The State of Canada’s Access to Information System

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Report of the Standing Committee on Access to

Information, Privacy and Ethics

John Brassard, Chair

JUNE 2023

44th

PARLIAMENT, 1st SESSION

Published under the authority of the Speaker of the House of Commons

SPEAKER’S PERMISSION

The proceedings of the House of Commons and its Committees are hereby made available to provide greater public access. The

parliamentary privilege of the House of Commons to control the publication and broadcast of the proceedings of the House of

Commons and its Committees is nonetheless reserved. All copyrights therein are also reserved.

Reproduction of the proceedings of the House of Commons and its Committees, in whole or in part and in any medium, is

hereby permitted provided that the reproduction is accurate and is not presented as official. This permission does not extend

to reproduction, distribution or use for commercial purpose of financial gain. Reproduction or use outside this permission or

without authorization may be treated as copyright infringement in accordance with the Copyright Act. Authorization may be

obtained on written application to the Office of the Speaker of the House of Commons.

Reproduction in accordance with this permission does not constitute publication under the authority of the House of

Commons. The absolute privilege that applies to the proceedings of the House of Commons does not extend to these permitted

reproductions. Where a reproduction includes briefs to a Standing Committee of the House of Commons, authorization for

reproduction may be required from the authors in accordance with the Copyright Act.

Nothing in this permission abrogates or derogates from the privileges, powers, immunities and rights of the House of Commons

and its Committees. For greater certainty, this permission does not affect the prohibition against impeaching or questioning the

proceedings of the House of Commons in courts or otherwise. The House of Commons retains the right and privilege to find

users in contempt of Parliament if a reproduction or use is not in accordance with this permission.

Also available on the House of Commons website

at the following address: www.ourcommons.ca

THE STATE OF CANADA’S ACCESS TO

INFORMATION SYSTEM

Report of the Standing Committee on

Access to Information, Privacy and Ethics

John Brassard

Chair

JUNE 2023

44th PARLIAMENT, 1st SESSION

NOTICE TO READER

Reports from committees presented to the House of Commons

Presenting a report to the House is the way a committee makes public its findings and recommendations

on a particular topic. Substantive reports on a subject-matter study usually contain a synopsis of the

testimony heard, the recommendations made by the committee, as well as the reasons for those

recommendations.

To assist the reader:

A list of abbreviations used in this report is available on page xi

iii

STANDING COMMITTEE ON ACCESS TO

INFORMATION, PRIVACY AND ETHICS

CHAIR

John Brassard

VICE-CHAIRS

Iqra Khalid

René Villemure

MEMBERS

Parm Bains

Michael Barrett

Hon. Greg Fergus

Jacques Gourde

Matthew Green

Lisa Hepfner

Damien C. Kurek

Ya'ara Saks

OTHER MEMBERS OF PARLIAMENT WHO PARTICIPATED

Jenica Atwin

Jaime Battiste

Luc Berthold

James Bezan

Chris Bittle

Sean Casey

Adam Chambers

Marc Dalton

Blake Desjarlais

Dave Epp

Soraya Martinez Ferrada

Jean-Denis Garon

Marilène Gill

Angelo Iacono

Yvonne Jones

Majid Jowhari

Peter Julian

Pat Kelly

Annie Koutrakis

Irek Kusmierczyk

Heather McPherson

Glen Motz

Yasir Naqvi

Sherry Romanado

Mario Simard

Clifford Small

Leah Taylor Roy

Ryan Williams

CLERK OF THE COMMITTEE

Nancy Vohl

LIBRARY OF PARLIAMENT

Parliamentary Information, Education and Research Services

Sabrina Charland, Analyst

Alexandra Savoie, Analyst

THE STANDING COMMITTEE ON

ACCESS TO INFORMATION, PRIVACY AND ETHICS

has the honour to present its

NINTH REPORT

Pursuant to its mandate under Standing Order 108(3)(h), the committee has studied the access to

information and privacy system and has agreed to report the following:

vii

TABLE OF CONTENTS

LIST OF ACRONYMS ............................................................................................................................. XI

SUMMARY .................................................................................................................................................. 1

LIST OF RECOMMENDATIONS .......................................................................................................... 3

THE STATE OF CANADA’S ACCESS TO INFORMATION SYSTEM ......................................... 9

Introduction ....................................................................................................................................... 9

Background ................................................................................................................................. 9

Structure of the Report ....................................................................................................... 10

Chapter 1: The Access to Information System .................................................................. 11

Role of the Access to Information System ................................................................... 11

Ideal Access to Information System and Current System ...................................... 13

Chapter 2: Criticism of Canada’s Access to Information System and Related

Issues ................................................................................................................................................. 15

General Criticism ................................................................................................................... 15

Related and Pressing Issues .............................................................................................. 16

Systemic Delays............................................................................................................... 16

Access to Information in Immigration Matters .................................................. 19

Access to Information and Indigenous Peoples.................................................. 22

Specific Claims .......................................................................................................... 22

Problems With the Access to Information System ..................................... 24

Compliance With the United Nations Declaration on the Rights of

Indigenous Peoples ................................................................................................ 25

Protection of Vulnerable Individuals in the Canadian Armed Forces........ 28

Whistleblower Protection ........................................................................................... 31

Access to Historical Documents ................................................................................ 32

Access to Historical Documents on the Holocaust ..................................... 36

viii

Systems for Classifying and Declassifying Documents ............................. 38

International Approaches .................................................................................... 39

Other Solutions ........................................................................................................ 41

Chapter 3: State of Access to Information in Certain Federal Institutions ............. 42

Royal Canadian Mounted Police ...................................................................................... 42

Privy Council Office............................................................................................................... 44

Global Affairs Canada ........................................................................................................... 45

Public Safety Canada ............................................................................................................ 46

Canadian Security Intelligence Service ......................................................................... 46

Department of National Defence ..................................................................................... 47

Library and Archives Canada ............................................................................................ 48

Chapter 4: Improving Canada’s Access to Information System .................................. 49

Leadership and Culture ....................................................................................................... 50

Resources and Innovation ................................................................................................. 53

Technological Tools and Innovation ....................................................................... 53

Human Resources .......................................................................................................... 54

Information and Records Management ........................................................................ 55

Duty to Document ................................................................................................................. 57

Consultation Between Federal Institutions ................................................................ 59

Proactive Information Sharing ......................................................................................... 60

Distinction Between Transparency, Open Government and Access to

Information ....................................................................................................................... 60

Proactive Disclosure ..................................................................................................... 62

Scope of the Access to Information Act .......................................................................... 67

Application of the Access to Information Act to Cabinet Confidences ........ 67

Application of the Access to Information Act to the Prime Minister’s

Office and Ministers’ Offices ....................................................................................... 69

Application of the Access to Information Act to Other Institutions and

Individuals ........................................................................................................................ 70

Limitations on the Use of Exemptions and Exclusions Under the Access to

Information Act ....................................................................................................................... 72

National Security ............................................................................................................ 74

Third Party Information .............................................................................................. 75

Operations of Government ......................................................................................... 76

Solicitor-Client Privilege .............................................................................................. 77

Exclusion Relating to the Canadian Broadcasting Corporation ................... 77

Managing Vexatious Requests .......................................................................................... 78

Application Fees ..................................................................................................................... 80

Chapter 5: Information commissioner’s Powers, Independence, and

Resources ......................................................................................................................................... 80

Powers of the Information Commissioner................................................................... 80

Power to Make Orders .................................................................................................. 80

Ability to Publish Decisions ........................................................................................ 81

Investigation Powers .................................................................................................... 82

Additional Powers .......................................................................................................... 83

Independence of the Office of the Information Commissioner ........................... 85

Adequacy and Allocation of the Office of the Information Commissioner’s

Resources ................................................................................................................................. 86

Chapter 6: Treasury Board Report on the Review of Access to Information ........ 88

Comments by the Information Commissioner ........................................................... 90

Comments by Other Stakeholders .................................................................................. 91

Conclusion ....................................................................................................................................... 93

APPENDIX A LIST OF WITNESSES ................................................................................................ 95

APPENDIX B LIST OF BRIEFS .......................................................................................................... 99

REQUEST FOR GOVERNMENT RESPONSE .............................................................................. 101

DISSENTING OPINION BY THE LIBERAL PARTY OF CANADA ........................................ 103

LIST OF ACRONYMS

ATIA Access to Information Act

ATIP Access to Information and Privacy

BC FIPA BC Freedom of Information and Privacy Association

CAF Canadian Armed Forces

CBC Canadian Broadcasting Corporation

CLD Centre for Law and Democracy

CSIS Canadian Security Intelligence Service

DND Department of National Defence

GRIR Global Right to Information Rating

IRCC Immigration, Refugees and Citizenship Canada

LAC Library and Archives Canada

OLA Official Languages Act

OIC Office of the Information Commissioner

PCO Privy Council Office

PSC Department of Public Safety and Emergency Preparedness

RCMP Royal Canadian Mounted Police

TBS Treasury Board Secretariat

UBCIC Union of British Columbia Indian Chiefs

UNDRIP United Nations Declaration on the Rights of Indigenous Peoples

SUMMARY

The Access to Information Act (ATIA) was passed in 1983 at a time when government

records were primarily paper-based, and technology was not very advanced. The first

substantive reform of the ATIA occurred in 2019 with the enactment of Bill C-58, An Act

to amend the Access to Information Act and the Privacy Act and to make consequential

amendments to other Acts. However, the evidence heard by the Committee confirms

that Canada’s access to information system continues to have flaws.

In this report, the Committee reviews Canada’s access to information system and

explains its important role in a democratic society. The report looks at critiques of the

access to information system and addresses six specific issues raised by witnesses:

systemic delays; access to information in immigration matters; Indigenous peoples’

access to information; access to information for victims of abuse in the military;

whistleblower protection; and access to historical documents. It also examines the state

of access to information in certain federal institutions.

Then, the report examines legislative and non-legislative measures for improving

Canada’s access to information system. It also looks at the powers, independence, and

resources of the Information Commissioner of Canada. Finally, it addresses the report on

the review of access to information that Treasury Board presented to Parliament in

December 2022.

In light of the evidence heard, the Committee presents recommendations for improving

Canada’s access to information system and the applicable legislative framework.

LIST OF RECOMMENDATIONS

As a result of their deliberations committees may make recommendations which they

include in their reports for the consideration of the House of Commons or the Government.

Recommendations related to this study are listed below.

Recommendation 1

That the Government of Canada conduct a comprehensive review and overhaul

of the federal access to information system. ............................................................. 14

Recommendation 2

That the Government of Canada amend section 9 of the Access to Information

Act to limit the extension of time limits to a maximum of 60 days, unless

permission to exceed that period is provided by the Information Commissioner

of Canada. ................................................................................................................ 19

Recommendation 3

That the Government of Canada create a process by which departments and

agencies that face ongoing access to information requests as a last resort to

obtain information that should be available to requesters, such as information

related to the denial of an immigration application, deal with those requests

outside of the access to information system. ............................................................ 22

Recommendation 4

That the Government of Canada work with Indigenous Peoples to remove

barriers to access information. ................................................................................. 27

Recommendation 5

That the government of Canada work with Indigenous peoples to develop a

mechanism of independent oversight that ensures their full and timely access

to records held by federal government institutions for purposes of

substantiating historical claims. ................................................................................ 28

Recommendation 6

That the Government of Canada amend the Access to Information Act to

update and align language used in relation to Indigenous peoples and

communities, including the definition of “aboriginal government” in the Act. ........... 28

Recommendation 7

That the Government of Canada explore the possibility of creating an

expedited access to information system as part of the access to information

regime for victims and survivors of military misconduct. ........................................... 31

Recommendation 8

That the Government of Canada amend the Access to Information Act to insert

provisions strictly prohibiting access to information and privacy coordinators

from asking requesters to identify themselves. ......................................................... 31

Recommendation 9

That the Government of Canada review its classification system for secret

records and provide classification training to staff responsible for processing

access to information requests in relevant government institutions. ......................... 42

Recommendation 10

That the Government of Canada improve the declassification system to provide

greater access to Canada’s history. ........................................................................... 42

Recommendation 11

That the Government of Canada implement a process for the automatic release

of historical documents that are more than 25 years old. .......................................... 42

Recommendation 12

That the Government of Canada establish and implement clearer record

classification guidelines and a declassification system. ............................................. 42

Recommendation 13

That the Government of Canada ensure that staff responsible for processing

access to information requests in each government institution be required to

undergo ongoing training to ensure the integration of a culture of openness

and transparency within the institution. ................................................................... 52

Recommendation 14

That the Government of Canada subject Directors General of departments to

performance evaluations with bonuses based on their work on access to

information under their responsibility. ..................................................................... 53

Recommendation 15

That the Government of Canada increase the use of new technology by

government institutions to speed up the ability for access to information

requests to be fulfilled, including but not limited to artificial intelligence,

electronic transcription, and automated translation. ................................................ 55

Recommendation 16

That the Government of Canada work to strengthen its information

management through improved storage and organization, retention

requirements, and digital innovation. ....................................................................... 57

Recommendation 17

That the Government of Canada amend the Access to Information Act to

include a duty to document with appropriate penalties for non-compliance. ............ 59

Recommendation 18

That the Government create a framework to ensure that methods of avoiding

access to information requirements be stopped, that requirements be clearly

laid out in the terms of employment of employees of government institutions,

that incidents of avoidance be reported in a report to the Information

Commissioner of Canada, and that the report be tabled in Parliament. ..................... 59

Recommendation 19

That the Government of Canada prohibit the use of personal emails or

encrypted applications for government communications. ......................................... 59

Recommendation 20

That the Government of Canada amend the Access to Information Act to

identify the circumstances in which consultation between government

institutions must occur and impose a time limit on those consultations. ................... 60

Recommendation 21

That the Government of Canada increase proactively published information

under Part 2 of the Access to information Act. .......................................................... 66

Recommendation 22

That the Government of Canada amend the Access to Information Act to

require government institutions subject to the Act to proactively disclose

information frequently requested in access to information requests. ........................ 66

Recommendation 23

That the Government of Canada publish all access to information requests not

related to personal information in a searchable database, available to the

public at no cost, and that those requests be anonymized before publication. .......... 66

Recommendation 24

That the Government of Canada require government institutions that face

repeated requests on a specific subject to inform the Information

Commissioner of such repeated requests and that a report be sent

to Parliament. .......................................................................................................... 66

Recommendation 25

That the Government of Canada amend the Access to Information Act to

ensure that previously submitted access requests are subject to the Access to

Information Act. ....................................................................................................... 66

Recommendation 26

That the Government of Canada require each government institution to

maintain a public record of its access to information requests and the time

required to respond to each request. ........................................................................ 66

Recommendation 27

That the Government of Canada amend the Access to Information Act to clarify

that the access to information system is based on a culture of openness and

transparency and to include in the Act a public interest override, which would

apply to all exemptions to make public interest documents open by default. ............ 67

Recommendation 28

That the Government of Canada create an “Open by Default” approach to

access to information and acknowledge that the status quo is not acceptable. ......... 67

Recommendation 29

That the Government of Canada order and conduct an impartial review of

Cabinet confidences as it relates to the access to information and

privacy system. ........................................................................................................ 71

Recommendation 30

That the Government of Canada extend the application of Part 1 of the Access

to Information Act to Cabinet confidences, except where an exemption applies,

and give the Information Commissioner the power to review such records to

determine whether the exemption has been properly applied. ................................. 71

Recommendation 31

That the Government of Canada extend the application of Part 1 of the Access

to Information Act to the Prime Minister’s Office and Ministers’ offices. ................... 72

Recommendation 32

That the Government of Canada extend the application of the Access to

Information Act to any organization operating on behalf of the government

and using public funds to provide services to Canadians. .......................................... 72

Recommendation 33

That the Government of Canada conduct a review of the exemptions and

exclusions to access to information contained in the Access to Information Act,

including but not limited to commercially sensitive information, personal

information, political staff, and Cabinet confidences................................................. 78

Recommendation 34

That the Government of Canada amend section 21 of the Access to Information

Act to include a list of information to which the exemption relating to

operations of government does not apply and to reduce the 20-year-period to

10 years. .................................................................................................................. 78

Recommendation 35

That the Government of Canada limit the application of the exemption relating

to personal information to section 19 of the Access to Information Act and

impose an obligation to consult the Information Commissioner of Canada if the

addition to Schedule II of the Act of new prohibitions based on other laws is

contemplated under section 24, or on other subjects such as

artificial intelligence. ................................................................................................ 78

Recommendation 36

That the Government of Canada amend the Access to Information Act to state

that the amounts of public funds spent are never confidential information. ............. 78

Recommendation 37

That the Government of Canada amend the Access to Information Act to give

the authority to the Information Commissioner of Canada to impose fines or

penalties where Access to Information and Privacy divisions are late in

delivering responses to requests. ............................................................................. 85

Recommendation 38

That the Government of Canada establish an independent funding mechanism

for the Office of the Information Commissioner of Canada and other Agents of

Parliament who do not have access to such mechanism............................................ 86

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

INTRODUCTION

On 16 May 2022, Information Commissioner Caroline Maynard appeared before the

House of Commons Standing Committee on Access to Information, Privacy and Ethics

(the Committee) and presented a rather bleak picture of the state of access to

information in 2022. At the end of the meeting, the Committee adopted a motion to

conduct a study into the Access to Information and Privacy system. This report reflects

what the Committee heard.

The Committee began its study on 5 October 2022. It held 11 public meetings, during

which it heard 42 witnesses. A few witnesses, including the Information Commissioner,

appeared twice. The Committee also received 12 briefs. It thanks all those who

participated in the study.

Background

Much has been written about access to information since the passage of the Access to

Information Act (ATIA) in 1983.

For example, in 2015, former Information Commissioner

Suzanne Legault issued a report containing 85 recommendations to modernize the

ATIA.

In 2016, the Committee issued a unanimous report on its review of the ATIA, in

which it made 32 recommendations.

In 2017, the Government of Canada introduced Bill C-58, An Act to amend the Access to

Information Act and the Privacy Act and to make consequential amendments to other

Acts.

This was the first substantive reform since the adoption of the ATIA. The same

Kristen Douglas, Élise Hurtubise-Loranger and Dara Lithwick, The Access to Information Act and Proposals

for Reform, Library of Parliament, 6 June 2012.

Office of the Information Commissioner of Canada (OIC), Striking the Right Balance for Transparency,

March 2015.

Standing Committee on Access to Information, Privacy and Ethics (ETHI), Review of the Access to

Information Act, June 2016.

Chloé Forget, Alexandra Savoie, Maxime-Olivier Thibodeau, Legislative Summary of Bill C-58: An Act to

amend the Access to Information Act and the Privacy Act and to make consequential amendments to other

Acts, Library of Parliament, 4 December 2019.

year, Commissioner Legault issued a special report to Parliament in which she criticized

the bill and made an extensive list of recommendations to improve it.

Bill C-58 received Royal Assent in June 2019.

It introduced certain amendments to the

ATIA, such as giving the Information Commissioner additional powers and adding a

Part 2, which sets out requirements for the proactive publication of information.

The ATIA provides for a government review of the ATIA one year after the enactment

of Bill C-58.

In 2020, the Treasury Board Secretariat (TBS) launched its review of access

to information, which was to include reviewing the legislative framework, finding

opportunities to improve proactive publication, and assessing processes and systems to

improve service and reduce delays.

The TBS report on the review of access to information was presented to the House of

Commons and referred to the Committee in December 2022.

A number of the TBS’s

conclusions, such as the need for improved records management and increased human

resources for access to information and privacy (ATIP), are consistent with what the

Committee heard during its study.

Structure of the Report

The report is divided into six chapters. Chapter 1 presents an overview of the role of

the access to information system and what an ideal system could look like. Chapter 2

examines the criticism concerning Canada’s access to information system and discusses

six specific issues: systemic delays; access to information in immigration matters;

Indigenous peoples’ access to information; access to information for victims of abuse in

the military; whistleblower protection; and access to historical documents, including

those on the Holocaust. Chapter 3 looks at the state of access to information in seven

federal institutions. Chapter 4 presents legislative and non-legislative measures to

improve Canada’s access to information system. Chapter 5 discusses the powers, the

independence, and the resources of the Information Commissioner of Canada. Chapter 6

discusses TBS’s report on the review of access to information.

OIC, Failing to Strike the Right Balance for Transparency, 2017.

An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments

to other Acts, S.C. 2019, c. 18.

Access to Information Act, R.S.C. 1985, c. A-1, s. 93(1).

Treasury Board Secretariat (TBS), The review process.

TBS, Access to Information Review Report to Parliament, 2022.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

CHAPTER 1: THE ACCESS TO INFORMATION SYSTEM

Role of the Access to Information System

The purpose of the ATIA is “to enhance the accountability and transparency of federal

institutions in order to promote an open and democratic society and to enable public

debate on the conduct of those institutions.”

Most witnesses confirmed that an

effective access to information system is essential in a modern democracy.

Many of the

witnesses also believe that the current system is inadequate.

Two witnesses indicated

that the status quo is unacceptable.

The Honourable Mona Fortier, President of the Treasury Board, appeared before the

Committee on 18 April 2023. She too said that public access to government information

is central to democracy. She said that she takes her work on access to information

seriously and that her efforts are genuine. She also said that access to information is a

priority for the current government.

Ms. Maynard said that if Canadians do not know what decisions are being made on

what facts and on what data, and if they do not know what money the government is

spending, they are not fully aware of the situation. She added that if Canadians are not

able to get the answers they are looking for from federal and provincial governments,

they may turn to other sources, leading to misinformation. She believes that one

solution to increasing Canadians’ trust in federal institutions is to provide them with

information in a timely manner and to respect the ATIA.

Access to Information Act, R.S.C. 1985, c. A-1, s. 2(1).

ETHI, Evidence, Allan Cutler (Former President, Canadians for Accountability [CFA]), Ken Rubin (Investigative

Researcher and Transparency Advocate, As an Individual), Duff Conacher (Co-Founder, Democracy Watch

[DW]), Michael Wernick (Jarislowsky Chair in Public Sector Management, University of Ottawa, As an

Individual), Kirk Lapointe (Vice-President, Editorial, Glacier Media Group [GMG] and Publisher and Editor-in-

Chief, Business in Vancouver), Andrew Koltun (Canadian Immigration Lawyers Association [CILA]),

Kukpi7 Judy Wilson (Secretary Treasurer, Union of BC Indian Chiefs [UBCIC]), Alan Barnes (Project Lead,

Canadian Foreign Intelligence History Project (CFIHP) and Senior Fellow, Norman Paterson School of

International Affairs, Carleton University), Mike Larsen (President, BC Freedom of Information and Privacy

Association [BC FIPA]), Patrick White (As an Individual), Mary Francoli (Associate Dean and Director, Arthur

Kroeger College of Public Affairs, Carleton University, As an Individual), Dean Beeby (Journalist, As an

Individual), Brent Jolly (President, Canadian Association of Journalists [CAJ]), Andrea Conte (Writer,

Researcher and Media Artist, As an Individual), Hon. Mona Fortier, (President, Treasury Board).

ETHI, Evidence, Cutler (CFA), Rubin, Conacher (DW), Wernick, Lapointe (GMG), Wilson (UBCIC), Barnes

(CFHIP), Larsen (BC FIPA), White, Francoli, Beeby, Jolly (CAJ).

ETHI, Evidence, Koltun (CILA), Conte.

Michel Drapeau, lawyer, colonel (retired) and adjunct professor at the University of

Ottawa, said that for certain individuals (especially vulnerable ones), the access to

information system is the only way to access information controlled by the government.

He said that when it is impossible to exercise the right to access or to exercise it within

the prescribed time frame, this creates a prejudice.

Kirk Lapointe, Vice-President, Editorial, Glacier Media and Publisher and Editor-in-Chief

of Business in Vancouver, explained that access to information requests (“access

requests”) allow Canadians to understand their history, the decision-making of those

who serve them, and the inherent complexities, challenges, and dilemmas of public

administration. He said that when the media does not have access to the process for

making public policy decisions, it must resort to working with very limited information,

which cheapens the craft and image of journalists.

Mr. Lapointe added that access to information is an opportunity for journalists to get

information that the public wants to know, not just what the government will lay out

before the public. He added that access to information makes it possible to rely on

actual official records, rather than on someone’s interpretation of them or anecdotal

comments. Dean Beeby, a journalist, made similar remarks. He said that access to

information is the answer to the problem of misinformation, since data that has been

provided by governments and has been vetted gives a hard, factual basis to investigative

journalism.

Stanley Tromp, an independent journalist, told the Committee that since the enactment

of the ATIA, there have been over 6,000 news stories produced by access requests. In his

view, this demonstrates the value of the system and the danger of losing it.

Brent Jolly,

President of the Canadian Association of Journalists, said that the inclusion of

documents obtained through the access system in news stories is an indictment of the

system itself and illustrates the challenges encountered by journalists in accessing

these documents.

To recognize the importance of the right to have access to information, Ken Rubin, an

investigative researcher and transparency advocate, recommended that the right to

information be firmly established in the Canadian Charter of Rights and Freedoms. In his

ETHI, Evidence, Stanley Tromp (As an Individual). Mr. Tromp provided the Committee with two reference

documents that include a number of recommendations to improve access to information: Stanley L. Tromp,

It’s Time for Change!—206 Recommendations for Reforms to Canada’s Access to Information Act, Centre for

Free Expression, Ryerson University, 3 August 2021 (available online); and Stanley L. Tromp, Fallen Behind—

Canada’s Access to Information Act in the World Context, BC Freedom of Information and Privacy

Association, 2

Edition, 2020 (available online).

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

view until the access to information system is reformed and a constitutional right to

information is formally recognized, this right will remain a privilege.

Ideal Access to Information System and Current System

Mike Larsen, President of the BC

Freedom of Information and Privacy Association

(BC FIPA), shared a vision of a strong and effective access to information system, using

the metaphor of an onion in which the health of each layer affects the health of

the others.

Just like a healthy onion, a strong and effective access to information system for Canada

would have several layers. At the core, we would see a robust duty to document

embedded in legislation and backed by enforcement measures …

Moving outwards, the next layer of our transparency onion would be a clear and well-

resourced information management framework that makes it possible to efficiently

locate and retrieve records…

[T]he next layer of the transparency onion would be an updated and modern Access to

Information Act. Such an act would need to be informed by a deep commitment to the

idea that the right to information is integral to the functioning of a democracy. It would

need to be broad in scope and encompass the full spectrum of government

organizations, including ministers’ offices and entities substantively funded or controlled

by government.

[An effective system] would need to be timely and embrace the principle that access

delayed is access denied, by imposing clear caps on the length of request extensions. It

would need to be accessible, without tollgate application fees or vast in-process fee

estimates that function as barriers for transparency. It would be guided by a strong

public interest clause that would act as an override for all exemptions in cases where

the public interest in disclosure outweighs the interests of secrecy.

Beyond this, it would truly limit the application of exceptions and exemptions…

Importantly, such an act would need to be supported by an Office of the Information

Commissioner with strong investigative, order-making and enforcement powers.

Ken Rubin, Brief, 31 October 2022, p. 5 [Rubin Brief]. The brief sets out a five-point transparency action plan

(full disclosure process; requirement to document; quick, easy access with no fees; fewer exceptions; and

stronger independent review processes). The Supreme Court of Canada has interpreted the Access to

Information Act (ATIA) and other statutes such as the Privacy Act as quasi-constitutional legislation. See:

Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, at para. 24;

Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 SCR 306, para. 40.

British Columbia.

The next layer of the transparency onion would be a thriving access culture

characterized by sincere commitments to transparency at the highest levels of

government, by the effective resourcing of access to information and privacy offices

within public bodies and by adequate training. Senior leadership would need to set the

tone by taking responsibility for transforming organizational cultures of secrecy that

treat access to information as a risk to cultures of transparency that recognize access to

information as a right.

Finally, we get to the outer layer of the onion, a proactive disclosure framework that

builds upon all of the layers below by requiring public bodies to routinely and

proactively disclose categories of records that are frequently requested and records

whose release is a matter of public interest.

Mr. Larsen said that reality bears little resemblance to this vision, however. He said that

in its current form, the ATIA lacks a legislative duty to document. The access to

information system does not encompass the full terrain of government and is

characterized by delays and the use of exemptions or exclusions for certain records. It

also imposes fees and is underfunded and undermined by a culture of secrecy. In

describing the current access system, Mr. Larsen said “there is … a lot of rot in

this onion.”

The various components of an effective access to information system as described by

Mr. Larsen are addressed in Chapter 4, which discusses the legislative and non-legislative

measures to improve this system. General criticism of the current system and more

pressing access to information issues are explored further in the next chapter.

The Committee recognizes that there are many issues with the current federal access to

information system. The Committee therefore first recommends the following:

Recommendation 1

That the Government of Canada conduct a comprehensive review and overhaul of the

federal access to information system.

See also: BC FIPA, Brief, November 2022 [BC FIPA Brief].

THE STATE OF CANADA’S ACCESS 
TO INFORMATION SYSTEM 
15 
CHAPTER 2: CRITICISM OF CANADA’S ACCESS TO INFORMATION 
SYSTEM AND RELATED ISSUES 
General Criticism 
Several witnesses criticized the current access to information system. For example, 
Mr. Drapeau said that the system is now without a destiny as it no longer serves its 
intended purposes. Duff Conacher, Co-Founder of Democracy Watch, said that the 
provisions of the ATIA do not serve its purpose. He believes that it is “actually more 
loophole than it is rules in providing access.” 
Mr. Beeby said that the purpose of the ATIA is to empower ordinary citizens to challenge 
their government, to hold it to account, and to acquire information about themselves 
and issues that they are interested in, thereby shifting power over information from the 
government to the citizenry. However, he is of the view that in practice, the current 
government, like previous governments, jealously guards its control of information. 
Andrea Conte, a writer, researcher, and media artist, shared that view. 
Mr. Rubin said that the access to information legislation enacted since 1983 has merely 
created more barriers for those seeking information. The current regime, he said, allows 
only “rigged access” to information. 
Mr. Jolly noted that following decades of promises to modernize the access to 
information system, it remains broken and “40 years is, frankly, a long time without 
making any concerted efforts to solve the problem.” He added: 
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. 
Mr. Jolly said that endless government discussion papers, public dialogues, and 
academic studies already point to a better way forward, but elected officials need to find 
the political will to take action when it comes to modernizing the access to information 
system. For Mr. Conte, the current access to information system cannot be reformed, 
since he believes that it is “a discretionary system of good faith, with far too many 
root problems.” 

Related and Pressing Issues

Beyond the general critiques of the system, six specific issues relating to access to

information were raised by witnesses: systemic delays; access to information in

immigration matters; Indigenous peoples’ access to information; access to information

for victims of abuse in the military; whistleblower protection; and access to historical

documents, including those on the Holocaust.

Systemic Delays

Ms. Maynard pointed out to the Committee that currently 30% of access requests are

not responded to within the timeline stipulated in the ATIA.

She pointed out that this

number is increasing year after year, even though the ATIA provides no dispensation

from its requirements, even in extraordinary circumstances.

The President of the Treasury Board brought up the same statistics as the Commissioner,

noting that in 2021–2022, a total of 70.7% of requests were processed within the time

frame prescribed by the ATIA. However, she acknowledged that this compliance rate is

too low.

She said that although the number of closed requests is growing, this number

is not keeping up with incoming requests. That is why the number of requests carried

over to the following year has consistently grown over the past decade. She said that

Treasury Board continues to remind departments of their obligations under the ATIA.

The President of the Treasury Board also acknowledged that there is a lot of work to

do to make sure that the government processes more access requests and clears the

backlog, which has grown in recent years. She said that administrative tools have been

developed and implemented to reduce the burden and the load that has increased over

the years.

Ms. Maynard said that there are a lot of issues with extensions and that the number of

complaints received by her office is steadily growing.

She said that more and more

TBS, Access to Information and Privacy Statistical Report for 2021–2022.

ETHI, Evidence, Fortier. The President of the Treasury Board said that at Treasury Board, 90.2% of requests

are processed within the 30‑day time frame.

Access to Information Act, s. 9. This section allows for an extension of the time limit for a “reasonable

period of time” in three circumstances (meeting the time limit would unreasonably interfere with the

operations of the institution, the necessary consultations make it impossible to meet the time limit, and

third-party notice has been given); see also: TBS, Directive on Access to Information Requests. The Directive

states that an extension should be as short as possible and that inter-institutional consultations should only

be undertaken in specific cases (ss. 4.1.28 and 4.1.31). An implementation notice on inter-institutional

consultations was issued by TBS in September 2022.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

institutions are asking for extensions, not responding within the 30 days, if at all, making

requesters wait months without even an acknowledgement. This was confirmed by

Allan Cutler, Former President of Canadians for Accountability, who said that for one

access request that was active at the time he appeared before the Committee, he was

still waiting for an acknowledgement of receipt more than 60 days after filing

his request.

Mr. Drapeau pointed out that access to information processes are increasingly bogged

down in excessive delays, not so much at the federal institutional level in his view, but at

the level of the Office of the Information Commissioner (OIC). He nevertheless proposed

amending the ATIA to allow institutions to respond within 30 business days rather than

30 calendar days, as is the case now.

The BC FIPA recommends reducing the prescribed

time limit to 20 calendar days, as is the case in Quebec and in Newfoundland and

Labrador.

Mr. Conacher recommends requiring all institutions to obtain permission from the

Information Commissioner in order to go beyond the prescribed 30-day time limit and

that the maximum extension be of 60 days. The BC FIPA and the Centre for Law and

Democracy (CLD) also indicated that extension beyond the allowable amount should

require the approval of the information commissioner.

Andrew Koltun, who appeared

on behalf of the Canadian Immigration Lawyers Association, recommended that

Immigration, Refugees and Citizenship Canada (IRCC) comply with the 30-day timeline

to respond to an access request and that extensions not be permitted to go beyond

30 days. Access to information in immigration matters is addressed in the next section of

this report.

Mr. Beeby said that the reason for the low percentage of access requests now coming

from the media is due to delays. In his view, there should be tougher limits on a

department’s ability to delay processing requests. He suggested that if an institution

misses a deadline, their authority to claim exemptions under the ATIA should be

taken away.

Mr. Lapointe believes that delays in the access to information system are now the largest

issue for journalists today. Like Mr. Beeby, he said that one reason explaining the small

percentage of journalists using the ATIA is that they feel frustration with the ATIA and no

See also: Michel W. Drapeau, “Access to information: A quasi-constitutional right in peril,” MacDonald-

Laurier Institute, 17 October 2022. This paper was submitted as a reference document to the Committee.

BC FIPA Brief, p. 17.

BC FIPA Brief, p. 19; Centre for Law and Democracy, Brief, August 2021 [CLD Brief]. The contents of this brief

were presented by the CLD to TBS as part of its access to information review.

longer try to access information that way. He too expressed support for a cap on delays.

He also noted that most journalists would be open to partial disclosure during the

30-day window provided for in the ATIA and then receiving the rest gradually.

In fact, because of the delays faced by access to information requesters, including

journalists, Mr. Lapointe said access to information is now “a better instrument of

history than it is of journalism.” Mr. Beeby agreed, saying that he has become a historian

rather than a journalist. He said that investigative journalism that relies on documents is

dying because of the inadequacies of the ATIA.

Mr. Larsen said that “trust in public institutions is achieved through transparency and

renewed through transparency.” In an environment where people are exposed to lots of

disinformation and misinformation, having timely and accurate access to information is

vitally important as an antidote to some of those narratives. He believes that when there

is a culture of secrecy and there are systemic delays within institutions, it erodes public

trust in government as a whole. For example, he suggested that if someone files their

very first access request and hits a brick wall, that can only amplify other concerns,

legitimate or otherwise, around the functioning of our democracy. Mr. Larsen believes

that imposing some clear timelines that are actually followed and enforceable is a vital

step to rebuilding trust with Canadians.

A few witnesses told the Committee about the worst delays they have experienced in

obtaining the records requested in an access request, ranging from 5 to 10 years.

For

example, Mr. Conte spoke about an access request where he was asked by the Royal

Canadian Mounted Police (RCMP), five or six years after filing the request, whether he

still wanted a response. Mr. Lapointe explained that as part of the university course he

teaches, his students make access requests. In 12 years of teaching, there has yet to be a

request that has come back within 90 days.

The Committee agrees with many witnesses that extension of the timeline to respond to

access requests under the ATIA beyond the statutory 30-days should only occur in

limited circumstances. Consequently, it recommends:

ETHI, Evidence, Michel Drapeau (Lawyer, Colonel (Retired) and Adjunct Professor with the University of

Ottawa, As an Individual), Cutler (CFA), Beeby, Tromp.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Recommendation 2

That the Government of Canada amend section 9 of the Access to Information Act to

limit the extension of time limits to a maximum of 60 days, unless permission to exceed

that period is provided by the Information Commissioner of Canada.

Access to Information in Immigration Matters

In 2020, the OIC conducted a systemic investigation of IRCC. The investigation report was

released in May 2021.

Ms. Maynard said that the investigation revealed that information

being systematically requested from IRCC is often information that should be available on

the department’s portal. She compared the situation to forcing an individual to file access

requests each time they want to get information about their own tax file.

Ms. Maynard said that in response to her systemic investigation, IRCC has started putting

a new system in place that offers more information, and that officials changed the way

their decision letters are written in order to provide further details. She said that she is

very encouraged by the work IRCC is doing, although she acknowledged that the results

are not there yet.

Mr. Drapeau said that the majority of federal access requests are directed to IRCC.

does not think that applicants should have to go through the access to information

regime to obtain this information. He did acknowledge that the measures that IRCC are

putting in place could reduce the number of access requests and complaints. Mr. Beeby

also recommended that requests from immigration consultants and lawyers be handled

outside the ATIA regime.

Mr. Koltun, also pointed out that IRCC is the federal department receiving the largest

number of access requests. He believes that the increase in immigration will result in an

increase of application refusals, ATIP requests, and then complaints to the Information

Commissioner. Removing the reasons that access requests at IRCC consume a large

proportion of the Information Commissioner’s resources could therefore be helpful.

OIC, Access at issue: Challenging the status quo, Systemic Investigation of Immigration, Refugees and

Citizenship Canada: Special Report to Parliament, 25 May 2021.

ETHI, Evidence, Maynard.

See: Immigration, Refugees and Citizenship Canada, Access to Information Act, Privacy Act, Annual Report

2021–2022; TBS, Access to Information and Privacy Statistical Report for 2021–2022.

Mr. Koltun said that the new IRCC methods have yet to materialize. At the time of his

appearance, IRCC still did not proactively disclose the entirety of the refusal reasons, nor

did it disclose notes from the global case management system used by IRCC.

Mr. Koltun explained that since IRCC does not provide reasons for its decisions to refuse

an immigration application, the immigration applicant must either file an access request

to obtain the reasons for the refusal or challenge IRCC’s decision in Federal Court. He

added that something similar occurs when immigration applicants must respond to a

procedural fairness letter from IRCC asking for an explanation of a discrepancy between

a new immigration application and an old one. Since IRCC does not provide a copy of the

old application with this letter, an access request must be made to obtain it. The

applicant must then request an extension of the response time, as they are awaiting a

response to their access request.

With respect to delays, Mr. Koltun explained that the majority of access requests at IRCC

used to be processed within the statutory 30-day time frame. During the pandemic, the

time frame exceeded 60 days. In the few months prior to his appearance, IRCC has not

only stopped meeting the 30-day deadline but has also stopped sending out extension

notices. Without communication from IRCC, immigration applicants are left wondering

whether their access request will be processed at all. He added that even when IRCC gives

extension notice, these extensions are often lengthy and unjustifiable. For example, he

explained that IRCC often imposes a blanket 365-day extension to provide a copy of a

complete file, whereas the same documents can be provided in one to two weeks by

Federal Court order.

According to Mr. Koltun, the “delays and extensions by IRCC impose steep barriers for

access to justice for immigration applicants.” He said that not having access to documents

held by IRCC can have many negative consequences, such as by affecting the ability of

immigration applicants to challenge a decision or to submit a credible, robust, and

complete immigration application. Mr. Koltun indicated that IRCC should be required to

automatically provide the reasons for refusing an immigration application in their refusal

letters, without the need for an access request.

Mr. Koltun acknowledged that as a matter of course, immigration lawyers file access

requests for all their clients. This is not to clog up the system, but rather because it is

often the only way to obtain information or to figure out why an immigration application

is delayed.

Tracy Perry, Acting Director General of Integrated Corporate Business within Corporate

Services at IRCC, and Sylvain Beauchamp, Director General of Client Experience at IRCC,

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

appeared before the Committee on 25 April 2023. They discussed the state of access to

information at IRCC and recent initiatives to improve their service in this area.

Ms. Perry confirmed that in 2021–2022, IRCC received 204,000 access requests, or

nearly 80% of all access requests submitted to federal institutions and 28% of all

requests for access to personal information submitted under the Privacy Act. She said

that the Information Commissioner’s 2020 systemic investigation examined the

strategies employed by IRCC to address the root cause of the issue: the need for timely,

improved communication with IRCC clients on their immigration applications.

Ms. Perry explained that in response to the systemic investigation, IRCC undertook

multiple initiatives to modernize its ATIP program, including initiatives to provide clients

with access to information in their immigration files. IRCC also developed a comprehensive

workforce management strategy whereby employees have access to enhanced training

and development opportunities. It implemented new tools, technologies, and processes.

Ms. Perry said that like other federal institutions, IRCC is facing challenges recruiting

experienced qualified ATIP staff. IRCC is working to retain its experienced staff by

offering them training and opportunities for promotions from within. She also said that

IRCC’s ATIP team now has three directors and nine managers.

Ms. Perry explained that IRCC is incorporating new tools to create efficiencies in the

processing of access requests. This includes the use of robotic process automation that

allows employees to complete decision-based work rather than repetitive data

entry tasks.

Mr. Beauchamp said that IRCC is building its “digital platform of the future,” where the

self-serve concept will be embedded in the new immigration system. The first phase of

this modernization is planned for 2023–2024 and the first results are expected in

fall 2023. Meanwhile, he noted that IRCC has already launched nine application status

trackers for nine different lines of business.

Ms. Perry told the Committee that IRCC is working with TBS to transition to the ATIP

online request service portal and is actively working to acquire new software for

processing access requests. She added that IRCC is participating with the TBS ATIP

Community Development Office initiative. She said that by addressing the root causes

driving access request volumes and by improving its processes, IRCC will be in a better

position to meet legislative timelines and uphold the values of client service excellence,

transparency, and privacy protection.

Stephen Burt, Chief Data Officer and Assistant Deputy Minister, Policy and Performance

Sector with TBS, said that what is most important to IRCC is making sure that requests

related to immigration files processed by this department are dealt with as service

requests, not access requests. Catherine Luelo, Deputy Minister and Chief Information

Officer of Canada, said that the program to modernize technology in the immigration

sector is well underway. TBS is already working closely with IRCC to further digitize the

experience within the department.

Mr. Beauchamp said that in March 2023 IRCC launched application status trackers for a

few selected business lines, including those for permanent and temporary residents. Self

service allows clients to access information themselves, reducing their reliance on access

requests. Ms. Perry said that modernization of the IRCC digital platform will allow clients

to access the information they are looking for as opposed to coming through the access

to information system.

The Committee agrees that most requests for information in immigration matters, and

other matters for which information under the control of a federal institution should be

readily available to concerned individuals, should be dealt with outside of the access to

information regime. While the Committee feels encouraged by the steps that IRCC is

currently taking to improve access to information in immigration matters, it

recommends:

Recommendation 3

That the Government of Canada create a process by which departments and agencies

that face ongoing access to information requests as a last resort to obtain information

that should be available to requesters, such as information related to the denial of an

immigration application, deal with those requests outside of the access to

information system.

Access to Information and Indigenous Peoples

Specific Claims

Representants for the Union of BC Indian Chiefs (UBCIC) appeared before the Committee

and shared the challenges that the current federal access to information process poses

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

for First Nations’ access to justice and the settlement of their specific claims against

Canada. They also shared its impacts on the efforts towards reconciliation.

Jody Woods, UBCIC administrative director and research director, said that UBCIC houses

one of the largest specific-claims research programs in Canada. It is currently mandated

to handle about 220 claims presented by B.C. First Nations. One of the most recurring

issues in specific claims is the illegal alienation of lands or resources, or the failure to

protect or reserve lands or resources that should have been protected according to

colonial law.

Kukpi7 Judy Wilson,

UBCIC Secretary Treasurer and Co-chair of the B.C. Specific Claims

Working Group, summarized the situation surrounding specific claims as follows:

Specific claims arise when Canada fails to fulfill its legal obligations to first nations.

Canada’s specific claims policy requires first nations to substantiate their claims with

documentary evidence. Most of the historical evidence first nations require to support

their claim is controlled by Canada and federal government institutions. Since Canada

controls access to the evidence, first nations are required to substantiate their historical

claims against the Crown through the Access to Information Act and Privacy Act. This is

an unfair and untenable conflict of interest.

Kukpi7 Wilson specified that most of the evidence relevant to First Nations specific

claims is controlled by federal institutions such as Crown–Indigenous Relations,

Indigenous Services Canada, and Library and Archives Canada (LAC). She identified

Canada’s conflict of interest as the main obstacle to full and fair access to justice for First

Nations. In her view, this is a conflict of interest “in regard to how the records are

managed and accessed.”

With regard to access to records, both Ms. Woods and Robyn Laba, UBCIC Senior

Researcher, spoke about how difficult it is for UBCIC to have a sense of certainty that

they have been provided with all the documents that are available when a specific claim

is presented. Ms. Woods noted that this is proven true when Canada reviews specific

ETHI, Evidence, Wilson (UBCIC); See also: Union of BC Indian Chiefs, Full Disclosure: Canada’s Conflict of

Interest in Controlling First Nations’ Access to Information, 4 November 2022. This discussion paper focuses

on the annual review of Canada’s information management regime and the various related statutes. One

thing that this review argues is that the current regime is neither adequate nor appropriate to upholding

and implementing First Nations’ right of redress for historical grievances against the federal government

and impedes First Nations’ access to justice; Union of BC Indian Chiefs (UBCIC)’s British Columbia Specific

Claims Working Group, Brief, 5 December 2022.

Kukpi7 (Kook-pea) is a Splatsin member democratically elected to serve as chief of the Splatsin Tkwamipla7

Nation. The Kukpi7s role is to work for the people and ensure that the lands and resources are protected for

future generations. A Kukpi7 does not stand above the people but walks beside them. Each community

member is responsible for providing leadership to the Kukpi7 and voicing their concerns and interests.

claims and records and shares documents that UBCIC was unaware existed or was never

able to locate or obtain.

Indeed, Ms. Laba said that there are still “these huge gaps in the historical record” and

that “First Nations have no choice but to just submit these incomplete reports,” which

prejudices their claim.

Problems With the Access to Information System

Kukpi7 Wilson pointed out that systemic problems that plague the access to information

system impede access to justice for First Nations. She said that these nations should

have to wait “decades, months or years” before finally getting back, in a lot of cases,

redacted records.

In response to the fact that the ATIA contains a definition of “aboriginal government”

that recognizes nine Indigenous nations, Ms. Laba said that there are hundreds of

Indigenous nations in Canada and that data sovereignty is a right that should be granted

to all of them. In her view,

Data sovereignty is a right granted to indigenous peoples and nations, period. You can’t

grant a right to select people in this group. It’s a human right. It should be applicable to

all first nations. They have to decide what that’s going to look like as it pertains to their

own governance structures, indigenous laws, protocols and priorities, I would say.

According to Ms. Laba, federal and provincial access to information legislation does

not adequately reflect the First Nations’ OCAP principles: ownership, control, access,

and possession.

Mr. Rubin confirmed that researchers acting on behalf of various Indigenous groups also

hit a wall when trying to obtain useful information. He gave the example of his research

on residential schools and added the following:

I’ve applied for different indigenous groups for records. It’s kind of disgraceful that they

or their land claims researchers can’t get certain records or have to wait so long for

them. The harm was so great, and yet they’re getting exemptions, such as from the

[Royal Canadian Mounted police (RCMP)], saying that sexual assault or other things

were connected to those files and they can’t release them.

According to Ms. Maynard, reconciliation efforts are certainly being harmed because of

access to information challenges. She said that although many institutions release

First Nations Information Governance Centre, The First Nations Principles of OCAP.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

information outside of the access to information system without being asked, there are

still many records, including legal opinions, needed for Indigenous claims. However, she

noted that the Minister of Crown–Indigenous Relations has said that his department is in

discussions with the Department of Justice and is seeking to have some of this

information released.

Ms. Maynard also said that her office consults Indigenous peoples only when they file a

complaint and an investigation is required. However, her office has seen some cases and

tries to prioritize them in their investigations, depending on the time frames, the

amount of information and the sensitivity of the documents. These complaints are often

related to delays. She also said Indigenous nations have told her that the definition of

aboriginal government in the ATIA is problematic for them.

Ms. Maynard added that complaints received by the OIC from Indigenous peoples are

mostly about access requests where they were not satisfied with the response or want

to challenge the application of an exemption that was invoked to withhold certain

information. She gave the example of solicitor–client privilege, which can be claimed for

documents used by the Department of Justice in cases involving Indigenous peoples. She

indicated that the “question is whether discretion could be used in that case by the

Minister of Justice to allow the information to be provided.” In her view, Indigenous

nations need information to pursue their requests and should not have to ask for this

information through an access request.

The President of the Treasury Board referred to the unique relationship that Indigenous

peoples have with the access to information regime. She said that these peoples should

have greater control over their information. She noted that the access to information

review conducted by TBS identified several needed changes, including broadening the

narrow definition of “aboriginal government” in the ATIA.

Compliance With the United Nations Declaration on the Rights of Indigenous

Peoples

Kukpi7 Wilson spoke about the importance of having Treasury Board and the

Department of Justice working in partnership with First Nations and their respective

organizations to develop a new information management regime that would uphold

First Nations’ rights as articulated in the United Nations Declaration on the Rights of

Indigenous Peoples (UNDRIP).

In the interim,

United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14.

Canada must recognize its duty to full disclosure and uphold the honour of the Crown by

working in full partnership with first nations to develop a mechanism of independent

oversight that ensures first nations’ full and timely access to records.

Canada must make first nations claims researchers’ requests for access to information a

priority by hiring additional dedicated staff to expedite existing and impending requests.

Canada’s information analysts and staff must be informed about first nations-specific

claims and first nations’ right of redress and information rights, as well as imperative

Crown-indigenous reconciliation.

Canada must make meaningful and direct dialogue with first nations and their

representative organizations a priority from the outset of all future policy work.

Kukpi7 Wilson said that just and fair redress for historical losses is a right articulated in

Article 28 of the UNDRIP. It is a political imperative in order to move toward reconciliation.

She said that the courts and all levels of government have deemed reconciliation to

be in the public interest and a political priority. She also reiterated the legal obligation

undertaken by the federal government when it passed the United Nations Declaration on

the Rights of Indigenous Peoples Act, which is “to ensure that all necessary measures are

taken to uphold the UN declaration and meet its objectives.”

Ms. Laba said that it is really important, especially under the UNDRIP, to recognize

Indigenous rights to data sovereignty when it comes to developing a process whereby

First Nations would be able to obtain their own information, especially for legal

processes such as specific claims. Ms. Woods pointed out that the resolution of these

grievances could pave the way for cultural, social, and economic development in

these communities.

Ms. Laba explained that issues around data sovereignty are complex because they must

involve First Nations governing bodies at all stages as they are the ones who own the

information. Facilitating this process will require independent oversight “that ensures

that first nations involved in these legal processes, particularly against the Crown, have

full access to information made available to them.”

Ms. Laba noted that there is currently work being done to establish an independent

centre for the resolution of specific claims.

It is anticipated that this initiative would

lead to the creation of a mechanism by which information would flow freely to the First

Crown–Indigenous Relations and Northern Affairs Canada, Canada and the Assembly of First Nations launch

the Specific Claims Reform Co-Development Process, press release, 24 November 2022.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Nations involved in this process, without having to be vetted by Canada, which is a party

to the claims.

Kukpi7 Wilson said that despite the work to implement the UNDRIP both federally and

provincially, it also needs to be implemented in the ATIA and in all the different records.

She added that while legislative changes are time consuming, they are essential for

addressing the significant backlog of specific claims both federally and provincially.

Kukpi7 Wilson said that

Canada’s commitment to meaningfully engage with first nations has fallen far too short

of expectations and minimum standards for obtaining first nations’ free, prior and

informed consent, as articulated in article 40 of the UN declaration. Human rights

principles—such as self-determination, respect for first nations rights and titleholders,

and obtaining first nations’ free, prior and informed consent—must be incorporated

into, and underpin, all processes for developing, reviewing and amending federal access

to information legislation and associated regulatory administrative processes.

Ms. Woods had this to say about Canada’s commitment to meaningfully engage with

First Nations:

We provided input into DOJ’s engagement materials for indigenous nations with respect

to the modernization of the Privacy Act, and we have engaged with Treasury Board

Secretariat on this process, but I would have to say on those experiences, despite

everybody being nice and everything, those experiences have fallen way short of not

only what our expectations would be but also what we believe Canada’s commitment is

under the UN declaration. Everything is very late, very last minute.

Ms. Woods said that when First Nations are not given enough time to prepare for a

consultation process, that is not a partnership, which is what they need and expect.

The Committee is of the view that Indigenous peoples should not have to go through

access to information requests to access historical documents required to pursue

specific claims and that the definition of “aboriginal government” in the ATIA should be

updated. Consequently, it recommends:

Recommendation 4

That the Government of Canada work with Indigenous Peoples to remove barriers to

access information.

Recommendation 5

That the government of Canada work with Indigenous peoples to develop a mechanism

of independent oversight that ensures their full and timely access to records held by

federal government institutions for purposes of substantiating historical claims.

Recommendation 6

That the Government of Canada amend the Access to Information Act to update and

align language used in relation to Indigenous peoples and communities, including the

definition of “aboriginal government” in the Act.

Protection of Vulnerable Individuals in the Canadian Armed Forces

Patrick White, a member of the Canadian Armed Forces (CAF) who appeared as an

individual, said that he was one of the survivors of sexual misconduct in the

armed forces.

Mr. White explained the most vulnerable types of CAF members rely on the ATIP regime

for access to essential information and records needed to make informed decisions

about their rights and to file fulsome and well-supported complaints. These individuals

could be victims of rape or aggravated sexual assault, of threats and abuses from

reprisals perpetrated by the chain of command, members wrongfully denied

employment opportunities or reimbursement for expenses, or a 16-year-old who

received parental consent to join the CAF while completing high school.

Drawing on his personal experience, Mr. White explained that the amount of

information required up front before an access request can be processed is one of the

difficulties victims and survivors face when using the access to information system. As an

example, if a requester files an access request for records relating to the misconduct of

the CAF member who assaulted them, the requester is required to provide the service

number of the individual involved, which is protected information. This creates an access

to information barrier for victims who may have to go to their chain of command to

request this service number. The victim in question risks being identified as a potential

record requester when the process should be anonymous.

Mr. White added that a member has 90 days to file a grievance from the time an action

is taken, or a decision is made, or the member reasonably ought to have known such

action or decision had been made. According to Mr. White, the problem is that the

Department of National Defence (DND) is extremely tight on timelines, but less so when

it comes to ATIA requirements and response times. A victim who needs information in

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

order to file a grievance may not be able to do so without timely access to the

required information.

In response to questions regarding Mr. White’s testimony about grievance timelines

versus access request response timelines, Anne Bank, Executive Director of Access to

Information and Privacy at the Department of National Defense, said that she had no

opinion on timelines to submit a complaint to the Information Commissioner.

Mr. White also said that the ATIP Directorate at DND has to send record requests to the

various parts of the CAF or the department (custodians of records) to obtain the

required information. He said that this creates additional problems, such as an

opportunity for the individual in question to obtain copies of emails, delete incriminating

emails, or embarrass someone before providing the records. Mr. White described this

fear as a roadblock to ensuring a fulsome and honest disclosure of records.

Mr. White also explained that when CAF members receive requests for information that

require a response, they are told to provide the search terms that they use (e.g., the

related search terms in Microsoft Outlook). However, those search terms are not

disclosed to the requester unless they file a subsequent access request.

Another problem raised by Mr. White with using the ATIA system is the risk of suffering

reprisals for making such requests. People in the CAF, when they note the subject matter

of the request or the timing of the request, make guesses as to who filed that request.

He said that it would not surprise him if suddenly there were other administrative

actions against this individual or changes made, considering that it is by using very

subtle and hard-to-detect means, that individuals are victimized for trying to use the

system. For example, Mr. White acknowledged he was making that “this presentation

before the committee today despite fully expecting reprisals or attempts at reprisals

from the Canadian Armed Forces and the Department of National Defence.”

According to Mr. White, any study of the access system should consider the interactions

of victims and survivors of the CAF abuse of power and sexual misconduct crisis with the

ATIP system. Mr. White presented the Committee with the following recommendations:

• conduct a stand-alone study of the abuses of the Access to Information

and Privacy regime by the Department of National Defence and Canadian

Armed Forces;

• create real penalties for departments which breach ATIP requirements

and provide real remedies for victims, survivors and complainants;

• consider creating a fast-track system under the ATIP regime for identified

victims and survivors of misconduct;

• change the requirement for certain essential pieces of information to be

mandatorily disclosed to victims or complainants, unless explicitly waived

with written informed consent;

• mandatory disclosure of the names of all record holders who actively

handle or are involved in the decision-making process behind a decision

generated by a complaint;

• pause the time limit to submit complaints, such as grievances, if an

information request has been made and disclosure of such information

would be relevant in drafting the complaint;

• ensure records are retained pre- and post-retirement, with clear

administrative and disciplinary sanctions for those who violate such

directive and seek to use retirement to abscond from accountability;

• investigate and implement options of eliminating the “honour system”

approach to record disclosure;

• create specific administrative and disciplinary sanctions for those who

avoid creating records or who prematurely destroy records;

• identify, at the intake stage, requests for records which the chain of

command may resist and require extra scrutiny of disclosed records; and

• require mandatory disclosure of search terms used by individual record

holders in response to information requests.

Mr. White expressed empathy for those who have had difficult experiences and may be

so traumatized that they are simply unable to deal with the barriers of the access to

information system and the lack of full support and fulsome disclosure. He said that is

why this system must be designed with the most vulnerable type of person in mind. He

also expressed concern about the level of understanding of the ATIP system among

CAF members.

Patrick White, Supplemental Presentation to the House of Commons Standing Committee on Access to

Information, Privacy and Ethics, 7 December 2022.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Lastly, Mr. White stressed that there are real barriers to victims, complainants and

survivors in accessing essential information. He said that it is possible that no action

would be taken in a sexual assault case because the victim was unable to access the

required information. He said that even though steps have been taken, there is still a lot

of work to be done to address some of the problems that people are not really

aware of.

Considering Mr. White’s testimony, the Committee recommends:

Recommendation 7

That the Government of Canada explore the possibility of creating an expedited access to

information system as part of the access to information regime for victims and survivors

of military misconduct.

Recommendation 8

That the Government of Canada amend the Access to Information Act to insert

provisions strictly prohibiting access to information and privacy coordinators from asking

requesters to identify themselves.

Whistleblower Protection

Mr. Cutler believes that gaps in the access to information system are affecting the ability of

whistleblowers to come forward. For example, whistleblowers cannot wait indefinitely for

documents in an access request. “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.” Mr. Cutler says

whistleblowers are doing everything they can to work around the access regime.

Mr. Cutler added that more than one of the external whistleblowers he deals with

nowadays has told him that “there are long delays and documents are being destroyed”

by the government.

The Committee notes that that the retention of personal information by government

institutions is managed according to section 6 of the Privacy Act and sections 4 and 7 of

the Privacy Act Regulations. Further, examination of document retention policies outside

See: National Defence, Minister of National Defence’s Report to Parliament on Culture Change Reforms in

response to former Supreme Court Justice Arbour’s recommendations.

of the access to information system is necessary to ensure potential issues around

document disposition processes are resolved.

According to M. Conacher, the current whistleblower protection system actually protects

people from having the whistle blown on them, as opposed to protecting whistleblowers

who are reporting wrongdoing.

Mr. Cutler, Mr. Rubin, and Mr. Conacher all agreed that Canada does not have

appropriate whistleblower protections.

The Committee notes that while the access to information system is not explicitly used to

aid whistleblowers, it is important that it serves all Canadians equally and efficiently. At

this time, Bill C-290, An Act to amend the Public Servants Disclosure Protection Act is

being considered by the Standing Committee on Government Operations and Estimates

Concurrently, the government has established an external task force that will explore

revisions to the Public Servants Disclosure Protection Act

. The access to information

system should be improved to compliment these endeavours to improve Canada's

whistleblower protections.

Access to Historical Documents

The last of the six urgent issues raised by the witnesses concerns access to historical

documents, including access to historical documents of the Holocaust.

Alan Barnes, head of the Canadian Foreign Intelligence History Project and a senior

fellow at Carleton University’s Norman Paterson School of International Affairs, raised a

topic that he believes receives little attention, which is the difficulty of accessing

government archives. In his view, the discussion on access to information has been

largely focused on current records, but there are also impediments to obtaining

historical government records.

Mr. Barnes said that there are wide ranges of Canadian history that are still restricted,

including intelligence, security, international affairs, and defence. These areas are

affected by section 15 of the ATIA, which allows for exemptions for anything that could

be harmful to Canadian international affairs and defence. Many events that occurred

during and after the Cold War therefore remain restricted.

Bill C-290, An Act to amend the Public Servants Disclosure Protection Act.

Government of Canada, Review of the Public Servants Disclosure Protection Act.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Mr. Conte noted that the passage of the ATIA in 1983 ended the previous declassification

system. He said that this created a disaster for anyone with any interest in doing

historical research in certain areas, including prisons, the military, and other institutional

forms of state violence within Canada and abroad. For example, he noted that when

looking at LAC’s RCMP surveillance files on the 1930s Communist Party of Canada, or the

1969 Sir George Williams University uprising, the documents to be disclosed in response

to an access request are heavily redacted, and even published newspaper clippings from

The Globe and Mail and other mainstream media organizations are redacted in full by

the Canadian Security Intelligence Service (CSIS).

Mr. Conte added that a successful challenge to a redaction only grants access to the

requester. Anyone else interested in accessing the same historical record must go

through the same process again.

Mr. Conte shared examples of the frustrations that journalists have with the ATIA and

accessing historical records.

For example, he said it took five years to write an article

because of delays in accessing information on COINTELPRO profiles in Canada.

He was

trying to get archives from LAC, which still categorized them as an operational threat,

while in the U.S., the National Archives in Washington, D.C., had already declassified the

related documents. As to the impact of not having access to certain contemporary or

historical documents related to systemic racism, such as the COINTELPRO documents,

Mr. Conte said that this lack of transparency is a demonstration of Canada’s institutional

white supremacy.

Nicole Giles, Deputy Director and Senior Assistant Deputy Minister of Policy and

Strategic Partnerships with CSIS, said that while she was unable to discuss specifics

regarding COINTELPRO, CSIS “often [experiences] legacy national security concerns in

files,” which prohibits CSIS from releasing information that could have consequences for

some of their sources.

Dr. Giles said that each of the Five Eyes intelligence partners has its own declassification

system that differs from Canada’s legislative norms that apply to the declassification of

Andrea Conte, Toronto Star, “Canada continues to censor internal interviews on review of Afghan war,”

reference document submitted to the ETHI Committee, 28 August 2022.

Andrea Conte, Briarpatch Magazine, “Administrative sabotage,” reference document submitted to the ETHI

Committee, 3 March 2022 (available online). COINTELPRO is short for the Counterintelligence Program of

the Federal Bureau of Investigation (FBI), an illegal program that, according to Mr. Conte’s article, aimed to

disrupt, misdirect, discredit or otherwise neutralize leftist and progressive movements in the U.S. from 1956

to 1971. The RCMP collaborated with the FBI and undertook acts of surveillance, infiltration, sabotage and

racial terror similar to those of the FBI. Canadian COINTELPRO archives remain heavily classified and

censored in Canada, while the U.S. has declassified all records related to that program.

documents. While CSIS makes every effort to declassify the requested information,

Canadian legislation does not always allow as much declassification as foreign

legislation does.

In fact, Mr. Barnes indicated that one of the difficulties in accessing historical documents

is explained, among other things, by the fact that Canada still has no mechanism for

declassifying or releasing archives after a certain period of time. The primary mechanism

for accessing historical government records remains access requests under the ATIA and

the Privacy Act. These requests are then reviewed through the same process that is used

for current records: reviewing officers have no knowledge of the historical context of the

records and apply the same considerations of what to redact. Since the government has

no mechanism to track declassified records, departments spend considerable time re-

reviewing records that have been declassified elsewhere. Frequently this review takes

years and in many cases results in complaints to the Information Commissioner.

Mr. Barnes recognized the need to protect some information from bad actors but

stressed that time is a factor that should not be overlooked. He explained that “what

might be sensitive today is much less sensitive 20, 30 or 40 years later.” He believes

there should be some mechanism to recognize that evolution and to differentiate what

is truly sensitive and “what the bureaucracy would prefer others not know about.” He

said there is a difference between bureaucratic desire for confidentiality and true threats

to national security. In short, he said that “[t]ime is a very important factor in that

consideration.”

Mr. Barnes said that each government has its own access to information regulations

and procedures for allowing for the release of less sensitive records while maintaining

necessary controls on those that are much more sensitive, such as political and national

defence issues. But this is not the case in Canada, where everything is treated as though

it is just as sensitive as it was the day it was created.

Ms. Maynard also pointed out that over time, the need to maintain the confidentiality

of records wanes. She believes that with a declassification program, experts could go

through the records and automatically restore access to those that are overclassified

after several years, as is often the case.

Like the Commissioner, Mr. Barnes and believes that Canada should establish a

declassification framework, separate from the ATIP process, that would proactively

review and release records after a set period of time. He also noted that, in order

to improve access to historical records, there should be greater restraints on the

“weaponizing of the consultation process. Departments are using the consultation

process to kick the can down the road.”

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Mr. Barnes said that the current system creates a problem for LAC because it means that

the great majority of government records on intelligence, international affairs and

defence will never be accessible to researchers other than through an access request

under the ATIA or the Privacy Act. Other departments are also affected by this lack of

declassification, including the Privy Council Office (PCO) and the Department of Foreign

Affairs, Trade and Development (Global Affairs Canada), whose “records have not yet

been transferred to LAC, even though most of them are decades old. For example, [PCO]

still holds records from the Second World War.”

However, Mary Francoli, Associate Dean and Director of the Arthur Kroeger College of

Public Affairs, said that historical records should not be released automatically, because

there are a number of things that would prevent historical documents from being

published. This is the case, for example, with documents related to national security that

sit within LAC.

Ms. Francoli noted that, outside the access to information system, LAC is doing some

interesting things to promote access to information, such as a block review of files and

boxes of old documents to see if they contain any information that could not be

released under the ATIA. As a result, millions of pages of historical documents have

been released.

Kristina Lillico, Director General of ATIP with LAC, confirmed that more than 45 million

pages of documents have been made available in recent years through a risk-based

approach. While this number may sound impressive, she believes there are billions more

waiting to be discovered that should not be subject to an access request.

Regarding the potential of digital, Mr. Lapointe expressed hope that advances in

machine learning will make it possible to scan and read certain historical documents.

However, some witnesses raised the difficulties and costs of digitizing historical

documents. For example, Ms. Lillico said that there are still a lot of historical documents

to digitize, and digitization has a cost. Proper storage is needed to manage, hold, and

migrate these items. Mr. Rubin said that digital stuff “which will make access to

information harder and will make personal information and the consent of individual

Canadians to give it harder.”

Michael Wernick, Jarislowsky Chair in Public Sector Management at the University of

Ottawa and former clerk of the Privy Council, also noted the high cost of digitizing

documents. There is also a

labour cost of actually going, retrieving, sorting out, applying the exemptions and

sending those up the line. Higher up the line, you’re dealing with the scarce time of

senior managers who have to sign off on the final release, and so on. … It’s certainly a

large number in terms of the cost of servicing this function.

M. Wernick said that government recordkeeping is scattered across more than

300 organizations, thousands of workplaces, and different technical formats: some on

paper and some in 1970s or 1980s software. He said there has never been a serious

investment in digitizing and catching up on historical records would be a huge task.

These documents are the hardest to manage and retrieve, and they don’t lend

themselves to scanning for keyword searches.

Access to Historical Documents on the Holocaust

On 18 April 2023, Yom HaShoah, Holocaust Remembrance Day, officials from B’nai Brith

Canada, the Committee for Justice Canada (B’nai Brith), appeared before the Committee

to discuss the particular challenges that this committee has faced in its efforts to obtain

historical documents that would enhance understanding and learning the lessons of

the Holocaust.

David Matas, senior legal counsel to B’nai Brith, said that

Canada, as a member of the International Holocaust Remembrance Alliance, is

committed to Holocaust remembrance. To remember the Holocaust, we must

remember the victims, but we must also not forget their murderers. While the

murderers are alive, that means bringing them to justice. Once they are gone, it means

providing public access to the record of their atrocities.

Mr. Matas explained that after the Holocaust, many Nazi war criminals and collaborators

reportedly fled to Canada to seek refuge and escape justice. For example, Canada’s

Program on Crimes Against Humanity and War Crimes states in one of its reports that

since it began its work, the Department of Justice has opened and reviewed over 1,800

such files.

However, the Department of Justice and the RCMP have not provided a

satisfactory response on these files despite B’nai Brith’s access requests.

Mr. Matas added that to learn from the Holocaust and provide an authentic

and complete picture of that history, the files of those who have been identified to the

War Crimes Commission or the Government of Canada, or investigated by them, must

Government of Canada, Canada’s Program on Crimes Against Humanity and War Crimes 2008–2011,

Report, p. 16.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

be made public. Yet, B’nai Brith’s efforts to obtain access to relevant files and documents

have been constantly frustrated.

Among the documents to which B’nai Brith is requesting access is Part II of the Report of

the Commission of Inquiry on War Criminals headed by the Honourable Jules Deschênes.

Part I of the report was released in December 1986.

This commission made several

recommendations that were generally accepted by the Government of Canada.

However, several important documents related to this inquiry have still not been made

public or, if they have, are largely redacted. For example, the Rodal report, a landmark

report on Canadian policy with respect to the settlement of Nazi war criminals in

Canada, was released but is heavily redacted, significantly undermining the

understanding of the context of the report.

In its written submission to the Committee, B’nai Brith made two recommendations.

First, it recommended to amend the ATIA to mandate disclosure of records relating to

Nazi war criminals in Canada and to any other Canadian residents who were complicit in

carrying out the Holocaust.

Second, it recommended establishing a publicly accessible

digital archive of all government records relating to the Holocaust and then have LAC

organize and make them readily accessible.

Mr. Matas noted that in some jurisdictions, such as the United States and the European

Union, there is specific legislation on Holocaust-related disclosure. Michael Wenig, a

lawyer with Matas Law Society and counsel for B’nai Brith, added that U.S. legislation

created an “inter-agency working group that was charged with a duty to collect and

organize Holocaust records from across the federal government and have the records be

delivered to the National Archives.” The U.S. National Archives then set up a public

archive to make all these records accessible. According to Mr. Matas, an amendment to

the ATIA to deal specifically with Holocaust-related records could draw from what is

being done in other jurisdictions.

Honourable Jules Deschênes, Commission of Inquiry on War Criminals, December 1986.

B’nai Brith, Brief, 14 February 2023, [B’nai Brith first written submission] p. 2.

B’nai Brith first written submission, p. 2; citing Alti Rodal, Nazi War Criminals in Canada: The Historical and

Policy Setting from the 1940s to the Present (the “Rodal” report) (prepared for the Commission of Inquiry on

War Criminals led by Mr. Justice Jules Deschênes in 1986).

B’nai Brith first written submission, p. 2; B’nai Brith, Brief, 25 May 2023. In a second brief, B’nai Brith

provides further information on the definition of Holocaust materials and the United States’ model for

Holocaust Archives. It also mentions other countries that have made efforts to archive Holocaust records.

B’nai Brith first written submission, p. 3.

Systems for Classifying and Declassifying Documents

Ms. Francoli said there is a lot of guidance for classifying documents. However, she does

not think that it is always applied evenly across departments and agencies. She added

that it depends on who is classifying and their level of comfort in terms of classification.

She is of the view that there is a tendency to over-classify documents, making them

inaccessible. She said that a system of declassification should be looked at.

Mr. Barnes also said that, if government departments transfer records to LAC as open

records, then those records could be accessed by researchers. However, as noted above,

many government records that are transferred to LAC are restricted, so those all require

access requests. He said that, if documents “are being held in a classified form, right

now there is no other mechanism besides going through the very cumbersome process

of asking for an ATIP release to get access to those records.” Mr. Barnes is of the view

that there needs to be a manual on the classification process, for example, so as to have

a much clearer idea within government of what is actually sensitive and what isn’t.

Ms. Maynard said that one can certainly wonder whether certain documents should

have been classified “Secret” or “Top Secret.” The OIC is trying to show government

officials that just because a document is marked “Secret” or “Top Secret” does not mean

that the exemptions in the ATIA have to apply. The classification “Secret” or “Top Secret”

has to be taken into consideration. However, it should not automatically result in the

application of the national security exemption under the ATIA. Attention must be paid to

apply the ATIA as it is written, not based on how a document is classified.

With regard to declassification, Leslie Soper, Director General of National Security Policy

with the Department of Public Safety and Emergency Preparedness (Public Safety Canada

or PSC), described it as the public release of records. She said that “[i]t is worth bearing in

mind that the level of classification reflects the extent of the injury to the national interest

that would be caused if the information were released.” She explained:

When a document is declassified, it has been determined that the document’s release in

full, or perhaps still partially redacted, would no longer cause injury, but even after a

document has been declassified it may still need to be redacted to remove information

that is sensitive for other reasons, such as the protection of personal information.

Ms. Soper confirmed that Canada does not have a formal national security and

intelligence declassification policy framework. To help solve this problem, PSC is working

in cooperation with the national intelligence and security community, TBS, and LAC, on

the development of a declassification framework setting out a practical approach to

proactive declassification within that community.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Ms. Soper recognized that the release of historical records would assist the public and

academic researchers. In her view, therefore, the PSC’s work is a step in the right

direction, as proactive declassification review would reduce the burden of processing

access requests. She noted, however, that supporting the proactive release of historical

records requires implementing a complete framework and the commitment of

considerable resources.

Ms. Soper added that PSC’s declassification work reflects the government’s national

security transparency commitment. This commitment is to better inform Canadians

about national security in support of democratic accountability without providing

information that could compromise Canada’s security or the safety of Canadians.

The President of the Treasury Board agreed that declassification is an important part of

the work to improve the ATIP system. One of the conclusions of the TBS report on the

review of access to information is that “a systematized approach to declassification

supports government transparency and accountability [and] enhances access to

Canada’s history.” She spoke about TBS’s participation in a declassification pilot led by

PSC, saying that TBS is still looking at how this pilot might provide guidance on how it

could continue with declassification. However, Mr. Burt said that the pilot project has

laid bare some of the challenges of looking at historical files and declassifying them, as

well as the kinds of resources it requires to do that work.

Mr. Barnes said it is very important to have a systematic process for declassifying records

after a given period of time. That way, records can be declassified by people who are

familiar with the exceptions to disclosure, rather than having each department trying to

interpret things themselves.

Ms. Lillico said that in other counties, having access to information legislation improves

the way records are managed. She therefore agrees that a proactive declassification

approach would bring Canada in line with the other Five Eyes countries, all of whom

have declassification programs. It would manage information at the appropriate level,

decreasing costs and effort and reducing the burden on the ATIP system on LAC. A

sunset clause would recognize the decreased sensitivity of most information over time

and ensure that historical records are open consistently and predictably.

International Approaches

Mr. Barnes reminded the Committee that Canada is the only member of the Five Eyes

that does not have a system for declassifying historical records. He said Canada can learn

from its close allies without necessarily reinventing the wheel.

Ms. Maynard explained, for example, that unlike Canada, the U.S. has a declassification

program. Every 20 years, documents that are secret or top secret go through a review.

She was of the view that Canada should also have such program, whether it is for a

period of 15 years, 20 years, or 50 years.

She also said that the United Kingdom has a

declassification program. In her view, implementing a similar regime in Canada would

give historians, librarians, archivists, and others interested in Canadian history—and

especially national security records—access to documents more quickly. She noted that

in 2020, her office released A Declassification Strategy for National Security and

Intelligence Records, which suggests possible avenues for establishing such a strategy

in Canada.

Mr. Barnes also said that the U.S. has manuals saying what is sensitive and how it should

be classified. He added that in that country, it is the Director of National Intelligence who

writes those manuals.

While Mr. Barnes said that the U.S. has a “proper system for declassifying records,” he

thinks that “the United Kingdom has a much more effective system.” He explained that

in the U.K. there is a legislated requirement that government records be reviewed after a

certain number of years and in large part declassified and transferred to their national

archives.

The U.K. legislation allows for some exceptions for materials to be retained

for longer. He added:

[W]hen they’re transferred to the archives, they’re automatically open, whereas in

Canada, many of the government records that are transferred to the archives are still

restricted. Therefore, [Library and Archives Canada] has to consult with the originating

departments on whether they can be released. It’s a much more complicated process.

Mr. Barnes compared the American and British systems to the one in Canada.

The American system is quite complicated. There are several layers. They have a

freedom of information act similar to the ATIP act in Canada, but they also have other

mechanisms for the release of material proactively. For example, the various

intelligence organizations have historical offices, and they will release batches of records

proactively. For example, on the anniversary of the Cuban missile crisis or some other

specific historical event, they will release a large batch of records, and they will often

See: OIC, Access at issue: The challenge of accessing our collective memory, Systemic Investigation of Library

and Archives Canada, Special Report to Parliament, 26 April 2022. OIC, A Declassification strategy for

national security and intelligence records, 12 February 2020 (by Wesley Wark).

United Kingdom, The national archives, 20-year rule. Mr. Barnes talked about a 30-year rule. In 2013, the

United Kingdom’s government began its move towards releasing records when they are 20 years old,

instead of 30.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

have an academic conference to support that. That concept is just totally foreign

to Canada.

In the U.K. they have a different system. There, materials are much more regularly

released after [20] years and go right to the archives, where they are all open. There are

some limits to that, but even the British intelligence services have been much more

proactive in supporting official and authorized histories of the various intelligence

agencies and so on, which have been very helpful for expanding knowledge of how

those organizations have operated. That hasn’t happened in Canada.

Mr. Barnes recommended that Canada adopt an approach similar to that of its allies by

establishing a “declassification framework, separate from the overtaxed ATIP process,

that would proactively review and release records after a set period of time.”

See also: BC FIPA Brief, pp. 11–12.

Michael Wernick, document submitted to the ETHI Committee, 21 November 2022. According to

Mr. Wernick, a duty to document “would waste a lot of valuable and expensive time and effort creating

records of dubious value that would only further clog up the problem of records management and

retrieval.”

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

The Committee agrees with the Information Commissioner and other witnesses that

access to information can only exist if proper records exist. Therefore, it recommends:

Recommendation 17

That the Government of Canada amend the Access to Information Act to include a duty

to document with appropriate penalties for non-compliance.

Recommendation 18

That the Government create a framework to ensure that methods of avoiding access to

information requirements be stopped, that requirements be clearly laid out in the terms

of employment of employees of government institutions, that incidents of avoidance be

reported in a report to the Information Commissioner of Canada, and that the report be

tabled in Parliament.

Recommendation 19

That the Government of Canada prohibit the use of personal emails or encrypted

applications for government communications.

Consultation Between Federal Institutions

Section 9(1)(b) of the ATIA allows for an extension of the time limit for responding to an

access request for a reasonable period of time, having regard to the circumstances, if

“consultations are necessary to comply with the request that cannot reasonably be

completed within the original time limit.”

Ms. Maynard said that consultations with other federal institutions are problematic. She

gave the example of a consultation by the OIC on a two-page document for which the

consulted federal institution asked the OIC for an additional 90 days to respond.

Ms. Maynard said that while the need to consult may be invoked to request more time to

respond to an access request, these consultations are not mandatory. Many organizations

believe that they are, or are treating it like they are, because they do not want to release

information from another government institution without consulting it first.

Ms. Maynard acknowledged that in some cases, it is likely that institutions use these

consultations as an excuse to delay responding to requests. She recommended that the

ATIA set a firm deadline of 30 days for conducting such consultations. She said there

should be clearly set reasons as to why consultations should or should not be done.

One issue with consultations noted by Dr. Giles is that consultations with CSIS is often

impeded by other departments not having ready access to secret and top secret

systems.

The Committee agrees with the information commissioner’s recommendation.

It recommends:

Recommendation 20

That the Government of Canada amend the Access to Information Act to identify the

circumstances in which consultation between government institutions must occur and

impose a time limit on those consultations.

Proactive Information Sharing

Distinction Between Transparency, Open Government and Access to

Information

Several witnesses acknowledged that Canadians can access much more government

information today than they could before. For example, Mr. Wernick said that

Canadian citizens can already access a wide range of information on all of the outputs of

government and “see the results of the decisions, the announcements, the procurement

contracts, the awarded grants and contributions, the audits, the evaluations, the research

studies and so on.” The President of the Treasury Board said that the Open Government

portal contains 37,000 records and two million proactive disclosure records.

Mr. Wernick also pointed out that in a ranking of the most transparent countries by U.S.

News & World Report, Canada was second out of 85 countries.

Open Data Watch

ranked Canada 15

out of 187 countries.

The rule of law index from the World Justice

Project ranks Canada 12

out of 140 on open government.

2021 OIC Recommendations, Recommendation 1: “The Act should set out a maximum length of time for

consultations needed to respond to access requests.

U.S. News & World Report, Most Transparent Countries.

Open Data Watch, Open Data Inventory (ODIN), accessed 30 May 2023.

World Justice Project, WJP Rule of Law Index, Canada, Open Government, accessed 30 May 2023.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

However, Canada does not rank as high when it comes to the right to information.

Canada ranks 51

out of 135 countries in the Global Right to Information Rating (GRIR).

This index assesses the formal legal framework for the right to information around

the world.

Ms. Maynard acknowledged that while some legislation is well drafted, it must also be

properly applied, and access properly processed.

Along the same lines, the President of the Treasury Board said that while it is interesting,

the GRIR is not a useful scale because it “is based on legal frameworks rather than

operational realities.” She does not think that “anyone believes that Russia or

Afghanistan are more transparent than Canada because they ranked higher.” She also

said that this ranking does not consider proactive publishing, noting for example that

Canada ranks 7

out of 86 countries in the Open Data Barometer, a global ranking on

open data.

The gap between Canada’s ranking on transparency and its ranking on the right to know

illustrates one important fact: transparency and access to information are two related

but different concepts.

Ms. Francoli said that access to information is a cornerstone of transparency, but

transparency itself is more extensive. She also said that access to information is part of

open government, which is a government founded on the ideas of accountability, access

to information and civic engagement. In her view, “access to information itself is the big

principle of open government that we need to improve here in Canada.”

Ms. Francoli said that Canada has submitted five action plans to the Open Government

Partnership, including a range of commitments to improve openness.

These action

plans have helped to release information and data via the creation of mechanisms like

the open science and data platform.

However, she said that while access to

information was included in some of Treasury Board’s early open government work, it

appears to have fallen out of place in the open government action plans.

Centre for Law and Democracy, Global Right to Information Rating, accessed 30 May 2023; ETHI, Evidence,

Lapointe (GMG); Conacher (DW), Tromp.

World Wide Web Foundation, Open Data Barometer, Global rankings, accessed 8 May 2023.

Government of Canada, The Open Government Partnership.

Government of Canada, Open Science and Data Platform.

Ms. Francoli also drew a distinction between open data and “open by default.” In her

view, there has been more movement in Canada on open data than on open by default.

In order to be more open by default, it means thinking about the classification of things

in advance and proactively releasing things so that withholding information is a rarity

and limited to areas such as national security.

Ms. Francoli also said that Canada has no clear or very coordinated transparency

strategy. She recommends that the government adopt such a strategy, which would

bring these sorts of dispersed initiatives together and include areas such as access to

information, information management systems, storage and retrieval, and the need for

adequate resources.

She added that Canada is nevertheless engaged in a lot of

activities to improve the quantity and quality of information and data disclosure, and to

improve transparency and accountability in government. If done well, these activities

should help to ease pressure on the ATIP system.

Mr. Larsen made comments similar to those of Ms. Francoli’s, saying that “open data is

one thing. The robust access to information regime with legislated proactive disclosure is

something different.” He said that he has been really heartened by some of the

government initiatives over the last 10 years involving the more active and proactive

release of datasets. However, he maintained that in terms of transparency and access to

information, Canada is no longer leading in the way that it could or should be.

Proactive Disclosure

Part 2 of the ATIA, which was added by Bill C-58 in 2019, provides for the proactive

publication of certain information. However, Ms. Maynard said that a lot of the

information now requiring proactive publication under this part was already covered by

government policies before. While both Mr. Lapointe and Mr. Larsen said that proactive

disclosure is important, Mr. Lapointe said that Bill C-58 took only baby steps. Bill C-58

was criticized by several witnesses for not really effecting the desired change.

Given the limitations of Part 2 of the ATIA, Ms. Maynard said that she would rather see

institutions proactively disclose information that is requested by Canadians and that is

not listed in Part 2 of the ATIA. She suggested that a government institution that gets

ETHI, Evidence, Francoli.

ETHI, Evidence, Cutler (CFA), Conacher (DW), Rubin.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

three requests on the same thing should proactively publish the documents.

She gave

the example of Health Canada, which began proactively publishing laboratory test

results because people were asking for them. She also gave the example of briefing

notes, which are often the subject of access requests, saying that when she meets with a

minister or deputy minister, she asks if it is possible to proactively post that information

on the department’s website.

Ms. Maynard proposed that federal institutions look at the access requests they receive

each year and determine the 10 most requested kinds of information and proactively

publish them. She believes that access requests “should always be a last resort and the

information should already be public” because “[w]e are talking about information that

belongs to Canadians.” She added that there is a need to invest in tools to provide the

information that Canadians request, not the information that the government wants to

disclose. She also said that it should be possible to determine whether proactive

disclosure obligations are being met.

The BC FIPA also recommended proactively disclosing types of records that are

frequently requested and released and to make all proactive disclosure requirements

subject to oversight by the Information Commissioner.

Mr. Conacher recommended that there be routine disclosure not only of communications,

meetings, and decision-making processes but also of all records online that can be

disclosed and that are in the public interest to disclose. This disclosure could be done on a

searchable online database, which would reduce the number of access requests. The

Public Service Alliance of Canada made a similar recommendation.

Mr. Lapointe said that a range of information should be proactively disclosed, including

internally conducted departmental audits 30 days after their completion. He said this

would allow for a real-time assessment of whether programs are actually value

for money.

However, Mr. Beeby argued that the proactive release of more documents does not

necessarily result in fewer access requests. According do him, governments may

proactively release innocuous documents, but documents tied to decision-making will

TBS, Directive on Access to Information Requests, section 4.1.44. This section encourages regularly

reviewing the nature of requests received under Part 1 of the Act and assessing the feasibility of making

frequently requested types of information available by other means.

ETHI, Evidence, Maynard.

BC FIPA Brief, p. 26.

PSAC Brief, p. 3.

never be proactively released unless they have been scrubbed clean. He said that “[a]ll

information is not created equal.” Useful, core information is needed. Mr. Jolly agreed

with Mr. Beeby.

Furthermore, Mr. Beeby and Mr. Wernick noted that, despite the proactive disclosure of

a lot of documents, access requests are not decreasing because this is not the type of

information people want.

Mr. Wernick pointed out that people want information about

the deliberative processes of government before decisions are made.

Mr. Wernick recommended that the ATIA include an obligation for routine, regular, and

proactive disclosure of a much longer list of categories of information. He raised the

possibility of adding such a list to the ATIA through regulation. However, he pointed out

that national security must be considered when drafting proactive disclosure provisions.

Mr. Wernick also recommended that departments and agencies subject to the ATIA be

required to post every request that has been filed, every request for which documents

have been released, and the time between filing the request and releasing the documents

so as to create a feedback loop.

Ms. Francoli highlighted the importance of putting emphasis on proactive disclosure

and open by default where appropriate. She gave the example of the National Security

Transparency Advisory Group, which recommended that the national security community

develop a statement committing to transparency, including what it means to the different

security institutions and how it will be measured.

Mr. Larsen recommended the inclusion of a “public interest override” in the ATIA. This

override would require information that is deemed to be in the public interest to be

released and in some instances proactively released. He believes this override should be

expanded to cover all other grounds on which information can be withheld.

Currently,

the ATIA contains only a limited public interest override.

The CLD and the Public

Mr. Wernick noted the proactive disclosure of the following documents: contracts, grants, contributions,

travel, hospitality, research studies, audits and evaluations.

Government of Canada, The National Security Transparency Advisory Group (NS-TAG).

BC FIPA Brief, pp. 15–16. The BC FIPA gave the example of Newfoundland and Labrador’s Access to

Information and Protection of Privacy Act, 2015, which contains a general public interest override that

applies to all exemptions.

Access to Information Act, section 20(6). Under this section, the head of a government institution may

disclose all or part of a record that contains third party information if the disclosure would be in the public

interest as it relates to public health, public safety or protection of the environment.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Service Alliance of Canada made a similar recommendation.

Ms. Maynard also

recommended that the concept of “public interest” be added to the ATIA. She believes

that if the public interest were mentioned in the introduction to the ATIA, it would mean

that it overrides any other factor in terms of discretionary decisions.

Mr. Conte pointed out that, in the U.S., federal access to information legislation contains

a provision that allows requests on urgent public policy matters to be expedited. He said

that, in the U.S., if an urgent matter of government activity arises, an access request

relating to that matter is given priority. Ms. Maynard confirmed that, in Canada, it is first

come, first serve.

Matt Malone, an assistant professor at Thompson River University School of Law,

criticized the inability to challenge the government’s failure to respond to an informal

access request for records that have already been requested and for which summaries

are available online. He recommended that records relating to completed access

requests be retained for more than two years and proactively made public.

As to the possibility of disclosing information in the public interest, such as proceedings

of Cabinet and its committees, Mr. Wernick said it raises the question as to “who decides

what’s in the public interest.” He believes the Federal Court should decide, while

Mr. Tromp said it should be the Information Commissioner and the courts.

Ms. Maynard also noted that there is an impediment to proactive disclosure because

documents must be published in both languages. Institutions often say that they do not

have the resources to translate these documents. However, Ms. Maynard said that there

are not huge numbers of complaints concerning the language in which documents are

provided in response to access requests.

Ms. Francoli said that obligations under the Official Languages Act (OLA) make Canada’s

situation in terms of access to information and open government different from that of

other countries. She said that the OLA is often held up as an impediment to openness in

government and to further transparency.

PSAC Brief, pp. 1–3; CLD Brief, p. 10. The CLD noted that the Supreme Court of Canada held that the public

interest must be taken into account when deciding whether or not to apply discretionary exceptions in

Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23.

Malone Brief, p. 2; PSAC Brief, p. 3. PSAC recommended ceasing the purging of release packages after

two years and instead keeping them on the Open Government Portal for 20 years. Since July 2022,

summaries of completed access requests remain publicly available online after two years. See: TBS,

Directive on Access to Information Requests, Appendix D: Mandatory Procedures for Publishing Summaries

of Completed Access to Information Requests, 13 July 2022.

The Committee recognizes that the government shares vast quantities of information

with Canadians. However, as some witnesses have indicated, available data does not

necessarily correspond with the information that is being sought by Canadians. That is

why they continue to submit access requests. The Committee believes that proactive

disclosure should be tailored to what Canadians want access to. If it is in the public

interest, information should be accessible without the need for an access request.

Consequently, the Committee recommends:

Recommendation 21

That the Government of Canada increase proactively published information under Part 2

of the Access to information Act.

Recommendation 22

That the Government of Canada amend the Access to Information Act to require

government institutions subject to the Act to proactively disclose information frequently

requested in access to information requests.

Recommendation 23

That the Government of Canada publish all access to information requests not related to

personal information in a searchable database, available to the public at no cost, and

that those requests be anonymized before publication.

Recommendation 24

That the Government of Canada require government institutions that face repeated

requests on a specific subject to inform the Information Commissioner of such repeated

requests and that a report be sent to Parliament.

Recommendation 25

That the Government of Canada amend the Access to Information Act to ensure that

previously submitted access requests are subject to the Access to Information Act.

Recommendation 26

That the Government of Canada require each government institution to maintain a

public record of its access to information requests and the time required to respond to

each request.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Recommendation 27

That the Government of Canada amend the Access to Information Act to clarify that the

access to information system is based on a culture of openness and transparency and to

include in the Act a public interest override, which would apply to all exemptions to

make public interest documents open by default.

Recommendation 28

That the Government of Canada create an “Open by Default” approach to access to

information and acknowledge that the status quo is not acceptable.

Scope of the Access to Information Act

Application of the Access to Information Act to Cabinet Confidences

Section 69(1) of the ATIA provides that Part 1 of the Act, which provides the right to

access records under the control of a government institution, does not apply to Cabinet

confidences. This is a blanket exclusion.

Ms. Maynard argued that Cabinet confidences as well as the Prime Minister’s Office and

ministers’ offices should be subject to the ATIA.

She said that, because Cabinet

documents are excluded from the ATIA and not under her jurisdiction, all the OIC

receives is confirmation by the institution that certain pages requested by a complainant

were excluded. She believes that these documents should be submitted to the OIC for

independent review to confirm that they are indeed Cabinet confidences.

She raised

the following question: if she does not have access to these documents that nobody else

can review, how can she confirm to Canadians that these documents are actually

Cabinet confidences?

Ms. Maynard pointed out that she already has the ability to conduct an independent

review with respect to documents covered by solicitor-client privilege. She said that her

office has access to documents for other exemptions under the ATIA and can compare

2021 OIC Recommendations, Recommendation 7: “Cabinet confidences should be subject to the Act.”

Ibid., Recommendation 8: “The Commissioner should have access to records containing Cabinet confidences

that the head of an institution has withheld from disclosure;” Recommendation 13: “The Act should contain

an independent review mechanism to ensure that institutions comply with the requirements with respect

to the publication of information set out in Part II of the Act.”

the redaction with the original. She noted that this includes secret and top secret

documents.

Ms. Maynard said that her role in reviewing Cabinet confidences would be to determine

whether the section 69 exclusion was properly applied, not to disclose documents to the

public. She mentioned that Canada is one of the few Commonwealth countries that does

not have an independent review of Cabinet confidences.

The President of the Treasury Board, for her part, said that it is important that Cabinet

be able to express themselves freely during meetings and therefore protect Cabinet

confidences. She also pointed out that Part 2 of the ATIA now provides for proactive

disclosure of certain Cabinet documents. Mr. Burt added that “there needs to be some

flexibility to have the discussions required for the running of the government.”

Ms. Francoli also noted that there are a lot of reasons for the ATIA to apply to Cabinet

confidences, even though decision-making in Cabinet is not easy and there needs to be

room for discussion and deliberation. Nonetheless, she said that the Information

Commissioner should be able to look at Cabinet confidences.

Mr. Beeby agreed that some government deliberations need to be protected for open and

honest discussion but, like Ms. Maynard and Ms. Francoli, criticized the absence of an

oversight mechanism for Cabinet documents. He said that the Information Commissioner

should have the power to review decisions to withhold Cabinet documents.

Mr. Tromp also recommended that the Information Commissioner be able to review

Cabinet confidences. He also recommended that the blanket exclusion of Cabinet

confidences from the ATIA be eliminated and replaced by an exemption.

He said that

Canada and South Africa are the only countries to have such an exclusion in their

legislation. He gave the example of Ghana, where the right to information act, which

passed in 2019, has a harm test for Cabinet documents. They can only be withheld if

they would “undermine the deliberative process.”

Mr. Lapointe also agreed that it is entirely reasonable to maintain the confidentiality of

Cabinet documents in the course of deliberations leading up to a decision. However, he

argued for an earlier disclosure of information after the decision has been made. He said

that the blackout period for Cabinet confidences should be reduced to 10 or 15 years,

citing the example of British Columbia, where Cabinet confidences remain confidential

for 15 years. Mr. Wernick stated that a period of 10 to 12 years would be adequate.

See also: BC FIPA Brief, p. 24. BC FIPA recommends that section 69 of the Access to Information Act be

removed and replaced with a limited exemption.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Mr. Beeby recommended a 10-year period. Mr. Tromp and the BC FIPA also

recommended a shorter period.

Mr. Beeby said that the data and background information on which Cabinet based its

decision should be proactively released soon after the decision. He believes it is

important to know what went into the deliberations that led decisions in order to know

whether there has been undue influence on Cabinet by corporations, developers, or

other stakeholders. He recommended that the deliberations be protected, but that the

information provided to inform those deliberations be made public.

However, Mr. Wernick argued that it is not in the public interest to make it harder for

Cabinet to deliberate and make decisions. He said that, if deliberative processes before a

Cabinet decision do not have a degree of confidentiality, Cabinet’s ability to make

decisions will be impaired.

Application of the Access to Information Act to the Prime Minister’s

Office and Ministers’ Offices

In the OIC’s brief on the review of the government’s access to information regime,

Ms. Maynard recommended that Part 1 of the ATIA be extended to the Prime Minister’s

Office and to ministers’ offices.

Mr. Rubin, the CLD and the BC FIPA made the same

recommendation.

According to the Commissioner, “having a transparent government

means that everybody who’s elected and everybody who makes decisions on behalf of

the government, including ministers’ offices, should be subjected to the [ATIA].”

Mr. Conacher also recommended that the ATIA apply to ministers’ offices. Mr. Wernick

recommended that the ATIA be extended to ministers’ staff, and Mr. Beeby recommended

that it be extended to ministers’ aides.

Mr. Wernick argued that the access to information regime should apply to all taxpayer-

funded staff and ministers’ offices, including the Prime Minister’s Office, to create a level

playing field between political staff and public servants. He explained that Cabinet and

its committees, which include the Treasury Board, produce agendas, papers, and

deliberations related to Cabinet processes. Political staff in ministers’ offices take part in

BC FIPA Brief, p. 25.

2021 OIC Recommendations, Recommendation 3: “The Offices of the Prime Minister and Ministers should

be subject to Part I of the Act.”

Rubin Brief, p. 1; CLD Brief, pp. 4–5; BC FIPA Brief, p. 14.

ETHI, Evidence, Beeby.

the whole upstream process of sorting out options and advice. They meet with each

other and with public servants. Right now, the access to information regime only brings

out the part that is public servant to public servant.

Application of the Access to Information Act to Other Institutions and

Individuals

Ms. Maynard recommended that any organization that functions on behalf of the

government and that is using public funds to provide services to Canadians on Canada’s

behalf should be subject to the ATIA.

100

That would make both Crown corporations and

private entities that are sometimes contracted to work for the government subject to

the ATIA.

101

Mr. Conacher agreed. He recommended that the ATIA be changed to cover all

government institutions, including publicly funded institutions and public-purpose

institutions.

Mr. Rubin agreed that more entities should be subject to the ATIA, particularly in the

private sector.

102

He said that it is hard to keep track of all the subsidiaries of some

Crown corporations and to know whether they are subject to the ATIA or not.

Mr. Tromp also recommended that the ATIA should apply to public entities that perform

public functions and spend taxpayers’ dollars, such as the Canadian Blood Services, the

Nuclear Waste Management Organization and NAV CANADA. The CLD recommended

that the ATIA’s scope be expanded to all information held by all authorities that engage

the responsibility of the state.

103

The BC FIPA recommended that the ATIA’s scope be

expanded to all organizations delivering public services.

104

Mr. Wernick recommended that the ATIA’s scope be expanded to become a transparency

act. The Information Commissioner would be restyled as a transparency commissioner

100

ETHI, Evidence, Maynard.

101

2021 OIC Recommendations, Recommendation 2: “Agencies to whom the government has outsourced the

delivery of programs, that provide government services or that carry out activities of a governmental nature

should be subject to the Act.”

102

Rubin Brief, pp. 1 and 5.

103

CLD Brief, p. 4.

104

BC FIPA Brief, p. 13.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

and given a broad mandate to examine transparency practices across the federal public

sector, including Crown corporations, Parliament, and the courts.

Mr. Conacher also recommended that the ATIA be changed to allow anyone, even if they

don’t live in Canada, to file an access request.

105

Lastly, Ms. Maynard acknowledged that expanding the scope of the ATIA could increase

the number of access requests and the number of people who have to respond to them.

However, she believes that Canadians should be given exactly what they are looking for

and that currently there is a lot of information that they are not entitled to get under the

ATIA, including information from ministers’ offices, third-party institutions, providers,

and contractors. Since this is a lot of information, she feels that the scope of the Act

needs to be increased.

The Committee shares the view of many witnesses that the scope of the ATIA should be

increased, particularly when it comes to the application of Part 1 to the Prime Minister’s

Office and ministers’ offices. The Committee also recognizes that it is important for

Cabinet to be able to discuss freely when making decisions. However, it is of the view

that the blanket exclusion for cabinet confidences in the ATIA should be eliminated and

replaced with an exemption. It is also of the view that the Information Commissioner

should be able to conduct an independent review of Cabinet confidences. Consequently,

the Committee recommends:

Recommendation 29

That the Government of Canada order and conduct an impartial review of Cabinet

confidences as it relates to the access to information and privacy system.

Recommendation 30

That the Government of Canada extend the application of Part 1 of the Access to

Information Act to Cabinet confidences, except where an exemption applies, and give

the Information Commissioner the power to review such records to determine whether

the exemption has been properly applied.

105

Ibid.; The BC FIPA made the same recommendation.

Recommendation 31

That the Government of Canada extend the application of Part 1 of the Access to

Information Act to the Prime Minister’s Office and Ministers’ offices.

Recommendation 32

That the Government of Canada extend the application of the Access to Information Act

to any organization operating on behalf of the government and using public funds to

provide services to Canadians.

Limitations on the Use of Exemptions and Exclusions Under the

Access to Information Act

The ATIA contains exemptions in sections 13 to 26 allowing the head of a government

institution to refuse to disclose certain information. The Act also contains exclusions in

sections 68 and 69, the latter on Cabinet confidences discussed in the previous section

of this report.

Ms. Maynard said that claiming the exemptions provided in the ATIA should always

be the exception. For example, as part of the review of the government’s access to

information regime, she recommended limiting the application with respect to personal

information in section 19 of the ATIA and imposing an obligation to consult the

Information Commissioner if the addition of new statutory prohibitions to Schedule II of

the ATIA is contemplated under section 24 of the ATIA.

106

Ms. Luelo said that one of the challenges in applying the ATIA’s exceptions and

exclusions is that some departments are interpreting them themselves, despite TBS

guidance on how it wishes to see these rules applied.

107

Mr. Conacher recommended that all exceptions to disclosure be clearly and narrowly

defined and limited to areas in which secrecy is required in the public interest. He also

recommended that exclusions be turned into exceptions and that each exception be

106

2021 OIC Recommendations, Recommendation 4: “The Act should allow heads of government institutions

to provide access to personal information where disclosure does not constitute an unwarranted invasion of

privacy;” Recommendation 5: “The Act should allow heads of government institutions to provide a

deceased’s person’s spouse or close relatives access to their personal information on compassionate

grounds;” Recommendation 6: “The Act should permit the disclosure of a person’s business or professional

contact information;” Recommendation 11: “The Information Commissioner should be consulted during the

process of adding new statutory prohibitions to Schedule II of the Act.”

107

TBS, Directive on Access to Information Requests.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

more narrowly defined.

108

He argued that the exemptions in the ATIA are too broad. The

CLD also recommended that the scope of the exceptions be limited.

109

Mr. Larsen believes that a harms test is needed for the operation of exceptions rather

than having categorical exceptions that deal with certain kinds of information. This test

should also be applied to Cabinet records. That way, the public will have confidence that

when information is withheld from the public, it is because releasing it would cause

some kind of demonstrable harm, not simply because the government is exercising its

power of secrecy.

Mr. Rubin said that because of “excessive rules from central agencies like Treasury

Board, the Prime Minister’s Office and the PCO,” the fact that corporations can object to

the release of information, and the fact that law enforcement agencies can say it is a

matter of national security, the average person doesn’t stand a chance of getting the

information they want. For example, he said that it is not uncommon for an access

request to result in blank pages.

Mr. Beeby added that when documents finally do land on a reporter’s desk “they’ve

been picked clean of meaningful content.” He argued that the ATIA gives officials “a rich

menu of excuses to keep things buried.” Mr. Barnes said that a lot of information is

redacted based on a very subjective view and that there are no clear guidelines within

the system about whether a document is sensitive or not. In his view, “something that’s

truly sensitive should be immediately apparent to any reasonable person.”

Mr. Lapointe brought up Germany’s transparency law, which provides for automatic

disclosure unless the party that must disclose the information argues against its release.

Mr. Lapointe said that this approach puts the onus on where it was initially designed

to be.

M. Wernick agreed with Mr. Lapointe that the onus could be flipped to disclose

information unless not doing so was justified. He noted, however, that this would

require clear definitions of “national security” and “cabinet confidences.” He also said

that it was important to keep in mind that the ATIA is used by all sorts of people, such as

brokers and resellers, lawyers, lobbyists and special interests, businesses, and foreign

governments. Every access request must therefore be carefully screened.

108

For example, Cabinet documents are excluded from the application of Part 1 of the Access to Information

Act under section 69 of the Act. Exemptions are listed in sections 13 to 26 of the Act; ETHI, Evidence,

Duff Conacher (DW)

109

CLD Brief, p. 9.

Mr. Beeby pointed out that the ATIA already has a reverse onus in section 2(2)(a), which

sets out the specific purposes of Part 1: to provide a right of access to information in

records under the control of a government institution in accordance with the principles

that government information should be made available to the public, subject to limited

and specific exceptions. As to the use of the ATIA by brokers and dealers, he said that

they’re selling a service to Canadians and therefore have every right to request

information, just as journalists or any other person does.

With respect to the process for redacting records released as part of an access request,

Mr. Wernick said that the first step is to improve clarity and definitions in the ATIA by

adopting clear and precise language. Second, the Information Commissioner should be

given the role of flagging what they see as inappropriate redactions. Lastly, requesters

should be able to go to the Federal Court, which he believes should have final say on any

issue to do with Cabinet confidences.

Mr. Lapointe agreed with Mr. Wernick that the Commissioner should be empowered to

have greater oversight with respect to redacted documents. If necessary, he suggested

that a small agency, a small board, or a small adjunct to the OIC could help arbitrate

redactions so that the public interest is served better.

National Security

As indicated in the section of this report on access to historical documents, section 15 of

the ATIA allows the head of a government institution to refuse to disclose certain

information relating to international affairs or the defence of Canada.

110

With respect to the possibility that a contract may not be disclosed in the name of

national security, Ms. Maynard said it depends on how the contract was drafted. Each

case is different. If a contract does raise national security issues, it is processed

differently. However, the aim must really be to avoid a danger or a breach of trust. She

added that as soon as people see a document classified as confidential, secret, or top

secret, they tend to think that the information should not be disclosed. However, the

test requires a determination of whether there will be consequences should the

information be disclosed.

Like Ms. Maynard, Mr. Drapeau said that the national security exemption can be invoked

in a wide range of circumstances. Depending on the nature, purpose, or requirements of

the contract, it may be in the government’s interest not to disclose certain information.

110

Access to Information Act, section 15.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

Each case is unique. He added that, when cases involve national security, he expects all

government employees, including those who work in access to information, to take a

very careful and conservative approach, disclosing only what is possible, practical,

relevant, and legal to disclose. As indicated in Chapter 3, Dr. Giles explained that there

are important reasons to keep certain information related to national security protected

from disclosure. She outlined the importance of balancing the right to access

information with the need to protection sensitive information.

Third Party Information

Section 20 of the ATIA provides that the head of a government institution shall, subject

to all other provisions of this section, refuse to disclose any record containing various

types of information including but not limited to trade secrets of a third party or

financial, commercial, scientific, or technical information that is confidential.

Ms. Maynard said that her office encourages people who prepare government contracts

to be as transparent as possible and to let the contractor know that the information is

going to be accessible to Canadians.

In the OIC’s brief on the review of the government’s access to information regime,

Ms. Maynard recommended repealing the section requiring the Commissioner to give

written notice to a third party if the Commissioner intends to order the head of a

government institution to disclose all or part of a record that may contain information

described in section 20.

111

Mr. Drapeau said that, if a request involves information provided to a department by a

third party, the department must consult with the third party regarding potential

disclosure. The third party may require that certain information be treated as a trade or

business secret. If this information is released despite the representations made by the

third party, the third party can take the case to court. He noted that this can result in

delays in access to information.

Mr. Conacher argued that contracts and commercial information are far too protected.

In his view, “All that needs to be protected is proprietary information that is very much

the basis of a corporation’s operations.” He added that anything more than that, such as

protecting contractees and subcontractees, is excessive.

112

Mr. Malone recommended

111

2021 OIC Recommendations, Recommendation 18: “The notice to third parties set out in section 36.3 of the

Act should be repealed.”

112

PSAC Brief, p. 1. This document was submitted to TBS as part of its access to information review. PSAC

recommends restricting the use of section 20 of the Access to Information Act.

that the ATIA be amended to affirm that amounts of public funds expended are never

confidential information.

113

Operations of Government

Section 21 of the ATIA provides that the head of a government institution may refuse to

disclose records that are less than 20 years old prior to the request and that contain

various types of information, including advice or recommendations developed by or for

a government institution or a minister of the Crown (section 21(1)(a)).

Ms. Maynard said that the exemption in section 21(1)(a) is overused. The OIC often

orders a government institution to disclose factual or statistical information that does

not contain advice or recommendations. In the OIC’s brief on the review of the

government’s access to information regime, she recommended that the ATIA include a

list of information to which the exemption in section 21(1)(a) should not apply.

114

She

said that this clarification in the equivalent Ontario legislation helps officials.

115

She

made similar comments during her second appearance.

Ms. Maynard said that people should “at least get the basis” even if they don’t know

what was recommended or what the advice was, so that they can know whether the

right facts were used. She also recommended that the 20-year period in section 21 be

reduced to 10 years.

116

The BC FIPA recommended that section 21 be amended to ensure that it does not

prevent the disclosure of factual and background information that does not constitute

advice or recommendations. The BC FIPA also recommended reducing the time for

which records are exempt from disclosure.

117

In the same vein, Mr. Tromp recommended adding a harms test to section 21 of the

ATIA, a 10-year time limit, and a clear statement that background facts and analysis

113

Malone Brief, p. 2.

114

2021 OIC Recommendations, Recommendation 9: “Subsection 21(2) of the Act should be amended to add a

list of categories of information not covered by the exemption.”

115

BC FIPA Brief, p. 25. The British Columbia, Ontario, Nova Scotia and Newfoundland and Labrador access to

information acts contain lists of material to which the exemption for advice and recommendations from

public officials does not apply.

116

2021 OIC Recommendations, Recommendation 10: “The 20-year-period provided for in subsection 21(1) of

the Act should be reduced to 10 years.”

117

BC FIPA Brief, pp. 20–22. See also: PSAC Brief, p. 1.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

cannot be withheld as policy advice.

118

Mr. Beeby recommended defining the word

“advice” in the ATIA more narrowly to prevent the exemption from being used “as a

catch-all for withholding information.”

Solicitor-Client Privilege

Section 23 of the ATIA provides that the head of a government institution may refuse to

disclose records containing information that is subject to solicitor-client privilege or the

professional secrecy of advocates and notaries or to litigation privilege.

Ms. Maynard said that not all communications between lawyers are privileged and that

each case must be reviewed. She explained that under the ATIA she has the authority to

review records for which solicitor-client privilege is claimed by a government institution

when a complaint is filed with the OIC. The OIC determines whether the exemption was

properly applied to the documents released to the complainant. She said that the

exemption is properly applied 75% of the time.

Ms. Maynard said that, when a complaint pertains to the application of the exemption

in section 23 of the ATIA, she can compare the original and the redaction to confirm

whether the redacted information involves a legal opinion, which cannot be disclosed.

Exclusion Relating to the Canadian Broadcasting Corporation

Section 68.1 of the ATIA excludes from the application of Part 1 of the ATIA “any

information that is under the control of the Canadian Broadcasting Corporation (CBC)

that relates to its journalistic, creative or programming activities.” Part 1 applies to

information that relates to its general administration.

According to Patrick McCurdy, Assistant Professor in the Department of Communication

at the University of Ottawa, this exclusion presents challenges and obstacles for

researchers interested in CBC’s history. While recognizing the importance of

safeguarding the CBC’s independence and freedom of expression, he recommended

118

See also: CLD Brief, pp. 9–10. The CLD recommends adding a harm test for several exemptions in the Access

to Information Act; and Rubin Brief, p. 2. Mr. Rubin recommends limiting the exceptions and requiring that

no documents may be withheld unless substantial injury can be shown.

modifying section 68.1 to include a sunset clause, limiting the period during which the

CBC can withhold certain information.

119

The Committee is of the view that as indicated in the purpose of the ATIA necessary

exceptions to disclosure should be limited and specific. The use of an exemption should

be the exception not the norm. Consequently, it recommends:

Recommendation 33

That the Government of Canada conduct a review of the exemptions and exclusions to

access to information contained in the Access to Information Act, including but not

limited to commercially sensitive information, personal information, political staff, and

Cabinet confidences.

Recommendation 34

That the Government of Canada amend section 21 of the Access to Information Act to

include a list of information to which the exemption relating to operations of

government does not apply and to reduce the 20-year-period to 10 years.

Recommendation 35

That the Government of Canada limit the application of the exemption relating to

personal information to section 19 of the Access to Information Act and impose an

obligation to consult the Information Commissioner of Canada if the addition to

Schedule II of the Act of new prohibitions based on other laws is contemplated under

section 24, or on other subjects such as artificial intelligence.

Recommendation 36

That the Government of Canada amend the Access to Information Act to state that the

amounts of public funds spent are never confidential information.

Managing Vexatious Requests

Ms. Maynard said that, with the passage of Bill C-58, an institution may seek the OIC’s

approval not to respond to a request. A head of a government institution, with the

Information Commissioner’s written approval, can refuse to comply with an access

119

Patrick McCurdy, Brief, 6 December 2022. See also: CLD Brief, pp.10–11. The CLD recommends that all

blanket exclusions in the Access to Information Act be removed and that all exemptions that protect public

interests be subject to sunset clauses so that they no longer apply after a maximum of 20 years.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

request, “if, in the opinion of the head of the institution, the request is vexatious, is

made in bad faith or is otherwise an abuse of the right to make a request for access.”

120

Ms. Maynard added that it is not frequently used. It has been used only a couple of

times in the last two years. A backgrounder provided by the Information Commissioner

to the Committee shows that between April 2019 and March 2023, the OIC received a

total of 55 applications to decline to act on an access request from government

institutions. Of those, only five were granted by the Information Commissioner.

121

Ms. Maynard added that she is publishing her decisions on section 6.1 to give guidelines

to federal institutions on the use of this provision. However, she cautioned that the ATIA

is about making government more accountable and improving democracy. It would

therefore be difficult to be too restrictive about what people, such as journalists, can

request from government institutions.

Mr. Lapointe also expressed caution. He said that “bad faith” and “vexatious” are

subjective terms. Before rejecting such requests, it is important to ensure that they’re

truly vexatious.

Ms. Maynard acknowledged that malicious access requests do indeed exist. Most

institutions have a requester or two who, for some reason, have a chip on their shoulder

and decide to overwhelm an institution with a number of requests or a request that is

frivolous. Before 2019, there was no way to deal with these types of requests. Now

there is a way to not respond to them with the Information Commissioner’s approval.

She said the impact of vexatious and frivolous requests is huge. For example, at the OIC,

only three people deal with access requests. Last year, her office received a request that

ended up in 33,000 pages being sent out. The OIC itself had to request an extension

under the ATIA to exceed the 30-day time limit.

However, Ms. Maynard explained that, when someone requests an enormous number of

files, it is not because there are a lot of documents that the request itself is

unreasonable. The government institution should go back to the requester and talk to

120

Access to Information Act, section 6.1.

121

OIC, Backgrounder ETHI March 7, 2023.

them before asking the OIC for approval not to respond to the request because it is

vexatious. This reflects the duty to assist in the ATIA.

122

Application Fees

With respect to application fees, Mr. Larsen, Mr. Conacher, Mr. Rubin, and the CLD,

believed that access requests should be free of charge since fees are a barrier to

access.

123

Mr. Larsen said that in British Columbia, where access fees are charged, they

are a deterrent fee rather than a fee to recover the costs of access to information. He

said that reducing barriers to access to information is fundamental in a democracy.

Access fees are a barrier.

For her part, Ms. Maynard believes access should be free, but that the current $5 filing

fee is very reasonable.

124

As for Mr. Drapeau, he shared the view that a higher fee for

access requests is needed to limit the number of frivolous or vexatious requests and to

enable deputy ministers to hire more staff to respond to requests.

125

CHAPTER 5: INFORMATION COMMISSIONER’S POWERS,

INDEPENDENCE, AND RESOURCES

Powers of the Information Commissioner

Power to Make Orders

Ms. Maynard said Bill C-58 brought two positive changes: the power to make orders and

the ability to publish investigative reports.

Ms. Maynard indicated that the fact that she can now make orders, not just

recommendations, helps deal with complaints and get informal resolutions. According to

her, when institutions know that an order may be coming, they move a little faster.

122

Access to Information Act, section 4(2.1). This section states: “The head of a government institution shall,

without regard to the identity of a person making a request for access to a record under the control of the

institution, make every reasonable effort to assist the person in connection with the request, respond to the

request accurately and completely and, subject to the regulations, provide timely access to the record in the

format requested.”

123

Rubin Brief, p. 10; and CLD Brief, p. 7.

124

ETHI, Evidence, Maynard.

125

ETHI, Evidence, Drapeau and Drapeau.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

She explained that since she can order disclosure or order that a certain time for

disclosure be done, fewer negotiations with federal institutions are taking place. Her

office asks the federal institution why they are late or why an exemption has been

applied. If the explanation is not persuasive, her office disagrees, and an order is issued.

This makes the process much faster and more efficient.

However, Ms. Maynard said that her orders are sometimes being ignored, since she

does not have a certification process to go to the Federal Court to make sure that these

orders are seen as having the power of a court order. She said that when she issues an

order, the federal institution can either accept it or go to court to challenge it. She added

that “we’re seeing now a trend of institutions that are not saying they’re going to

challenge it, but they’re just taking more time to actually comply with my orders.”

126

She

believes that a process by which the orders can be certified in court should be included

in the ATIA.

The President of the Treasury Board stated that regarding the Commissioner's

recommendations that she already has the power to appeal to a Federal Court to require

compliance, but to the President's knowledge has not yet done so.

127

Mr. Drapeau said that the Commissioner has been too timid in her use of order-making

power. For his part, Mr. Conacher said that while the Information Commissioner can

make orders, she can’t impose penalties if the law is violated. Her power to make orders

is therefore not strong enough.

Mr. Tromp also noted shortcomings in the Commissioner’s order-making power, such as

the de novo review of the Information Commissioner’s orders and their lack of

enforcement. Mr. Beeby and the CLD made similar comments.

128

Ability to Publish Decisions

Ms. Maynard said that it was not possible to publish investigation reports under the old

ATIA. She said that “35 years of jurisprudence [is missing] from my office, with all kinds

of cases that were investigated and positions that were taken that were not publicized

until the annual report.” The OIC can now use the published reports to explain to

126

ETHI, Evidence, Maynard.

127

All reviews under the ATIA are de novo reviews.

128

CLD Brief, p. 13. The CLD recommends that the Information Commissioner’s orders be made directly

enforceable by the Federal Court and that the judicial review process be amended so that it is the

Information Commissioner’s orders, not the decisions of public authorities, that are under consideration.

complainants what is likely to happen in a case similar to theirs, or to explain to

institutions that a certain position has already been taken by the Commissioner and is

therefore likely to be taken again. Essentially, this gives Canadians and federal

institutions access to her office’s interpretation of the ATIA, which will help resolve

issues more quickly.

129

However, Ms. Maynard pointed out that, under the current ATIA, she can only publish

reports on investigations. Decisions she makes under section 6.1 of the ATIA on whether

to allow an institution to refuse to respond to a frivolous or vexatious request for access

are not supposed to be published.

130

She summarizes these decisions so as not to give

the institution’s name or too many details but does provide guidance about what types

of cases the OIC sees as frivolous and in bad faith.

Mr. Conacher recommended that the ATIA require the OIC to publish its decisions on

every complaint it receives and every situation it reviews and include the right for any

member of the public to appeal a decision to court.

Investigation Powers

With respect to her powers of investigation, Ms. Maynard said that she does not have

the power to carry out criminal investigations. Her investigations are administrative.

However, where there is evidence that a criminal offence has taken place, she can refer

the matter to the Attorney General of Canada, who decides whether a criminal

investigation is warranted.

During her mandate, Ms. Maynard has referred approximately seven cases to the

Attorney General, most of which were about the destruction of documents. She noted

that the ATIA already provides that, if the Commissioner sees evidence of intentional

measures to change, erase or destroy a document, it could be a criminal offence and the

Commissioner can refer it to the Attorney General. She was unable to say whether any

of the seven cases were pursued.

Ms. Maynard explained that the two types of investigations, administrative and criminal,

have to be separate. However, the ATIA provides that any information she receives is

confidential, which limits the evidence that can be shared with the Attorney General.

129

ETHI, Evidence, Maynard.

130

2021 OIC Recommendations, Recommendation 14: “The Information Commissioner’s power of publication

should be extended to cover decisions rendered with respect to applications to decline an access request

set out in section 6.1 of the Act.”

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

The OIC’s brief on the review of the government’s access to information regime

recommended that more information sharing be allowed.

131

Ms. Maynard also said she would like to be able to refer cases directly to provincial or

federal law enforcement rather than having to go through the Attorney General. She

would therefore eliminate that step under the ATIA.

132

Additional Powers

With respect to the possibility of having additional powers, Ms. Maynard said that the

commissioners’ offices in the United Kingdom and in Scotland were interesting

models

133

. Unlike the OIC, these offices have a direct monitoring capacity on institutions.

Reports from these institutions go directly to the commissioner. If the commissioner

sees after three months that a government institution is struggling or has difficulties

responding to access requests, it can intervene. Ms. Maynard said that this model is

interesting because it allows for proactive action and outreach instead of just waiting

for complaints.

Ms. Maynard said that in Canada, the annual statistical reports presented by institutions

are useless for her office. They only present the results one year later and do not allow

for proactive action. She believes that these reports should be replaced by a format that

is easily entered into a database, with no reporting necessary.

Mr. Beeby also expressed the view that a centralized system would provide better access

to actual statistics. In his opinion, most of the access to information statistics are not

reliable. For instance, he said that the President of the Treasury Board stated that 70% of

access requests are processed within the legislated timelines. In his view, this statistic is

misleading, as the legislated timelines include the significant extensions allowed under

the ATIA.

131

Ibid.; Recommendation 16: “Subsection 63(2) of the Act should be amended to enable the Information

Commissioner to disclose information relating to the commission of an offence against a law of Canada or a

province by any person.”

132

Ibid.; Recommendation 17: “Subsection 63(2) of the Act should be amended to enable the Information

Commissioner to disclose to the appropriate authority information relating to the commission of an offence

against a law of Canada or a province by any person.”

133

Scotland has its own Information Commissioner who regulates the Freedom of Information (Scotland) Act

which covers Scottish public authorities. The United Kingdom (U.K.) Information Commissioner has

jurisdiction in Scotland over data protection, and with respect to freedom of information in relation to U.K.

public authorities based in Scotland.

Mr. Conacher recommended that the Information Commissioner be given the power to

require systemic changes in government institutions to improve compliance with the

ATIA. However, he pointed out that in the federal and most provincial access to

information laws, information commissioners do not have enough power “to stop the

denials and delays because there are no penalties for violating the law”. He said that, in

Canada, parking illegally has more serious consequences than violating the ATIA:

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.

Mr. Conacher said that “while some of the provinces have a public interest override,” it is

not strong enough because the commissioners’ enforcement powers aren’t strong

enough. He recommended that the Commissioner be empowered to penalize violations

of the ATIA, with a sliding scale of fines depending on the seriousness of the violation.

Offences could include intentionally obstructing access, not creating records, not

maintaining records properly, or delaying responding to a request.

134

He also

recommended that the Commissioner be given the authority to review any refusal to

disclose and to order disclosure if it would not cause harm or would be in the

public interest.

Mr. Conte also noted that there are currently no consequences for not complying with

the ATIA.

135

Even the Commissioner’s orders can be challenged in court. He said that

the U.S. has a more adequate system of civil liability compared to Canada. He

recommended adopting, “financial penalties that are leveraged on government officials

and departments.” Mr. Rubin also recommended tougher penalties for government

officials using creative tactics to avoid meeting their disclosure obligations.

136

Mr. Conacher also recommended that the ATIA be changed to expand the OIC’s mandate

and budget to include promotion of the right of access and public awareness activities.

137

Similarly, Mr. Wernick recommended that the Information Commissioner should have a

134

ETHI, Evidence, Conacher (DW). Mr. Conacher also recommended adding penalties in the ATIA for public

servants attempting to avoid penalties under the Access to Information Act by retiring. Such penalties could

include loss or partial clawback of any severance or pension payments.

135

ETHI, Evidence, Conte.

136

Rubin Brief, p. 2.

137

DW Brief, p. 4.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

broader mandate to conduct studies, issue reports and make recommendations on access

to information practices and the continuing improvement of transparency practices.

The Committees is of the view that the information commissioner should have greater

powers, including the ability to impose sanctions in cases of non-compliance with the

ATIA. It recommends:

Recommendation 37

That the Government of Canada amend the Access to Information Act to give the

authority to the Information Commissioner of Canada to impose fines or penalties where

Access to Information and Privacy divisions are late in delivering responses to requests.

Independence of the Office of the Information Commissioner

Ms. Maynard said she is confident that her office is very independent of government.

The OIC has launched investigations against all departments, including the PCO, which is

under the purview of the Prime Minister. She said the only thing that might affect the

OIC’s independence is funding. There is no independent process for agents of Parliament,

such as the Information Commissioner, to get the funding they need. If they want more

funding, agents of Parliament have to go through Treasury Board and the Department of

Finance, two departments the OIC investigates on a daily basis. In her view, the current

funding model is contrary to the oversight role of agents of Parliament. The manner in

which these various agents are funded should reflect this independence.

As a potential solution, Ms. Maynard said there was a recommendation in the past for

an independent parliamentary committee to review funding requests from agents

of Parliament.

138

In a letter sent to the Committee in April 2023, the Commissioner

reiterated the need for an independent funding mechanism. She reminded the

Committee that in 2005, it made such a recommendation it its report entitled A New

Process for Funding Officers of Parliament.

The President of the Treasury Board said that the government supports the independence

of the Information Commissioner.

On another aspect of the independence of commissioners, Mr. Conacher recommended

establishing a fully independent, non-partisan appointments commission to search for

and nominate qualified candidates to fill commissioner positions. This commission

138

ETHI, Evidence, Maynard.

should also have the power to decide whether the Information Commissioner’s mandate

will be renewed.

The Committee recognizes the importance for agents of Parliament to be fully

independent and perceived as such. Consequently, it recommends:

Recommendation 38

That the Government of Canada establish an independent funding mechanism for the

Office of the Information Commissioner of Canada and other Agents of Parliament who

do not have access to such mechanism.

Adequacy and Allocation of the Office of the Information

Commissioner’s Resources

During her first appearance before the Committee on 5 October 2022, Ms. Maynard said

that her office has received 70% more complaints this year than last year. She added

that, if things continue the way they have, the OIC could receive 10,000 complaints this

year. Ms. Maynard said that the OIC is funded to close 4,000 cases a year. At the time of

her appearance, the OIC had already received 7,000 complaints

139

Ms. Maynard said that last year the OIC had resolved 6,500 complaints, many informally.

However, she explained that the OIC reduced the number of complaints in its inventory

by putting all its money into investigations, which is not sustainable. The OIC needs to

put money into corporate services, legal services, and translation services. She said that

the limit of what her office can do with current funding levels has been reached. She

also pointed out that since she arrived at the Office five years ago, complaints have

increased by 180%. As a result, her office’s resource requirements are increasing year

after year.

For her part, the President of the Treasury Board said that the government believes in

funding ATIP and the Information Commissioner. She said that the OIC’s funding has

increased by 54% in recent years.

140

With respect to the time required to complete an investigation, Ms. Maynard said that

while she would love to be able to complete her investigations within a year, this is

139

See: OIC, Backgrounder ETHI March 7, 2023. The backgrounder provides information and statistics relating

to the OIC’s investigation of complaints.

140

TBS, 2016–17 Estimates; TBS, 2023–24 Estimates.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

difficult with her office’s inventory of complaints, which sometimes involve secret or

very complex information. She said that the number of complaints continues to grow,

and as a result, her office must decide which cases to tackle. She would like to have at

least temporary funding for additional investigators in order to “get rid of those files that

are stuck in the inventory,” which always stays at around 3,500 or 4,000 cases. However,

even if her office had more resources, the lack of resources in organizations subject to

the ATIA means that they may not be able to respond to investigators. This points to a

need to invest in the entire access system.

In fact, to reduce the number of complaints, Ms. Maynard said three things need to

happen. First, federal institutions have to respond to access requests within the legislated

timelines. Second, ATIP units need to be resourced, and public servants need to be made

aware of their collective duty to provide access to information. Third, institutions need to

better manage their information.

Other witnesses commented on the allocation of resources at the OIC and its impact on

complaints investigations. Mr. Drapeau criticized the allocation of human resources at

the OIC. He said that the OIC is a particularly top-heavy organization, with a senior

leadership team composed of one commissioner, three assistant commissioners and five

senior executives. He suggested that the OIC’s reporting structure means that less than

50% of the staff investigate complaints. Mr. Cutler added that there is a problem in the

allocation of resources at the OIC and in its ability to do the job.

Mr. Drapeau suggested that the Office of the Auditor General examine how many

complaints come in and how long it takes to review them to determine whether there is

a better way to do things and whether more staff is needed.

Mr. Conacher made a similar recommendation. He recommended amending the ATIA

to require Parliament to provide the OIC with the annual funding needed to ensure

effective, timely enforcement of the ATIA, effective training, and effective promotion of

the right of access. This funding should be based on the budget presented by the OIC

and an assessment by the Auditor General or the Parliamentary Budget Officer.

141

Mr. Drapeau said that it is not unusual to wait a minimum of two years for an OIC

investigation to be completed. He added that these delays have a very negative impact

on users. Under the ATIA, they can only apply to the Federal Court after the OIC has

published its investigative report. He therefore recommended putting a one-year time

limit on completing an investigation, failing which a complainant should have the right to

141

DW Brief, p. 4.

go to Federal Court. Mr. Rubin agreed with Mr. Drapeau’s recommendation.

142

Mr. Beeby

recommended an even shorter period of six months.

In a brief to the Committee, Mr. Malone recommended amending the ATIA to allow

anyone who is dissatisfied with the government’s response to an access request to seek

judicial review of government conduct without having to wait for a complaint to be

assessed by the Information Commissioner or for an investigation report to be issued.

Mr. Conte argued that the ATIA “obstructs access to the courts through a drawn-out

preliminary appeals process with the Office of the Information Commissioner.” He said

that this restricts the capacity of journalists to do their job. He noted that the U.S.

permits direct access to the courts without delay, allowing journalists to obtain

documents through a lawsuit.

However, Ms. Maynard is worried that if someone has to go to court, they will not be able

to represent themselves without review and advice from an independent commissioner to

help them win their case. Unlike individuals, her office is able to review documents and

challenge an institution based on the information it has on hand. Individuals receive

redacted documents.

Mr. Conacher disagreed with the recommendation to put a one-year time limit on

completing an investigation before being able to apply to the Federal Court. He said that

the courts don’t move any more quickly and also have a backlog. Mr. Wernick also noted

that the Federal Court is a busy place dealing with all aspects of federal law. He believes

the court could become clogged if it is too easy to access it for smaller matters that

could be solved by a dispute settlement mechanism or an intermediate body.

CHAPTER 6: TREASURY BOARD REPORT ON THE REVIEW OF

ACCESS TO INFORMATION

In June 2020, one year after Bill C-58 came into force, the TBS launched a review of access

to information, which included a review of the ATIA. In its Terms of Reference for the

Access to Information Review, TBS stated that the review would focus on three things:

reviewing the legislative framework; opportunities to improve proactive publication to

make information openly available; and assessing processes and systems to improve

service and reduce delays.

142

Rubin Brief, p. 10.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

According to the Access to Information Review Timeline, TBS held discussions in 2020

with Indigenous groups and representatives, the Information Commissioner, and the

Privacy Commissioner, as well as with federal institutions. In 2021, TBS launched public

engagement and held workshops and round tables on the three streams of the review. It

also continued its engagement with Indigenous groups and representatives and with

federal institutions that year.

143

In December 2021, the TBS issued an interim What We Heard Report. The spring of 2022

was devoted to more Indigenous engagement. A second interim report, the Indigenous-

specific What We Heard Report, was published late 2022.

The President of the Treasury Board said that TBS used a very thorough approach to

ensure Indigenous participation in the review of access to information. Ms. Luelo said

that Indigenous communities were consulted over a nine-month period.

In 2022, TBS also published a Costing Study of the Access to Information Regime and a

document entitled Key actions on access to information. This document contains a list

of key actions to improve access to information and transparency that do not require

legislative amendments and are either implemented, planned or underway

in government.

144

On Tuesday, 13 December 2022, the President of the Treasury Board presented her

report to Parliament on the review of access to information.

145

The report does not

recommend any specific legislative changes.

During her appearance in April 2023, the President of the Treasury Board explained that

the TBS review focused on consulting Canadians, especially Indigenous peoples, to learn

more about the access barriers they were facing. She said that the purpose of the report

was to identify challenges, not to develop an action plan. Instead, it provides the

foundation for the work that TBS is doing to improve the access to information system

and has the following objectives: improve service delivery, enhance staff capacity, meet

the needs of Indigenous populations more effectively, and continue to develop

measures such as declassification.

143

TSB, Access to Information Review Timeline.

144

TBS, Key actions on access to information, 2022.

145

See also: Government of Canada, The review process (provides a list of all reports issued as part of the

review).

The President of the Treasury Board said that an action plan setting out the next steps

that the government will undertake for administrative purposes and looking at possible

legislative changes is being developed. TBS will present it by the end of the year.

146

Regarding amendments to the ATIA, the President of the Treasury Board said the

following: “Some have advocated changing the act. My current priority is to improve

administration of the existing law.” She added that the government “strengthened

the act less than four years ago” and that there is a lot of work to do to address the

underlying systemic issues surrounding the access to information system. The

government continues to take action to achieve that. It will take the time needed to look

into next steps, which could include legislative changes.

147

When asked if the government will soon launch a major reform of the ATIA, the

President of the Treasury Board said the following:

When we announced Bill C-58, we said that we would carry out a review of the act in

five years. Part of that work is already under way, to see how we can make legislative

changes. The most important thing to note at this point is the necessity of putting tools

in place. The digital system plays a vital role in meeting the demand. As Ms. Luelo

mentioned, in the past, records tended to be paper-based, but today, many records are

available through Teams meetings, for instance, or are stored in databases. That means

the data are not limited to paper records, so we are in the process of introducing

administrative tools to enhance the system.

The President of the Treasury Board also pointed out that Bill C-58 was the first bill to

amend the ATIA after it had not been reviewed in 30 years. It gave order-making power

to the Information Commissioner and put a proactive publication system into the

ATIA.

148

She added that the review of access to information helped TBS understand the

need for a digital system able to support the processing of access requests.

Comments by the Information Commissioner

Ms. Maynard expressed disappointment with the TBS report on the review of access to

information. Although she was pleased that the government took note of the concerns

she raised regarding lengthy consultations between institutions, as well as the lack of a

declassification framework and the resulting negative impacts these have on the access

146

ETHI, Evidence, Fortier.

147

ETHI, Evidence, Fortier.

148

ETHI, Evidence, Fortier.

THE STATE OF CANADA’S ACCESS

TO INFORMATION SYSTEM

regime, she found it unfortunate that there are no proposals for concrete actions to go

with the government’s analysis. She said:

I find few, if any, tangible commitments within the report’s pages that will begin to

effect change now in areas that require immediate attention. More importantly, it

appears that the government has decided that no further modifications to the law are

to be made, at least not in the near term.

Ms. Maynard said that while the report is a good summary of the issues facing the

access to information system, these issues are already known, and were known before

Bill C-58 was passed in 2019. She expressed disappointment that the report does not

come with an action plan.

For example, Ms. Maynard said that the report contains comments and findings about

exemptions and exclusions that are not consistently applied or understood properly.

However, it does not have any recommendations for changing the wording of these

exemptions in the ATIA or reviewing the extensions of these exemptions. She believes it

is time to look at each exemption and exclusion and to make decisions, for example, by

answering the following questions:

Do we want section 21 on advice and recommendations to be for 20 years? Do we want

cabinet confidence to still be prohibited from my review? Do we want to put a timeline

for consultations in the act so that we don’t rely on an institution’s policy about that?

Ms. Maynard said that the ATIA needs to be considered section by section. She believes

that “the act has to be reviewed as much as the system needs to be addressed.”

149

In her

view, Canada needs to have an access to information act that is modernized up to 2023.

Ms. Maynard said that she has no confidence “that bolstering Canadians’ right of access

to information will figure prominently in the government’s financial priorities,” adding

that access to information disappeared from ministerial mandate letters.

150

Comments by Other Stakeholders

Mr. Larsen found it discouraging to read in the TBS report on the review of access to

information that “the greatest complaint about the ATI regime is poor compliance with

the law.” He spoke about the importance for senior officials, elected representatives and

Cabinet to set the tone. When witnesses, commissioners and committees describe an

149

OIC, Letter to Committee, 27 April 2023. The Commissioner reiterated that in her view, the Access to

Information Act has to be reviewed as much as the system needs to be addressed.

150