My name is Robert Mundie, and I'm the acting vice-president of the corporate affairs branch. I have with me today Dan Proulx, who is director of the access to information and privacy division at the Canada Border Services Agency.
This division is responsible for overseeing the access and privacy functions at the agency. These include administering and fulfilling all legislative requirements of the Access to Information Act and the Privacy Act related to processing requests; interacting with the public, agency employees, other government institutions, and the offices of the Information Commissioner and Privacy Commissioner regarding investigations and audits; and implementing measures to enhance our capacity to process requests.
I will briefly outline the CBSA's access and privacy functions and the way the agency performs against established service standards and will highlight some of the successes and challenges we experience in our administration of the acts.
As the second-largest law enforcement agency in the federal government, the agency is responsible for border functions related to customs, immigration enforcement, and food, plant, and animal inspection.
The agency administers and enforces two principal pieces of legislation: the Customs Act, which outlines our responsibilities to collect duty and taxes on imported goods, interdict illegal goods, and administer trade legislation and agreements; and the Immigration and Refugee Protection Act, which governs both the admissibility of people into Canada, and the identification, detention and removal of those deemed to be inadmissible under the act.
The agency also enforces 90 other statutes, many on behalf of numerous federal departments and agencies.
Mr. Chair, given the numerous daily interactions the agency has with businesses and with individuals on a variety of matters, we are no strangers to requests for access or personal information. We have approximately 62 employees working in the ATIP division, 44 of whom are solely dedicated to the processing of privacy and access to information requests. The agency also has an internal network of 16 liaison officers who provide support to the ATIP division within the agency's branches at headquarters and in regions across the country.
The CBSA's operating expenditures to run its privacy and access to information program totalled approximately $5.1 million in 2016-17, with $4.3 million dedicated to salary and $800,000 to non-salary expenditures. With respect to volumes of requests received under the Access to Information Act, we received just over 6,250 requests in 2016-17, which is the second-highest total for a department within the Government of Canada. Under the Privacy Act our numbers are equally significant, with approximately 11,600 requests.
Furthermore, in the first half of this fiscal year, there has been a 15% increase in the number of requests received under both acts. These high volumes are largely attributable to individuals seeking copies of their history of arrival dates into Canada.
In fiscal year 2016-17, 78% of privacy requests and 45% of access requests came from individuals seeking their traveller history, a report we generate that is used to support residency requirements for programs administered by Immigration, Refugees and Citizenship Canada and by Employment and Social Development Canada. Analysts from the ATIP division have direct access to the database that houses these reports. Also, the review of these reports and the application of the law are standard, which allows our analysts to complete these requests without needing to obtain recommendations on disclosure from departmental officials. This greatly reduces the time it takes analysts to process these types of requests.
Of all the requests completed last fiscal year, the CBSA was successful in responding within the legislated time frame in more than eight out of 10 cases under both acts.
As indicated in the Office of the Privacy Commissioner of Canada's annual report last year to Parliament, 70 complaints were filed against the CBSA to the Privacy Commissioner. Given the large volume of requests that we process, this number is a very small proportion of the total requests closed, representing less than 1%.
A similar result was seen under the Access to Information Act. A total of 125 complaints were filed with the Information Commissioner, representing less than 2% of the requests completed by the CBSA. However, we aspire to better serve Canadians and look to find ways of improving our service.
Our success reflects the agency's commitment to ensuring that every reasonable effort is made to meet obligations under both the Access to Information Act and the Privacy Act. The agency strives to provide Canadians with the information to which they have a right in a timely and helpful manner, by balancing the right of access with the need to protect the integrity of border services that support national security and public safety.
Innovative approaches and careful planning will help the agency to continue the success into the future.
In closing, we welcome the review of the Access to Information Act and the Privacy Act and will fully support and adopt any new measures that are introduced by the Treasury Board Secretariat following passage of legislative reforms.
I want to thank you, Mr. Chair, for the opportunity for us to provide our input into your study and for welcoming us here today. I look forward to the members' questions.
Mr. Chair, my name is Michael Olsen. I'm the director general of corporate affairs and chief privacy officer at Immigration, Refugees and Citizenship Canada. Accompanying me today is Audrey White. She's the director of access to information and privacy at IRCC.
I thank you for welcoming us here today and giving us an opportunity to discuss Bill , an act to amend the access to information and privacy acts. IRCC has had the opportunity to appear before this committee on two previous occasions to discuss this review.
Mr. Chair, I want to discuss our department's performance first and then move into a discussion about the proposed amendments to the act.
In 2012-2013, the department received 30,124 ATIP requests. Since that time, the number of requests has more than doubled. Over the course of 2016-2017, we received more than 63,000 ATIP requests, representing a 23% increase from the previous year. For the current year, we are again seeing a 23% increase in the number of requests received.
In 2016-2017, our last year of reporting, IRCC received more access to information requests than any other federal institution. IRCC represents approximately half of all ATIP requests received by the Government of Canada.
Despite this increase in volume, IRCC was able to maintain a compliance rate of 79% for access to information requests and 68% for privacy requests. The ATIP division has been efficient in managing the volume of requests received in order to meet the legislative deadline.
IRCC has launched a number of initiatives in an effort to improve its performance and to address current challenges. Although these initiatives have increased productivity year over year, we continue to create strategies aimed at decreasing our backlog and improving our compliance rate.
The majority of ATIP requests received and processed within our department concern immigration case files. The department holds personal information on millions of individuals and collects significant amounts of personal information annually, due to applications for citizenship, passports, permanent and temporary residence. This in turn has a direct effect on the growing number of ATIP requests received by IRCC.
Mr. Chair, a total of 165 official complaints against the IRCC were filed to the information and privacy commissioners last year, representing less than 1% of all requests processed during that period. The duty to assist is taken seriously at IRCC. The ATIP division notifies requesters of possible delays in service. We act proactively to minimize the number of complaints.
ATIP also offers diverse training in person and online to IRCC employees on the importance of safeguarding privacy and protecting personal information. Mr. Chair, as the chief privacy officer at IRCC, I'm pleased to announce that we'll be having our second annual privacy day on November 1. This will provide a forum to spotlight key privacy issues in a complex and rapidly changing technological environment. Most importantly, privacy day demonstrates our continuous efforts to develop a culture of privacy institution-wide as well as our commitment to increased privacy vigilance. At IRCC, protecting privacy and personal information is paramount.
Bill provides new proposed subsection 6.1(1), which provides government institutions the ability to refuse requests that are vexatious or in bad faith or missing key details. This new power is discretionary, and IRCC will continue to exercise judgment appropriate to the spirit of the legislation.
As I mentioned, IRCC is committed to the “duty to assist” principles embedded in the act. We already process requests that lack specific details, either because they are unknown, unnecessary, or unspecified. Where necessary, ATIP works with requesters to clarify the scope of the request and to obtain missing information. We would only consider refusal in exceptional circumstances where, for example, all “duty to assist” options had been exhausted, processing the request would be impossible, or processing the request would impose a significant burden on IRCC that could not be reasonably managed through time extensions or other provisions of the act.
Mr. Chair, I thank you again for the invitation to provide IRCC's view on this important subject and for welcoming us here today.
I look forward to any questions you or the committee have. Thank you.
Generally speaking, how it works is that we get receipt of a request. They now come in at night with the online portals. Once we get a request, the front-end staff—in most ATIP shops you have an administrative staff—will log the request into the ATIP tracking system, which is the software we talked about earlier. The request is logged in to the system, and then it moves over to a pod, if you will. All the new requests that came in the day before, the night before, are sitting in this pod. There are a couple of hundred of them on any given day in our institution.
What happens then is that management assigns them to the analysts. They're farmed out. We have about 40-odd analysts that respond to these requests, and the requests go to them. The first thing to do when you get one of these new requests is read it and make sure you understand it. If you do not understand the request, you go back and seek clarification right away. We will not task it out within the CBSA to do a record retrieval if we don't understand it ourselves.
When we look at the subject of a request, one of the first things we do is query our system to see if someone else has requested something similar. As you know, we put the subject lines of completed requests on the Internet. If I processed a similar request in the past, I can offer that up as a request that can satisfy your immediate needs, or maybe something that can help you out in the interim as I process your new request for similar information. That is also done, because if we can satisfy you by giving you something we've given someone else without having to process the whole request, we save everyone time. You're happy and we're happy. Everyone's happy.
Once we understand the request properly, we have this initial 30-day window to make a lot of decisions. In that 30-day window I have to guess, often without even having the records, what's going to be coming my way. Am I going to need third party consultations? Am I going to have to consult other government institutions? What are my indications of the volume that I'm going to receive? A lot of that is done by phone with the program area that has the physical records. You try to guesstimate what's coming through the pipe, because if you don't take your time extension within the first 30 days, you can't take it. That's your window.
You may be lucky enough to get the information within the first 30 days. At CBSA they come by way of a drop zone. To expedite the processing, we created an online drop zone. The records are electronically put into a portal and they're grabbed by my staff. CBSA is fully automated; we don't have paper. If we receive paper, we scan it, and then we shred the paper. Everything moves in a system.
Once we get the information back to us, to make sure that we have good, solid recommendations, that we have what's being requested—not more, not less—and that we have a thorough review of what's coming my way before I do an ATIP analysis, we have a mandatory process whereby an executive level director or above at the CBSA needs to sign off that what is being requested is included in ATIP. It's complete. It's accurate. It's not too much. It's not too little. Here are the sensitivity recommendations or the recommendation to do a full disclosure. Those files are then assigned to an ATIP analyst.
A lot of folks say, “Can you process this in 30 days?” To give you an idea of the volumes right now, currently at ATIP CBSA my folks have between 80 and 100 files each. Every single day when they arrive in the morning, they have about 80 to 100 to juggle, with an expectation to either get it out the door in 30 days or to make the determination within 30 days of whether an extension is needed and how long it needs to be. You can see it's a very, very heavy workload, and everything is done very quickly, in time, in my office.
When you get that all back, to finish the process you have to do a line-by-line review. Seriously, it's a line-by-line review. Most of the exemptions, as I told you, are discretionary, so you have to ask yourself whether this is something that I can release to the public. Is it something I need to exempt? If I exempt it and it's a discretionary exemption, how do I exercise my discretion? How do I document it? Why am I choosing to release or not release? We'll document the exercise of discretion both ways. If we do a disclosure, we'll document why we're doing a disclosure. If we don't, we'll document why.
Once this is all done, it has to go to a delegated person. The has delegated certain individuals to sign off on ATIP requests. The lowest delegation at CBSA is a team leader; most are signed by them. They will do a cursory review of the line-by-line review that is done by the analysis, to make sure that everything was done properly and everything's sustainable in law. Then they sign off.
To close, at CBSA all true access requests—those are non-personal access requests—come to me from the delegated team leader for a quick review to make sure that everything was done properly. Then I give them the go-ahead and it's disclosed.
The traveller history report is not a document that people can keep when they come into the country. The document indicates all the ports of entry, meaning where and when they entered Canada. It also indicates how many times they have done so.
I could ask my colleagues to talk to you about their need to keep that report, if you wish.
The document actually helps to determine how long people have been in the country. Given that we are at the ports of entry, we have that information. It is kept in our records and then the report is generated.
To assist people with access to the information they need, we have worked closely with IRCC, which has access to our system that produces the reports. Since 2012, the date when the department gained access to the system, it has published about 500,000 reports, relieving us of a possible load of 500,000 requests. There are still 12,000 requests per year left over and I would like to find a solution to them. To make that task easier, we have removed from the report all sensitive information that would require them to undergo a secondary examination, because it is the dates that are needed.
So that allows us to respond to requests without delay and without having to gather anything else. My people have direct access to the system and send out the responses. However, we receive hundreds of requests per day and we need a dozen employees per financial year to work on them. At the moment, we are actively working on a system that people can use themselves. It would be much like a license renewal where you can go to a kiosk in a public location, enter your personal data and get your license renewed.
We would like to have a portal that people could use to find their own reports, like My Account at the CRA. We are actively working on it. If we manage to get the portal up and running, it would help to reduce the requests, especially in terms of the provision in the bill that requires the information to be available in another way. It would not be necessary to process it under the Access to Information Act. If we could make the information available in a public domain, it would be good because people could look for it there and obtain it more quickly.
Mr. Chairman, members of the committee,
Thank you for inviting the Canadian Superior Courts Judges Association to give its views on Bill . My name is Pierre Bienvenu. I'm a lawyer in private practice at Norton Rose Fulbright, and I have long represented the association in relation to judicial compensation and benefits, and other constitutional law issues.
The association is composed of judges appointed by the federal government at the various levels of courts around the country. It has around 1,000 members, representing approximately 95% of all federally appointed judges, including judges of the superior courts, appellate courts, the Tax Court of Canada, and the federal courts.
Members of the committee, the provisions of Bill that cover judges are of grave concern to the association. The judiciary was not consulted prior to the bill's being tabled in Parliament, and the association therefore welcomes the opportunity to address this committee on questions that it considers fundamental. I should mention that the association has shared the submission I am presenting to you today with the Canadian Judicial Council, and the council has indicated that it endorses this submission.
Let me say at the outset that the judiciary acknowledges that Bill is pursuing important objectives of transparency and accountability. However, there are compelling reasons that these objectives, in the case of judges, must be pursued by means that differ from the means adopted for elected officials and members of the bureaucracy.
The part of the bill relating to judges would require the publication of individualized information regarding a judge's expenses, including the judge's name, a description of the expense, the date on which the expense was incurred, and the total amount of the expense. The expenses in question are those reimbursable under the Judges Act as so-called “allowances”. There are provisions in the bill proposing to allow the registrar of the Supreme Court of Canada and the commissioner for federal judicial affairs to withhold publication if publication could interfere with judicial independence, could compromise security, or contains information that is subject to privilege or professional secrecy.
There are three basic points I want to make here today.
The first is that Bill C-58 proposes to apply to judicial expenses a regime that, insofar as accountability is concerned, is duplicative of control mechanisms that already exist in relation to reimbursable judicial expenses.
The second is that the proposed expense publication regime is unsuitable for judicial expenses and raises profound concerns for all judges, but particularly for judges on national courts who are required to travel extensively.
My third point is that the important objectives of the bill can be achieved by other means that do not violate judicial independence.
These points are developed in a written submission, a copy of which I've provided to the clerk of the committee, and which I invite members of the committee to read. I have time only to say a few words on each of them.
Bill is duplicative in relation to federally appointed judges because there are robust measures already in place to ensure that judicial expenses are legitimate, reasonable, and subject to independent verification. The categories of expenses that judges may incur in performing their functions are set out in the Judges Act. Judges cannot seek reimbursement of any expense falling outside of these defined categories.
In addition, there is a federal official, assisted by his own staff, whose responsibility is to review each and every judicial expense claim to determine whether the submitted expense falls within a category set out in the Judges Act and whether it was properly incurred and is reasonable. That person is the commissioner for federal judicial affairs, and for the judges of the Supreme Court of Canada it is the registrar of the Supreme Court.
I come to my second point, which is that there are two fundamental problems with the proposed regime as it would apply to judges. The first is the granularity of the information required to be published, tying named individual judges to identifiable judicial expenses. The second is the designation of a member of the executive to make a final decision as to whether the publication required by the bill could interfere with judicial independence.
Allow me to articulate the first concern by reference to expenses incurred by judges of Canada's national courts, such as the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada. National courts are a service to Canadians and an expression of our commitment to our country. Judges of these courts are required to reside in the national capital region, but they must travel extensively, as they sit on cases across the country. As a result, they have significantly higher expenses than their colleagues at courts that do not require such extensive travel. Even among judges of national courts, some will travel more than others as a consequence of assignment decisions by their respective chief justices.
The point is that the total expenses of a judge may stand out for the reasons just given, but those expenses would have been incurred not by choice but by reason of service on a national court and the assignment decisions of a judge's chief justice. It is grossly unfair, and indeed unacceptable, that the burden of standing out from the lot by reason of high travel expenses be borne by an individually named judge, as opposed to the court to which he or she belongs.
Please also consider that by definition, the judicial function results in at least one party being dissatisfied with the result. The potential for mischief in the use of publicly available individualized expense information is enormous, and unlike persons working in other branches of government, judges may not defend themselves publicly when they stand attacked. There are also real concerns about the security of individual judges if where they stay and eat while travelling on judicial duties or where they gather for legal education conferences were publicly disclosed.
There is a glaring constitutional defect in the safeguard clause in proposed section 90.22 in Bill . That section, coupled with proposed section 90.24, proposes to give the commissioner and the registrar final say on the question of whether the principle of judicial independence could be undermined by publication. The registrar and the commissioner are members of the executive branch. It is not acceptable from a constitutional perspective to give them the responsibility to make a final determination of such a question.
I have presented the problems. I now turn to solutions. This will be my third and final point.
There are ways of balancing the bill's important objectives against the constitutional requirements of judicial independence. The commissioner could publish expense information according to the categories of reimbursable allowances set out in the Judges Act and according to each court. For example, the commissioner could disclose that judges of the Ontario Superior Court of Justice spent x dollars as a whole on legal education and conferences during the period, while judges of the Federal Court spent x dollars as a whole on travel. It would be easy for the public, based on that information, to derive figures on a per-judge, per-court, and per-expense-category basis, which would attain the bill's transparency objective, all the while preserving judicial independence and not compromising the security of individual judges.
As regards the safeguard clause, the decision on whether judicial independence could be undermined by publication could be made to reside with the chief justice of the court concerned.
I thank you for your attention and remain available to answer your questions.
Good afternoon. My name is Robert Ramsay. I work as a senior research officer with the Canadian Union of Public Employees at our national office here in Ottawa.
I want to start by thanking the committee for this opportunity to present our thoughts on Bill . We look forward to seeing our recommendations as well as the serious concerns expressed by the witnesses in previous sessions reflected in your committee work.
The Canadian Union of Public Employees, or CUPE, is the largest labour union in Canada. We represent 650,000 workers across the country in sectors as diverse as health care, social services, child care, municipalities, schools, universities, and transportation, among others. Our members provide a range of vital public services in thousands of communities, where they and their locals are engaged civic partners.
Since our founding in 1963, CUPE has been one of the strongest and most consistent voices defending public services in Canada. We know that robust, well-funded public services serve Canadians best and that the privatization of these services leads to higher costs, as Auditors General have revealed when they gain access to the full range of information about a privatization project. Privatization, whether through asset sales, P3s, outsourcing, or social impact bonds, also represents a real threat to the quality and level of access that public services should provide. As such, CUPE has serious concerns about Bill , both about the parts of the current Access to Information Act that it proposes to amend and about the existing deficiencies that it fails to correct.
First, this bill leaves intact sections 18 and 20, which exempt from disclosure any material or information that falls under the broadly undefined category of trade secrets of either the government or a third party. The language removes from public scrutiny any financial, commercial, scientific, or technical information that has what is called “substantial value” or is reasonably likely to have substantial value in an undetermined future.
The current language allows the government to refuse to disclose third party information that was treated confidentially by that third party. It exempts from disclosure, in a preposterously broad limitation, any information that “could reasonably be expected to be materially injurious to... the ability of the Government of Canada to manage the economy of Canada”. The scope of information that can be exempted from public disclosure under this language is virtually infinite: contracts with private security or accounting companies, pharmacological research, reports by consultants on proposed government actions, records of foreign investment, information relating to the health and safety performance of a third party entity providing public services. These are some of the possible exemptions under sections 18 and 20, and they are also examples of material and information that must be accessible to Canadians if access to information legislation is to be meaningful.
Certainly we understand that there are legitimate grounds for non-disclosure, such as national security and personal privacy, and that access requests can sometimes require judgment calls by government officials. These exemptions, however, like those in other sections that hide from view the actions and decisions of the PMO, cabinet, and ministers' offices, are overly broad, not subject to a test of real harm, and not subordinated to a meaningful public interest override.
We must note as well the dangerous ways these exemptions intersect with other legislation this government has proposed in what others more cynical than we are might characterize as a war on transparency. For example, Bill gives the staff of the Department of National Defence the authority to decide what is excluded from disclosure without any independent review. In Bill , section 28 of the Canada Infrastructure Bank Act expands exclusions to include information about proponents, private sector investors, and institutional investors in infrastructure projects, again with no independent review.
The Canada Infrastructure Bank Act provides a clear example, in fact, of the regressive nature of the current legislative trajectory. Not only does the Canada Infrastructure Bank Act lay out overly broad additional exemptions, it also places final decisions before cabinet, essentially shrouding the entire process in darkness, out of the reach of the Information Commissioner, the Auditor General, and even the federal courts.
Let us provide a concrete example. CUPE recently filed an access to information request for information and material related to the government's participation in the private REM light rail project in Montreal, specifically for the reports and analyses prepared by a third party consultancy called Blair Franklin Capital Partners. This is a project to which the government has committed 1.3 billion public dollars, and it is something the government has indicated the Canada Infrastructure Bank may take on as one of its first projects.
Is this a good investment? What information has the government relied on to make that decision? Were environmental, health and safety, or accessibility concerns integrated into the decision? What is the business model and the business case? What is the projected fee structure, and will it be regressive or restrict access?
Answers to these questions are central to the public's understanding of this particular public investment. In other words, the public interest is immense. However, when we received a response—after a delay, of course—Infrastructure Canada invoked section 18 to redact virtually all of the records, making the entire 613-page disclosure incomprehensible and useless.
Rather than apply the exemptions narrowly and with respect for the public interest, it has become common practice for the government to redact by default, to exclude by default. This is an application that runs counter to the stated aims of the act and the bill under review, and counter to international standards of open government.
While there may be legitimate exemptions for disclosure of third party information, they would need to pass the test of real harm in each case. It is not legitimate for government to refuse disclosure simply because the information is related to a third party interest.
A recent report by the Vancouver-based Columbia Institute, entitled “Canada Infrastructure Bank and the Public's Right to Know”, notes that there is virtual unanimity among information commissioners across Canada that private entities that receive public funds or perform a public service or public interest function must be covered by access to information legislation. This is the emerging consensus internationally as well.
Here, though, this government has moved in the opposite direction by establishing a regime in which information on how our public services and public infrastructure are provided, how they are funded, how these decisions are made, and even who is involved in the work can be hidden behind a curtain of third party privilege. CUPE submits that the government instead needs to ensure that access to information under sections 18 and 20 faces far narrower exemptions that are subject to a test of actual harm, to a strong public interest override, and to review by the Information Commissioner, and that this act take precedence over any other act, such as the Canada Infrastructure Bank Act, that seeks to unreasonably limit the public's right to know.
We would also like to take a moment to echo the serious concerns of your previous witnesses. Proposed section 6, as written, creates new hurdles to gaining access by establishing requirements for the structure and content of requests that void the government's duty to assist and that defeat the very purpose of the act. Proposed section 6 also would allow the government of the day to create unilaterally a “do not respond” list of troublesome Canadians who always seem to want to know something and ask too many big questions. The determination that an access request is frivolous, trivial, vexatious, or made in bad faith is one that cannot and should not be made by the government of the day to whom the information request is made. This is a subjective determination that is necessarily rife with conflict of interest.
Another barrier to access is cost. Bill leaves open the possibility of government requiring new and onerous costs for access. Where is the promise for a nominal $5 fee with all other costs voided, and for the $5 fee itself to be refunded if timelines are not met?
We also agree with other witnesses that Bill represents a missed opportunity. There are serious problems with the current legislation, problems that the current government correctly identified while in opposition and that remain wholly unaddressed in the proposals before you. Canada, despite its leadership in other areas, sets a very poor example globally with the current act. According to the global right to information index compiled in part by the Centre for Law and Democracy and based on 61 indicators, Canada is ranked 49th out of 111 countries on the quality of its access to information laws.
News Media Canada has criticized this government's approach to access to information as being “even worse” than the previous government's. Your own outgoing Information Commissioner has called Bill “a regression of existing rights”, as has been mentioned many times at this committee. We urge you to take her 28 carefully considered recommendations.
To summarize, we submit that the law must apply to private third parties who receive public funds or perform a public service function. All exemptions must be discretionary in practice. The Information Commissioner's office must have at its disposal a full tool box of real order-making powers and the authority to enact penalties. We agree with Democracy Watch that the appointment process for the Information Commissioner must be changed so that it is open, merit-based, and not controlled by the very ministers the commissioner will be reviewing.
In conclusion, we cannot recommend that Bill proceed as written. It is, quite simply, bad legislation. It makes access more difficult rather than improving it.
Instead, CUPE calls on the government to review the problems that these hearings and previous commentary have identified, to research the best examples from your provincial and international counterparts, and to draft amendments that have as their guiding principle what Mr. McArthur, the acting commissioner from B.C., called “access by design”: an act that facilitates access rather than blocks it and that leads to a government that is truly open by default and closed only in the narrowest, independently defensible circumstances.
Thank you again for the time. I would be happy to answer any questions you may have.