Information & Ethics Committee on Dec. 7th, 2022

[The Chair, Conservative, John Brassard]

This meeting is called to order.

Welcome to meeting number 52 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. Therefore, members can attend in person in the room and remotely 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 fully participate.

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, could you please confirm for Mr. Villemure and the other committee members that everything is in order technically for the witnesses?

[The Clerk of the Committee, Ms. Nancy Vohl]

Everything is in order.

[The Chair, Conservative, John Brassard]

Thank you.

I would now like to welcome our witnesses.

As individuals, we have Dean Beeby, a journalist, and Andrea Conte, a writer, researcher and media artist. From the Canadian Association of Journalists, we have Mr. Brent Jolly.

Unfortunately, we're missing Mr. Tromp at this point. He hasn't connected. We are trying to make a connection with him.

Before we commence, this meeting is scheduled to go until 6:30 p.m. We do have to do some committee business in order to dispose of a motion that is before the committee. I will try to time that for 6:25 p.m. That will give us about an hour and 55 minutes. I understand that parties have been in discussions and that we very likely, I hope, will dispose of that motion very quickly.

I just wanted to make it very clear to our witnesses right off the top that with five minutes left in the session, we will be going to committee business. I'll time everything accordingly.

Mr. Beeby, the floor is yours for five minutes, sir.

Thank you.

[Dean Beeby, As an Individual]

Thank you for inviting me as a witness today.

This inquiry, by my count, is at least the 16th broad review of the Access to Information Act since the legislation was passed in 1982. In this country, we love to study transparency laws thoroughly to ensure that we don’t actually get around to fixing them.

I’m an independent journalist with long experience of using the act. I speak from a journalist’s perspective, though my frustrations with the act mirror those of other users, including indigenous peoples, civic activists and even backbench MPs.

Journalists have been abandoning access to information in droves lately. The desertion began before COVID hit. The pandemic chased away the stragglers.

Less than 5% of all requests filed in 2021 came from the media. That’s half the level of five years earlier, and a third of a decade ago. Why are reporters giving up? It's because, as study after study has shown, turnaround times are terrible and getting worse.

MPs who passed the law in 1982 expected that most requests could be answered in a month, with some exceptions. Since then, the reality for journalists is the reverse. Requests answered in 30 days are the rare exception, with most taking far longer.

Bureaucrats also now realize that they face a much bigger blowback from releasing information than from withholding it, and the law provides them with a rich menu of excuses to keep things buried.

When stale-dated access documents finally do arrive on a reporter’s desk, they’ve been picked clean of meaningful content. Imagine telling your editor that you won’t know whether you’ll have an access-based story for at least six more months—maybe a year or longer—while the rest of the newsroom reporters are scrambling to get a scoop out before noon.

The news business has been caught in a death spiral for 15 years. Journalists are being thrown overboard to lighten sinking ships. Sizable communities no longer have local reporters watching for fraud in town councils. Meanwhile, governments are ever more bloated with spin doctors, social media gurus and image consultants. It’s not a fair fight, and it’s not just journalists down on the mat; democracy is getting a bloody nose as well.

Let’s consider some advice for reform already given to this committee. You’ve been told that the law needs a reverse onus. Information should be released unless the government can show that it shouldn’t, but the law already has a reverse onus in paragraph 2(2)(a). New words saying the same thing in a different way won’t save the day.

You’ve been told that the Information Commissioner should become a transparency czar with broader responsibilities, but the commissioner can’t even discharge her current mandate. She takes too long to resolve complaints—as much as 10 years. Let’s not burden her with more responsibilities until she can deliver on the existing ones.

You’ve also been told that proactive release of more documents is a solution to a dysfunctional access system. If government pushes out more documents, citizens won’t need to pull them using access requests. This is a false hope. Governments may willingly release downstream documents that are innocuous and safe, but upstream documents tied to decision-making will never be made proactively available, unless of course they’ve been scrubbed clean. That’s why we have freedom of information laws, so that citizens aren’t stuck with records that have been sanitized in the government’s interest.

My own prescription for reform is to stay clear of long checklists. I suggest focusing on a few key changes.

One, pull down the brick wall protecting cabinet records. Limit the protection period to 10 years. Stop withholding records that have nothing to do with cabinet deliberations and that are factual or background. Give the Information Commissioner access to cabinet records so that she can review any decision to withhold them.

Two, set tougher limits on a department’s ability to delay. If an institution blows past a deadline, for example, take away their authority to claim exemptions.

Three, define “advice” in the law much more narrowly so that departments can’t use it as a catch-all for withholding information.

Four, put a time limit on the Information Commissioner’s investigations—say, six months. If she hasn’t finished by then, let complainants go to court.

Just getting these few things done would start us down the road to reform. It would also give a dwindling pool of journalists a better shot at holding governments to account.

Thank you for your invitation. I'll be happy to answer any questions.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Beeby.

Mr. Conte, you're next. One of the things about being chair is that I have a little bit of latitude with time. You have five minutes, sir, but if you need a few more seconds, please feel free to take them.

Thank you.

[Andrea Conte, As an Individual]

Thank you, Mr. Chair.

Thank you to the committee members for inviting me to speak with you today.

My name is Andrea Conte. I am an independent researcher. I work in the media arts. I've circulated two articles to members that relate to my work with Canadian state records, one of which took five years to write because of access delays.

With the many days of hearings before this committee on Canada's freedom of information system, I think it's important that we clearly understand the origin story of the Access to Information Act of 1983.

Throughout the 1970s, Canada was trying to play catch-up with the United States, which established its own freedom of information legislation in 1966. It's important to place this time period in relevant context. It was during this era of the 1960s and 1970s that the RCMP security service engaged in routine abuses, which culminated in the McDonald commission of inquiry into RCMP abuses that varied from forged letters to the infiltration of racialized and indigenous groups, among others. All the while, one in 20 Canadians had a file with the security intelligence service. It was amidst this crisis that the Access to Information Act was ushered in, drafted and sold to the public as a modern right to hold the government accountable.

According to Don Brittain, an NFB and CBC documentarian who covered the crisis at the time, access to information legislation was “so artfully worded that...it would become little more than an instrument of concealment”. Forty years later, we know this prediction to be true, and all too well. During the press conference that introduced the Access to Information Act in June 1983, ministers celebrated the favourable similarities of the Canadian act with its American FOIA counterpart. But this has never been the case. On contemporary records, the U.S. has an expedited processing clause for records that relate to urgent ongoing matters of federal government activity. Canada, however, has no such clause for urgent disclosure of access requests that seek answers to ongoing and urgent matters of public concern—for example, the public health benefit of the ArriveCAN app.

On matters of war or international affairs, the U.S. allows journalists or members of the public to seek direct legal remedies when their government denies, for example, records of internal reviews of its war efforts or its complicity in war crimes, such as the torture of Afghan detainees. The U.S. permits direct access to the courts without delay, producing journalism such as The Afghanistan Papers, which the Washington Post published after a three-year FOIA lawsuit.

In Canada, the Access to Information Act obstructs access to the courts through a drawn-out preliminary appeals process with the Office of the Information Commissioner, restricting the capacity of journalists to do their job. I myself continue to appeal the delay and censorship exemptions over records of internal reviews of Canada's war in Afghanistan with requests on these files that began 10 years ago.

On the declassification of historic records, the committee has heard how the 1983 act nullified the previous declassification system. That created a disaster for anyone with any vested interest in doing historical research, especially on issues that involved prisons, police, military and other institutional forms of state violence within Canada's borders and abroad. When one visits library archives, when you're revisiting redacted RCMP surveillance files, for example, on the 1930s Communist Party of Canada or the 1969 Sir George Williams University uprising, not only are release packages on these files still heavily redacted, but previously published newspaper clippings from the Globe and Mail and other mainstream media organizations have also been redacted in full by CSIS.

If any member of the public wants to challenge any or all of these redactions, they can't, because the act treats a request for information like a consumer good. The opening of one record is not an opening of the record for all. Only the requester can appeal it. That means you have to file the ATIP request all over again, as if the previous request never occurred.

In the case of contemporary records, the open Canada portal includes only a fraction of access to information summaries that have been processed by federal agencies over the two most recent years—and that's if agencies upload any data at all. Every month, the portal erases access to information summaries that exceed the most recent two-year window.

For all these reasons, after 40 years, I believe this access to information cycle of “censor, erase and repeat” has turned into an instrument that directly obstructs and interferes with both government accountability and paragraph 2(b) of the Charter of Rights and Freedoms.

I know this panel is fielding recommendations that number into the hundreds. I do not believe the current system can be reformed, as it is a discretionary system of good faith, with far too many root problems.

I do recommend the committee assemble a panel of constitutional experts who could provide input into the report on how the act interferes with freedom of expression, “freedom of the press and other media of communication”.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you very much, Mr. Conte.

We're now going to go online to Mr. Brent Jolly, who is the president of the Canadian Association of Journalists.

I don't see him on my screen. Is he here?

[The Clerk]

Yes, he is here. I spoke to him earlier.

[The Chair, Conservative, John Brassard]

Okay.

Mr. Jolly, you have five minutes, sir, to address the committee.

[The Clerk]

He was here. I did a sound check with him.

We'll get tech to call him.

Mr. Tromp just signed on. You can go to Mr. Tromp.

[The Chair, Conservative, John Brassard]

Welcome, Mr. Tromp. There's nothing like being put in the spotlight right away.

Mr. Tromp, I think you have to do something with your camera there.

[The Clerk]

Mr. Tromp, can you hear me?

We can see your camera, but we can't see you. Your microphone is on mute.

[The Chair, Conservative, John Brassard]

I've run into this problem before. Maybe the camera is down inside the computer—it looks like it.

I think we're going to suspend for a minute. Thank you.

[The Chair, Conservative, John Brassard]

I call the meeting back to order.

I apologize. We're having a little bit of technical difficulty.

Welcome back, Mr. Jolly.

I hate to put you on the spot. You look like you're out of breath.

[Brent Jolly, President, Canadian Association of Journalists]

Thank you.

No, that's okay.

[The Chair, Conservative, John Brassard]

You have five minutes to address the committee, sir. Thank you.

[Brent Jolly]

Thanks very much. It's the wonders of home Internet, I suppose.

Thanks very much to every one of the members of the committee for extending this kind invitation to me and the association I represent, which is the Canadian Association of Journalists.

We have a lot of important opinions and views to share on the critical need for changes to be implemented to Canada’s arcane access to information system, as we would call it.

By way of simple introduction, I will begin by telling you that the Canadian Association of Journalists is a professional organization composed of more than 1,300 journalists from across the country. Our organization regularly engages in public interest advocacy work and professional development for our members. Access to information issues clearly overlap on both of these areas of our mandate.

Since the CAJ was founded 1978, then as the Centre for Investigative Journalism, our association has been at the forefront of advocating for both federal and provincial access to information regimes that are more robust, transparent and accountable than those currently in place. For decades, we have devoted an exceptional amount of resources to helping our member journalists with training on how to wade through the many layers of opaque rules, exemptions and limitations that have served to unite generations of Canadian journalists in utter frustration and dizzying dismay.

In addition to calling on governments of all political stripes to take proactive steps to improve what is a broken system increasingly falling into international disrepute, our association and partners have crafted thoughtful suggestions to help re-imagine Canada’s beleaguered access to information regime. I would be happy to formally share these ideas, which put the public’s right to know at the forefront, with the committee as a supplement to today’s testimony.

My reason for giving this brief history lesson off the top is not born out of a desire for personal or institutional aggrandization. Its purpose is to underscore for members of this committee, and the wider Canadian public, the complete and utter sense of frustration at the death grip governments hold on information in this country.

You don’t have to just take my word for it, or that of any of my fellow witnesses here today. I think one can listen to the Information Commissioner Caroline Maynard, an officer of this Parliament, and what she said to then Treasury Board Minister Jean-Yves Duclos in a letter a couple of years ago. In that letter, Ms. Maynard wrote that the federal ATIP system “may soon be beyond repair” and is already faced with “chronic under-resourcing”. This was, of course, before the COVID pandemic reared its ugly head. Ms. Maynard encouraged Minister Duclos to commit proper funding to the system, proactively disclose more data and bring institutions fully into the digital world.

How have these helpful suggestions been met to date? I would say, with crickets. In fact, as some of my colleagues have reported, the COVID pandemic has only helped to further exacerbate this country's encroaching cultures of secrecy. In late 2020, for example, The Winnipeg Free Press reported that less than half of federal access to information offices were operating at full capacity. It was reported as well in that article that many departments had de-prioritized the processing of access requests, which had not really been treated as a critical service. What was the result of that? There were backlogs and no clear guidelines when requests would be answered.

I'm here today to tell you how an effective access to information law serves the public's right to know and allows the journalists I represent to do their jobs effectively. We know that excellent journalism has the power to reshape public policy and improve the lives of Canadians. We’ve seen this very clearly play out during the COVID-19 pandemic. Done properly, an updated Access to Information Act has the potential to be one of the most transformative pieces of legislation ever passed by Canada’s government.

For decades, however, we have documented golden promises to modernize a system increasingly brought into disrepute and disrepair. Certainly, changes do not happen overnight, but Canada’s access to information system is broken, and 40 years is, frankly, a long time without making any concerted efforts to solve the problem.

Let me put it another way. You don't put duct tape on a Formula 1 race car's broken chassis and expect to put in competitive lap times, let alone win races or world championships. What I would suggest you do is retire the car, get it fixed properly for the next time out, and start over again. It's simple engineering.

The same holds true for exercises like this one. We need to stop tinkering at the margins and trying for quick fixes. Those only help to engineer enhanced cultures of secrecy. There have been endless government discussion papers, public dialogues, and academic studies that point to a better way forward. The answers to the problems that besiege the current act are right in front of us.

One step in making change, I would posit, is crystal clear. Elected officials—members of Parliament and cabinet ministers, for example—must find the courage and political will to hold themselves to a higher standard. Anything less is simply going to result in yet another choreographed diversion from the important work that must be done.

Thank you for the opportunity to be here today and to present this evidence for your consideration.

I look forward to taking your questions after.

[The Chair, Conservative, John Brassard]

Thank you, sir. The worst part of my job is having to cut people off. Believe me, I don't like it.

Mr. Tromp, are you online, sir?

We're not seeing him. I'm not seeing his microphone come on.

To save time for the committee, we're going to go to our first line of questioning.

These are six-minute rounds, and I invite Mr. Kurek.

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

I have a point of order, Chair.

If the technical issue with Mr. Tromp is able to be rectified, could he, perhaps, make his opening comments at the top of the next hour? Is that okay with the committee?

[The Chair, Conservative, John Brassard]

Yes. Obviously, there's a technical issue right now. He was invited by the committee to appear. If we can resolve this issue, then I would invite him to speak, as long as the committee is okay with it, and I suspect it would be.

I don't want to speak for the committee, but he was asked to appear.

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

Instead of interrupting the question rounds, if there's a technical issue that's able to be resolved at the top of the next hour—

[The Chair, Conservative, John Brassard]

Let's get through this round, and then, hopefully, we'll have it figured out.

Mr. Kurek, you have six minutes, please.

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

Thank you very much, Mr. Chair.

I appreciate the witnesses' joining us here today. Although I know that sometimes politicians and journalists have what can be an adversarial relationship, I acknowledge fully how important this conversation is in terms of accountability.

I will start by asking the same questions that I've asked all of our witnesses. They are two very simple questions to provide some context about the importance of this discussion. I'll go around the room, both in person and virtually. Before I do that, I invite the witnesses—because time is of course a precious resource—to please feel free to send further information if they don't have a chance to get it all in front of us here today.

My first question is, when it comes to the access to information system, is having one that works, that is effective, and that gives Canadians the information they need from their government essential to a modern and functioning democracy?

I'll start with Mr. Beeby.

[Dean Beeby]

The short answer is yes. You can't have a functioning democracy without some kind of freedom of information system.

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

Thank you.

Go ahead, Mr. Conte.