National Defence Committee on Feb. 26th, 2024

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Again, what reasons do they give for not meeting the timelines?

[Caroline Maynard]

The reasons we find during our investigations are mainly with respect to what we call the OPI, the office of primary interest, which is where the records are. The ATIP unit is asking for those documents—the information—and they don't receive that information.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

With respect to some of the recommendations from your last report, the government “takes note” of your recommendations. Is that code for they reject your recommendations?

[Caroline Maynard]

You're talking about the systemic investigations.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Yes.

[Caroline Maynard]

That's the report I did in 2018. National Defence definitely had some issues in treating and answering requests at the time. We did a systemic investigation. We issued nine recommendations. Since then, the department has put in place a management plan to respond.

It was really good the first two years, I have to say. The complaints were reduced in 2019 and 2020. However, since then they have gone up.

As I said, I think leadership has a big role to play. The department is not responding to the request.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

I am just about out of time.

I was actually referring to the set of recommendations made by the ethics committee in 2023. That was where the minister explicitly said they had noted the recommendations but weren't implementing them. To be specific, recommendation number 7 of the ethics committee was about “creating an expedited access to information system” for victims of military misconduct, which they did not accept and aren't implementing, as far as I understand.

Do you have any further comment about that recommendation?

[Caroline Maynard]

This report was sent to the Treasury Board Secretariat. The Treasury Board president, as you said, responded that they were going to be looking into it. No recommendation was actually implemented.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

None was implemented.

[The Chair, Liberal, John McKay]

Thank you, Mr. Kelly.

Mrs. Lalonde, you have six minutes.

[Marie-France Lalonde, Liberal, Orléans, ON]

Thank you very much to our witnesses. It's really a pleasure to have you with us.

Ms. Maynard, my first question is about the data and decisions of the Office of the Commissioner published on the Internet. Looking at this data, we see an increase in the number of decisions made about the Department of National Defence in relation to its delays in responding to information requests.

You mentioned that these delays started in 2021. So it seems certain that the situation was different in 2019 and 2020. Would you be willing to tell us what might explain the increase in delays starting in 2021? We had a major event in 2020—the pandemic—and everything was shut down for a while. Do you think that has had an impact on the number of decisions?

[Caroline Maynard]

The pandemic has certainly had an impact on all institutions in terms of meeting their obligations under the act. However, during the pandemic, the Department of National Defence's access to information unit was exemplary, in the sense that it processed a huge number of cases during 2020. It was interesting.

It was in 2021 and 2022 that we received an increasing number of complaints. The pandemic began to have an impact on the years that followed, and the delays continue to increase. Right now, though, we can no longer use COVID or the pandemic as an excuse for a delay.

As I was saying earlier, what seems to be the main reason for delays at National Defence is that the services that hold the information do not respond within 30 days, in other words, within the time requested by the access to information unit.

[Marie-France Lalonde, Liberal, Orléans, ON]

That's great. What would you recommend?

At our last committee meeting, one of the witnesses brought in the perspective that 30 days may not be realistic. There were suggestions by this witness that maybe we should look at expanding that. Instead of 30 days, let's make it longer.

Madam Maynard, and maybe Madam Solloway, I would really like to hear your perspectives on that.

[Caroline Maynard]

According to Treasury Board statistics, 60% of requests meet the 30‑day deadline, but generally, a little over half are late. Of course, if we gave 60 days, people would still ask for additional time. I think we have to look at all the factors that lead to delays not being met.

Earlier, we talked about information management. There's far too much information. People aren't good at information management. When you make an access to information request, you are no longer talking about two or three pages in a small paper file. Now people keep thousands of pages to explain a decision.

There's definitely an issue with information management, and that causes delays.

The consultation between departments causes delays. Something has to be done with respect to giving a timeline to institutions that are receiving consultation requests to shorten those delays as well. That is one of the recommendations I made in my submission to Treasury Board with respect to the legislation.

[Marie-France Lalonde, Liberal, Orléans, ON]

Madam Solloway, I would like to hear your perspective.

[Harriet Solloway]

Insofar as the act under which we operate is concerned, I don't think we've had a systemic problem with a disrespect for the delays the act imposes.

I will hand it over to Brian Radford to expand on that.

[Brian Radford, General Counsel, Office of the Public Sector Integrity Commissioner of Canada of Canada]

Thank you.

Madam Solloway is correct that we have not seen this issue raised with us to any significant degree.

With respect to our own commissioner's office, we're a very small entity of 36 people with a single mandate to implement the PSDPA, the Public Servants Disclosure Protection Act, which means it might be a bit easier for us to meet the 30 days when we are faced with an access to information request. Of course, we have certain exemptions with respect to our disclosure of information.

[Marie-France Lalonde, Liberal, Orléans, ON]

I have a few minutes left.

I know that during your time for opening remarks, you couldn't finish everything. Is there a perspective you would like to bring forward to our committee?

[Harriet Solloway]

Thank you for the opportunity.

I was actually pretty close to the end. I was just going to mention some of the process for referring cases of reprisal to the tribunal. For the most part, everything was touched upon.

[The Chair, Liberal, John McKay]

Thank you, Mrs. Lalonde.

Ms. Normandin, you have the floor for six minutes.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much to both witnesses.

Ms. Maynard, the Standing Committee on Access to Information, Privacy and Ethics recommended that the Information Commissioner be able to impose fines or penalties for non‑compliance with his orders. You had to file three mandamus applications in order to enforce the orders you had issued.

Wouldn't penalties be a way to discourage agencies from not complying with orders? It would also avoid getting to the point where you have to file a mandamus application in order to successfully enforce those orders.

[Caroline Maynard]

In terms of orders, I had recommended during the discussions surrounding former Bill C‑58 that a process for approving orders issued by my office be put in place. Under such a process, it would be enough to have an order of my office approved by the Federal Court for it to be respected in the same way as a court judgment. Such a process would be much easier than a mandamus application.

At the time, the government said that we didn't need a process like that because it was going to comply with the orders of the Office of the Commissioner, which had the force of law. We now have proof that this isn't exactly the case. I think a certification process would be enough for institutions not to want to be charged with contempt of court, if I can put it that way.

When it comes to penalties, people often ask us who should be punished when the department doesn't respond or doesn't comply with the act. I think it would be very difficult to establish a process that would sanction a public servant, director or deputy minister. I think it would be easier to establish within the department a performance evaluation process for responding to access to information requests. When it affects premiums and pay, it can have an impact.

[Christine Normandin, Bloc, Saint-Jean, QC]

As the saying goes, money makes the world go 'round.

I have a financial question. I understand that you've asked for about an additional $6 million over three years to complete the complaints that you've received. You received double the usual complaints, but with the same budget. What is the status of that request?

[Caroline Maynard]

This is a request that was sent using the existing supplementary budget request mechanism. I haven't heard anything from either the Minister of Justice or the Department of Finance. I don't have a lot of hope for additional money. It's unfortunate because I'm an independent officer of Parliament, but I must report to those departments in order to receive additional money to carry out my mandate.

Fortunately, we received fewer complaints this year, so we're able to meet the demand, but my backlog isn't decreasing much because the number of applications coming in is equal to the number of applications processed. We should definitely have a way to get money when we need it to meet the demand, or to give money back if there is a drop in the number of requests. This is a process that I think should be independent of the government.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you. I will come back with more questions later.

Ms. Solloway, last September we received information that the Department of Defence had violated the Public Servants Disclosure Protection Act. I understand that it was your predecessor, Mr. Friday, who made the information public. He described his findings as troubling because, for a number of years, the Department of National Defence, as part of its internal regime, hadn't even updated its website to say that there were ongoing investigations, and hadn't even informed the whistle‑blowers of the outcome or follow‑up of those requests.

I'd like to hear your thoughts on the parallel roles of your office and the internal regimes of federal institutions. I understand that a whistle‑blower may decide to use either the internal system of the institution or your office, or both. If there's a loss of confidence in the internal plans, what is the impact on your organization? Over the past few years, has the number of requests that you process at your office increased compared to the requests that are handled by the internal systems?