I call this meeting to order.
I want to welcome everyone to meeting number 42 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.
Today's meeting is taking place in a hybrid format pursuant to the House order of Thursday, June 23, 2022. Therefore, members are attending in person in the room and remotely using the Zoom application.
Mr. Villemure has assured me that the sound tests have all been completed with the witnesses.
Should any technical challenges arise, please advise me immediately, and please note that we may to suspend for a few minutes as we need to ensure that all members are able to formally participate.
Pursuant to Standing Order 108(3)(h) and the motion adopted by the committee on Monday, May 16, 2022, the committee is resuming its study of the access to information and privacy system.
I'd like to now welcome our witnesses today.
We have Mr. Ken Rubin, an investigative researcher and transparency advocate, who is appearing as an individual. From Canadians for Accountability, we have Mr. Allan Cutler, who is the former president. From Democracy Watch, we have Mr. Duff Conacher, who is the co-founder.
Mr. Rubin, the floor is yours for a five-minute opening statement, sir.
Thank you, Mr. Chair and members of the committee.
Your committee has invited me to give testimony about the state of access to information in Canada. Let me share my experiences with you. This is the 15th review, by the way, and I have given over 15 presentations on this topic out of some 40 or more to Parliament on public interest matters. I've been around the block.
My public interest quest to get access to information records started a decade and a half before the Access to Information Act regime was adopted 40 years ago. All that the access legislation that was adopted did was place more roadblocks in the way for me and others who are intent on exposing how Ottawa really operates.
Since the Access to Information Act's passage, officials have been saying, with a straight face, that the act has always worked pretty well, needing only occasional minor tweaking. Its most consistent need, they say, is for more millions of dollars—for them, of course—but those extra resources received unfortunately go to further propping themselves up while only permitting Canadians to receive severed materials that lessen our freedom to know.
I offer some evidence of how such rigged access mainly serves the vested interests of those wanting Canadians to know very little, if anything.
The first is hiding unmarked children's graves at disgraceful, racist residential schools. Second is covering up bribery and influence, from the CPR scandal to the sponsorship mess to the current SNC-Lavalin debacle. Third is ignoring for far too long Hockey Canada's, the armed forces' and the RCMP's disgraceful conduct of turning away from handling—and even encouraging—sexual assault and injury cases, all done under the eyes of government officials. Fourth is repressing the public knowing about the workings of the bread price-fixing scandal and downplaying the high-pressure sales stakes Canadians face at the big banks as the banks make record-breaking profits. Fifth is keeping Canadians in the dark about policies that give us the highest cellphone prices in the world, and about the behind-the-scenes lobbying that has given Canadians some of the highest drug and food prices in the world. It's hard to get at those things.
Further, it is more than sad and disgusting that our frontline health workers did not get fuller information and less confusing data from authorities during the pandemic. I personally witnessed the suppression of whistle-blower information of the kind Pierre Blais and Shiv Chopra had when they tried to alert the public of health hazards, and I received severed records after delays and complaints about officials actively assisting and funding the lethal asbestos and tobacco industries in Canada and abroad. I've seen highly redacted records—having gotten the consent of Maher Arar and Monia Mazigh—in which authorities' twisted misinformation led to the rendition of Maher Arar to Syrian torturers.
I and others have fought for records that highlight the wasted billions of dollars spent on information technologies that barely work. Just see the partial revelations coming out about the millions poured into the ArriveCAN app while cheap, known alternatives were ignored.
All of this is made possible because of a system of oppressive cabinet confidences; policy, legal and economic advice; commercial confidentiality; and the sleight of hand that buries, for instance, the real costs and beneficiaries of large contracts, like the multi-billion-dollar combat naval ship program.
Ours is a relatively young country, but we are well known for our secrecy and corruption worldwide. Canada places low down when ranked for disclosure capabilities. Other countries, however, like New Zealand, quickly release cabinet records.
I've suggested many solutions, but they've been ignored. What we need is an automatic, quick, thorough disclosure, guaranteed under freedom of expression and constitutional rights, and a duty to serve and strong penalties built into right-to-know legislation.
Let's get on with ending the culture and corruption in Canada so that we can get real data and not spins and spits of information fed to us by the feds. No doubt, though, I and others still will have to make use of our greatly improved right to information should that happen. Otherwise, as in the past, I and others will continue struggling to get tidbits of data against many odds and barriers.
More need to join us. As my website says, “What people do not know can often hurt them.”
Unlike Mr. Rubin, I'm not going to talk about what needs to be done. I'm going to tell you how it exists and the reality of the situation for whistle-blowers, for people who are trying to find out what's going on.
ATIP is supposed to help, not be the guardians of the castle drawbridge who won't put it down. They're supposed to help, and they don't. Many ATIPs, and I've had this experience, are over a year old. I have one right now that is five years old. The statement I have from them is that they don't know when they'll get around to it; they have other priorities. That tells you the way they look at ATIPs.
I have also had an ATIP officer just bluntly say that if you have a problem, complain to the Information Commissioner. Why do they say that? It's because they know that the Information Commissioner is so overloaded that it could be two to three years before she or he and their executives get around to looking at the situation. You have a real problem.
Michael Dagg unfortunately has passed away now, but he was very active in the ATIP industry. I have a copy of a letter that was sent to him by archives. I have two letters, actually. One was on a particular request. They said they needed a thousand-day extension beyond the 30-day statutory time. The second letter I have is the one telling him it would be an 80-year extension. They put it in writing that it would take 80 years to get him the information.
The other thing that goes on is this. Michael and I were both dealing with Brad Birkenfeld and the Department of Justice in trying to get the documents that Brad gave them in 2008. We even had letters that said we were authorized to get the information. The Department of Justice would not give us the information. At two different times they said there were zero files. Another time they were suddenly up at 6,000-plus files. They were all over the place.
Finally, I asked them why they now, eight years later, have sent documents to CRA. All of a sudden there was this access request that came in from CRA, and they answered it. Well, they must have told CRA what to write. I asked them why they had sent it after eight years of doing nothing with it. They just simply said to me, “We don't understand the question.” I'm waiting for documents to tell me why they just sat and did nothing: “We don't understand the question.” That tells you the attitude they have. Of course they don't want us to have the information at all. They are really avoiding us.
ATIP officers are supposed to help, by legislation. They don't. For example, an RCMP officer says to me, “The ATIP branch does not answer questions. If I say I'm looking for particular information on a document, it's, 'If you have questions that you need to answer, route them to the media relations office.' ”
The other thing is that when I say what I'm looking for, I hear, “That's information. If you would tell me the document....” But I can't tell you the document. I can tell you what I want and what's on the document; I just can't tell you it's document 4 in this file. How am I to know that? The RCMP just turned me down—oh, and that one has gone to the Information Commissioner. It's in abeyance. It's been about a year now. Eventually it will get looked at. I know that.
The Chair: You have one minute, sir.
Mr. Allan Cutler: Okay.
Quickly speaking, whistle-blowers can't wait for these long delays. They don't go through access anymore. There's no point. They're exposed. The longer it sits as a request, the more likely it is that they are going to be spotted and exposed, so they don't want to go there. They won't go there anymore. We do everything we can to work around it. We don't do that.
As Ken said, when we get the information, it's vetted to the point of uselessness. Let's say you get an access; you get this huge stream of exemptions. One, I'm not a lawyer, so I'm not able to look at what all these exemptions are. Two, I'm not allowed to challenge an exemption, because I'm not allowed to look at what the information was that was part of the exemption. Again, it's back to the Information Commissioner: Wait in line. Suffice it to say that it's broken.
The external whistle-blowers I use and I deal with nowadays say—and more than one has said to me—there are long delays and documents are being destroyed. They consider government corruption just part of doing business now.
Thank you very much, Chair and committee members, for this opportunity to appear before you today.
Like Ken Rubin, I've been here several times before on this and other issues, and on this issue it was dating back 20 years. What I'm going to do today in my statement is summarize 18 key changes needed to the act and the enforcement system, and then I'll welcome your questions about them.
The 18 changes are mainly based upon this committee's unanimous June 2016 report, the former information commissioner's March 2015 report and the current commissioner's January 2021 report, which have all called for key changes and, of course, the December 2021 report by the government, which was the result of its public consultations conducted last year that made it clear that all stakeholders support 10 key changes.
The first changes needed are to the rules. The Access to Information Act is broken, as all of these reports and the two other witnesses have noted.
Initially it should be changed to cover fully all government institutions, publicly funded institutions and public-purpose institutions, including cabinet offices. That's been recommended by many stakeholders and experts and commissioners. As well, the other recommendations I'll be going through have also been called for by stakeholders for years.
Second is to require every institution to create detailed records of decisions and actions. There's no reason that this cannot be done and uploaded onto a searchable website as meetings and communication decisions are ongoing in government. It's very simple to do and to set that up as an electronic system.
Third, there should be routine disclosure of not only those communications, meetings and decision-making processes, but of all records online that can be disclosed and are in the public interest to disclose. There should be routine disclosure on a searchable online database, which would reduce the need to make requests.
Fourth, there should be requirements for all institutions to respond to access requests as soon as possible, with permission required from the commissioner to extend beyond the 30-day time limit and a maximum extension of 60 days.
Number five, all exceptions to disclosure should be clearly and narrowly defined, and limited to areas in which secrecy is actually required in the public interest.
Number six, the commissioner should be allowed to review all denials of disclosure and to order disclosure if it would not cause harm or is in the public interest. If records are not disclosed because of a public interest exception, they should be required to be disclosed no longer than 20 years later, and less than that for cabinet records.
Number seven is that anyone who does factual or policy research for the government in an area not covered by an exception should be allowed to speak to the media publicly about the topic, their findings and their conclusions without being required to first seek approval from anyone.
Number eight, the act should be changed to allow for filing of an access request from anyone, even if they don't live in Canada.
Number nine, the $5 request fee should be eliminated and institutions should be prohibited from charging search fees for records that have not been maintained in a way that facilitates access.
However, no law enforces itself, so changes are needed to strengthen the enforcement. The enforcement system has been revealed to not be strong enough to stop delay and denial of the public's right to know.
Therefore, as number 10, the commissioner first should be given explicit powers to require systemic changes in institutions to improve compliance with the act, including managing records effectively.
As number 11, the commissioner should be empowered and mandated to penalize violations, with a sliding scale of fines depending on the seriousness of the violation, for things like intentionally obstructing access, not creating records, not maintaining records properly or delaying responding to a request.
The Chair: You have one minute, Mr. Conacher.
Mr. Duff Conacher: Thank you.
The number 12 recommendation is that the penalties should include, for government officials attempting to escape penalties by resigning or retiring, loss or partial clawback of any severance or pension payments.
Number 13, the commissioner should be required to issue a public ruling on a searchable website for every complaint they receive and every situation they review, and there must be a clear right for any member of the public to appeal a decision to court.
Number 14, the commissioner is currently chosen by the ruling party cabinet through a secretive partisan process. The Federal Court of Appeal has ruled that the cabinet is biased when making these kinds of appointments. A fully independent, non-partisan appointments commission should be established to search for and nominate qualified candidates that would be approved by an all-party committee of the House for these kinds of positions.
Yes. In terms of submissions, I have made a submission to the committee regarding the 18 recommendations. You will be receiving it once it's translated.
To pick up on one that Michel Drapeau spoke about on Monday, his suggestion was to have a right to go to court after one year. I do not think that's the way to go, because the courts don't move any more quickly, and they also have a backlog.
The real solution is that Parliament should be required to provide whatever amount of funding the Information Commissioner proposes annually, that the Auditor General and Parliamentary Budget Officer should assess and determine what is needed to ensure an effective and timely enforcement of the act, and that there should be effective training of public officials about how to uphold the right to know and the right of access.
That would solve many of the problems, because along with the penalties that I suggested, everyone would know you're going to get caught if you're breaking the law, and you're going to get penalized very soon. That would clean things up enormously.
Bill ignored this committee's unanimous June 2016 report. It ignored all the other stakeholders. The information commissioners have documented in their annual reports very clearly that things are worse than they have been in the past.
I challenge you, as committee members, to work together and put forward a private member's bill. Ignore your leaders if they're saying they don't want to do this, because the June 2016 unanimous report didn't work to foster key changes.
I challenge all of you to work together, put out a unanimous report, and then put a private member's bill together. Jointly all support it and challenge the rest of your colleagues to vote against it and vote for excessive government secrecy and denial of the public's right to know.
I could say the same thing about any of the exemptions. They're all, unfortunately, too broad. They all need to be narrowed. Section 20 is one of the most regularly abused. That's our general recommendation. There can be a specific discussion about how to narrow any particular exception.
There are also exclusions, and those exclusions should all be turned into exceptions, because currently with exclusions, the commissioner has no power to review the documents to determine whether they're being withheld properly.
Those are the general recommendations I would make, and if you ask me about any of the sections, I would make the same statement. They're all too broad and they all need to be narrowed to ensure that what is not disclosed—for example, to protect national security, a police investigation or a cabinet decision-making process—is protecting only what really needs to be protected. Again, as the Liberals promised in 2015, government information shall be “open by default”.
Thank you very much, Mr. Chair.
I want to thank my colleagues for good questions, and also the witnesses for being present. I think those are good words that you shared with us at the beginning of this meeting.
I want to delve into parts of what you mentioned.
I think for Canadians, it's particularly important to understand the framework of access to information versus the right to information. It's easy to talk about access—imagine going to a library and not being able to read any books—versus the right to actually have the information.
I'd like to have testimony from each of the witnesses, starting with Mr. Rubin, on the difference between access to information and the right to information.
The provincial laws are generally based on the federal law, which happens a lot in Canada if the feds pass a law. The same thing has happened with the lobbying law and with some of the ethics rules. The provinces essentially copy it.
We see the same loopholes across the country. Some of the provinces have order-making power for the commissioners of the kind the federal commissioner has been offered and given recently, but that has not been enough to stop the denials and delays because, again, there are no penalties for violating the law.
If you park illegally anywhere in Canada, even if you're doing no harm and you're not parked in front of a fire hydrant and it's no bother to anyone, you'll pay a higher fine and receive more of a penalty for that than for a fundamental denial of the public's right to know key information that would reveal government wrongdoing and wastes of billions of dollars. That's a perverse system we have.
Some of the provinces have a public interest override. It's not strong enough, because the commissioners' enforcement powers are not strong enough. There are a few provinces with a few measures that are better than the feds' measures, but overall, the performance is the same because the same loopholes are there. It's the same weak enforcement and lack of penalties for these fundamental violations of key democratic rights.
Thank you very much, Mr. Chair.
I just want to thank the witnesses again for being present here today. I think it's really important information. I've learned a lot. I think what I want to take away from this for sure is that there is a cost to systemic and cultural problems with the interpretation of the right to access to information. I hear that, full stop.
I want to thank Mr. Rubin for highlighting the costs to Canadians. Residential schools, bribery, scandal, private corporation bailouts, the issues we're seeing at Hockey Canada, the armed forces, RCMP—these are real costs to Canadians, to their rights, and to their ability to actually understand these circumstances and how they're being impacted and harmed. I feel that and I hear that plainly today, so I want to thank you for that.
Recently, of course, we've seen even more suppression, such as the suppression of 10,000 documents by the Minister of Justice in relation to residential school survivors in a current case that's before the court. This is happening in live time, still today, so this isn't going away. These problems are mounting over and over and over.
Mr. Rubin, I don't have much time, but I would like you to give some remarks in relation to the statutory review of the Access to Information Act. You mentioned in your statement that you're not going to participate, but for someone with your knowledge and expertise, there has to be wisdom there in the reason. Could you please explain why you don't want to participate in this process?
Thank you, MP Desjarlais. I guess I could have given you Mr. Gourde's extra 10 seconds or Mr. Villemure's time.
I want to thank the witnesses for coming today.
This panel was supposed to go until six o'clock, and then we were going to follow that up with committee business. With votes, we're going to have to cut it short. I would invite you to submit any information that perhaps you may have missed to the committee as part of our study.
I want to thank you all—Mr. Conacher, Mr. Rubin, and Mr. Cutler—for coming in today. You serve Canadians well, and I thank you for taking the time to be with the committee today.
I believe I do have consent, unless there is any objection, to adjourn the meeting.
The meeting is adjourned.