ETHI Committee Meeting
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Standing Committee on Access to Information, Privacy and Ethics
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EVIDENCE
Wednesday, December 7, 2022
[Recorded by Electronic Apparatus]
[Translation]
This meeting is called to order.
Welcome to meeting number 52 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.
[English]
Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Therefore, members can attend in person in the room and remotely using the Zoom application. Should any technical challenges arise, please advise me. Please note that we may need to suspend for a few minutes, as we need to ensure that all members are able to fully 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.
[Translation]
Madam clerk, could you please confirm for Mr. Villemure and the other committee members that everything is in order technically for the witnesses?
Thank you.
[English]
I would now like to welcome our witnesses.
As individuals, we have Dean Beeby, a journalist, and Andrea Conte, a writer, researcher and media artist. From the Canadian Association of Journalists, we have Mr. Brent Jolly.
Unfortunately, we're missing Mr. Tromp at this point. He hasn't connected. We are trying to make a connection with him.
Before we commence, this meeting is scheduled to go until 6:30 p.m. We do have to do some committee business in order to dispose of a motion that is before the committee. I will try to time that for 6:25 p.m. That will give us about an hour and 55 minutes. I understand that parties have been in discussions and that we very likely, I hope, will dispose of that motion very quickly.
I just wanted to make it very clear to our witnesses right off the top that with five minutes left in the session, we will be going to committee business. I'll time everything accordingly.
Mr. Beeby, the floor is yours for five minutes, sir.
Thank you.
Thank you for inviting me as a witness today.
This inquiry, by my count, is at least the 16th broad review of the Access to Information Act since the legislation was passed in 1982. In this country, we love to study transparency laws thoroughly to ensure that we don’t actually get around to fixing them.
I’m an independent journalist with long experience of using the act. I speak from a journalist’s perspective, though my frustrations with the act mirror those of other users, including indigenous peoples, civic activists and even backbench MPs.
Journalists have been abandoning access to information in droves lately. The desertion began before COVID hit. The pandemic chased away the stragglers.
Less than 5% of all requests filed in 2021 came from the media. That’s half the level of five years earlier, and a third of a decade ago. Why are reporters giving up? It's because, as study after study has shown, turnaround times are terrible and getting worse.
MPs who passed the law in 1982 expected that most requests could be answered in a month, with some exceptions. Since then, the reality for journalists is the reverse. Requests answered in 30 days are the rare exception, with most taking far longer.
Bureaucrats also now realize that they face a much bigger blowback from releasing information than from withholding it, and the law provides them with a rich menu of excuses to keep things buried.
When stale-dated access documents finally do arrive on a reporter’s desk, they’ve been picked clean of meaningful content. Imagine telling your editor that you won’t know whether you’ll have an access-based story for at least six more months—maybe a year or longer—while the rest of the newsroom reporters are scrambling to get a scoop out before noon.
The news business has been caught in a death spiral for 15 years. Journalists are being thrown overboard to lighten sinking ships. Sizable communities no longer have local reporters watching for fraud in town councils. Meanwhile, governments are ever more bloated with spin doctors, social media gurus and image consultants. It’s not a fair fight, and it’s not just journalists down on the mat; democracy is getting a bloody nose as well.
Let’s consider some advice for reform already given to this committee. You’ve been told that the law needs a reverse onus. Information should be released unless the government can show that it shouldn’t, but the law already has a reverse onus in paragraph 2(2)(a). New words saying the same thing in a different way won’t save the day.
You’ve been told that the Information Commissioner should become a transparency czar with broader responsibilities, but the commissioner can’t even discharge her current mandate. She takes too long to resolve complaints—as much as 10 years. Let’s not burden her with more responsibilities until she can deliver on the existing ones.
You’ve also been told that proactive release of more documents is a solution to a dysfunctional access system. If government pushes out more documents, citizens won’t need to pull them using access requests. This is a false hope. Governments may willingly release downstream documents that are innocuous and safe, but upstream documents tied to decision-making will never be made proactively available, unless of course they’ve been scrubbed clean. That’s why we have freedom of information laws, so that citizens aren’t stuck with records that have been sanitized in the government’s interest.
My own prescription for reform is to stay clear of long checklists. I suggest focusing on a few key changes.
One, pull down the brick wall protecting cabinet records. Limit the protection period to 10 years. Stop withholding records that have nothing to do with cabinet deliberations and that are factual or background. Give the Information Commissioner access to cabinet records so that she can review any decision to withhold them.
Two, set tougher limits on a department’s ability to delay. If an institution blows past a deadline, for example, take away their authority to claim exemptions.
Three, define “advice” in the law much more narrowly so that departments can’t use it as a catch-all for withholding information.
Four, put a time limit on the Information Commissioner’s investigations—say, six months. If she hasn’t finished by then, let complainants go to court.
Just getting these few things done would start us down the road to reform. It would also give a dwindling pool of journalists a better shot at holding governments to account.
Thank you for your invitation. I'll be happy to answer any questions.
Thank you, Mr. Beeby.
Mr. Conte, you're next. One of the things about being chair is that I have a little bit of latitude with time. You have five minutes, sir, but if you need a few more seconds, please feel free to take them.
Thank you.
Thank you, Mr. Chair.
Thank you to the committee members for inviting me to speak with you today.
My name is Andrea Conte. I am an independent researcher. I work in the media arts. I've circulated two articles to members that relate to my work with Canadian state records, one of which took five years to write because of access delays.
With the many days of hearings before this committee on Canada's freedom of information system, I think it's important that we clearly understand the origin story of the Access to Information Act of 1983.
Throughout the 1970s, Canada was trying to play catch-up with the United States, which established its own freedom of information legislation in 1966. It's important to place this time period in relevant context. It was during this era of the 1960s and 1970s that the RCMP security service engaged in routine abuses, which culminated in the McDonald commission of inquiry into RCMP abuses that varied from forged letters to the infiltration of racialized and indigenous groups, among others. All the while, one in 20 Canadians had a file with the security intelligence service. It was amidst this crisis that the Access to Information Act was ushered in, drafted and sold to the public as a modern right to hold the government accountable.
According to Don Brittain, an NFB and CBC documentarian who covered the crisis at the time, access to information legislation was “so artfully worded that...it would become little more than an instrument of concealment”. Forty years later, we know this prediction to be true, and all too well. During the press conference that introduced the Access to Information Act in June 1983, ministers celebrated the favourable similarities of the Canadian act with its American FOIA counterpart. But this has never been the case. On contemporary records, the U.S. has an expedited processing clause for records that relate to urgent ongoing matters of federal government activity. Canada, however, has no such clause for urgent disclosure of access requests that seek answers to ongoing and urgent matters of public concern—for example, the public health benefit of the ArriveCAN app.
On matters of war or international affairs, the U.S. allows journalists or members of the public to seek direct legal remedies when their government denies, for example, records of internal reviews of its war efforts or its complicity in war crimes, such as the torture of Afghan detainees. The U.S. permits direct access to the courts without delay, producing journalism such as The Afghanistan Papers, which the Washington Post published after a three-year FOIA lawsuit.
In Canada, the Access to Information Act obstructs access to the courts through a drawn-out preliminary appeals process with the Office of the Information Commissioner, restricting the capacity of journalists to do their job. I myself continue to appeal the delay and censorship exemptions over records of internal reviews of Canada's war in Afghanistan with requests on these files that began 10 years ago.
On the declassification of historic records, the committee has heard how the 1983 act nullified the previous declassification system. That created a disaster for anyone with any vested interest in doing historical research, especially on issues that involved prisons, police, military and other institutional forms of state violence within Canada's borders and abroad. When one visits library archives, when you're revisiting redacted RCMP surveillance files, for example, on the 1930s Communist Party of Canada or the 1969 Sir George Williams University uprising, not only are release packages on these files still heavily redacted, but previously published newspaper clippings from the Globe and Mail and other mainstream media organizations have also been redacted in full by CSIS.
If any member of the public wants to challenge any or all of these redactions, they can't, because the act treats a request for information like a consumer good. The opening of one record is not an opening of the record for all. Only the requester can appeal it. That means you have to file the ATIP request all over again, as if the previous request never occurred.
In the case of contemporary records, the open Canada portal includes only a fraction of access to information summaries that have been processed by federal agencies over the two most recent years—and that's if agencies upload any data at all. Every month, the portal erases access to information summaries that exceed the most recent two-year window.
For all these reasons, after 40 years, I believe this access to information cycle of “censor, erase and repeat” has turned into an instrument that directly obstructs and interferes with both government accountability and paragraph 2(b) of the Charter of Rights and Freedoms.
I know this panel is fielding recommendations that number into the hundreds. I do not believe the current system can be reformed, as it is a discretionary system of good faith, with far too many root problems.
I do recommend the committee assemble a panel of constitutional experts who could provide input into the report on how the act interferes with freedom of expression, “freedom of the press and other media of communication”.
Thank you.
Thank you very much, Mr. Conte.
We're now going to go online to Mr. Brent Jolly, who is the president of the Canadian Association of Journalists.
I don't see him on my screen. Is he here?
He was here. I did a sound check with him.
We'll get tech to call him.
Mr. Tromp just signed on. You can go to Mr. Tromp.
Welcome, Mr. Tromp. There's nothing like being put in the spotlight right away.
Mr. Tromp, I think you have to do something with your camera there.
Mr. Tromp, can you hear me?
We can see your camera, but we can't see you. Your microphone is on mute.
I've run into this problem before. Maybe the camera is down inside the computer—it looks like it.
I think we're going to suspend for a minute. Thank you.
I call the meeting back to order.
I apologize. We're having a little bit of technical difficulty.
Welcome back, Mr. Jolly.
I hate to put you on the spot. You look like you're out of breath.
Thanks very much. It's the wonders of home Internet, I suppose.
Thanks very much to every one of the members of the committee for extending this kind invitation to me and the association I represent, which is the Canadian Association of Journalists.
We have a lot of important opinions and views to share on the critical need for changes to be implemented to Canada’s arcane access to information system, as we would call it.
By way of simple introduction, I will begin by telling you that the Canadian Association of Journalists is a professional organization composed of more than 1,300 journalists from across the country. Our organization regularly engages in public interest advocacy work and professional development for our members. Access to information issues clearly overlap on both of these areas of our mandate.
Since the CAJ was founded 1978, then as the Centre for Investigative Journalism, our association has been at the forefront of advocating for both federal and provincial access to information regimes that are more robust, transparent and accountable than those currently in place. For decades, we have devoted an exceptional amount of resources to helping our member journalists with training on how to wade through the many layers of opaque rules, exemptions and limitations that have served to unite generations of Canadian journalists in utter frustration and dizzying dismay.
In addition to calling on governments of all political stripes to take proactive steps to improve what is a broken system increasingly falling into international disrepute, our association and partners have crafted thoughtful suggestions to help re-imagine Canada’s beleaguered access to information regime. I would be happy to formally share these ideas, which put the public’s right to know at the forefront, with the committee as a supplement to today’s testimony.
My reason for giving this brief history lesson off the top is not born out of a desire for personal or institutional aggrandization. Its purpose is to underscore for members of this committee, and the wider Canadian public, the complete and utter sense of frustration at the death grip governments hold on information in this country.
You don’t have to just take my word for it, or that of any of my fellow witnesses here today. I think one can listen to the Information Commissioner Caroline Maynard, an officer of this Parliament, and what she said to then Treasury Board Minister Jean-Yves Duclos in a letter a couple of years ago. In that letter, Ms. Maynard wrote that the federal ATIP system “may soon be beyond repair” and is already faced with “chronic under-resourcing”. This was, of course, before the COVID pandemic reared its ugly head. Ms. Maynard encouraged Minister Duclos to commit proper funding to the system, proactively disclose more data and bring institutions fully into the digital world.
How have these helpful suggestions been met to date? I would say, with crickets. In fact, as some of my colleagues have reported, the COVID pandemic has only helped to further exacerbate this country's encroaching cultures of secrecy. In late 2020, for example, The Winnipeg Free Press reported that less than half of federal access to information offices were operating at full capacity. It was reported as well in that article that many departments had de-prioritized the processing of access requests, which had not really been treated as a critical service. What was the result of that? There were backlogs and no clear guidelines when requests would be answered.
I'm here today to tell you how an effective access to information law serves the public's right to know and allows the journalists I represent to do their jobs effectively. We know that excellent journalism has the power to reshape public policy and improve the lives of Canadians. We’ve seen this very clearly play out during the COVID-19 pandemic. Done properly, an updated Access to Information Act has the potential to be one of the most transformative pieces of legislation ever passed by Canada’s government.
For decades, however, we have documented golden promises to modernize a system increasingly brought into disrepute and disrepair. Certainly, changes do not happen overnight, but Canada’s access to information system is broken, and 40 years is, frankly, a long time without making any concerted efforts to solve the problem.
Let me put it another way. You don't put duct tape on a Formula 1 race car's broken chassis and expect to put in competitive lap times, let alone win races or world championships. What I would suggest you do is retire the car, get it fixed properly for the next time out, and start over again. It's simple engineering.
The same holds true for exercises like this one. We need to stop tinkering at the margins and trying for quick fixes. Those only help to engineer enhanced cultures of secrecy. There have been endless government discussion papers, public dialogues, and academic studies that point to a better way forward. The answers to the problems that besiege the current act are right in front of us.
One step in making change, I would posit, is crystal clear. Elected officials—members of Parliament and cabinet ministers, for example—must find the courage and political will to hold themselves to a higher standard. Anything less is simply going to result in yet another choreographed diversion from the important work that must be done.
Thank you for the opportunity to be here today and to present this evidence for your consideration.
I look forward to taking your questions after.
Thank you, sir. The worst part of my job is having to cut people off. Believe me, I don't like it.
Mr. Tromp, are you online, sir?
We're not seeing him. I'm not seeing his microphone come on.
To save time for the committee, we're going to go to our first line of questioning.
These are six-minute rounds, and I invite Mr. Kurek.
I have a point of order, Chair.
If the technical issue with Mr. Tromp is able to be rectified, could he, perhaps, make his opening comments at the top of the next hour? Is that okay with the committee?
Yes. Obviously, there's a technical issue right now. He was invited by the committee to appear. If we can resolve this issue, then I would invite him to speak, as long as the committee is okay with it, and I suspect it would be.
I don't want to speak for the committee, but he was asked to appear.
Instead of interrupting the question rounds, if there's a technical issue that's able to be resolved at the top of the next hour—
Let's get through this round, and then, hopefully, we'll have it figured out.
Mr. Kurek, you have six minutes, please.
Thank you very much, Mr. Chair.
I appreciate the witnesses' joining us here today. Although I know that sometimes politicians and journalists have what can be an adversarial relationship, I acknowledge fully how important this conversation is in terms of accountability.
I will start by asking the same questions that I've asked all of our witnesses. They are two very simple questions to provide some context about the importance of this discussion. I'll go around the room, both in person and virtually. Before I do that, I invite the witnesses—because time is of course a precious resource—to please feel free to send further information if they don't have a chance to get it all in front of us here today.
My first question is, when it comes to the access to information system, is having one that works, that is effective, and that gives Canadians the information they need from their government essential to a modern and functioning democracy?
I'll start with Mr. Beeby.
The short answer is yes. You can't have a functioning democracy without some kind of freedom of information system.
I guess it depends on how you define a functioning democracy, which I don't know if I've seen in my lifetime, but in theory, yes.
Yes, Mr. Tromp.
I'm going to stop the time here.
Mr. Tromp, we were having technical difficulties with your connection. I'm going to keep you on mute until we get through this round, and then I'm going to invite you to speak to the committee. Is that okay, sir?
I don't see you, either. That's the other problem. I just heard you, but I can't see you. We are going to put you on mute for a bit until we can resolve this technical issue.
We're going to continue on with the witnesses.
To answer your question, yes. I think there's a widely attributed quote to Mr. Thomas Jefferson that says information is the currency of democracy, so yes, I'd be inclined to agree with your comment.
I appreciate that. I value greatly referencing that quote, which I've considered myself.
The second question that I've asked all of the witnesses who have appeared on this study is whether the status quo is acceptable.
I know you've all outlined that in your statements but, again, it's helpful in compiling testimony for the report, so I'll ask the three of you here. Is the status quo in Canada's access to information system acceptable?
Go ahead, Mr. Beeby.
I think it's clear that our entire information ecosystem is something that needs valuable support right now. Time is of the essence.
Thank you very much.
As a member of Parliament, my office and I have filed several hundred access to information requests on a whole host of issues, from dealing with constituent casework to some of the big political issues of the day. I'd find it valuable to hear—in short, and I'll go around the table again—if you could point to a couple of the extreme examples of delays or redactions that you've experienced in your time with the access to information system first-hand.
This time I'll go in reverse.
Mr. Jolly, if you could try to keep it to about 30 seconds—I know that's pretty tough—what are examples of the most egregious delays or redactions, in your experience?
We've done a lot of work on the RCMP in trying to uncover police malfeasance and accountability. We've run different campaigns over time, where we've documented and asked for our members to provide a series of information. I'd be happy to share that with the committee for its review and consideration.
That would be great. If you have examples of the number of years, or whatever the case may be, that would be fantastic, as well.
Mr. Conte, it's the same question. Do you have any examples that you could share with the committee so that we can really understand it, in about 30 seconds? I know that's probably tough.
In one of the articles that I submitted to you, I reported on a presentation by LAC, the Library and Archives Canada, and the Office of the Information Commissioner's forum that they presented online about a year ago. They reported that 80% of the information that is classified as top-secret in the LAC vaults is not top-secret. This symbolizes the frictional nature of CSIS, which is doing those redactions and maintaining that censorship, and the relationship between the LAC and the Office of the Information Commissioner.
I would invite you to speak to those representatives to get more clarity on that.
To be brief, I have had so many disappointments. For example, I asked for briefing notes for Prime Minister Harper and received them seven years later, after a new government and three elections.
How am I supposed to hold the government to account when I become, essentially, a historian, rather than a journalist?
Thank you, Mr. Kurek.
Next we'll go to Ms. Hepfner.
It looks like some of the technical challenges may have been corrected with Mr. Tromp. You're in the bullpen right now, Mr. Tromp. We're going to have a pitching change in a few minutes.
Ms. Hepfner, you're next for six minutes, please.
[Translation]
Thank you very much, Mr. Chair.
It is a real pleasure for me to be here, with journalists in attendance. I worked as a journalist for more than 20 years and I witnessed first-hand the changes in the industry during that time.
[English]
What we've heard from witnesses at this committee previously is that there's more information available than at any previous time in our history. I'm wondering what sorts of challenges and what sorts of benefits journalists are seeing from the change of having more information available now than ever before.
I'll ask all of you, but maybe Mr. Beeby can start.
Thank you for the question.
All information is not created equal. A lot of information pushed out there has really little relevance to public affairs and public discourse. It's a bit of a game to say that more and more information is available. Is it useful information? Is it information that helps inquire into decision-making at the highest levels? I would say it's really that core information that we're not seeing more of. In fact, I think we're seeing less and less of it.
I really have to push back against this argument that we're awash in information. Not all information is created equal. Much of it is not useful to the profession of journalism.
It depends on what kind of information you're talking about. There's more misinformation available than ever before as well. If we're talking about government information, it's very easy to manipulate what is credible, legitimate information and what is not.
Mr. Jolly, do you have anything to add to the observations by previous witnesses to this committee that more information is available from government than ever before?
Yes, I think I'd definitely push back on that in a similar fashion to that emphasized by Mr. Beeby and Mr. Conte here. I don't think we can equate volume with quality. I think that's an unfair comparison of apples to oranges in this case. I think what we need to look at is, of course, the quality of information, information that reveals things about how Canada operates and how decisions of the federal government are made, information that promotes transparency and accountability, not just spin-doctoring and talking points and sanitized notes.
Picking up on the question of quality versus quantity, Mr. Beeby, you brought up that the percentage of journalists filing access to information requests is a lot lower than it has been previously. I'm wondering if the percentage is what has changed and not the number of journalists. I don't know the answer to that. We know there's a huge number of people, not just journalists, a ballooning number of people filing access to information requests.
Do you think journalists have stopped, or do you think they're just being overwhelmed by other people filing requests?
It's hard to say, because Treasury Board keeps such poor statistics. They do an annual report, but it's quite unreliable. They don't use scientific methods to gather their data, so it's a lot of guesswork.
On that point, it's interesting that there are more requests than ever before. The number is going up. It's a huge number now. It's almost 200,000. If proactive disclosure of government information is being so helpful in this process, why are so many people asking more and more often for records under access to information? The reverse should happen. If we are proactively making useful information available, then the numbers should go down, but they are going up.
I think that's very telling, because the information that is proactively released is material that really has very little relevance. I think that's why the numbers are going up so enormously.
Let me read a quote from a previous witness, Mr. Wernick:
I'd ask you to remember that a request is not a request is not a request. Some of them are extremely focused and they know what they're looking for and it's relatively easy to decide whether it should go out or not or to apply the screens. But there are also requests formed, particularly by the brokers and resellers—
He is talking about people who access information in order to sell it to someone else. They're looking for information so they can resell it.
—which are kind of like the trawl nets that go over the ocean floor scooping up everything that lives. I used to get a monthly request, when I was a deputy minister, for every note I had ever sent to the minister that month.
Therefore, I'm wondering if requests like these are bogging down the system. Maybe they're not from journalists and they're not specific. They're not from people looking for information they particularly want. They're just throwing out a trawling net to see if they can find anything that sticks.
I would say those data brokers have every right to request information, just as all of us do. You're forgetting that these people are doing a service. They're selling a service to Canadians who find this information useful. The government isn't supplying it to them. The data brokers are, and that's useful. Data brokers pay taxes.
I don't think it's fair to single out a category of user as somehow gumming up the system. I think if there's any solution to that, then government should just make available the data these brokers are after and everyone will be happier.
In the meantime, that's not happening, and I think they have every right to request information, just as journalists do and just as anyone else does.
Thank you very much, Mr. Chair.
Mr. Jolly, you said earlier that we need to take the car back to the repair shop. For my part, I wonder whether we should fix the car or get a new one.
Of course, we have to recognize that the system we have always needs to be reevaluated.
[English]
We've seen repeated instances with governments of all stripes. The greatest opposition issue of all time, I would say, is access to information and transparency. It does take a concerted effort on the part of policy-makers to say, yes, we're going to do this differently and we believe in keeping some of the promises that are often made to journalists and to citizens in Canada because, so far, it has repeatedly fallen short.
[Translation]
Thank you very much, Mr. Jolly.
Mr. Beeby, you said earlier that this is the 16th review you have taken part in, I believe.
[English]
[Translation]
Okay.
Do you think there is a difference between the stated purpose of the Access to Information Act and the purpose of the act?
[English]
[Translation]
[English]
The point of the act, from my point of view, is to empower ordinary citizens, to empower Canadians, to challenge their government, to hold their government to account, and to acquire information about themselves and issues that they're interested in. It shifts power from government, power over information, to the citizenry, and that's a revolution.
[Translation]
[English]
No, it's not, because governments—not just this one, but through the 40 years of the act—have jealousy guarded their control of information. It's a natural process of wanting to avoid embarrassment or maybe to keep malfeasance covered up or whatever.
Controlling information is important to retaining and using power. I think there's a natural bent on the side of government to make sure that access to information does not work.
[Translation]
Thank you very much, Mr. Beeby.
Mr. Conte, you referred to democracy earlier. I am very interested in that.
If I understood correctly, you said that no democracy is perfect. Given the current state of the access to information system, what would you suggest to improve the democracy in question?
I would like you to talk about what is happening in the real world, not what should happen in some ideal world that we can imagine. Please go ahead, and speak in broad terms.
Thank you for the question, Mr. Villemure.
[English]
I would echo what my colleague, Dean, said about how this act was intended to be a tool to shift the balance of power in terms of the citizens and everyday people trying to have a relationship with government where they have power to get knowledge, to learn what their government is doing day to day. Unfortunately, it also nullified the declassification system, also in the past.
The way that this act was designed 40 years ago did not do that. It failed, and now we have 40 years of evidence that shows this. If we were to do this over again and press “reset”, which I believe we need to do, we would pursue something like the Citizens’ Forum on Canada’s Future, called the Spicer commission. It should be citizens themselves who participate in the formulation of a piece of legislation that is for them. It's not for bureaucrats and government officials; it's for them to say how they want their information.
Right now, it has resulted in obscurity for so long that you have to wonder why people have such problems knowing clarity around residential schools, for example, elements of history, and current events. This transcends so many different areas about how people learn about what this nation is.
[Translation]
I wanted to talk about that precisely, archives and the possibility of learning about our own political history, for instance.
Given the current state of things, wouldn't you say that people face certain obstacles that prevent them from really learning about history?
[English]
No. If I've organized special trips to Library and Archives to look at previous access packages that have been released and I see that newspapers have been redacted by CSIS and these are public domain documents, this is very telling of what the government doesn't want you to know.
[Translation]
[English]
Sure. I mentioned it in my opening statement.
I research historic events of the sixties, including the student protest that happened at Sir George Williams University, an event that Concordia University apologized for just a month ago, for calling the police. Yet when you go to the police archive—which is at Library and Archives Canada—of requesters who requested these documents in the nineties when they were first being released by CSIS, newspaper articles on that event from mainstream media organizations are completely redacted, so just imagine how redacted the documents are of the informer reports.
Thank you, Mr. Conte.
[Translation]
Thank you, Mr. Villemure.
[English]
Mr. Green, you have six minutes.
Thank you very much, Mr. Chair.
Welcome to all the guests.
I'm very grateful that we were able to embark on this study, given some of the false starts we might have had administratively in getting folks booked in for this. I want you to know that this committee, I can say with assurance, in a non-partisan way, takes this study very seriously. I'm looking forward to some substantive recommendations beyond just the talking about it and the consultations, so thank you for being here today.
I want to begin with Mr. Conte—
I want to begin with Mr. Conte.
Mr. Conte, have you had the ability to watch any of our previous studies related to this subject matter?
I bring that up because I want to say that I've certainly referenced your work, and I've put the question of administrative sabotage to multiple subject matter experts across the country. I would say that a large portion of them agree on the context in which you framed it in your piece entitled “Administrative sabotage”, wherein you discussed how COINTELPRO records have become available in the U.S. due to their declassification system, but how in Canada these records are extremely difficult to access. As a result, accountability from the government for its past abuses—you've referenced a couple of other examples—is absent from policy discourse.
As somebody who in a contemporary way has been actively involved in civil rights, particularly regarding the Black Lives Matter movement, the Movement for Black Lives, police brutality and other things, I can only imagine that perhaps out there somewhere there might be a file on me.
Can you describe for a moment, in that context, how this retaining of documents and this withholding of critical information impacts the way in which Canadians view our own culpability within systemic racism and anti-Blackness in Canada?
I think the impact on the mainstream, of course, is obvious. If government documents on these events, be it historic events from the sixties and seventies or what's happening right now with the Trans Mountain pipeline and the criminalization of indigenous protesters, where you cannot access documents related to their arrests because they're seen as ongoing law enforcement issues.... I think that when you look at greater impact, whether it's contemporary or historic, it's a demonstration of institutional white supremacy.
If we have non-state organizations that are coming forth with apologies on these kinds of events yet state institutions are maintaining the status quo that they've kept for 40 years in terms of not disclosing or not being truthful on the kind of sabotage they performed during those exact events, then I hesitate to say what impact this has on the future of Canada, where so many different kinds of conflicts and different points of view are growing further apart.
Thank you.
You referenced TMX. I think about the Wet'suwet'en. I think about the way in which the state holds the monopoly of violence and about the lack of ability to have civil or civic accountability—civilian accountability over policing. In a bunch of different ways, we're in fact dealing with that with the Emergencies Act, the occupation, the convoy. Getting information from our own governments, even as MPs, with what should be supreme powers to send for documents, has been very difficult.
In your opinion, does the continued classification of these documents...? I'll just expand on this notion of understanding the history of Canada and the abilities for citizens to advocate for policy changes, the ability for those in governments to write informed policy. You talked about this as being an extension of systemic white supremacy within government. I'm wondering if you could expand on that a little bit in terms of the work that you do and what you see in a contemporary context.
Lots of these issues are absent from policy discourse, because the starting point is knowing what the state's implication and role are to begin with. If I go, for example, on security state issues, all of these issues implicate CSIS, if not directly, then by consultation. Yet, if you want to consult a record from CSIS as an individual, you are not even allowed to know the access to information coordinator's name. When you look at the index of the access to information coordinator, which is listed publicly for every single department, you see that CSIS likes to pretend.... This office, the access to information office, is the most public-facing office of their institution, because they have to interact with the public, yet they like to pretend that they're in some kind of secret operation where the culture is like Fight Club: You don't talk about fight club.
How can you broker any kind of relevant discourse when this is the attitude when it comes to just knowing, let alone how to shift from knowing into public policy discourse?
Thank you.
At this point, I'm going to invite Mr. Tromp to join us.
I apologize, sir, for the technical difficulties. Like the other witnesses who are here today, you'll have five minutes to address the committee, and you'll participate in the second round of questioning, along with the other witnesses.
[Translation]
Mr. Villemure, I can confirm that the tests have been done for these witnesses as well, and everything is in order.
[English]
Hello, and thank you.
It's almost a miracle that I'm here today at all. That was the most complex half-hour Zoom technical challenge I've ever seen in my life.
Anyway, here we are. I'm calling from Vancouver.
To begin my remarks, as you must know, many leading open government advocates declined to testify to this committee. They regard it as a very ineffectual process, for many reasons, like other such parliamentary hearings on this subject in the past. For example, the short time frame renders it impossible. One expert group complained it was invited to submit written submissions at 8:24 p.m. one night, give its reply before 3 p.m. the next day, and expect an appearance on the following business day.
As well, the Treasury Board Secretariat announced a so-called review of the ATI act in June 2020, but it has repeatedly extended the deadline for completion, with no end yet in sight.
That being said, I will still utilize any opportunity to explain to MPs and the public why there is an urgent need for major reforms to FOI, as well as its value.
Today, I'm speaking only for myself and not on behalf of any organization. My testimony consists of three records. These and many more are posted on my website, canadafoi.ca.
First, the committee was sent a link to the report I authored for the Centre for Free Expression entitled “It's Time for Change! 206 Recommendations for Reforms to Canada's Access to Information Act”. This is the most complete set of ATI reform recommendations ever produced. It consists of advice often repeated over three decades—mostly to no avail—based on best practices elsewhere in the world and the advice of information commissioners, access policy experts, frequent users and civil society groups. I hope you've all had a chance to read over those 206 recommendations.
Second, I sent you a link to my book, Fallen Behind: Canada's Access to Information Act in the World Context. The first edition appeared in 2008, and the second in 2020. Because there was no time to translate this 400-page book into French, the clerk instead printed out its five-page summary of chapters. I hope you received that.
Third, I compiled a database of all 6,500 news articles produced through the ATI act since its passage in 1983, and I wrote a 100-word summary of each. They're in 41 topic headings. I created this index to demonstrate the value of FOI laws to the public, thus providing a morale boost and story ideas for reporters and journalism students. The sad thing is that most of the records in those requests should have been routinely released.
In brief, the ATI act contains three statutory black holes that most urgently require fixing. The first is section 21 and the exemption for policy advice. This needs a harms test, a 10-year time limit instead of the current 20 years, and a clear statement that background facts and analysis cannot be withheld as policy.
Second, Canada has created more than 100 wholly owned and controlled entities that perform public functions and spend billions of taxpayers' dollars while excluding these from the scope of FOI laws. For example, the exclusion of the Canadian Blood Services, the Nuclear Waste Management Organization and air traffic controllers could result in harm to public health and safety.
Third, the greatest single threat to the FOI system today may be so-called “oral government”. This occurs when officials no longer commit their thoughts to paper and convey them verbally instead, in order to avert the chance of the information emerging in response to FOI requests. Thus, Canada urgently needs a comprehensive law to create and preserve records, with penalties for non-compliance.
We should follow the example of Newfoundland, where, in 2012, the public rebelled against the premier's plan to convert its FOI law into the worst in Canada and instead pushed to make it the best.
Sadly, although I believe you mean well, it is likely your advice will be ignored again by cabinet and the bureaucracy, as it has been for 35 years—as with the “Open and Shut” report produced by a panel of MPs in 1987. I only wish your power was equivalent to your goodwill.
[Translation]
Thank you.
[English]
I will be pleased to answer any questions.
Thank you, Mr. Tromp. We appreciate your words.
We're now going to the second round.
As a reminder, we have about 55 minutes for questioning.
[Translation]
We will begin with you, Mr. Gourde. You have the floor for five minutes.
Thank you, Mr. Chair.
Thank you to all the witnesses for being here.
Looking at the changes in journalism, it seems that investigative journalism is disappearing as a result of access to information issues. The current climate is more favourable to opinion journalism. All kinds of experts write newspaper articles or discuss various topics on television programs. Social media have also accelerated the pace at which information is processed. A news item is released in the morning and people want to know the outcome by the afternoon. About forty years ago, when a news item was published in a newspaper, the story could be stretched out over a month, because there were always new facts emerging.
You said it was frustrating to have to wait five to seven years to get access to certain information before you publish an article. The news item might still be relevant and of interest five or seven years later, but it would no doubt have been more topical during that same month.
Do you think there is a future for investigative journalism as you practice it?
I would like Mr. Conte to answer first because he talked more about the frustrations he has faced. The other witnesses may answer after him.
Thank you for the question, Mr. Gourde.
[English]
When I referenced the five years to write an article, it was more so the five years of documented frustrations with the access act in terms of performing research on a single topic regarding COINTEL profiles in Canada. These were archives that I was trying to request from Library and Archives Canada, but I found myself having to go to the United States, to the National Archives in Washington, D.C., because they have a declassification system after 25 years.
This particular topic involves RCMP and FBI collaboration, so I found it very ironic that in order to do historical research on this era of Canadian history, I had to go to the United States to get the records, because in Canada, CSIS still considers them to be an operational threat.
[Translation]
[English]
You were asking about the future of investigative journalism. The branch of investigative journalism that relies on documents is dying, because of the inadequacies of the Access to Information Act.
It's not that other investigations can't happen. We rely on whistle-blowers. We rely on leaks. There are other things you can do to produce investigative deep journalism, but using documents that are obtained under freedom of information is a particular branch that has its advantages. The advantages are that you're not talking about one person's opinion of what happened, or one person's view about what should have happened, but you're looking at material from inside government itself that lays out the record. It's a form of investigative journalism that's hard for governments to brush off, to deny, if you're simply quoting to them the very records from their government.
That is a big loss, and we're seeing it happen now. We're seeing the loss of this document-based investigative journalism as we speak, as the access to information system becomes less and less reliable and available to journalists.
[Translation]
Yes, thank you.
[English]
I would like to echo a lot of Dean's comments about the challenges facing...the decline of access to information documentary journalism.
In many ways, just to finish off what he was mentioning, the idea is that a poor access to information system transforms a lot of what could be considered day-to-day journalism into the need for investigative journalism, which, in the current economic climate of news, is largely unsustainable.
The second thought I would share is this. The inclusion of documents obtained through the access system, when they are included in journalistic storytelling, is very clearly an indictment of the system itself. The idea of having to go back, saying this took place five or seven years ago, for example, makes very clear to readers and the audience the challenges that journalists undertake to acquire and gain access to these materials. That's something that really needs to change.
Thank you, Mr. Chair.
Thank you to the witnesses who are here with us.
I will begin with you, Mr. Beeby, because I have followed your career and your criticisms about our access to information system for a long time.
I would like to go back to what you said about proactive disclosure.
[English]
“Why are so many people seeking info from government, if proactive disclosure is working?” It was something to that effect.
[Translation]
In this committee, we have talked with officials from certain departments. Those people have pointed out that three quarters of access to information requests pertain to just one department, Immigration, Refugees and Citizenship Canada. The people making those requests want an update, but that department's information systems are obsolete.
Does that answer your question in part?
[English]
The citizenship and immigration load on the access to information system is quite ridiculous. That department made a decision.... I don't know how long ago it was, at least 20 years. It was getting a lot of questions about clients' files, so it said, “We don't have the administrative capacity to respond to all these inquiries. We're just going to put the whole thing under access to information.” It was a deliberate decision to use the act in a way that it was not intended to be used.
The vast majority—I think it's 75% of requests—are of that nature. They're just immigration consultants and lawyers asking about their clients. To me, it is absurd that you would use a freedom of information system to answer that kind of question. Why wouldn't you simply set up your own separate computer system to respond to these questions instead of gumming up the access to information system?
The Information Commissioner has done a study on this. I hope you look at it. She said exactly what I'm saying. She said to get it out of access to information. This will be a big help to make things more streamlined and accessible.
This picks up on a point by Ms. Hepfner, where we talk about more information being available, or more access requests happening than ever before.
A lot of reference has been made in this committee to vexatious or unnecessary requests from the public. I think those happen in a few outlying instances. I think this is, in fact, insignificant when you think about the vexatious nature of government in this kind of example. They're misusing the Access to Information Act for things that are unrelated to what it was intended for, and using it for their own operations.
[Translation]
You said you have been following the current discussions, as you followed similar discussions about fifteen times since this program was instituted.
This time, assuming that everyone at the table is in good faith, I would like you to tell me which government officials we should invite, in your opinion, to answer for the access to information system.
Mr. Beeby, would you like to answer this question?
[English]
Well, the system is overseen by Treasury Board.
One of my invitations would go to the President of the Treasury Board, and perhaps to the equivalent of deputy minister there. They are the ones who make key decisions about how this system works, and they should be held accountable for those decisions. Those are the two I would ask.
[Translation]
[English]
Yes, I would ask the access to information coordinator of CSIS, and I would ask Amir Attaran, a constitutional lawyer, who is well versed in case law around constitutional challenges and the relevance of the constitutional overlap with the current state of the act.
[Translation]
We are now at five minutes and 38 seconds, but I will give Mr. Tromp another 10 seconds.
[English]
If you can give a quick answer, Mr. Tromp, that would be great.
I would also be sure to invite the justice minister, who has often spoken on the ATI act before at committees, because he would deal with the law reform aspect of it.
I might add, of course, the Prime Minister, Mr. Trudeau, as this is something that's currently ultimately on his desk and in 2015, upon taking office, he promised to make his tenure one of Canada's most transparent governments in history. To date, I have failed to see much action on that front.
Thank you very much, Mr. Chair.
Mr. Beeby, setting aside the act, do you think that all information must be disclosed, regardless of the circumstances?
[English]
No, I don't. I believe in privacy rights, for example. I do think some deliberations of government need to be protected for open and honest discussion. No, I'm not being unreasonable. I don't think it should be open to everyone. I think there are good cases to be made for protecting some kinds of information—security information, for example—but we need a watchdog to tell us when our politicians are abusing those protections for security, for privacy, for deliberations.
As I said in my remarks, at the cabinet level we do not have a watchdog. Cabinet makes its own decisions and you just have to live with them. There's no sheriff or ombudsperson to come in and say, let's have a second look at that.
[Translation]
[English]
Yes, the Information Commissioner of Canada should be allowed to review decisions to withhold cabinet records, absolutely. It's not such a crazy idea. There's a professor at the University of Ottawa, Yan Campagnolo, who just wrote a book about this, and that was his recommendation, that the Information Commissioner should be authorized to review those kinds of decisions.
[Translation]
[English]
[Translation]
[English]
I believe in a system of government where citizens are participating in a process where there is an honest brokerage of knowledge of what their governments are doing. This act does not do that.
[Translation]
Thank you, Mr. Villemure.
[English]
Thank you, Mr. Conte.
Next we are going to go to Mr. Green, for two and a half minutes.
Thank you.
Mr. Conte, in your article titled, “Canada continues to censor internal interviews on review of Afghan war”, you state, “Until we abolish the Access to Information Act and create an access system of civil liability, the current system of discretionary good faith will continue to be used as a de facto system of state censorship and a covert extension of the Official Secrets Act.”
Can you describe what an “access system of civil liability” would look like?
It's been somewhat referred to in testimony today and testimony from previous witnesses.
If I don't pay my taxes, there are consequences. There are rules to abide by in a collective society of things that are expected from you. According to the Access—
I'll put the question more directly, because I only have a limited amount of time.
Are there countries that you have come across in your research that have, in your opinion, adequate systems of civil liability?
From my experience in the United States, if a government doesn't play by the rules, there are forms of infrastructure—
[Translation]
[English]
We had this problem earlier. You miraculously corrected it, Mr. Green, by raising your voice a bit. Can you try that for me?
Mr. Conte, just in terms of finding international comparators that we might look to, you mentioned the United States. Is it through the courts that civilians can find remedies should the government fail to live up to its stated legislative requirements?
In the short term, when we consider degrees of policy shift that are possible, the only remedy is through the courts. Whether it's through financial penalties that are leveraged on government officials and departments, whether it's through other kinds of means, there are currently no consequences if people do not comply.
For example, even with Bill C-58's order powers through the commissioner, there are government departments that are not complying with orders. There are government departments that are taking the commissioner to court over orders that the commissioner has issued. Why? Because—
I will share with you an example from our own House of Commons. In the last session of government, the Speaker of the House had to take the government to court just to get documents that we demanded.
I know my time is up, but I do appreciate the witnesses being present today to provide their expert testimony.
Thank you, Mr. Green.
We will now go to Mr. Barrett for five minutes as we continue the second round.
Thanks, Chair, and thanks to the witnesses for being here.
I will just go through the panel with a couple of questions.
What is your longest outstanding ATIP? I will start with you, Mr. Beeby.
The longest-standing request that I have ongoing is with Library and Archives Canada, which goes back to 2018.
Mr. Tromp, what would be the longest outstanding ATIP request that you have with the Government of Canada?
I would say the worst backlogged department in regard to journalists is the RCMP. I have requests dating back at least six or seven years. It's almost a disaster over there.
It appears that we've lost Mr. Jolly. Let's hope we get him back as soon as possible.
Carry on, Mr. Barrett.
He might have succumbed to the wait for his longest ATIP, or maybe he's reading it; maybe it's finally arrived.
Has the failure of the government to make ATIP deadlines affected your ability to accurately report on what's happening in government?
Yes. We call it “deadline abuse”. Some departments, like the RCMP, don't even acknowledge the receipt of your request. There's no clock even ticking for some limbo requests. I think there's a reflexive mode in departments to automatically take the longest stretch that they can get away with because it just gives them more manoeuvring room, rather than working out exactly how long processing will actually take.
The Information Commissioner has come down on departments for this. The result is that requests from journalists in particular are just held in abeyance for months and months, sometimes years and years—as I've given some examples of—until the information is no longer embarrassing, dangerous or whatever.
Yes, it does indeed affect us.
Mr. Conte, while I have the same question, I guess what I'd ask is, do you believe that this damages public trust in media where there could be public interest in an issue and there's no substantive reporting on it in media because they're not able to get the information that would substantiate or flesh out the story?
I mean, it definitely affects the content of stories, and the political content of stories as well, if we're talking about state information.
I'd just point out, on the RCMP topic, that not only is the RCMP not acknowledging.... I had a communication from them five or six years after I filed the request. They sent me a letter asking me if I was still interested in my request.
To your question, just by comparison, in the United States the act privileges public dissemination of knowledge. If you have an urgent issue of government activity that you need to report on, you can be at the top of the queue in terms of expedited processing, which here we don't have.
It surprises me that not more journalists are coming before this committee, especially of legacy media institutions, where this is their business: the public dissemination of knowledge, especially as it pertains to the state. There is an absence of this, which speaks to a lot of the points—to a disinterest in access to information from journalism as a whole, and, as a result, to the quality of journalism about the government.
I guess I'd just say that the challenge is that if members of the public don't know what they don't know, then it's tough for them to be agents of change in the system. I know there's some frustration, in that this issue has been studied by successive Parliaments and multiple committees, but I think it's important, and I appreciate the testimony of the witnesses.
I'm sorry, sir, but unless it's asked in the next round by Ms. Khalid.... It's questions and answers here.
Ms. Khalid, please go ahead for five minutes. Thank you.
Thanks very much, Chair.
It's an interesting conversation today from the witnesses. I appreciate your feedback.
The Information Commissioner was asked how much of a drain vexatious, malicious or frivolous ATIPs were on her office and had this to say:
It has a huge impact. My office has only three people dealing with our own access requests. Last year, we received a request that ended up with 33,000 pages. We ourselves had to request an extension, because we are subject to the act as well. We don't want to say “no” to access requests, but sometimes we are realizing that it's difficult to negotiate or to try to understand what is behind the request.
I am sure that institutions, as I said, all have their one or two or three requesters who are difficult or who are asking for information where, at the end of the day, you wonder, “What are you going to do with those 22 million pages?”
I ask you, Mr. Beeby, as a person with an investigative journalism background—and I have ultimate regard for the role of journalists in being the watchdogs of how government operates and how we provide services to Canadians—how do you feel about this current influx of what I like to call “blogger journalism”, where an opinion becomes...or is maybe trying to change public opinion or is taking away from that public trust of the organization that is the government?
Do you think that has an impact on how ATIPs are being responded to right now?
I'm not sure I see the connection there.
To me, as a journalist, access to information is a way to avoid opinion journalism or journalism that goes “he said, he said”, and you try to work out something in between. When you call it “blogger journalism”, I assume you mean opinion journalism, that sort of thing.
To me, access to information is an answer to this. We talk about all the misinformation in blogs out there and trying to persuade people one way or another from using misinformation. Access to information is an answer to that problem. Giving data that has been provided by governments and vetted gives a hard, factual basis to investigative journalism.
That's why I have used the act for my whole career, because I think it's a more reliable, less challengeable source of information for investigative stories.
I'm not sure that answers your question.
It does. Thank you. I appreciate that, Mr. Beeby.
Mr. Conte, you mentioned earlier that you received an article that was redacted by CSIS. My understanding is that, under the act, publications are exempt from redactions, because, well, they are already public. Can you help us understand what exactly was redacted? What were you seeking in an article that had already been published?
If you're a researcher today wanting to research Canadian security state records somewhat expediently, you have to look at research that has already been done, because a historical request.... The CSIS archive and the RCMP security service archive are at LAC under volume RG146. These are a transfer of records from CSIS that they still have control over. All the records there are from previously released.... You can access a collection of previously released access to information packages, while you wait for your own access to information request to happen.
Those transfers happened in the 1990s. There used to be a CSIS reading room you could go to. I never went to it, because I was too young at that time.
In those access to information release packages that were processed in the 1990s, there are several redactions that tell a story of how CSIS was redacting and censoring documents then. They speak to the argument of LAC over-censorship, of the Office of the Information Commissioner over-censorship, both then and now, because even today, as—
I'm sorry. I don't mean to cut you off, but I was specifically asking about that one instance when you received a redacted public article.
Thank you, Chair. It's a very short question.
Mr. Beeby, you talked about cabinet confidence earlier. As a committee, we use in camera deliberations to talk about specific witnesses, sensitive matters. Ultimately, we do release the final result of our deliberations.
Do you think that committee in camera discussions should also be subject to ATIP?
I believe in protecting deliberations that deserve protection. That's all I can say. It's sort of a hypothetical question. I'm not sure what kind of in camera discussion you're talking about.
I'm not opposed to the protection of cabinet deliberations. I just think the system we have has gotten out of hand. I think the definition of “cabinet confidence” is expanding every year so that it covers, more and more, non-cabinet documents.
Thank you, Mr. Beeby.
[Translation]
We will now begin the next round of questions.
I wish to inform the members of the committee that Mr. Jolly is with us again, remotely.
Mr. Kurek, you have the floor for five minutes.
[English]
Thank you very much, Chair.
It's been a fascinating conversation.
Mr. Tromp, I'd like to give you an opportunity to answer the question that my colleague, Mr. Barrett, had asked about some of the challenges associated with trust in media because the media is not able to access some of this information.
If you want to respond to that, I know you had put your hand up before.
Thank you very much for this opportunity.
This is one of the reasons I created the database of every ATIP news story produced by ATIP requests since 1983. That's over 6,000 of them, which demonstrates to the public the value of the ATIP system and the danger of losing it—which we have now with newsrooms sometimes cut back in half, newspapers with bankruptcy and massive industrial decline. Some of that will be picked up by freelancers and new digital media, but far less than before.
It's a double whammy: the industry under strain, plus the ATIP system failing so much.
The question was raised about the problem of delays. Yes, I've had stories quashed because of delays. The information was no longer relevant. The major problem is that in our ATIP law, the reply can be extended for an unspecified “reasonable period of time”, with no day limit set. That could mean anything to anyone. It's a blank cheque. That allows it to be extended, potentially, forever. That's a part of the law that most nations with FOI laws would never accept.
Also, the average response time in most FOI laws in the world is two weeks. That is half the level of the initial response time of 30 days in our ATIP law. Even much poorer countries with weak administrative systems respond much more quickly. Sometimes, it's a week or two.
It's a question of political will, usually. It's not always resources.
Thank you, Mr. Tromp.
To note, I had my team go through an overview of many systems around the world and, certainly, Canada does not rank highly in the ratings or when looking at some of the access requests.
I have only about two and a half minutes.
Mr. Jolly, I know you were lost, but you have been found. It's good to have you back. I wonder if you have anything to add about the trust related to ATIPs and, specifically, how that affects the media.
Absolutely.
This has not been a very good ad for Bell Internet, I'll have to add.
To the point about openness and transparency, I think we've definitely moved far away from the default being openness. That's a mistake that needs to be corrected right away.
I think we're increasingly turning the citizen's right to know into the government's right to say “no” to legitimate requests for government information. That has a trickle-down effect all the way down the information and societal food chain, right from journalists and news organizations being able to use these requests to report on information, to citizens and researchers being able to access relevant materials that they need for their own work.
Right. Thanks for that.
As was mentioned, Parliament saw first-hand some of this when the government took the Speaker to court over the release of some information in the previous Parliament. That issue was disposed of because of an election call, so there's certainly a host of challenges.
Changing gears here, Mr. Beeby, you mentioned proactive disclosure. When I look at what I think will be a recommendation to bring forward, proactive disclosure has a place on something like the immigration backlog, where having the ability for somebody who has been denied, for example.... We need something related to immigration to ensure that they don't have to go through the system.
I'm wondering, in the last 30 seconds or so, if you could talk a bit about proactive disclosure, not so much in the sense of briefing notes from a high-level departmental perspective, but more the specific instances.
The problem with proactive disclosure—as it sits in the law and Bill C-58, which changed the access act—is that it defines a very small number of documents, so-called ministerial documents, that are going to be released on the government's timetable, with no watchdog.
To me, proactive disclosure is a red herring. It's a way to divert our attention from fixing the main problem, which is the Access to Information Act's dysfunctionality.
On the issue of the immigration files, there's a big privacy issue, and I don't think proactive disclosure in that sense is possible. It has to be a client-to-client kind of disclosure.
I don't accept proactive disclosure as some kind of panacea for the system. It's not. It diverts our energies and attention from the big problem, which is a dysfunctional act.
Thank you, Mr. Beeby.
Thank you, Mr. Kurek.
Perhaps now is the time for the disclaimer that the opinion expressed on Internet connectivity by Mr. Jolly does not necessarily reflect that of the committee. Any publication—
Voices: Oh, oh!
The Chair: Anyway, thank you, sir.
I have Ms. Saks, now, for five minutes.
Thank you, Mr. Chair.
Through you, I'd like to direct my attention to Mr. Tromp, if I may.
Mr. Tromp, I had an opportunity to skim through some of your book, and I'd like to note your comments about how the Harper government in 2006 had pledged to “provide a general public interest override for all exemptions”. It did not fulfill that promise. In a subsequent paragraph, you talk about the contemplation by the Conservative Party to look at ATI exemptions and put them to a “harms test", which also wasn't fulfilled.
You then go on, in chapter 8 of your book, to state that the Liberal Party kept its 2015 pledge to grant the Information Commissioner the power to order the release of government information under Bill C-58.
We see that in the Harper years, the media actually complained that they really didn't have a lot of contact with the Harper government in disclosures and discussions, and in 2015, the government came in with a promise to move forward in an open and transparent way, and you cite Bill C-58.
Where are we in the consideration of exemptions now? Have we moved ahead? We've heard the comments from Mr. Beeby about proactive disclosure and where it's not meeting this mark.
I'd like to have your thoughts on that, if I may.
Well, there certainly has been some progress made, but the fact that the Office of the Prime Minister and ministers are no longer covered, as the Prime Minister promised to do in the 2015 election campaign, is a failing.
The commissioner's power to order the release of government records is most welcome here. However, the commissioner, Suzanne Legault, in her report found five serious shortcomings in that power—which are mostly absent in the rest of the world that I've studied—such as the de novo review, the lack of enforcement, etc.
It was a start, but of course we still need the cabinet records to be subject to the commissioner's review, and also, no longer a complete exclusion from the act—as is the case in only one other country in the world, South Africa—but rather a mandatory exemption, which it was in the first version of the ATIP law in 1979.
Yes, of the Harper government's eight pledges in 2006 for ATI reform, seven and a half were not fulfilled. There was some coverage of some foundations and Crown corporations—
Thank you for that.
I'm sorry to interrupt, but I really want to go into the cabinet confidence. You mentioned that South Africa and Canada are the only ones with complete exemptions on cabinet confidence—
Sorry, yes, thank you for correcting me on that.
It's quite common throughout the Commonwealth, I understand, to have exclusions of cabinet confidence. Where else in the world is there an open access to cabinet confidence? Can you cite one example?
Well, it's not a complete openness to deliberations, obviously. New Zealand has a somewhat more open system, where background records are released very soon after decisions are made.
The 20-year time limit is excessive by far. Cabinet records can only be withheld for 10 years in Nova Scotia. The latest Commonwealth FOI law in the world, that of Ghana in 2019, has a fine harms test for cabinet records, which can only be withheld if they would “undermine the deliberative process”. Well, not all cabinet records released would undermine the deliberative process. It needs to be more precise and nuanced.
Thank you for that.
In your opinion, who should be the czar to determine if there could be an override?
Mr. Beeby, you say that much of what's on Open Government is irrelevant, which includes contracts, ministerial briefings, and any funding over $10,000, so what would be relevant if that's not relevant?
You were just talking about cabinet confidences. I think cabinet could proactively release the data and background information upon which it made its decision. They could do that soon after making the decision, rather than letting us wait 20 years. That's an example of a deliberative document that is unnecessarily withheld, and it helps us understand why government made its decision. I don't see the problem if it's not touching on the actual discussion around the table, and it's merely data and background.
[Translation]
Thank you very much, Mr. Chair.
Mr. Conte, you spoke earlier about the differences between the American system and the Canadian system. You said that, in the American system, if a request is considered important, it goes to the front of the line. Is that correct?
[English]
[Translation]
Are the classified documents obtained in the United States in response to an access request more redacted or less redacted than those we obtain here, on average?
[English]
In the U.S., there is a 25-year declassification system. After that time, they are uncensored and declassified to the greatest extent possible.
In Canada, the only way to declassify documents is through access to information requests, one at a time, depending on who is requesting.
[Translation]
A scientific journal reported recently that documents in the United States are often classified at a higher level than necessary, and that this is because of officials wanting to protect themselves rather than any real need.
Do you agree with that?
[English]
To be honest, I don't have that expert knowledge, but I imagine that exists. The American system is not perfect when it comes to censorship, delays, appeals and so on, but this problem is more prevalent here in Canada.
[Translation]
Thank you very much, Mr. Conte.
Mr. Tromp, you make 206 recommendations in your report. What would the two chief recommendations be?
[English]
I believe the cabinet exclusion should be converted into a mandatory exemption, and also the commissioner should have the right to view the records to see that they are properly classified.
As well, the second would be the policy advice exemption, which needs a harms test, a 10-year limit and a clear statement that background and facts cannot be withheld as analysis.
That's a good start anyway, but there's more.
[Translation]
[English]
Mr. Beeby, in a blog post you stated that in 2009, an aide to a Public Works minister blocked the release of a document you requested. It was reported that this was a clear case of political interference, but the RCMP dropped their preliminary investigation. In your opinion, why was the investigation dropped?
Well, I don't have access to RCMP files. The RCMP investigated that case. I know only that they announced that they would not lay charges against that individual. However, I understand that the problem was proving criminal intent. There's a section in the act about criminal penalties, but to meet that standard you have to prove intent. I think they were somehow not able to show that in that case.
Do you, then, have any recommendations regarding who might be more adequate, given this grey area, to investigate these kinds of cases?
This case is interesting because it had to do with a political aide to a minister. One quirk of the access act is that the Information Commissioner, when she discovers some bad behaviour by a political aide, cannot ask the justice minister, the Attorney General, to investigate because they're somehow exempt from her purview. This is a real problem with the act that could be fixed so simply, and I think that's one loophole we have to close.
I'm not sure if that answers your question.
That's perfect, but could you be specific about how you would propose to close that loop? Are you then suggesting to bring political aides into the regime of oversight?
Bring political aides into the same arena as all public servants, so they have to be held accountable for their bad behaviour in withholding or destroying records.
In your opinion, could it still present a problem if you have the Attorney General and Minister of Justice being ultimately left with the decision whether to pursue, prosecute, or investigate political staffers?
Well, they don't. They merely refer it to the RCMP, and then the Public Prosecution Service. We do have some arm's-length institutions that I think would take care of that conflict of interest.
Perhaps you have more faith in those than I do.
Thank you very much, Mr. Chair. Those are my questions.
[Translation]
Thank you, Mr. Green.
The last two committee members to speak will be Mr. Gourde and Mr. Fergus, who will have two and a half minutes each.
Mr. Gourde, you have the floor.
Thank you, Mr. Chair.
My question is for all the witnesses.
If I ask a minister in the House a question and he does not know the answer, because it is not in his notes or for some other reason, he will ask his political advisors to hold a briefing within the next 24 hours to be brought up to speed on the matter, in case I were to ask him the same question the next day.
If you were to ask that same question, would you expect an answer in as reasonable a timeframe as 24 hours or would it likely be in about two years?
Mr. Beeby, you may answer first.
[English]
This is the double frustration of being a journalist. You're not only waiting for answers from access to information, but you're waiting literally weeks sometimes for answers from departments and ministers' offices. I would be waiting at least as long as you are.
[Translation]
[English]
[Translation]
[English]
Yes, I think that would be a fair assessment. To reiterate my point, we need to move toward a culture of openness and default to openness. Otherwise, situations will only continue to get worse.
[Translation]
[English]
The purpose of all my work is to raise Canada's FOI law to accepted global standards. That's not a radical or unreasonable goal at all, because MPs do not need to leap into the future, but merely step into the present. We are now rated 52nd in the world with regard to our FOI law quality. We could obviously do much better than that.
[Translation]
Thank you very much, Mr. Chair.
[English]
Very quickly, Mr. Beeby, I'll ask you two questions, and they're related, so I'd appreciate it if you could be pretty quick.
Recently, the Ford government made a decision to develop Ontario's greenbelt. Is the decision not enough? Do you need to know what went into the deliberations that led to that decision?
Yes, you do need to know, because you need to know whether there's been undue influence on cabinet by corporations, developers, or whatever. Of course, that's part of the concern that citizens have about their governments. Are they listening to the wrong people instead of citizens?
On that point, the human factor is really important here.
In your testimony, you described the importance of having the Information Commissioner be the arbiter of what should be considered cabinet confidence. Isn't that just making everything subject to the quality of the Information Commissioner?
As parliamentarians, if we're going to propose changes, we're supposed to propose changes that are based on a principle. What principle would you like us to consider?
On that issue, if the record contains deliberations, then protect it. If the record is merely information provided to inform those deliberations, then do not protect it.
All right.
To go back to the first example, do you think that the officials would have had that basic information saying, “sell the greenbelt”, or would that have been more part of that deliberative process?
No, typically cabinet would be presented with options: “If you do this, then it's this. If you do B, then it's C.” It's not only possible, but it's common that cabinets review information that is not urging a particular course. It's the job of cabinet to make the decision. These are records that merely inform and give background data.
In defence of the Information Commissioner, she is appointed by Parliament. She is a high-quality individual. I have a lot of faith in Parliament's ability to pick quality candidates to make those hard decisions about what's in and out in cabinet.
We have a motion to resume debate where we left off in the last meeting.
Do I see any objection from the committee on that?
(Motion agreed to)
The Chair: There's no need for a vote. We have consensus.
We're going to continue the debate. Before we do, I just want to say thank you to our witnesses for coming today. You shared some extremely valuable information with the committee.
I apologize to those who were online for the technical difficulties. If there is anything that you may have missed today, I would invite you to provide it in writing to the committee clerk and we can consider that within our deliberations.
Again, I want to say thank you on behalf of the committee and Canadians, as well. Thank you.
I'm going to dismiss the witnesses. We'll continue on.
Mr. Fergus, when we left, you had the floor on an amendment. I'd like to go back to you on that, please.
Mr. Chair, I believe there have been discussions among all parties. I don't want to prolong the debate. I think there is a general consensus. I hope that will continue.
I'd like to put the question on it.
Is there any discussion on the amendment?
(Amendment agreed to [See Minutes of Proceedings])
The Chair: We're on the main motion now, as amended.
I will remind the committee that we do have a work plan that we are still following. We have the commissioner coming on the supplementary estimates (B) on Monday. We do have a witness appearing next Wednesday. That may take us up until the new year. This study may not continue until that point.
Mr. Fergus, go ahead.
Again, Mr. Chair, I'd like to reaffirm to all members that I think there's a confidence that the spirit will be reflected, not necessarily the letter. We offer that discretion to you, to make sure that we do the business of our committee that has already been planned first, and then we'll move on.
Okay, I appreciate that. As you can imagine, these are difficult days leading up to Christmas, trying to get witnesses, for the clerk and the analysts. I do appreciate a little bit of latitude.
Is there any further discussion on the motion?
Seeing none, do we have consensus on the motion as amended?
(Motion as amended agreed to [See Minutes of Proceedings])
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