and survivors of misconduct.

Require certain essential pieces of information to be mandatorily disclosed to victims or complainants, unless explicitly waived with written, informed consent.

Require mandatory disclosure of the names of all record-holders who actively handle or are involved in the decision-making process behind a decision that is generated by a complaint.

Pause the time limit to submit complaints, such as grievances, if an information request has been made and disclosure of such information would be relevant in drafting the complaint.

Ensure that records are retained post-retirement, with clear administrative and disciplinary sanctions for those who violate such directives and seek to use retirement to abscond from accountability.

Investigate and implement options for eliminating the “honour system” approach to record disclosure.

Create specific administrative and disciplinary sanctions for those who avoid creating records or who prematurely destroy records.

Identify, at the intake stage, requests for records that the chain of command may resist and require extra scrutiny in the disclosure of such records.

Finally, require mandatory disclosure of search terms used by individual record-holders in response to information requests.

Thank you.

I look forward to your questions.

[The Chair, Conservative, John Brassard]

Thank you, Mr. White, for your statement.

I'm going to move to the first round of questioning. We're going to start with Mr. Barrett for six minutes.

For the members of the committee, I allowed a little extra time on some of the questions in the earlier panel. I'm going to stick to the timelines tightly because we do have committee business that we have to take care of afterwards.

Mr. Barrett, you have six minutes.

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

Thank you, Mr. Chair.

Thank you, Ms. Francoli and Mr. White, for joining us.

Mr. White, I want to thank you for your service to our country in the Canadian Forces.

I'm wondering if you could provide the committee with some examples of the difficulties that victims and survivors face in navigating the ATIP system.

[Patrick White]

Thank you for the question.

An example that I've personally faced, and I know others have as well, is the amount of information required up front before a request can be processed. As an example, if you're filing an access to information request about records related to a person's misconduct or about an individual who may have assaulted you or harmed you, you're required to provide their service number. The service number is a protected piece of information. To ask a potentially victimized junior member who might not have access to that information to provide it is an immediate barrier, and for them to go to their chain of command to request that information might allow them to be identified as a potential record requester, when the process is designed to allow them to remain anonymous.

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

The grievance system is the main dispute resolution process for Canadian Armed Forces members. How does the ATIP system interact with the grievance system?

[Patrick White]

The problem is that it effectively doesn't, from my experience. The timeline that a member has to file a grievance begins with a 90-day limit from when an action is taken or a decision is made or the member reasonably ought to have known has been made. As I frequently have experienced, the department is extremely tight on timelines when they are applied to victims, but of course not so tight when it comes to responding and meeting their own timelines imposed under legislation.

The circumstances are such that a victim may need information before they make a request. In fact, they may decide not to file a grievance at all if certain information is disclosed relating to a decision or certain information is provided relating to their personal records.

Under no circumstances have I experienced a formal pause on the time limit when someone is looking to file a grievance.

Now, commanders and those who receive the grievances do have the ability to pause and consider grievances beyond that 90-day limit, but it's entirely discretionary. I'm sure when you hear the word “discretionary”, you're right away thinking potential for abuse. Rest assured, there are circumstances that exist that would make that a reality.