Information & Ethics Committee on March 7th, 2023

[The Chair, Conservative, John Brassard]

Good afternoon, everyone.

I'm calling this meeting to order.

Welcome to meeting No. 60 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Today's meeting is taking place in 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. I don't think we have anybody on Zoom today. Please note that we may need to suspend for a few minutes 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 access to information and the privacy system.

I would now like to welcome our guest for today.

I want to welcome Caroline Maynard, the Information Commissioner.

Caroline, welcome to the committee. I know there's a lot of interest in this particular issue among committee members, and we're really looking forward to having a discussion with you today.

You have five minutes. Please start.

[Caroline Maynard, Information Commissioner, Office of the Information Commissioner of Canada]

First of all, thank you for inviting me to appear before this committee once again in the context of your ongoing study of the access to information and privacy system.

During my last appearance before this committee, I noted that I was looking forward to the conclusion of the government's review of the access to information regime, which was launched in the summer of 2020. Last December, the government finally released a final report of its review.

After such a long wait, what I read was honestly disappointing. On my office's website I posted a statement expressing my dissatisfaction with the government's report. In my view, this report is deficient across the board, but in the interest of time I will limit my focus to a couple of key points.

I am pleased that the government took note of the concerns I have raised regarding lengthy consultations between institutions, as well as the lack of a declassification framework and the resulting negative impacts these have on the access regime.

However, I find it unfortunate that there are no proposals for concrete actions to go with the government's analysis.

Indeed, I find few, if any, tangible commitments within the report's pages that will begin to effect change now in areas that require immediate attention. More importantly, it appears that the government has decided that no further modifications to the law are to be made, at least not in the near term.

When the 2019 amendments were introduced, I noted that these represented a step in the right direction but that more changes would be required. Many legislative changes that have been proposed by experts in their submissions for the review merit your committee's careful consideration. These include recommendations to broaden the scope of the Access to Information Act to cover ministers' offices as well as the Prime Minister's Office, to make cabinet confidences subject to the act and to reduce the scope of some exemptions, including section 21, on advice and recommendations.

I also have no confidence that bolstering Canadians' right of access to information will figure prominently in the government's financial priorities. The fact that access to information has disappeared from ministerial mandate letters, and that I have heard nothing from the government regarding my request for additional funding speaks volumes.

On the topic of funding, I strongly believe that a model that gives the Minister of Finance and the Prime Minister the power to limit the required funding of agents of Parliament is contrary to our oversight role. As agents of Parliament, we report directly to Parliament, rather than to the cabinet or a particular minister. Frankly, the manner in which we are funded should reflect this independence.

My priority has always been to tackle our inventory, and I have been able to significantly increase my office's efficiency since I became commissioner, as shown in the reference document that I submitted to this committee. However, we have reached the limit of what we can do with the budget provided.

The government may have turned the page on access to information, but I have not, which is why I look forward to the results of this committee's study.

In closing, this coming summer, July 2023, marks the 40th anniversary of the Access to Information Act. On the eve of this milestone, I unfortunately see little to celebrate.

Much remains to be done for Canada to catch up with international standards on access and transparency and tackle the enormous challenges faced by the system.

This concludes my opening remarks.

I will be happy to answer your questions.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Maynard.

We're going to start with the questioning. We are going until roughly five o'clock with this. The first round of questioning is with Mr. Kurek.

You have six minutes, Mr. Kurek.

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

Thank you very much, Mr. Chair.

Thank you, Commissioner, for coming before the committee.

I would just note the stark difference in your remarks today versus the last time, when you were anticipating this report being released. To hear words like “regrettable” and “disappointing”, and some of the very strong language that you used to describe the lack of where the government is coming from....

I'll note, before I get into my specific questions, that rarely on an issue does there seem to be universal agreement, as was the case with every witness who came before this committee. They said two things. One was that a good access to information system is vital for a strong democracy. The other was that Canada did not match up with where it needed to be.

You noted in your opening remarks some of the areas that were lacking. Specifically, you said you have no confidence that the government is going to give the fiscal arrangements required for this to be addressed. I'm going to give you an opportunity to expand on that a bit more, especially as we're coming up to what we anticipate is the federal budget.

Can you expand on why you have no confidence in that? In light of a close to 50-page report, you noted that you have no confidence that the government will address these stark concerns.

[Caroline Maynard]

The report speaks for itself. It's a good summary of all the issues that we're facing in the access system. They're issues that we've known about for years, issues that you've heard about from experts and issues that I've mentioned in my submissions. We knew about them before 2019, when Bill C-58 was tabled, so it's disappointing that there's no action plan. There's a lot of “should”. There are a lot of “opportunities”. I think the opportunity has been missed.

You heard submissions for two years when public consultations were held. Where are the recommendations? Usually, in a legislative review, you will have conclusions, recommendations and a plan of action. This is why I am disappointed today to speak in front of you. It's because of this report.

Secondly, there's no mention of access to information in any of the ministers' mandate letters, so I don't think transparency and access are key at this point. I have asked for additional funding for my office, which I think all of the access units should also get. The resources are lacking, and we're not seeing much going toward that either.

This is why I think this is not something to celebrate.

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

Commissioner, I'd like to get some of your feelings about what possible concrete actions could be, but in the two and a half minutes that I have here, I'd first like to ask this, specifically. The government seems to continue to defend Bill C-58, yet we often hear how that has not improved the system.

In about 30 seconds or so, could you expand on why Bill C-58 seems to be a continuing challenge to improving Canada's access to information system?

[Caroline Maynard]

I'll say that Bill C-58 gave me the power to order institutions to issue disclosure and to meet some deadlines. Unfortunately, my orders are sometimes being ignored. I don't have a certification process to go to the Federal Court to make sure that these orders are seen as having the power of an order from a court. It is still better than recommendations; I can tell you that.

What we need are better training and more retention of the people who are doing this. We need to have better analysts, and we need to have an act that is modernized. The act was tabled four years ago, and it has not been changed much. Apart from my ordering power, the exemptions and exclusions have not been reviewed. There's also a lot to be done within the system. The report talks about information management and declassification programs. Those are huge issues within our government, but there doesn't seem to be concrete action on how to tackle these issues.

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

I want to jump on something you just said.

We're used to the government ignoring what opposition parties say and things like that, but to hear from you that your orders are being ignored.... That's something.

In the 30 seconds I have left in this round, can you expand a little bit on what that “being ignored” is in regard to? Can you provide any examples or anything else that you'd like to share with this committee and Canadians?

[Caroline Maynard]

You have two choices when an order is issued by my office. You accept it and comply with it, or you can go to court to challenge it.

What I've asked is to have a mechanism to make sure that people will not just ignore the orders. It doesn't happen that often, but we're seeing now a trend of institutions that are not saying they're going to challenge it, but they're just taking more time to actually comply with my orders. There's nothing I can do about it.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Kurek and Madam Maynard.

Mr. Bains, you have six minutes. You're first up.

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

Thank you, Mr. Chair.

Thank you, Madam Commissioner, for joining us today.

Several witnesses indicated the need to declassify documents. I think you just mentioned it. What declassification standards do Canada's peers use that this committee should examine further?

[Caroline Maynard]

We issued a report a couple of years ago on declassification. I can send you a copy. It actually gives you a great summary of what the U.K. and the United States are doing.

They both have a program where, within 20 to 30 years of a document being produced, there's a declassification program where they review those documents. If they declassify it, that means it's a lot easier for people to access it. They don't have to wait until somebody's asking through an access to information request.

This would give historians, library and archives, and people who are looking into the history of Canada—especially for the national security documents—access to documents way faster and easier than having to wait for my office to do an investigation.

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

The review concluded that an enhanced whole-of-government ATI workforce strategy could assist with resourcing challenges faced by ATIP offices.

What would effective skills training and staff retention in the ATI community look like to you?

[Caroline Maynard]

When we're talking about ATI, it is people actually responding to requests. People have to have great people skills because they're dealing with requesters who want the information “now”, and with the institutions that have people who don't want to provide the information right away or have issues with information management.

We need people who can negotiate, discuss, read the act and apply the act to the documents. There's definitely training that needs to be done. That's the government's responsibility. That's administering the act.

I can tell you that it's a difficult job. We need to create almost a profession of analysts for that type of position.

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

Is the new ATI community development making any headway?

[Caroline Maynard]

You would have to ask Minister Fortier because that's one of the activities done through the Treasury Board.

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

The government recently updated its ATIP online request service, which was launched in 2018, to allow Canadians to have an easier way to make requests through the Access to Information Act and the Privacy Act.

Are these types of technological improvements to the ATI system a benefit to Canadians?

[Caroline Maynard]

Yes, for sure. An online request form is always easier than having to deal with each institution. Now there's one portal that people can go to and ask for the information.

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

I think you gave us some data last time on how much improvement—

[Caroline Maynard]

The problem is with respect to access requests. I'm dealing with complaints at my office. Again, Minister Fortier would be the preferred person to ask that question.

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

Okay.

One of our previous witnesses, Mr. Drapeau, suggested changes to the Information Commissioner to help speed up the process of ATI and, specifically, to introduce a one-year period before complaints can be brought before a federal court.

What are your thoughts on that analysis?

[Caroline Maynard]

I would love to be able to develop my investigation within a year. I provided you with my inventory. You'll see that some of those files are complex. They deal with secret information or very complex information.

I'm worried that if somebody has to go to court, they won't be able to represent themselves. We see the documents, so we can challenge an institution on what we see in our files. A requester has a file that has been redacted. Going to court, you would have these complainants representing themselves, without being subject to the review of an independent commissioner or without the opinion of an independent commissioner helping them deal with their file.

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

In a letter you sent to the Speaker you wrote that “some misconceptions regarding the functioning of the access to information system and the operations of my office...have arisen during these hearings.”

What are those misconceptions?

[Caroline Maynard]

One of them is the timelines that it takes in my office. Again, I have given you the inventory. We receive every year more files than we can absorb. Unfortunately, at some point we have to decide what we're going to tackle. We're tackling the old files at the same time as we're trying to reduce the inventory of new files, but when we are funded for 4,000 cases a year, that's the issue.

At this point we're getting much more efficient with what we're doing—the templates and the training we're giving to our analysts, the development program—but the files are coming in faster than we can conclude them, so we need more resources.

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

My last question is on fees. My home province of British Columbia has introduced a $10 fee to discourage vexatious requests and to fund the system.

Do you agree or disagree with that implementation?