Evidence of meeting #21 for Government Operations and Estimates in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was requests.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Caroline Maynard  Information Commissioner of Canada, Office of the Information Commissioner of Canada
Michael A. Dagg  As an Individual
Allan Cutler  President, Anti-Corruption and Accountability Canada
Sean Holman  Associate Professor of Journalism, Mount Royal University, Canadian COVID-19 Accountability Group
Clerk of the Committee  Mr. Paul Cardegna

11:45 a.m.

Information Commissioner of Canada, Office of the Information Commissioner of Canada

11:45 a.m.

Conservative

The Chair Conservative Tom Lukiwski

Madame Maynard, on behalf of our entire committee, I want to thank you for your appearance here today. I concur with the comments from most of my colleagues. Your presentation has been extremely informative and I wish you nothing but the best of luck. Thank you for being an exemplary public servant, and hopefully things will improve in your office over time. I'll leave it at that, and you are excused.

June 19th, 2020 / 11:45 a.m.

Conservative

The Chair Conservative Tom Lukiwski

Colleagues, I will just suspend for a few moments while we set up for our second panel.

11:45 a.m.

Conservative

The Chair Conservative Tom Lukiwski

We are resuming. I do call this meeting to order once again.

Mr. Dagg, the floor is yours for five minutes.

11:45 a.m.

Michael A. Dagg As an Individual

The committee members should know that I've been involved with access to information for most of my career. I'm basically a professional user of the Access to Information Act. It's with that in mind that I've had a lot of experience in all kinds of things, including in one case, in which I took the government to the Supreme Court of Canada. There were also other court cases in which I was involved, which gave me a sense of the need to push the government once in a while.

Since I've provided the clerk with a summary of my presentation, I'll simply say that access is an important right, but a lot of people haven't necessarily gotten around to learning the ropes of how to put a request in writing and word it properly. I've taken years to learn the details.

In my experience, access does work and it is important as a right for citizens, but there are a lot of problems. COVID certainly created the biggest problem, which is uncertainty, and I have made some requests that God knows when I will get an answer to.

I've given examples from four cases in my presentation. One is dealing with $500 million to $1 billion in unpaid taxes. I've been working on this one for several years, and I've had all kinds of hassles about this one. The American whistle-blower who brought it to my attention is available to give testimony if people want it. I spoke with him recently.

The other one is Project Anecdote. This is an RCMP investigation that took 10 years, from 1993 to 2003. They spent lots of resources, but at the very end they didn't charge anybody. Now, apparently, according to the information I had, there was corruption and money laundering, yet they found nothing. That's why I'm using access as my right as a citizen to find out why they don't want to collect maybe a billion dollars. I feel I'm entitled to an explanation as to why they chose not to do it. If there's a reason, let's see it, but so far nobody has any records. This ties into the problems with this one, because they told me initially that I might have to wait 800 years to get the answer. Then they said, oh, we'll revise it to 2098. The point is, that's still well beyond my lifetime.

There's a complaint to the commissioner about this, but I haven't heard back on it.

This specific request is particularly problematic because the stuff that goes to the archives is normally public, and the 20-year rule should have applied for the RCMP stuff up to the year 2000. That should have all been disclosable, but it's not, so what's going on? I provided the members of the committee with a letter that a third party had received saying that this information could have been provided with 30 days of work by four people. Now they tell me 30 days, 80 years, or 800 years. Which is it? I don't know.

The other thing the committee should know is that in the case of Project Anecdote, the court ordered the archivist of Canada to show up in court in Gatineau, Quebec, in 2015. The archivist defied a court order and didn't provide the information as required by law, so there's something sensitive about this particular file.

The final thing I would say is about the third case I had. I was surprised that the Canadian citizen—he had kids who were born in the States but he and his wife were born in Canada—was denied access to records to which he was entitled by virtue of a court order, which the Department of Immigration didn't want to accept. Eventually, when the commissioner intervened, the problem was resolved. The thing is, he's still having delays caused by whatever because he has four children, but he only applied for the first child. So we have to sit and watch what's happening.

As a result of this delay, he was forced to leave Canada. People should know that.

The final thing in my four points here—

11:50 a.m.

Conservative

The Chair Conservative Tom Lukiwski

Please finish very quickly if you could, sir.

11:50 a.m.

As an Individual

Michael A. Dagg

Okay.

There are contracting irregularities. I have made some requests, but they're all giving delays.

Go ahead for questions. I can answer questions in French as well.

11:50 a.m.

Conservative

The Chair Conservative Tom Lukiwski

Thank you very much.

We will now go to a five-minute opening statement from Mr. Cutler.

Mr. Cutler, go ahead, please.

11:50 a.m.

Allan Cutler President, Anti-Corruption and Accountability Canada

Like Mr. Dagg, I'd like to thank you for inviting me to testify. Mr. Dagg and I are both members of Anti-Corruption and Accountability Canada, which is an organization that aids whistle-blowers in exposing wrongdoing and encourages accountability and openness in government. You're going to hear from Sean Holman. Sean and I are both members of the COVID-19 Accountability Group, a coalition of experts to recommend reforms to the whistle-blowing.

Before I start, I'd like to thank Madame Maynard for having testified. I understand her problems and the stresses of her job better than I did before.

I'm going to give a few examples of access to information problems. I realize that's the focus. They started before COVID but they still go on. It's a general summary, and I've given a more specific summary. First off, let's just say that departments are not worried about ATIP legislation. When I talk to them—and Mr. Dagg may confirm this—bluntly in a conversation they simply say that a complaint to the OIC just gives them more time. In fact, in at least a couple of cases, I have been told that my request is behind all the complaints to the OIC, so I'm going to have to just wait. In other words, I'll have to complain to the OIC if I want to get my situation resolved.

ATIP officers know they can delay ATIPs. Why? Because they can simply keep asking you questions and demanding clarifications and saying they don't understand the question. As a specific example, I had a question that said, “Tell me why you did not take any action for six years.” I used the two dates. They came back to me and said they didn't understand the question. Finally I put a complaint in to the OIC because they didn't understand a simple question.

Departments can do whatever they want. They end up making exceptions under the law, which have no pertinence, as the commissioner would testify. Once something goes to OIC, they suddenly say it doesn't apply, so they can release the data.

Legally I understand that they are required to help the person who's the applicant, but their interest is in the department. They don't want to help the applicant.

As Mr. McCauley mentioned, extension beyond the 30-day statutory limit is the norm. In fact, 90 days is the norm. That's 120 days or a four-month delay. That is the norm for the request.

I'm going to finish by stating that I've given you examples of two very specific access requests. One is on the concealment of the asbestos problem at Kent Institution in B.C. We know the documents are there, but they have been denying the documents.

The other one is the Department of Justice concealing records they've had in their possession for 12 years. How much time do I still have?

11:55 a.m.

Conservative

The Chair Conservative Tom Lukiwski

You have about 40 seconds.

11:55 a.m.

President, Anti-Corruption and Accountability Canada

Allan Cutler

Okay. I'll just say that Mr. Brad Birkenfeld gave them documents in 2008. From 2008 to 2014, Justice concealed those documents.

When Mr. Dagg and I asked for information on those documents, suddenly they had information that they had to deal with that was sensitive. If you sit on a file for six years, it cannot have sensitive information.

Thank you.

11:55 a.m.

Conservative

The Chair Conservative Tom Lukiwski

Thank you very much.

Our last five-minute opening statement will come from Mr. Holman.

Mr. Holman, the floor is yours.

11:55 a.m.

Sean Holman Associate Professor of Journalism, Mount Royal University, Canadian COVID-19 Accountability Group

Thank you very much, Mr. Chair. I would also like to thank the committee for inviting me here to testify on this most important of issues.

As mentioned, I'm a journalism professor at Mount Royal University in Calgary, where my research focuses on why we value information in democracies and the history of our country's freedom of information laws.

I am also, along with Mr. Cutler, a member of the Canadian COVID-19 Accountability Group, an ad hoc coalition of experts who joined together earlier this spring to recommend reforms to Canada's whistle-blowing and freedom of information laws within the context of the pandemic.

It's from these two places that I will be speaking today.

I would like to begin by briefly discussing the crucial importance of information to Canadians at this moment in history. Generally speaking, we value information for two reasons—control and certainty. With information, we are able to make better decisions about the world around us, whether it's in the voting booth or the checkout line, thereby controlling public and private institutions. That information can also make us feel more certain about the world because it allows us to better understand it.

During an emergency, the need for information accelerates because Canadians want to make the best possible decisions to keep themselves safe. They also want to ensure that governments and corporations are doing the same thing on their behalf, especially when it involves a significant expenditure of taxpayer dollars.

The costs of not providing this information are severe in the post-truth era we find ourselves living in. That's because if there is an information gap, there's a substantial risk it will be filled with misinformation and disinformation.

The Government of Canada has in some ways tried to provide such information, but in other ways there are numerous documented instances of it failing to do so. Because of our broken access to information system, there is no easy or quick means for Canadians to challenge these refusals and obtain records or data the government won't voluntarily disclose, which was the entire point behind the Access to Information Act in the first place.

That's why the Canadian COVID-19 Accountability Group has recommended the government be legally required to proactively release a number of broad categories of unredacted records within 15 days of their being prepared, including health and safety inspection reports, public health research and government contracts.

We are also recommending major reforms to Canada's whistle-blower law as this committee has done in the past. Last month we saw how it took Canadian soldiers to blow the whistle on deplorable conditions in Ontario nursing homes. At the time, Premier Ford said that was because you find cracks in the system by living the system around the clock every single day. In making that statement, he has eloquently articulated why we need to better protect public and private employees who see wrongdoing in their workplaces.

We recognize that such reforms, which should include financial protection for whistle-blowers, will take time, and that's why we're calling on the government to publicly declare that it will protect anyone who reports public and private sector wrongdoing related to the crisis. We further recommend the creation of a COVID-19 ombudsperson who can provide advice and support for these whistle-blowers.

Canada's Access to Information Act currently ranks 57th compared to 127 other similar laws around the world. Its Public Servants Disclosure Protection Act has been criticized for being in violation of international best practices. It shouldn't take the COVID-19 crisis to change this. However, if it does, such reforms will help preserve evidence-based democratic decision-making at a time when it is under threat.

I would urge the members of this committee to take immediate action on this very important issue.

Thank you.

Noon

Conservative

The Chair Conservative Tom Lukiwski

Thank you very much.

Colleagues, we will now have six-minute rounds followed by five-minute followed by two-and-a-half-minute rounds starting with Mr. McCauley.

Go ahead for six minutes.

Noon

Conservative

Kelly McCauley Conservative Edmonton West, AB

Gentlemen, welcome.

Mr. Cutler, welcome back. It's good to see you. I want to say thanks for all the great work you did on the whistle-blower report we did, which unfortunately has not been acted upon. We've had four different Treasury Board presidents since then, and not one of them has taken up the cause, but I appreciate that you're still fighting for it.

Mr. Holman, it's good to see you again.

Mr. Dagg, thanks for your contribution.

I'll ask this to the three of you: What kind of teeth do we need to add to our laws so that these ATIPs can be put out in a timely fashion?

We heard Mr. Cutler comment about the delaying tactics of these ATIP bureaucrats. I actually saw the email that came out saying there would be an 800-year wait for the Operation Anecdote information.

What do we need to do to change the culture or to penalize people who are violating the access-to-information regime we have, which is meant to protect Canadians?

12:05 p.m.

Conservative

The Chair Conservative Tom Lukiwski

Mr. McCauley, do you want to direct your question to one of the panellists so we can start?

12:05 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Sure. I'll start with Mr. Holman.

12:05 p.m.

Associate Professor of Journalism, Mount Royal University, Canadian COVID-19 Accountability Group

Sean Holman

That's a really good question.

I think one of the first things we need to do is to take away the government's teeth.

What the government has demonstrated over time is that it cannot be trusted with the existing exemptions and exclusions in the Access to Information Act. I think there is an urgent need to review those exemptions and exclusions, and also to establish a legal requirement that certain broad classes of information be released without going through the access to information process, because really, those exemptions and exclusions are being used as a shield against accountability.

Another thing I would recommend, which the COVID-19 Accountability Group has recommended, is that the performance pay for the heads of public bodies or their unelected designates be tied to releasing information and following through on our freedom of information laws that exist.

I think those two things really help significantly improve the situation when it comes to freedom of information in Canada and truly create an open-by-default government.

12:05 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

That's great.

Only 46 of 211 government agencies are actually currently fulfilling the ATIP rules. One that is missing from the list of those doing ATIPs is the Treasury Board, which is responsible for ATIPs.

What kind of message is it sending to all of our departments when the chief information officer of the Treasury Board appeared in front of our committee and didn't even know it was an issue, and his own department is not even fulfilling the ATIP responsibilities?

12:05 p.m.

Associate Professor of Journalism, Mount Royal University, Canadian COVID-19 Accountability Group

Sean Holman

It sends a very poor message, obviously.

This has been the history of governments in Canada. Opposition parties promise that when they come into power they will be more open and accountable than their predecessors. When they actually get into power, what we have seen is that the seduction of secrecy is too much to resist.

We need to stop treating this as a partisan issue. We need to treat this as an issue of democracy that should unify us all so that we can better serve the public and make better decisions as a country about some of the most pressing problems of our time.

12:05 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

I agree with you, and it's been an issue with past governments as well.

I was hoping our whistle-blower report would actually be taken up because it would handcuff the current government but future governments as well. Whether it be a Conservative or an NDP government, everyone would be locked in to respecting whistle-blowers.

12:05 p.m.

Associate Professor of Journalism, Mount Royal University, Canadian COVID-19 Accountability Group

Sean Holman

Absolutely.

12:05 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

What provinces are doing a good job right now with ATIPs?

12:05 p.m.

Associate Professor of Journalism, Mount Royal University, Canadian COVID-19 Accountability Group

Sean Holman

I would say that very few provinces are doing a good job when it comes to ATIPs. This is a problem that exists across Canada. It is not exclusive to the federal government.

Part of the reason is that all our laws come from essentially the same primal pool from the late seventies and early eighties. It's well past time that we actually change that.

12:05 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

I agree.

I just want to go back a bit to Operation Anecdote, Mr. Cutler and Mr. Dagg.

Have you ever seen an ATIP come back that said it would take 800 years to find some papers?

Mr. Cutler.