Information & Ethics Committee on March 7th, 2023

[Caroline Maynard]

We would need to look at the number of requests. Unfortunately, despite the systemic investigation into Immigration, Refugees and Citizenship Canada, the department doesn't receive fewer access to information requests, and the action plan announced three years ago still hasn't been implemented. Therefore, the department is still receiving a lot of access to information requests and, as a result, we're getting a lot of complaints.

I don't know how long it will take the department to make these changes, but if it does, it will certainly have a positive impact on access to information in Canada.

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

Thank you very much.

[Caroline Maynard]

It was a pleasure.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Villemure and Ms. Maynard.

Mr. Green, you have six minutes.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

I'm going to begin by saying to Commissioner Maynard that you're in good company when the cabinet refuses to hand over information. I'll share with you that, as members of Parliament, constitutionally considered the grand inquest of the nation, even with our own parliamentary privileges and very well-established common law in that regard, they stonewall us too when it comes to basic information. We seem to be in a culture where all of a sudden everything is “cabinet confidence” and everything is “client-solicitor privilege” when they're both the client and solicitor.

As the Information Commissioner, you don't have the authority to access records that contain cabinet confidences that the head of an institution has refused to disclose. On jurisdiction over part 2 of the Access to Information Act and published decisions made in regard to the applications, I think you mentioned that they can decline the access requests. As a result, you've put forth recommendations addressing these and further limitations to your powers as commissioner.

Can you expand on how these limitations to your powers impact your ability to ensure the access regime is effective in delivering its mandate?

[Caroline Maynard]

Access to information is basic for Canadians' trust. If Canadians don't trust that they can obtain the information they're entitled to, it ultimately will result in a lack of trust in this government and our institutions.

If I don't have access to documents that nobody else can review—like cabinet confidences—how am I supposed to make sure that Canadians are trusting that these are actually cabinet confidences? Nobody currently has, in Canada, the authority to review cabinet confidences. I'm not saying that we need to disclose them. I believe in the secrecy of discussions and cabinet. That's something that government can discuss, but it's something that we need to.... Just look at Commissioner Rouleau's commission on the Emergencies Act. He was given access to a lot of documents that normally he would not have, to be able to tell Canadians the decision and to review that decision and to make a determination on that—

[Matthew Green, NDP, Hamilton Centre, ON]

I will interject on that point. I'm co-chairing the Emergencies Act review committee on the parliamentary side. The same requests for information.... The supreme law of the land, the House of Commons, the supremacy of our parliamentary privilege—that was completely ignored by this government. They refused to hand over documents to a committee when we have the supreme ability to send for documents and evidence.

It is a cultural issue. I would agree with my friend from the Bloc. In the report entitled “Observations and Recommendations from the Information Commissioner on the Government of Canada’s Review of the Access to Information Regime”, you stated that this is not just a need for a cultural shift towards more openness but that in fact this is a culture of complacency. The downplaying or tolerance of delays must end.

First of all, I want to say that your being before us here as an independent officer and commissioner of this House is an integral part of our democracy, and one that we should be supporting more fully. What would you recommend to bring about a cultural shift within the government to address that very serious issue?

[Caroline Maynard]

There are so many things that need to be done, it's hard to start with one. Yes, the submissions have provided good examples of where things need to be better. Our government needs to provide clear direction to all institutions that they must respect the act. Even if we don't change the act, if we were to respect the 30 days in there, if we were to make sure that public servants knew that was part of their function, that they have to be able to help their analysts when they receive access requests....

The time of 30 days has been ignored. Extensions are being asked for more and more. They don't have the resources to respond to access requests. Information management needs to change. There are so many places—

[Matthew Green, NDP, Hamilton Centre, ON]

Part of it, as I recall, is that you also stated that the access regime experiences difficulties due to the lack of qualified staff to deal with the requests and the institutions' use of these archaic methods for processing. I joked when I first got in here. We were talking about boxes and about not even having things digitized on PDF and so on and so forth.

Can you describe a little, when it comes to processing management and the sending of information, what these methods look like and how they create additional difficulties for the access regime? In my observation, this is a government that not too long ago had a minister for digital government, who just disappeared off the face of the planet, unceremoniously, probably at the same point the mandate letter dropped.

Can you talk a bit about why having that type of whole-of-government approach, as they like to talk about all the time, might provide better supports for the work that you do?

[Caroline Maynard]

We definitely need more technology to help. We definitely need to look at information management. Nowadays, people work with emails. I said the last time I appeared before you that we have examples of requests that should result in two or three pages of information resulting in 500 to 1,000 pages of information, because people were not taking care of and properly managing their information.

Just recently, one of my own access units was consulting another institution on two pages. We were asked for a 90-day extension for them to respond. Consultations are a huge problem within institutions. We need to have a clear indication, clear guidance, that consultations are not mandatory. They are good to have, but when you don't have time, you don't consult. You make your own decisions on the document in front of you. That's what my unit's going to do.

[Matthew Green, NDP, Hamilton Centre, ON]

That's troubling.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Green and Madam Maynard.

Mr. Kurek, you have five minutes.

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

Thank you very much, Chair.

It's interesting. There was a statement made earlier today that I'll repeat here. It's that secrecy by burying it in process seems to be a common trend here.

Commissioner, you have expressed concern by saying that you “sincerely hope that this does not signal that the Government has reached the limits of its willingness to improve the legislative framework”. Can you expand on what you mean by that statement?

[Caroline Maynard]

The report that was tabled contains a lot of comments and findings about exemptions and exclusions that are not consistently applied or understood properly. However, it doesn't seem to have any recommendations to change the wording of these exemptions or to review the extensions of these exemptions, but rather to provide more guidance through policies and manuals.

We already have those. I think it's time to look at each exemption, each exclusion, and make decisions. Do we want section 21 on advice and recommendations to be for 20 years? Do we want cabinet confidence to still be prohibited from my review? Do we want to put a timeline for consultations in the act so that we don't rely on an institution's policy about that?

The act is 40 years old. I think it's time to look at each section, the way a real legislative review would have done. I didn't see that in the report. That's what I expected.

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

Thank you for that.

Commissioner, I want to change gears and talk about outside or third party contractors. I've heard there's been a lot of anecdotal evidence. The government has suggested some of it isn't true. There are some questions about information on the estimates—about what that looks like.

Does the seemingly large expansion of third party or outside contractors used by ATIP divisions concern you? If so, can you expand on those concerns a little?

[Caroline Maynard]

The problem is that it's very difficult to recruit people who have the knowledge and who are, as I said earlier, willing to do that job. If an institution.... I feel for them. I tell you, it's definitely one of those tough jobs. When they can't find people who want to do the job, they have to rely on consultants. I had to do that, too, at one point. What we're now doing is this: We have a rotation and we're bringing in people from outside of government. We're trying to train and keep them.

Again, it's a very difficult job. I'm not surprised consultants are being used more and more. I'm told, by some institutions, “We have the money. We just can't find the people.”

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

I'm glad you brought that up, because I've heard some past and current individuals in ATIP divisions say it is a nightmare to work for those divisions. There is a whole host of challenges associated with that.

One of the comments made to me is one I will pose to you in the form of a question: Is there a lack of performance metrics for ATIP officers within departments? That seems to be a trend plaguing all aspects of this entire regime.

I'm wondering whether, in the minute I have left, you have any suggestions for how we could deal with this seemingly incredibly poor performance. Is there a metric or mechanism that could be used to start ensuring we actually get some results here?

[Caroline Maynard]

We need to provide people with performance indicators at the management level—the DG, ADM and DM levels. That's where you need them to be responsible. The minister is accountable for access. The obligation, under the act, is on the head of the institution. They need to be interested in what's going on in their unit. That's why I'm sending the orders directly to the ministers' offices now—so they know when they're late on 25 files and that their unit is struggling.

It's not the poor little analyst who needs to be given objectives. Yes, they have objectives. They have to close many files, but the director—the DG—has to have performance evaluations and bonuses according to what they're responsible for in terms of access to information. Right now, I don't think it's taken that seriously.

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

This highlights some of the larger challenges that exist within government, currently. There doesn't seem to be top-down accountability. It goes right to the top.

Thank you very much, Commissioner.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Kurek.

Next, we're going to Ms. Hepfner for five minutes.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you, Mr. Chair.

Through you, I would like to thank Commissioner Maynard for being back before us, again, to answer our questions.

It's nice to see you here again. I would like to start with part one of your observations and your recommendations for the access to information review. You noted that systemic problems require just as much attention as the legislative review.

I'm hoping you can opine on whether increasing the scope of the act will take away from addressing some of the capacity issues your office faces.

[Caroline Maynard]

No, it's going to increase the number of requests. That's for sure.

The question is not what we're going to take away from Canadians. The act has to be reviewed as much as the system needs to be addressed. If you're going to give more information through access requests, you clearly need to have more people working in access units. If you're providing more information through portals like IRCC's, you will take those 200 analysts they're now hiring to do access requests and they will be available for other units.

What we need to give Canadians is what they're looking for. Is the information we're giving them what they're looking for? There's a lot of information out there that Canadians are not entitled to get—information in the offices of ministers, third party institutions, providers or contractors. That's a lot of information, so I think the scope of the act has to be increased.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

In the same vein then, can you comment on the maximum length of time for the government to conduct its internal consultations and respond to access requests and reviews? I think you were critical that the government doesn't make a firm commitment on timelines. Do you think that would exacerbate delays as well? The system is already under so much pressure.

[Caroline Maynard]

Right now the act says you have to respond to an access request within 30 days, or you can ask for an extension. There are different reasons. One of them is consultations.

Consultations are not mandatory. At this point, a lot of institutions think they are or they are treating it like they are, because it's information they are sharing with another institution so they want to make sure they're not providing that information without their consultation. What we see is that often, if you have 20 pages to be consulted, they don't pinpoint what they are looking for. They don't pinpoint the recommendation they want an answer on. The poor unit that is responding to the consultation request has another pile of requests they have to go through, so they don't treat these consultation requests as a priority as well.

The consultations either have to be in the legislation.... What I propose is to put specific timelines so that after 30 days, you're out. Right now we don't have that. We have, my office was told, 90 days for a consultation on two pages.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

I remember you talking about this last time you were here, that one way to improve government documentation would be to have, for example, parliamentarians deleting the emails with no corporate value or just recording meeting minutes. You said that you don't have to keep all your emails about everything. Is that still your position? Can you explain to us how we can be better at managing information?