Evidence of meeting #94 for National Defence in the 44th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was office.
A recording is available from Parliament.
Liberal
Andy Fillmore Liberal Halifax, NS
I'll move on from that for one minute. It's hard to fit this in, but for you, Mr. Ombudsman, what is the greatest way the ATIP process impacts your work?
Ombudsman, National Defence and Canadian Armed Forces Ombudsman
For the ATIP process, we follow the law, in essence. We absolutely don't get as many ATIP requests as the whole department gets, but we follow the law. We're very good at getting the information for an ATIP request. We're actually pretty good, so it doesn't truly affect us. It does change year to year, though, so we never know from year to year how many requests we might get. We do have a professional service contract in place as a retainer, so if we need to add additional resources for a big year, we will access it.
Liberal
The Chair Liberal John McKay
Thank you, Mr. Fillmore.
Mr. Lick, Mr. Joshi and Ms. Hynes, I want to thank you on behalf of the committee. Your contributions to our study are quite valuable.
With that, we'll suspend and return with a new panel.
Liberal
The Chair Liberal John McKay
We're back on. We have almost half the committee here. That's pretty good.
This is our second hour. We have Caroline Maynard, Information Commissioner, and Allison Knight, senior director of investigations, priority cases, historical and intelligence, Office of the Information Commissioner. That's quite a long title. We also have Harriet Solloway, Public Sector Integrity Commissioner, and Brian Radford, general counsel.
Welcome, all, to the committee.
I'll ask you to do your first five minutes in sequence.
Ms. Maynard, you have five minutes.
Caroline Maynard Information Commissioner, Office of the Information Commissioner of Canada
Thank you for inviting me to speak today.
Since this is my very first presentation before your committee, I would like to give you an overview of my mandate as Canada’s Information Commissioner. To fully understand my mandate, it is important to recognize that I am an independent agent of Parliament whose role is defined under the Access to Information Act.
The Access to Information Act provides a right of access to information in accordance with the following principles: that government information should be made available to the public, that necessary exceptions to the right of access should be limited and specific, and that decisions on the disclosure of government information should be reviewed independently of government.
The Treasury Board Secretariat holds the overall responsibility for administrating the act. That includes providing guidance and tools to government institutions.
Access to information requests can be made for any records under the control of a government institution. About 260 institutions are subject to the act, including the Department of National Defence.
Each institution is responsible for responding to the access to information requests it receives. My role as Information Commissioner is to investigate complaints relating to those requests.
Complaints are submitted to my office when requesters are not satisfied with the amount of time it's taking for an institution to respond, or if they believe they haven't received all of the information to which they're entitled.
So far this current fiscal year, I have registered 103 complaints against the Department of National Defence. As of today, the department ranks sixth in the number of complaints received by my office.
At the conclusion of an investigation, I have the power to issue an order against the institution, including ordering the disclosure of information to the requesters. My orders are legally binding. When institutions receive an order, they must implement the order unless they apply to the Federal Court for a review.
This year, I have issued orders in 29 investigations against the Department of National Defence, mainly on the timeliness of responses to access requests. In several of these investigations, I found that it was a lack of responsiveness from teams responsible for providing records that affected the department's ability to meet its obligations under the act.
As I've often noted in statements on the importance of transparency within the federal government, senior leadership is key to influencing corporate culture change. This leadership must be extended to information management practices and internal communications protocols in order to ensure compliance with the Act.
This brings me to an update for you on recent investigations I have concluded against the Department of National Defence.
Last June, I ordered the Minister of National Defence to release records on DND's COVID-19 policies by November 30, 2023. These policies were requested through an access to information request made the year before. The department told my office it would comply with the order. However, it did not meet the November deadline. This is why last December I filed an application for writ of mandamus to compel the Minister of National Defence to comply with my order. This was the second time I had to make this type of application as a result of an institution ignoring my orders.
Last week, I filed two new applications to compel the Minister of National Defence to comply with orders that should have been respected in November and December 2023. These files are currently ongoing with the Federal Court, and I therefore cannot discuss the particulars of these proceedings. However, I can tell you that this type of extraordinary recourse to compel an institution to respect orders should not be required. It raises doubts about my authority and, more importantly, the credibility of the access to information system of the federal government.
I will now be happy to answer your questions.
Liberal
Harriet Solloway Commissioner, Office of the Public Sector Integrity Commissioner
Good afternoon, everyone.
Mr. Chair, I appreciate the opportunity to provide information on the federal public sector's external whistle-blowing regime.
The Office of the Public Sector Integrity Commissioner of Canada was created in 2007 under the Public Servants Disclosure Protection Act as part of a federal government accountability initiative. The office provides a confidential mechanism for public servants and members of the public to disclose certain wrongdoings committed in the federal public sector. It should be noted that the act provides a very specific definition of what constitutes wrongdoing, which does not include all wrongdoing in the general sense of the word. The act also provides that current and former public servants may file complaints of reprisals resulting from disclosures.
As an agent of Parliament, I perform a function that guarantees independence and neutrality.
My office cannot investigate disclosures made against the Canadian Armed Forces, the Communications Security Establishment or the Canadian Security Intelligence Service. Under the Act, these organizations must maintain their own internal whistle-blowing regime. However, my office can investigate disclosures made against the Department of National Defence and complaints made by public servants who work or have worked within the department.
The act also provides that federal organizations subject to the act must establish internal processes, which we call internal regimes. Organizations must designate a senior officer for disclosures and give that officer a mandate that mirrors that of my office. The Secretary of the Treasury Board is responsible for administering internal regimes. Under the act, public servants may disclose information to their supervisor or the senior officer through a given organization's internal regime, or they may go directly to the Office of the Commissioner under the external regime. The choice is theirs.
My office establishes standardized processes for handling disclosures and reprisal complaints, including service standards for various stages in the process and clear policies to support decision-making. These internal processes are intended to ensure the consistent and fair treatment of cases. They are reviewed on an ongoing basis and are periodically amended to optimize efficiencies.
Any individual may make a confidential disclosure of wrongdoing to my office by submitting a form online via fax, by mail or in person. Once received, disclosures are analyzed to determine whether they fall under my jurisdiction and whether allegations could constitute wrongdoing as defined in the act. Analysts may reach out to the discloser for further information during this time.
In cases where I do not launch an investigation, the discloser is informed in writing of the reasons for my decision and the matter is closed. In cases where additional significant information becomes available, I may reconsider that decision.
In cases where I decide to launch an investigation, the deputy head of the affected organization is contacted, as well as the discloser and the alleged wrongdoer, and the investigation begins. We have a service standard for completion of investigations, which is within 12 months. Investigations can include interviews with witnesses and the alleged wrongdoer, as well as the collection and examination of documents or other evidence. Throughout the process, my office respects the right to procedural fairness and natural justice for all involved parties.
After investigating, I determine whether or not a wrongdoing was committed based on the balance of probabilities. In the case of a proven wrongdoing, I have 60 days to table a report in Parliament describing the wrongdoing. The report also includes my recommendations for corrective action and the chief executive's response to those recommendations.
To date, my predecessors have tabled 19 such reports.
It should be noted that I have been on the job for less than five months.
I understand how difficult it is to make a disclosure, and I take the obligation to protect the confidentiality of disclosers seriously. Public servants responsible for their organization's internal regime have that same obligation. The Office of the Public Sector Integrity Commissioner never discloses the identity of the discloser. However, the discloser may be subject to reprisals if their identity is revealed by other sources. If that happens, the discloser can file a complaint with the Office of the Commissioner. The process for receiving and handling complaints is similar to that for disclosure, but the Public Servants Disclosure Protection Act requires me to decide—
Commissioner, Office of the Public Sector Integrity Commissioner
I will just add that conciliation and mediation are important tools to optimize outcomes for the parties, and we have thus far funded 24 successful conciliations.
I thank you for your time.
Liberal
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Thank you.
Commissioner Maynard, thank you for clarifying some things in your opening statement.
Two weeks ago at this committee, Minister Blair said that he didn't believe the matter of ATIP compliance and the litigation that has resulted arose from his department, so I thank you for some clarity around that.
Can you confirm for the record that the title of the case is the Information Commissioner of Canada versus the Minister of National Defence?
Information Commissioner, Office of the Information Commissioner of Canada
It is in three cases, yes.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
It's in three cases now. Thank you for bringing that to our attention.
Since we had the minister here two weeks ago, you have had two more refusals from his department. You are taking him to court now over two other refusals.
Information Commissioner, Office of the Information Commissioner of Canada
That's correct.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
I understand you are not able to talk about the case itself or the merits of the case, but can you give us some timelines? What communication or information were you given regarding their refusal to comply with your orders?
February 26th, 2024 / 12:20 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
It's not so much a refusal. I think it's that they're incapable of respecting the orders because of the lack of resources and responsiveness from the different sections of National Defence where the records are held. There's an issue there.
In our investigation, we realized that when we issue orders, they're still incapable of getting information out. We have to go to court now to make sure that is respected.
Conservative
Information Commissioner, Office of the Information Commissioner of Canada
Allison, do you have that information?
I know the orders were to issue the information by dates in November and December. The dates of the orders themselves would have been in the summer because they usually have 36 business days to comply with an order.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Did they inform you that they were incapable of fulfilling the lawful order you gave them? Did they tell you they were incapable, did they just let the clock run out or did they make excuses over willingness?
Information Commissioner, Office of the Information Commissioner of Canada
When we issue an order, we have to give them an intent to order. They have 30 days to respond to us as to whether or not they are going to comply or take us to court.
In all three of these cases, they told us they were going to comply with the orders. We found out through information—often it's the complainants who reach out—that they were not met. The date passed. In that way, we have to go to court to make sure an order is respected.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
I'll ask you the same question I asked the minister. Is this openness and transparency at work, or is it a demonstration of openness and transparency for Canadians, per the 2015 promise this government made?
Information Commissioner, Office of the Information Commissioner of Canada
It's definitely affecting the credibility of the access to information system.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
How does that affect people who need information from the department? We have reports of people trying to register their complaints of harassment or sexual misconduct. They need access to information to make their complaint and are not able to get information.
What does this say to people who need information from the department?
Information Commissioner, Office of the Information Commissioner of Canada
I can't talk about privacy access. The Privacy Commissioner would be the proper person to talk to you about complaints for privacy requests. I suspect they have the same problem with the responses to these types of requests.
We definitely see that our complaints are related to timelines. The department is getting worse as we speak. In the last three years, complaints have been increasing. It's usually about timelines not being respected.