Government Operations Committee on Feb. 17th, 2021

[Caroline Maynard]

I know exactly which one, but I can't tell you, because it was part of an investigation. But prior to 2019, there was nothing in the act that would allow an institution to refuse to process an access request that was frivolous, made in bad faith, or completely unreasonable in terms of the impact on the institution. Since the amendments to the act, there is now a possibility to refuse to act as long as the institution asks permission, which we have done once. We've received about six requests so far. Typically those requests involve somebody asking for—I can give you an example that's not that one—all emails of all the public servants working for this department from 2002 to 2020. That would amount to millions of pages of documents. We've had, fortunately not too often, people make that kind of request, which is very broad and vague and involves a huge number of files.

[Irek Kusmierczyk, Liberal, Windsor—Tecumseh, ON]

When people or groups of people make these types of broad requests for these documents, what does it do to the system, and what does it do to our ability to complete the ATIPs that are required and that are important?

[Caroline Maynard]

It really stalls the institutions sometimes. Sometimes it's very easy to pull the information and it's not information that is hard to treat or process. Sometimes the number of pages is due to a lack of good management of information, which unfortunately we're seeing, too, so it's not just the type of request. Better management would definitely reduce the number of pages in a lot of cases.

On what we do with those type of requests, we talk to the requester and we try to scope down. We try to explain what it means. We try to explain how it's going to impact the other requesters, that they're not the only one. Sometimes it works and sometimes it's more of a negotiation. Sometimes we'll see institutions in those cases asking us to not have to act on those requests because they're unreasonable.

[Irek Kusmierczyk, Liberal, Windsor—Tecumseh, ON]

I have a million other questions, but I think I'm out of time.

[Caroline Maynard]

Thank you.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Kusmierczyk for your diligence and staying so close to the time.

We'll now go to Mr. Paul-Hus for five minutes.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

Ms. Maynard, as you know, contract management for vaccines a hot topic. If I were to make an access-to-information request, would I be entitled to receive this information in a timely manner?

[Caroline Maynard]

You should receive the information. Based on the act, the institution will carefully review the information to determine what should be protected. It may also release additional information to you at its discretion.

In principle, you should receive a response within 30 days of your request, however, you may not receive all the information you require.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you. We'll take care of that.

On page 11 of the French version of the report, you talk about “the culture of delay.” That intrigues me. We've talked a lot today about COVID-19 and the impact of the crisis on staff. In your report, it says that since the change in government—

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

A point of order, Mr. Chair. I'm sorry to interrupt Mr. Paul-Hus, but I'm hearing the interpreter speak in English, while I'm using the French channel. So I'm not hearing what the member is saying. It would be interesting and important that I hear it.

[The Chair, Conservative, Robert Gordon Kitchen]

Ms. Vignola, there appeared to be a small translation issue. I believe it's been corrected at this point, has it not?

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

It's working now. Thank you. Let's hope that it will still be working when Mr. Paul-Hus takes the floor again.

[The Chair, Conservative, Robert Gordon Kitchen]

I had stopped the clock for you, Mr. Paul-Hus, if you want to restart.

Thank you.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

So I'll resume my question.

On page 11 of your report, you talk about the “culture of delay.” Further on, there's a table showing that every year since 2014-15, there have been delays in responding to access-to-information requests. As I said earlier, COVID-19 has nothing to do with this delay, since the statistics go up to 2018-19.

In your report, you say several times that ministers and the Prime Minister should show leadership. Do you think that direction has been given as early as 2014-15 to slow down the process and, ultimately, hurt access to information? Would the leadership have manifested itself in this way?

[Caroline Maynard]

No, I don't think so.

It's rather the opposite. There's been a failure to respond to the needs of institutions and public servants to meet their access to information obligations and responsibilities. The requirement to meet the 30-day response time hasn't been emphasized. It appears that, each year, the 30-day time limit seems to be getting further and further away from being met.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

So there's a kind of laxness in leadership. Basically, no one cares and thinks that there's no hurry.

[Caroline Maynard]

That's it. People don't think it's important.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

That's interesting.

Besides, you were talking about technological changes. In your opinion, could texting be a tool that's used to hide and therefore escape the process of access to information?

We know that written documents and emails are covered, but I believe text messages are not.

[Caroline Maynard]

Text messages are covered, actually. When you make an access-to-information request, text messages from business phones provided by the institution to its officials are definitely covered. The only problem is that it's much more difficult to save these documents. It depends on the institution's computer system.

We don't encourage the use of texting and chatting for work at all. However, if people do use them, we believe it's imperative that they take steps to retain work-related information of importance to government.

There is currently no legal obligation to do so. They are simply guidelines. Establishing this legal obligation is another one of my recommendations.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

That's perfect. Thank you.

I have one last question for you. Could you give me a list of the five worst departments, in your opinion? I know Canadian Heritage has been blamed lately, but which other departments are causing you the most problems?

[Caroline Maynard]

The departments that are on my list of 15 are included because of the number of complaints received. Immigration, Refugees and Citizenship Canada is definitely the first. There is also the Department of National Defence and the Canada Revenue Agency.

Earlier, I had the table in front of me that would have allowed me to give you the statistics. I'm trying to find the information.

Whatever the case, it's often the same departments that come back. It's not necessarily because they're not doing a good job, but because they get a lot of requests. That's often the reason for delays and, as a result, more complaints.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Okay.

Thank you very much.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Paul-Hus.

We will now go to Mr. MacKinnon for five minutes.

[Steven MacKinnon, Liberal, Gatineau, QC]

Thank you very much, Mr. Chair.

Good evening, Madam Commissioner. Thank you for being with us this evening.

I'd like to address the issue of trade secrets and intellectual property.

Of course, procurement issues are topical. I'd like to hear your thoughts on the idea that a company might be more reluctant to provide patented materials, services or methods, for example, to a government with an overly open access-to-information regime.

Have you thought about this issue?

[Caroline Maynard]

Of course, even in the context of more permissive legislation, there are factors that justify the desire to protect certain information. In such situations, the act provides certain exceptions for third party information, meaning companies doing business with the government. For example, certain clauses of a contract could be excluded.

Now, what we often hear is that it should be all or nothing. Personally, I think there's a happy medium. If companies were told exactly which clauses would be accessible and which ones would be protected, they would be more open.

We are currently operating on a consultation system. When an institution receives an access to information request about a contract it has signed with a third party, the third party is always consulted and can object to the release of the information. In my view, third parties have a right to be consulted, and this is something that can never go away.