Thank you, Madam Chair.
Thank you for inviting me here today.
I am pleased to be able to speak to you about my role and to meet some of you for the first time.
I have been the Information Commissioner of Canada since March 2018. With two years under my belt, I feel that I am in a good position to provide some perspective on my mandate, and offer you some insight as to what’s on the horizon.
I expect your analysts have already provided you with an overview of the mandates of the officers of Parliament relevant to your committee, so I’ll speak briefly on my mandate and my office, followed by my priorities. I will then touch on some of the changes that have been front and centre at the Office of the Information Commissioner, or OIC, as well as some of the challenges we face as an organization.
At the outset, let me emphasize an important point and a frequent source of confusion. The overall administration of the Access to Information Act and the policy instruments and tools that support its administration all fall under the authority of the Treasury Board Secretariat. This means that the TBS oversees the handling of access to information requests within the federal institutions.
My role is to investigate complaints relating to these requests, normally because the institution is late in responding or because requesters are not satisfied that they have received all of the information they are entitled to.
While my office receives thousands of these complaints a year, I also have the power to initiate a complaint myself. In addition, I can initiate and intervene in court proceedings when necessary. My office has done this a couple of times.
As an agent of Parliament, I report annually on my activities, and I can also issue special reports to Parliament in respect of important issues that fall within my powers and functions.
The commission has approximately 120 employees, with about 70% of them working in investigation and governance. I am supported by three deputy commissioners, responsible for the following sections: investigation and governance; corporate services, strategic planning and transformation services; and legal services and public affairs.
My goal is to maximize compliance with the act using the full range of tools and powers at my disposal.
The role of the office is of critical importance, because Canada's freedom of information legislation gives Canadians the right to access information about their government—the activities it undertakes, the decisions it makes and the money it spends. The Supreme Court of Canada has called this right of access a quasi-constitutional right.
You won't be surprised to hear that Canadians are submitting more and more requests because they want to know how decisions in government are made and how the government is using public funds. This knowledge promotes trust in our institutions and their leaders. I can attest that the thirst for this knowledge will not be going away.
I will now speak briefly about the four priorities that have been the focus of my first two years of my mandate. They form the basis of my soon-to-be-launched strategic plan, which will carry me through the rest of my seven-year term.
My first priority is to optimize openness and transparency within my own organization. One of the ways we've done this is by publishing guidance regarding our investigations so that complainants can understand how and why we are reaching certain conclusions. We now have a searchable database of decisions as well. Both the database and the guidance documents are available on our website.
Another priority for me has been to foster collaboration with stakeholders. With complainants specifically, I have worked diligently on ensuring timely communications, which has led to a better understanding of their needs and what they are seeking, and ensuring better follow-up on their files. We have made some progress, but we have a long way to go.
I also meet regularly with the federal access community. These are the public servants who process requests within federal institutions subject to the act. I consult with them and encourage them to flag issues and present new ideas for innovation. In addition, I meet regularly with the heads of institutions and their senior management teams. I let them know what is working and what is not working in their approaches to managing access requests.
My third priority has been to implement recent changes to the Access to Information Act. The act came into force in 1983. Amendments passed by Parliament last June included important modifications. These amendments gave me additional tools. For example, I now have order-making powers. This means that I can order an institution to take specific actions, including disclosing more records, when I find that the complaint is well-founded. I can publish these orders and my recommendations in all of my final reports on my website. In fact, the first final report was published just last week.
Institutions can also now seek my permission to decline to respond to a request that is vexatious, made in bad faith, or otherwise an abuse of the right of access. As the bar for approving this type of application is high, I have granted it only once to date.
Last, but certainly not least, it has been my priority to tackle my office’s inventory of active complaints. The inventory has proven to be quite a challenge. Even though we are closing more files and reducing the inventory of old complaints, there has been a marked increase in new complaints. By this time last year, we had received about 2,200 complaints. This year so far, we have received 5,900 new complaints. Importantly, while we have closed more than double the number of files this year, our inventory keeps increasing rapidly.
This leads me to another significant challenge facing the OIC: our funding. We are grateful for the $1.7 million that we received when the amendments to the act came into force last June. However, every year, for the last four years, the former commissioner and I have had to ask for more funding to deal with an ever-increasing workload for our investigators.
While temporary funding has been helpful, it has also resulted in staffing challenges for my office, as we are not able to offer permanent jobs. We find that we invest resources into training new recruits and hiring consultants, only to lose them to offers of more permanent positions elsewhere. It makes planning difficult and sustaining any momentum impossible.
ATIP units within federal institutions are also faced with their own resource challenges. Staff turnover in this field is high. They need additional resources. It is a very difficult sector to work in. They need the additional resources to deal with the ever-increasing number of requests and to be able to respond to the demand from my own office.
I stress that additional resources are required across the system, if Canadians are to be well served by their access to information regime. If the government is serious about its commitment to transparency, as highlighted in ministerial mandate letters, the access to information system, which plays a key role in ensuring government transparency, must be supported and prioritized.
I want to assure you, however, that the employees at my office are dedicated and are doing amazing things despite limited resources and an ever-expanding workload. They believe in the work they do and I feel very supported.
This concludes my opening remarks.
I would like to leave you with the message that my door is always open to you and your staff. I will be pleased to appear before you whenever I am called. I am very open to meet and engage with you in individual or group discussions.
Access to information is a critical component of government openness, transparency and accountability. It promotes trust between our institutions and our citizens.
I will now answer any questions you may have.
Thanks very much, Madam Chair.
Ms. Maynard, it's a pleasure to meet you. I didn't shake your hand before the meeting, because we're not doing that these days, but an air high-five or an elbow bump.
There are a couple of things from your opening comments that I'd like to discuss with you. One is the tool that you have for order-making powers. In your words, that was to be able to give an order to an institution to take specific actions including disclosing more records if you find a complaint to be well founded.
An individual who has testified at this committee in the past, Mr. Vincent Gogolek, who is the former executive director of B.C. Freedom of Information and Privacy Association, said, “If someone in government wants a record to disappear, all they have to do is call it a Cabinet confidence.”
I expect that you'll see where my question is going.
He goes on to say:
There’s no reason to keep this black hole in the Act.... Many provincial governments have allowed their Information commissioners to examine these records for years without any problem—there isn’t any reason the federal government couldn’t do the same.
We've seen from other commissioners, other officers of Parliament, that this has been a hindrance to their work when they've been investigating a well-founded complaint. Broadly on the subject of cabinet confidences in respect to how you're able to do your work or not do your work, I'm wondering if you can give me some context. Has that been a barrier to you?
The Treasury Board is responsible for administering access to information, but the act states that an access application requires a response within 30 days.
If the requester does not receive a response within 30 days, a complaint can be submitted to my office. Institutions may request an extension. This often happens when the number of pages exceeds 500 or 1,000. Often, 30 days is not enough time for revision, because other institutions may be in possession of records that deal with several people. They can therefore ask for an extension. If the person making the access request is not satisfied with the record received, with the request for an extension or with the response time, that person can file a complaint with our office.
The process can differ depending on the institution. Some institutions are very well equipped, but others still rely on paper records. When a request is received, the person receiving it has to go and see someone else in their office because this particular file is that person's responsibility, and ask for the relevant emails and paper records. After obtaining the paper records, the access to information employee needs to scan them or, as often happens, write them out by hand. This adds time to the handling of the request. We are trying to encourage institutions to purchase software that can speed up the technological process of exchanging emails and to find a more efficient way of managing emails.
Let's take the example of a Canadian who wants to know how a particular decision was made with respect to a government policy, and the reply consists of 10 million pages, 5 million of which are emails and exchanges among managers because people often work via email. Five people who receive the same email will supply the very same email in response to a request for access. There is an enormous amount of document duplication, and the need for investment and employee training when it comes to information management is huge. This would greatly reduce costs and delays for the poor employees who have to work on these 10 million pages.
Then, for the investigation, we do the same thing, because it has to be looked at one page at a time. After that, we speak to the people at the institution. It creates an enormous amount of work.
Yes. We have had our act for 36 years now. Canada was the 12th country in the world to enact access to information legislation, making it one of the first countries, one of the leaders. Today, 120 countries have access to information legislation. Of course, the most recent statutes provide more powers and fewer exemptions.
The act itself can certainly be amended and improved, but its application also needs to be reviewed. Some countries have very liberal statutes, but their institutions or governments fail to enforce them to the extent we do. Here, the government appears to have a good understanding of exemptions and exclusions.
When we recommend legislative amendments, we look at what other governments do. In Canada, the provinces have their own information commissioners and their own statutes. They often have practices that could be adopted. We have also looked at what Australia is doing, which is to publish any records for which three access requests have been received. I believe another country also does this.
One constraint in Canada that does not exist in other countries has to do with our official languages. The institutions tell me that they would like to provide more information, but that the need to provide it in both languages requires resources and additional costs.
We are trying to find solutions to this in order to see whether there might be another way of giving access, for example by publishing records or preparing summaries. Canadians are clearly entitled to receive information in both languages. When they submit an access request, though, what they will receive is the record in the language in which it was written. This means that there are constraints as a result of the fact that we are a bilingual country.
A complaint was made for fewer than 3% of access to information requests. That is not a very large number. The table that I provided is designed to demonstrate that, when I was appointed commissioner in 2018, there was a backlog of 3,489 cases. I was just taking up the job and there were already 3,400 complaints and investigations pending.
On April 1, 2019, after a year of work, we had lowered this figure to 3,300, but the grey shaded area in the table shows what remained from my initial backlog, whereas the pink section represents new complaints. Then, in 2020, we further reduced the number of older cases. We are continuing to work on the cases from the previous year, but, then, we received 5,900 new complaints this year and we still have 2,400 to deal with.
I checked this morning and found that we had processed 5,200 complaints this year. That is unheard of. Last year, we processed 2,600 and the year before that we handled 2,400. We generally deal with most of our complaints informally, but we will never be able to manage the demand with the resources we currently have.
Immigration, Refugees and Citizenship Canada, for example, will disclose the information within a certain time period. It might be 15 or 20 days late, but the institution receives an incredible number of requests. Nevertheless, it has a very large team and the requests are often minor. They are not requests for access to 1,000 pages. In other institutions, however, the response to each request involves more than 1,000 pages, so it is really difficult to say.
As I was saying earlier, when we find that a problem is systemic, we begin by contacting the deputy minister. At these meetings, I have come to realize that often, the deputy ministers do not even know that there is an access to information problem. Some deputy ministers ask for information and statistics at each of their management meetings, and genuinely want to be informed. Others wait until the problem is brought to their attention.
I prefer not to wait and I go to see them. At each meeting, I point out problems with their institution, the things we have noticed in our investigation work and improvements that they could make. Delays are often the result of a shortage of resources or poor information management. Issues like these occur frequently.