Information & Ethics Committee on Nov. 28th, 2022

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

How widespread is the problem that you outlined? Is it just the directorate of access to information and privacy within the Department of National Defence? Is that where it stops?

[Patrick White]

I wouldn't say so. My experience is.... I am obviously appreciative of the patience and understanding of the officials who work in the directorate of access to information and privacy within the Department of National Defence. However, the process becomes that record requests are then sent to the individual parts of the forces or the Department of National Defence. What that means is that the central nervous system of DAIP, for example, is relying on those record holders to provide that information, and it's almost entirely based on an honour system.

For example, if emails were requested, one of which might incriminate someone or provide context and background that indicates impropriety in a decision, you go to that individual and say, please provide all records responsive to this request. Well, I don't know that they have that email. They may turn over 99 other emails and delete that one email that leads to some degree of culpability or embarrassment, as may be the case. You have to get lucky that someone perhaps is not fully paying attention, or it's not them who might be liable so they disclose everything. There are significant roadblocks in place to ensuring that a fulsome and honest disclosure of these records occurs.

As another example, when members receive requests for information, they are told to provide the search terms that they use: You go to Microsoft Outlook, perhaps, and you type in the search terms related to it. However, those search terms aren't necessarily disclosed unless you file a subsequent request.

I mean, I have an entire list of examples where it's just.... I have incredible amounts of empathy for those who have experienced things far beyond even what I have and may be so traumatized. Little simple things that come back at them, rather than full support and fulsome disclosure, are a barrier that they can't overcome.

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

I have less than 30 seconds left. I appreciate your answers to my questions.

I'm very curious about your recommendation for a stand-alone study of the ATIP regime within the Department of National Defence and the Canadian Armed Forces. If that's not something you're able to discuss or elaborate on in your replies to other members, I would encourage you to file that with the clerk of the committee in writing at your earliest opportunity so that it might be considered in the evidence we use for our report.

Thank you, Mr. Chair.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Barrett.

Ms. Saks, you have six minutes.

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

Thank you, Mr. Chair.

Mr. White, I would be remiss if I didn't start by acknowledging the courage it takes to come forward to a committee. Thank you for your service.

Sexual abuse is abhorrent. We have an absolute responsibility to victims to make sure that the process they go through in bringing their trauma forward is done with compassion and a sense of transparency, and also a sense of safety. I think it's important to acknowledge that. I speak on my own behalf, but also all of the colleagues in this room, in our absolute support in making sure that safety and transparency are there.

In the context of the study about access to information, you've brought a very sensitive process to light. I'm wondering if you could walk us through the process by which a victim would consider going the ATIP route to be able to access documentation.

There are mechanisms in place within CAF. We have a Minister of Defence who has made it her absolute mission and commitment to make sure that victims are protected through this process. However, since we have you here today, I'd respectfully ask if you could share with us how that currently works.

[Patrick White]

Thank you. It is a very on-point question.

My challenge, and what I personally struggle with is.... With regard to the credentials that I explained to the committee earlier, as well as some general familiarity with government processes, I feel relatively comfortable in understanding the ATIP process and the system—how to make a request. However, this is where I go back to highlighting what I was referring to in my remarks.

The system must be designed with the most vulnerable type of person in mind. That could be the 16-year-old who is still in high school. It could be the person who is severely traumatized and wants nothing to do with people in uniform and doesn't understand that there is even a website at all.

The concerns I have are that the understanding.... If you asked the chief of the defence staff or the minister to conduct a poll of members of the forces on their comfort and familiarity with the ATIP system and whether they feel comfortable making these requests, it would not shock me if you had one or two hands in a room full of people and no real genuine understanding of the implications.

I think the problem as well is that there are opportunities for people who make such requests to suffer reprisals. People in the forces, when they note the subject matter of the request or the timing of the request, make guesses as to who has filed that request. It would not surprise me if all of a sudden you would be expecting other administrative actions or changes in things, such that in very subtle and hard-to-detect ways, people are victimized for just trying to use the system.

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

Through you, Mr. Chair, I want to thank Mr. White.

As someone who is a very strong advocate of mental health from a trauma-informed lens, I agree with you wholeheartedly that we need more of that in a whole-of-government approach in many of the things we do.

If you don't mind, I am going to switch to our other witness now, Ms. Francoli.

Thank you for joining us today and for the work that you do on open government and transparency.

In April 2017, you were part of an open letter to the Prime Minister, with many of your colleagues and organizations across the country, indicating that you wished for real change in access to information.

You commented on past witnesses, so you've been following what we've been doing in this study. Do you agree that some of the changes made in Bill C-58 in 2019 are a step in the right direction?

[Prof. Mary Francoli]

I wouldn't say there is anything fundamentally negative, but I think it was a disappointment to people who are really heavily involved and invested in the access to information regime. So much is happening and there have just been so many studies that say the same thing. Again, it's not that there's a sort of unanimous solution, but there is a lot of commonality.

I think you are seeing it here already with the few witnesses you've had. It's kind of reaching saturation, in a way. There are a lot of the same things being said. Bill C-58 just didn't revolutionize the system in a way that a lot of people were really hoping it would.

It's not bad, just a bit of a letdown.

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

That's fair.

Earlier you mentioned the siloed nature of the ATIP system, its being department by department, and that's certainly something that has come up time and again in our discussions here. What we're seeing is that IRCC is really getting the lion's share of requests at this time.

Would you like to see IRCC officials here, maybe, to comment on what they are facing with the ATIP requests they are getting and how they are managing or struggling with those? You seem to be an action-oriented individual in terms of what you'd like to see, so I'd like your thoughts on that.

[The Chair, Conservative, John Brassard]

Could we have a very short response, please?

[Prof. Mary Francoli]

That would be really interesting. They are typically one of the heavy receivers of ATIP requests. They also have a lot of information holdings and a lot of information holdings that aren't digital, so that makes it more complicated to search.

From the Information Commissioner's testimony, I understand that there may be some interesting things happening there that could impact the ATIP system moving forward. I'd be curious, if I were you, to hear more about that, and I would also like to hear about that, so if you could do it, that would be great.

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

Thank you, Mr. Chair.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Saks.

Thank you, Ms. Francoli.

Mr. Villemure, go ahead. You have six minutes.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you, Mr. Chair.

Ms. Francoli, thank you for being with us today.

I'd like to hear your opinion on the fact that historical records are not systematically released. Is that something that should be considered?

[Prof. Mary Francoli]

I wouldn't say automatically. There are a number of things that would prevent historical documents from being published. Things related to national security that sit within Library and Archives, for example, all prevent them from being published.

I guess this is where I allude to some of the interesting things that Library and Archives is doing that are outside the scope of access to information. They've had a very interesting system of block review, going through files and boxes of old things that have not been released and just kind of selectively picking out some to see if those batches contain any information that couldn't be released under the act. They have released millions of pages, from what I understand, of historical documents as a result.

[René Villemure, Bloc, Trois-Rivières, QC]

Should those records be filed in a way that makes them searchable? Are they currently being stored in a huge pile, making it impossible to find anything?

[Prof. Mary Francoli]

My apologies, but my audio cut out here.

[René Villemure, Bloc, Trois-Rivières, QC]

I'll repeat the question.

Should the records be filed in a way that makes them easy to search? My understanding is that they are currently available, but that it's hard to find what you're looking for.

[Prof. Mary Francoli]

Should documents be classified in a way that makes them easier to find? I think there are two things we need to think about. The first is how documents are originally classified. There has been a tendency to over-classify things, and then things stay closed.

I think it would be useful to look at a system of declassification, and that's something we are lacking. It's something on which the Information Commissioner has published a special report. I know she's mentioned it in her testimony to this committee before, I think in May, and she mentioned it to us at the NS-TAG as well.

[René Villemure, Bloc, Trois-Rivières, QC]

You're talking about declassifying records, but should they be better classified?

[Prof. Mary Francoli]

I'm sorry, but my earpiece was not working.

[The Chair, Conservative, John Brassard]

Can you please repeat the question, Mr. Villemure?

[René Villemure, Bloc, Trois-Rivières, QC]

You talked about a system for declassifying records, but should there be a system to classify records? People have a tendency to classify records at a higher level than necessary to cover themselves. Do we need a more formal system for classifying records?

[Prof. Mary Francoli]

I think there is a lot of guidance for classifying documents. I don't think it's always applied evenly across departments and agencies, and it might not always be well known among the people who need to be engaged in the classifying of the documents in the first place.

I think it really depends on who's classifying and what their level of comfort is in terms of classification. There's a system there for determining what level of classification a document should be. My impression is that it's probably not applied evenly.

[René Villemure, Bloc, Trois-Rivières, QC]

The fact that the system, policy or directive exists doesn't necessarily mean that it will have the desired effect. People may not know about it, or they may misinterpret it.