Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 54 - Evidence - December 6, 2018
OTTAWA, Thursday, December 6, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 10:39 a.m. to continue its study of the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to our morning meeting of the Legal and Constitutional Affairs Committee.
[English]
We will resume our consideration 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.
We had to suspend our consideration of this legislation to give priority to Bill C-76, an Act to amend the Canada Elections Act. We have completed our consideration of that bill. We are resuming our consideration of Bill C-58.
This morning, we have the pleasure to welcome a representative from the Department of Immigration, Refugees and Citizenship Canada.
[Translation]
We are pleased to welcome Michael Olsen, Director General, Corporate Affairs. He is accompanied by Simon Cardinal, Director General, Corporate Secretariat.
[English]
I think you know the procedure, Mr. Olsen. I invite you to make your presentation.
Before I give you the opportunity to do so, I inform honourable senators that the annual report of the department on the access to information is available in both languages. I suggest you have it in front of you because there are charts and very precise data. It might be helpful for your consideration, discussion and debate with Mr. Olsen and Mr. Cardinal. Mr. Olsen, the floor is yours.
Michael Olsen, Director General, Corporate Affairs, Immigration, Refugees and Citizenship Canada: Thank you, Mr. Chair. Good morning. My name is Michael Olsen. I’m Director General of the Corporate Affairs Branch at Immigration, Refugees and Citizenship Canada. With me here today is Simon Cardinal, who is the Director General of the Corporate Secretariat at IRCC. I want to thank you for welcoming us here today.
Before I take questions from the committee, I would like to speak about our department’s ATIP performance and then move into a discussion relating to Bill C-58.
Our department has an access to information and privacy division with approximately 107 staff and a network of 33 liaison officers across the many branches and regions of the department.
[Translation]
In 2012-13, the department received 30,124 ATIP requests. Since then, the number of requests has more than doubled. In 2017-18, we received more than 77,602 ATIP requests, an increase of 23 per cent compared to the previous year. For the current year, we are again seeing an increase of 23 per cent of the number of requests received. In 2017-18, our last reporting year, IRCC received more access to information requests than any other federal institution. IRCC receives about half of all ATIP requests addressed to the federal government.
[English]
Despite this marked increase in volume, IRCC was able to maintain a compliance rate of 71.5 per cent for access and 59 per cent for privacy. The ATIP division has been efficient in managing the volume of requests received in order to meet the legislative deadline.
IRCC has launched a number of initiatives in an effort to improve its performance and to address current challenges. Although these initiatives have increased productivity year over year, IRCC continues to create strategies aimed at increasing efficiency, which in turn decreases our backlog and improves our compliance rate.
IRCC continues to collaborate with our stakeholders from the Canadian Association of Professional Immigration Consultants, the Immigration Consultants of Canada Regulatory Council and the Canadian Bar Association, who together submit more than 60 per cent of all ATIP requests. IRCC ATIP provides information sessions, shares best practices and continuously works collaboratively with stakeholders.
The vast majority of ATIP requests received and processed within our department concern immigration case files. The department holds information on millions of individuals and collects significant amounts of personal information annually due to applications for citizenship, passports, permanent and temporary residents. This, in turn, has a direct effect on the ever-growing number of ATIP requests received by IRCC.
IRCC has been leading a task force that has been looking at uncovering the root causes of increasing ATIP volumes and is developing an action plan to improve the ATIP division’s performance. We are looking at ways to reduce the perceived need for our clients to make ATIP requests, which in turn will ultimately lead to better client service.
A total of 280 official complaints were filed to the Information and Privacy Commissioner this fiscal year, representing less than 1 per cent of all requests processed during this period.
The duty to assist is taken very seriously at IRCC. The ATIP division notifies requesters of possible delays in service. We are acting proactively to minimize the number of complaints.
The IRCC runs a number of proactive training activities, including in-person and online options such as workshops, mandatory and voluntary training courses and awareness sessions. Such training to IRCC employees focuses on, among other things, the importance of safeguarding privacy and protecting personal information.
IRCC is fully committed to the principle of greater transparency and providing Canadians with more accessible information. We have been preparing ourselves to ensure a smooth roll-out of Bill C-58 legislation when it is implemented in order to meet public expectations.
[Translation]
Mr. Chair, thank you once again for inviting us to present IRCC’s perspective on this important topic and for welcoming us here today. We would be pleased to answer any questions from the committee members.
Senator Boisvenu: Welcome to our guests. Mr. Olsen, you’re talking about a 23 per cent increase in access to information requests for 2017 and it appears that you will be exceeding that percentage for 2018. Is there a link between those increases and the increase in the number of illegal immigrants entering the country?
[English]
Mr. Olsen: Most ATIP requests are related to temporary resident visas. The department processes several million temporary resident visas every year. Typically, people who are refused those visas want to know why.
We don’t anticipate a huge increase in the number of ATIPs as a result of any irregular migration. We haven’t necessarily been tracking that per se. It is a relatively small number compared to the overall volume of applications we receive.
[Translation]
Senator Boisvenu: So how do you justify that increase, which is happening pretty much at the same time as the arrival of illegal immigrants in Canada?
[English]
Mr. Olsen: There may be a correlation, but I don’t believe there is causation. What we have with our temporary resident visa volumes, they are now increasing, I think, more than 20 per cent a year now. That is the biggest driver, as far as we know, with respect to the number of ATIP requests that we have received.
As I mentioned, what we are doing is undertaking a root cause analysis of why people make ATIP requests. Once we have conducted that root cause analysis, we will start undertaking initiatives to try to reduce the number of ATIP requests that we receive. We will be able to see exactly what initiatives are bearing fruit and where we have been able to hit the mark on identifying the root causes and what is making people make ATIP requests.
[Translation]
Senator Boisvenu: Since those who enter Canada illegally may eventually face the possibility of being deported, can this lead to an increase in access to information requests?
[English]
Mr. Olsen: It may. I really can’t speculate on the number that we have received or will receive as a result of that.
[Translation]
Senator Boisvenu: What type of clientele is driving the increase in requests that you are currently experiencing? Lawyers? Government agencies? Immigrant support organizations? From which sectors of society are these requests coming?
[English]
Mr. Olsen: Again, the vast majority of our requests are regarding case files. Typically, it’s people who want to know the status of an application or people who have applied for a temporary resident visa, for example, and have been refused and want to know why they have been refused.
Again, our temporary resident visa application volumes are increasing quite rapidly.
Even just a small percentage of those people who are refused making an ATIP request will drive our volumes very quickly.
[Translation]
Senator Dupuis: Thank you for being here, Mr. Olsen and Mr. Cardinal. I would like to come back to the statistics you provided. According to the statistics we obtained, 50,000 requests had been made to the Department of Immigration, Refugees and Citizenship. However, we are talking about 77,000 requests, according to today’s figures for 2017. I’m sorry, I don’t mean to mislead you. The 50,000 requests were for the 2016-17 year. The 23 per cent increase brings us to 77,000 requests.
When you say that you have set up a working group to start thinking about the reasons for the increase, have you come to any conclusions? Has the working group finished its consideration?
[English]
Mr. Olsen: The task force is working as we speak. The meetings for trying to determine the root causes have been going on for several weeks. We plan to have a report — I hope later this month — regarding the root cause analysis, and we’ll see. We’ll get a better sense of why people are filing ATIP requests and what we can do to give them more information or to say, “Wait a second, you don’t need to file an ATIP request. Here is what we can give you.” We’ll see.
[Translation]
Senator Dupuis: You mentioned visa applications for temporary residence. People are wondering why their visa application was rejected or they want to know the status of their file.
Do you think the process itself is clear enough for citizens or aspiring citizens? Is there an average timeframe that would allow someone waiting for a visa to know that their file is being processed? The annual report mentions that the processing time ranges from 15 days to more than one year. Do the people who apply know about those times? Can people easily find the department’s annual report to find out how their application is being processed in terms of delays, among other things? Do you have that type of information? Do the people who go through the system have access to that information?
[English]
Mr. Olsen: Information is printed on our website that talks about the expected wait time or the average processing time for different streams. People would have an idea. Every application is looked at on its own merits, of course. We can’t necessarily say if the average time is X number of days that it will take a certain applicant that number of days. We do our best. The department does our best. I’m not on the operation side, but we do our best to ensure that requests are processed as quickly as possible — ATIP and visa application requests.
[Translation]
Senator Dupuis: So there is information on the website, but as part of the process itself, no direct and specific information on those issues is provided to visa applicants.
[English]
Mr. Olsen: Not directly, although Simon may know better than me. He just came to the Corporate Secretariat from the operation sector.
[Translation]
Simon Cardinal, Director General, Corporate Secretariat, Immigration, Refugees and Citizenship Canada: The department is exploring various options, including how we could provide more information on the various processes to clients who apply. That would reduce the number of questions sent to the Access to Information Service or by other means. This takes time on a technical level. We need to determine how we can share the information. This is definitely a solution that the department is considering.
Senator Dupuis: So the answer to my question right now is no. No specific information is provided to a visa applicant.
Mr. Cardinal: No. However, the department has telephone and other services.
Senator Dupuis: I have an additional question. I would like to have your analysis of the situation. We are talking about 77,000 access requests, with a relatively small number of formal complaints. Of the 77,000 requests and 280 complaints, have any complaints been resolved? What is your relationship with the Office of the Information Commissioner in terms of complaints? Why is it that many people make requests, but few complaints are filed? Is there an explanation for that?
[English]
Mr. Olsen: I acknowledge what you say. I don’t know why people don’t make complaints. I think ultimately they are happy, even though we may take more time than is allotted under the legislation in certain cases, with receiving the information when they do receive it.
We have a very good relationship with the OIC. We have been working very hard to make sure there is a collaborative relationship and that we work together, to resolve complaints as quickly as possible. We have been having biweekly teleconferences to say, “What are the complaints that you see as priorities for us to deal with from your perspective?” For us, all complaints are priorities. We treat them, if you will, the same.
One complaint is too many. We want to treat them all the same and treat them very quickly. The OIC will say, “Well, there is this one, which we think is more of an issue.” So we’ll work on that. We have done very well I think. And I think the OIC would agree with my characterization that we have done well this year in managing complaints.
You may be aware that to formalize the complaint process, the OIC can send a section 35 letter to the department. Then if things still don’t work out, they can send what is known as a section 37 letter. This fiscal year, we have received one section 35 letter from the OIC and we have received zero section 37 letters. Last year, there were 10 section 35 letters and there was one section 37 letter. That was, in fact, the first in the history of the department.
We have worked very well with the OIC. We have a constructive and collaborative relationship of which I am partially proud, because we work together.
Senator Gold: In your annual report, I see on page 2 you describe the three units in the access to information division, plus 34 liaison officers who are responsible for coordinating those activities. We heard from the Information Commissioner. He talked about some challenges generally through the system about attracting and retaining qualified people to work in this area. She hoped that the growing culture of access would attract more people and help them stay.
Could you talk to us about your experiences with staffing, training and retention, dealing with access-to-information requests? Do vacancies that you may have bear upon your rate of response? Do you think Bill C-58’s provisions giving you a discretion to decline requests that are vexatious, et cetera, might improve the working environment for those who are working on these matters?
Mr. Olsen: We are a very busy ATIP shop in the government. The busiest, as mentioned. We receive more than half of all ATIP requests for the entire government.
Staffing our group to make sure we are equipped to respond to those requests is a challenge.
People move on to different jobs. Sometimes it’s people who are very experienced and they are often replaced by people who may not be as experienced. Often people are attracted to work at IRCC because they know it is the biggest ATIP group in the government and they want to experience that.
We are very successful. My director of ATIP, who is with me here, she and her team are very successful at recruiting good people to work at ATIP. That said, before somebody leaves and somebody is hired there can be a bit of a gap which can have an impact on the work that is done. We work every day to try and increase the productivity, to find efficiencies in the system so that we can process requests more quickly. We have seen an increase in productivity this year of over 30 per cent just by reorganizing how we are organized, and how we respond to requests. We have seen a productivity increase of 30 per cent, which is, I think, very good.
Vacancies will have a short-term impact, and a bit of a long-term impact, if we lose people who are very experienced. If they retire or decide to go to another department and they are replaced by people who don’t know the department, that can have short-term impact, but not typically a long-term impact. Your question, with respect to declining requests that are vexatious, I suggest that would be a good tool for us to use. I hope we never have to use it. There is scope now to work with a requester to say their request is going to generate several million documents, for example, and that’s an awful lot. We don’t think you want that many, would you mind scoping down your request? Often, we can reach an agreement with the requester to scope down a request. Sometimes we can’t. In those rare instances, a provision like this in the legislation may be helpful to us and to the taxpayers of Canada. I can’t predict the future. I would hope we would use that provision very rarely.
Senator Pratte: I’d like to follow up on Senator Dupuis’ questions to try to better understand how things are working. When someone requests a visa, I suppose they get a written reply. Does that reply include an explanation as to why the visa request was rejected?
Mr. Olsen: Yes. There is what is known as a refusal letter. The letter outlines why the person was not granted a temporary resident visa.
Senator Pratte: If this is the case, why is it people feel the need to go through an ATIP request? To have more information? That means the information they got was not complete enough for them to understand what happened.
Mr. Olsen: Exactly right. We don’t know the exact reason for that. We surmise it’s because the refusal letters don’t tell them as much as they want to hear. There are some things we can’t put in refusal letters, because we are potentially dealing with security issues or program integrity, fraud issues, or privacy issues. Those are things we can’t necessarily share with people. We are looking at a process by which we would tell them more. We are also looking at a pilot project where we would say to people, here is your refusal and here is more information than you are currently getting. We want to see if that may have an impact on what is happening. We have to do the root cause analysis, we surmise people are complaining because they are not getting as much information as they would like. We will know that in a little bit. Then we will take steps to see what we can do to get more information on how we can lower the possibility of them making an ATIP request, which is better for everybody.
Senator Pratte: Thank you. You mentioned that another large portion of the ATIP requests are simply people who want to know the status of their file. Why do they have to go through an ATIP request to know that? Can’t they just call and say that they made the request five months ago and would like to know where it stands?
Mr. Olsen: Yes. They can do that. We do have a client support centre. They often make phone calls and find out the status of their application. Sometimes they may not trust what they are hearing and that’s their call. I think they can trust what they are hearing, but they may not trust what they are hearing. At that point, they may want to be positive by submitting an ATIP request. An ATIP request costs five dollars, which is not a barrier to most people. They will make that ATIP request to be sure they have all the available information. Again, I want to go back to the fact that roughly 60 per cent of our ATIP requests are from lawyers and representatives of clients. In providing the most complete service to their clients they will submit an ATIP request just to make sure we are covering all the bases, and that is fine.
Senator Pratte: In your annual report it is indicated there is a small but not insignificant number of requests to which you reply in more than 121 days. It’s 7 per cent for ATIP requests. For personal information it’s 15 per cent. What are the characteristics of these requests that take more time?
Mr. Olsen: Typically a request that takes a lot of time are those where the information may be more sensitive. We would then have to then consult with our partners in the Government of Canada, such as CBSA or RCMP. We have to consult just to make sure the information that we have and that we would propose releasing is okay with them. Typically, it’s consultations with others that would take that long to make sure we are not going to get into any trouble by releasing information.
Senator Pratte: Thank you.
[Translation]
Senator Carignan: I understand that 37,000 requests come from the commercial or private sector. That’s almost half of the requests. Are most of those requests from consulting firms or professional firms representing clients?
[English]
Mr. Olsen: Yes, that’s correct.
[Translation]
Senator Carignan: If I understand correctly, it sort of works like a court record; it is treated like a request for a transcript. You handle it like an access to information request.
[English]
Mr. Olsen: If I understand you correctly, yes, that is correct.
[Translation]
Senator Carignan: I also understand that that’s why you have an extremely high rate of electronic communications, because almost 95 per cent of communications are electronic, not in paper format.
[English]
Mr. Olsen: That’s correct. The vast majority of our requests arrive electronically. We would go back and forth with the requester electronically. We still receive a very important percentage of our requests by paper. People can still mail it in. In that case we would have to go back by mail.
[Translation]
Senator Carignan: I am surprised by the number of exemptions or refusals: 16,447 for exemptions related to criminal investigations, plus 12,000 for exemptions related to defence or subversive activities; that makes 30,000 cases. So you are rejecting almost half of all access to information requests based on the files dealing with criminal investigations or subversive activities. What am I to understand from those statistics?
[English]
Mr. Olsen: The statistics are correct. There are maybe more than one exception in a case. It’s not necessarily this plus that. You could have, in fact, all three exemptions applied to the same case.
[Translation]
Senator Carignan: Isn’t there a way to improve the system for electronic requests? For example, have you transferred the status of the person’s request or analysis to electronic format so that the person can track the file or obtain copies of files that concern them? Do you have a portal from which people can obtain a copy of their file or information related to the communication of their file?
[English]
Mr. Olsen: Improving the client experience for everyone who submits any kind of immigration application to the department is one of the stated priorities of the department. We are undertaking many means to try to improve that. These are in the early stages at this point. The department has been growing rapidly in the last few years. I think everyone is aware of that. We are taking steps to improve the client experience to make sure that people can get the information they need or want to have, very quickly, without having to go through ATIP.
[Translation]
Senator Carignan: So, with my file number, I don’t have the opportunity to consult the website to find out the status of the analysis. On the Canada Post website, with my number, I can track the package I send and its location, but in the case of my immigration file, that’s not something I can do.
[English]
Mr. Olsen: Unfortunately, at this point it does not work like that. That is the ideal we would like to reach. We are not there yet. There are technical and other reasons why it’s difficult to get to that point. That said, client experience is a priority and we want to get information to people. As someone who has to buy a passport, I myself would like to be able to know: Where is it now? Where would it be? There are things we are doing. We are not there yet, but we hope to get there soon.
The Chair: It would mean a major change to your computer system?
Mr. Olsen: That is correct.
The Chair: Do you have the money for that?
Mr. Olsen: That is outside of my area. I know there are a lot of necessary changes to our computer systems that happen all the time. We prioritize those changes.
The Chair: Welcome, Senator Simons, to your first Legal and Constitutional Affairs Committee.
Senator Simons: I’m filling in today, but I’m keenly interested. Up until six weeks ago, I was a journalist. I’ve filled out more than my share of ATIP and VoIP in Alberta requests. I know the process can be complicated and long, that you have to have the conversations about scoping and that you have to stay on top of the deadlines.
It does not escape my notice that relatively new journalists and citizens file ATIP applications. The overwhelming majority are coming from consultants and lawyers, who are undoubtedly charging their clients for doing this. With all deference to the many lawyers in this room today, I have to wonder to what extent lawyers are simply filing requests on a pro forma basis as something that they can add to the bill for their clients, particularly the clients who are coming on work visas. I’m not talking about refugees or people who are making family reunification applications but people who can well afford to pay a lawyer or, even if they can’t, the lawyer is charging them.
It seems to me you have created a situation where you could have a cottage industry for lawyers to simply go on filing ATIP requests, billing their clients for doing it, whether there is legitimate, new information to be gained in that process.
Mr. Olsen: I can’t speak to what lawyers may or may not be charging. I don’t know. I don’t have that knowledge. We have as a goal the desire to get the information to people. It is their information; they own it. We’d like them to be able to have access to it. That said, we have to take steps to ensure they are getting it following privacy concerns, security, all the rest. If people want to use a lawyer or feel they have to use a lawyer, that is something we’d like to address. I’d like everybody to be able to go on the immigration or passport website and be able to find out what is there. We are not there right now.
Senator Simons: If you did that, I’m guessing you might have far fewer requests from lawyers and consultants. There are huge problems in this country with consultants who overbill immigration clients, providing the services that they could easily access themselves, but they often don’t have the language skills or the self-confidence to do so.
As a secondary question I’m curious to know this: Your complaint resolution rate is much higher for access requests than it is for privacy requests. Can you explain what the difference is? Why are the privacy requests taking longer to resolve and apparently are more difficult to handle?
Mr. Olsen: Honestly, I do not know the answer to that question.
Mr. Chair, we can look into it and get back to you.
The Chair: Thank you. We will be waiting for that additional information.
Senator Boniface: Thank you. I’m looking particularly at the reference in your report to the complaints that were abandoned or discontinued. I think you refer to 52 of them. I’m interested whether you have done any analysis to determine why they would be abandoned or discontinued.
Mr. Olsen: We do not necessarily hear why they are abandoned or discontinued. Sometimes people will, or could, in a fit of pique, say, “I’m really annoyed. I’m going to complain about this.” Then, after a passage of time, they may say, “It’s not worth it. I don’t want to continue this. I have other things that I want to do.” That can happen. Or they may have come across information; or they may have, for other reasons, decided it’s not worth it to continue.
Senator Boniface: You said you have a task force looking at a number of issues. Is this one of the aspects they are looking at, or is this just information that is hard to obtain?
Mr. Olsen: We would have to speak with the requester in each case. Sometimes they may say, “It’s none of your business why I wanted to discontinue or abandon it,” and that’s fine; it’s their right. We want to deal very quickly and assiduously with complaints.
We want to make sure we are processing requests as quickly as possible; that we, in fact, are getting information to people or taking other means so they don’t feel they have to make requests. Therefore, if they don’t have to make requests, the probability of a complaint would go down.
Our first priority is to see what we can do about that 23 per cent annual increase in ATIP requests. We think if we can change that to even a 10 per cent annual increase in ATIP requests, we’ll see an increase in our compliance rate and we’ll also see a decrease in our complaint rate, we believe.
Senator Boniface: Thank you.
[Translation]
Senator Boisvenu: First, I would like to thank our guests again. Recently, a victim contacted my office because she could not determine whether a criminal had been expatriated after his release from prison.
Is it easy for victims to find out, through access to information, whether those individuals who have, in many cases, murdered a loved one, have been extradited or does it take years and years to get the information?
[English]
Mr. Olsen: We are not responsible for deportations. That would be CBSA. I do not have that knowledge. We can try to find out. It is CBSA who would be better placed to answer that question.
[Translation]
Senator Boisvenu: I’m sorry, I didn’t direct my question to the right department.
I have another question, however. The federal bureaucracy, compared to the municipal or even provincial bureaucracy, is quite far removed from the citizens. Are the distance between citizens and the federal administration and the cumbersome federal bureaucracy not the reasons for the almost explosive increase in access to information requests?
[English]
Mr. Olsen: If you are speaking of the ATIP process itself, no; I apologize.
[Translation]
Senator Boisvenu: No, access in general. For the general public, the federal government means Montreal or Ottawa, which is very far from the regions, and requests for information can come from anywhere. However, is the fact that there is no proximity between the federal government, the various departments and the public not one of the main reasons for the many access to information requests? This is often the only way for Canadians to have access to their files.
I am referring to what the senator said earlier, namely that it is not right for someone whose visa application was rejected to have to go through access to information. There should be communication between public servants and the people so that they are not required to make access to information requests. Otherwise, it only adds to the bureaucracy. Instead of establishing good person-to-person communication, the Access to Information Act is used. Legislation should not be used for communications between the public and public servants. It should be used for more important matters. It is as if the administration is creating its own problem. Could you tell me your thoughts on that?
[English]
Mr. Olsen: I agree. If there is a visa refusal, the reasons for it should be clearly stated to the applicant. There should not necessarily have to be an ATIP request. We are taking steps to figure out what we can do to address that so people are not going to think that I’m not getting the information I need in this visa refusal letter, I want to know more, and I’ll get more through an ATIP request.
We are trying to take steps to say you don’t have to do that; so the person receiving the refusal says, “Okay, I was refused. That’s unfortunate, but I understand exactly why, and there’s not going to be any benefit to me to make a request.” That is the ideal we are striving for. We are not there now. We hope to reach that. I can’t say exactly when. These things do take time. That is our goal.
[Translation]
Senator Boisvenu: I do not think the bill will correct this situation, because the root problem is cumbersome bureaucracy in terms of communication with the public.
Senator Dupuis: Mr. Olsen, I would like to understand the 23 per cent of the requests. You say that the same trend can be observed for 2018. Is it a one-time increase for reason X, Y or Z — there can be all sorts of reasons — or is it an increase that you have systematically observed over the past five, seven or nine years? In your opinion, is there a link between this increase and the number set in the immigration policy for potential applicants?
[English]
Mr. Olsen: The 23 per cent annual increase has been noted by us for several years. It’s hard to unpack what is driving that. Our computer systems have not really allowed us to delve deep and data mine and say why is this happening and who is requesting under what circumstances? We want to improve that.
Is there a link to immigration levels? Immigration levels would have some bearing. I don’t know the exact number. There are many drivers for ATIP requests. There is permanent residence, which is really the immigration levels. There is temporary residence, citizenship and passport. There are a lot of reasons why someone might make an ATIP request. That’s on the case files. Then we get things such as I want to know everything about this policy decision. Those are different types of ATIPs.
What’s interesting is that the ability of people to make ATIP requests has become much easier in the last few years. We piloted electronic requests. Until five or six years ago, everyone had to make a request by paper. You had to write a cheque or send a money order. They can go on, 30 seconds, whatever time of day and night, and make an ATIP request. It is much easier for people to make an ATIP request. I’m all in favour of that.
It has not necessarily gotten easier for people to process ATIP requests. There has been that disconnect. There are a lot of different things driving ATIP requests, including the rise in ATIP requests and the ease with which people can make those requests. That’s why we continue to see increases. If you look at other government departments, their increases may or may not be as rapid as ours, but since we are starting from a big percentage increase of a big number, it is a big number
[Translation]
Senator Dupuis: As I understand it, about 60 per cent of the requests were made by employers, lawyers or applicants’ representatives.
[English]
Mr. Olsen: Yes, roughly.
[Translation]
Senator Dupuis: What interests me is the remaining 40 per cent. Do you know the traits of those applicants? For example, if I apply to renew my driver’s licence, I can do so online or by mail. I can do that a month in advance. So I have some flexibility. It is less demanding for me than for someone who is applying for temporary residence and is worried that their application may be rejected. Of those 40 per cent, how many are not fluent in either English or French at the time of application?
[English]
Mr. Olsen: The other 40 per cent would be split among four different groups. There would be individuals making those requests. There would be academics and media making requests. There would also be a group called “Did not identify.”
[Translation]
Senator Dupuis: What do you mean?
[English]
Mr. Olsen: When you make a request, you can choose to identify — it’s not required — what group you belong to, whether you are a representative of academia, lawyers or media. There is also “Did not identify,” so it’s blank. I don’t know the exact numbers. We can get them for you. The 40 per cent would be broken down among those different groups.
With respect to English or French, we don’t follow or track that. We don’t request that people say what is your mother tongue or what is not your mother tongue. We don’t follow that.
[Translation]
Senator Dupuis: In your annual report, 2,593 out of 64,000 chose to not identify. That’s a relatively small number.
I would like to come back to Senator Boniface’s comments about abandoned requests. What struck me was that the number of requests abandoned between 16 and 30 days after the request, 732, is about the same as the number of requests that were abandoned more than a year after the request. So, 817 is the highest number of requests abandoned after more than one year. So it’s not necessarily because people think you have mismanaged processing times. There seems to be almost as many, 732, with recent requests. Am I mistaken?
[English]
Mr. Olsen: Yes. The fact that they are so similar would just be coincidence.
Senator Gold: We heard from a number of witnesses that they want the Access to Information Act to contain a public interest override whereby an institution could release otherwise exempted information if it is in public interest. Can you speak to whether such an override would be relevant or useful to the work you or your department does?
Mr. Olsen: Thank you. Public interest is difficult to define. It’s not really defined and I have not heard anyone really define it, certainly not in the legislation. Often when people say “public interest,” they mean my interest. I’m interested in that information. Then they say, “Because I’m a member of the public, therefore it’s in the public interest,” which is a discussion I have personal views on but I don’t think that’s necessarily something that would really come into the conversation or should come into the conversation. I don’t want to evade answering. Lord knows I don’t want to evade answering. At the same time, as I say, I’m not sure that you can really make a strong case for public interest on a lot of things. A lot of things, especially for us, are personal information. As I say, there’s public curiosity for that information, but there’s not necessarily public interest for releasing that information.
Senator Gold: Do I understand that when you decide after consultation with other partners that information should not be shared for whatever reasons, in your experience, there aren’t circumstances where you think that even though that’s the view, there might be an overriding public interest, that if legislation allowed you to release that information, would be appropriate? Is it a question of relevance to the kind of requests you get that is really my question.
Mr. Olsen: There is guidance already from Treasury Board Secretariat on what constitutes public interest. In that regard, we follow that and we follow that very assiduously. But I think a public interest override, again, there would be scope for interpretation. How would you ensure it was the same interpretation across departments and time? I don’t want to express opinions on the legislation, but I have a little bit of trouble agreeing with it.
Senator Pratte: Bill C-58 provides for the Information Commissioner to have the authority to issue orders. If the bill is adopted as such, would that change anything in your relationship with the Information Commissioner or with how you handle complaints, for instance, or things like that?
Mr. Olsen: I can’t predict. I do not believe it would. As I say, we have a very close and collaborative relationship with the OIC. I would strive to have the order-making powers never invoked on IRCC. That would be my goal. I think it would be achievable. I think through discussion, through negotiation, you can always arrive at an acceptable solution. I can’t predict that, of course, because the future is a big time, it’s a long time. I would strive to ensure that the order-making power did not affect us.
Senator Pratte: Thank you.
Senator Simons: I want to come back, if I may, to the fact that 60 per cent of ATIP applications are coming from lawyers and consultants. I’m wondering if in your root cause analysis you’re looking to see if there are particular law firms or consultancies that are clogging the works, that are frequent flyers, if you have an algorithm that can see if there are particular people who are filing multiple ATIP applications, perhaps not vexatiously, but bordering upon vexatiousness? Because when you tell me that you have such a disproportionate number of ATIP requests to any other government department, and when I see how few of them are coming from journalists and academics and how relatively few of them are coming from the people who are directly affected, I just can’t help but wonder if there is a way that you could track to see how much of this volume is coming from a few particularly active actors?
Mr. Olsen: It’s funny in that regard, the groups I mentioned in my opening remarks that we’re working with, they don’t cheer the fact that they make up 60 per cent of all ATIP requests. They want to make sure that they are providing good service to their clients. I can’t speak for every lawyer or immigration consultant individually. What I can say is that the leadership of these areas, they want to work with us. We have worked in fact very well together to see what we can do to try and avoid that.
Instead of making requests that involves several hundred pages actually being released, if they are actually looking for information that will require two pages, then that’s great.
Everybody I think is trying to improve the process, and make it more efficient and more effective and speedier. Everybody has that goal. With respect to the 60 per cent, typically somebody cannot file a request for a client without the client’s consent. They are saying I think we should or I recommend that we do this. The client is ultimately agreeing. There has to be consent before someone can make a request for someone.
All these requests are done I think in good faith. We would like to get to the point where the requests don’t have to be made. That for us is the goal.
Senator Simons: I’m wondering if you have any intention of tracking to see if there are particular firms or consultancies that are more active than others in filing these requests.
Mr. Olsen: I don’t know if we have that information. I can look to see if we do that, I don’t know if it has been — if I could put it this way — sort of a top priority for us. I’m happy to look to see if we can get that information.
[Translation]
Senator Carignan: I have a question that follows from Senator Simons’ question. I’m a lawyer. If a requester comes to see me at my office, the first thing I do is forward a request to your services to obtain a copy of the file. All requests from lawyers are made so that they can obtain a copy of the file to be able to advise their clients and determine what evidence and documents are missing from the request. Did I understand how it works?
[English]
Mr. Olsen: I can’t disagree. I don’t know the exact reasons why someone might do that.
[Translation]
Senator Carignan: If they don’t do that, there is a problem. I have made access to information requests to the government for each administrative law case I have worked on.
My next question is about the media and requesters who decline to identify themselves. Is there a faster access process or a different processing system when a request comes from the media for reasons of quick publication? In addition, if a journalist makes an access to information request, it is generally a matter of public rather than private interest. Is there an expedited process for handling such a request?
[English]
Mr. Olsen: For ATIP, no, media requests are not fast-tracked, nor are they slow-tracked. I want to stress that. If there is an immediate issue, journalists can, for IRCC and I assume for other departments as well, get in touch with our communications department, who may well be able to give them the information they need more quickly. The ATIP process, as a legislative process, there are different things that have to happen throughout. We don’t treat any ATIP request as more important than another ATIP request.
[Translation]
Senator Carignan: So am I to understand that, if requesters decline to identify themselves, you cannot know whether they are journalists refusing to identify themselves in order to avoid political implications? Other witnesses told us, at the beginning of the hearings on this bill, that they refused to identify themselves as members of the media in order to avoid having the issue go to the political level and be treated differently. Can you confirm what kind of people they are, when they refuse to identify themselves? Have you conducted any surveys?
Mr. Olsen: No.
[English]
The Chair: Before I have the pleasure to thank you, Mr. Olsen and Mr. Cardinal, I have two questions. They are related to the same issue.
Did you evaluate the time it will take to the department to swallow the backlog of requests?
Do we have a projection in terms of time for how long it will take the department to bring you up to par with the average government institution in terms of treating or significantly reducing the backlog you have at the department?
Mr. Olsen: Mr. Chair, that is a function of the available resources that would be assigned to improving the backlog. Not just that, but also how much we can improve our processes going forward and where we can find efficiencies. Every little bit can help.
I don’t have an estimate today of how long it would take us to get to, say, 80 per cent compliance on both the information and privacy sides. It will take a few different things. It will take some time. I can’t, as of December 6, say to you we will be there by a specific date. We strive to improve our compliance rate every day. We take every measure possible to do things more quickly, efficiently and effectively. Every day those bear fruit.
At the same time, our volumes are increasing by roughly 2 per cent every month, so a 2 per cent increase in efficiency is just swallowed up by volume, which is our reality. We live with it. We try and improve.
The Chair: That’s my major preoccupation, having listened to you and the statistics you presented. With an increased number of 23 per cent annually, and if I can use an expression, with what you have in the back of your van that you expect to unload with the years to come, it’s getting bigger and bigger in the back. My preoccupation, as you know, as a parliamentarian is to say, well, is there a possibility for you to change your approach or is it a question of budget only? Is it a question of procedure or operational technique? What would be needed in terms of policy orientation to be sure that, at a point in time, this backlog will be brought back to an average, acceptable level?
Mr. Olsen: We share the same preoccupation. I want nothing more than to make sure that our compliance is very, very high. I would love us to be at 100 per cent. For a variety of reasons we can’t be there right now. Our percentage increase means we’re basically doubling the number of ATIP requests we get every three years. We’ll probably be close to 100,000 this year. In three years we will be close to 200,000 if everything stays the same. I hope we’re not at 200,000, but we could well be.
There are different things we have to look at and the department is looking carefully at how we can manage all those requests and process them within legislative timelines.
The Chair: Is there anything in Bill C-58 that would help you to reduce that backlog? It might be a difficult question, I know, but we are called to vote on this bill. We look into the situation of your department. We could look at the RCMP. I think they are more or less on the same level in terms of backlogs.
Is there anything in this bill that would be helpful to you to address that situation?
Mr. Olsen: The department embraces open government. We would like to go there and we think Bill C-58 will give people more information. I can’t predict if Bill C-58 will result in more information, for example, by giving people access to the titles of memos and briefing notes. We don’t know if that will spur more ATIP requests, but it could and we have to plan for the fact that it may well. People could be getting a little amuse-bouche about information that will make them want to read that memo and submit an ATIP request and get that memo from the department.
We don’t know if that will come to pass. We have to be prudent and say, okay, there is a possibility that may happen, so we have to go that way.
The extent to which the number of ATIP requests may decline as a result, I’m not sure that we have identified anything in the act that would lead to that. It could happen. Things often have unintended consequences. We would be very pleased if that would lead to a reduction in the number of ATIPs we receive. As I say, the drivers for ATIPs we receive are related more to the number of people applying for temporary residence and the number of permanent residents. It’s a fact that we do have a lot of immigration consultants and lawyers who are submitting requests for a variety of reasons.
Mr. Cardinal: I think that’s why it’s important for us to look at the root causes for why the amount of access-to-information requests have increased. What the impetus behind them? Why are people feeling the need to go through them?
We would like to be able to look at that from that perspective and see if, instead of trying to look at increasing our capacity to deal with more access-to-information requests, look at ways where we can provide more information to reduce the amount of access-to-information requests in our department.
The Chair: Thank you so much. I think it’s going to be helpful as information for honourable senators to ponder in their consideration about this bill.
[Translation]
Mr. Olsen and Mr. Cardinal, thank you very much for making yourselves available this morning.
[English]
It was most helpful for all of us.
It’s my pleasure to welcome our second panel to continue our consideration 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. It is my pleasure to welcome by video conference Mr. Ron Kruzeniski, Saskatchewan Information and Privacy Commissioner, Office of the Saskatchewan Information and Privacy Commissioner. We are very grateful to you to have made yourself available for our consideration of Bill C-58.
I invite you to begin your presentation, to be followed by a question period from honourable senators around the table. You have the floor.
Ron Kruzeniski, Saskatchewan Information and Privacy Commissioner, Office of the Saskatchewan Information and Privacy Commissioner: Thank you, Mr. Chair and committee members, for inviting me.
In your invitation, the committee clerk indicated there might be seven issues that you may be interested in. I’m open and pleased to answer any questions committees members have as we go through the presentation.
First, I want to start with my mandate. There are three main statutes in Saskatchewan that govern access and privacy. The first one is the Freedom of Information and Protection of Privacy Act, which we refer to as FOIP. It has two main principles. Citizens have a right to obtain government records. There is a whole series of exceptions, of course. The other one is government is expected to protect citizens’ personal information. This act applies to ministries, Crown corporations, boards and agencies, some of which have to be prescribed by cabinet in order to become government institutions.
Besides education and research, our two main functions are: If someone makes an access request, and the ministry turns it down, they can complain to our office and ask for a review; and second, if there is a breach of personal information, someone can complain to our office and we will investigate.
There is a second statute called the Local Authority Freedom of Information and Protection of Privacy Act, which we refer to as LAFOIP. It applies to local authorities. The same principles and same functions apply, but the local authorities it covers would be cities, towns, villages and municipalities, as well as universities and colleges. It used to cover health regions, but we have now moved to one health region. It can also include others prescribed under the legislation.
The area of what these two statutes apply to is evolving. When government creates a new entity, usually it takes a regulation to make them a government institution or a local authority. As I said, it has the same functions as FOIP.
A third piece of legislation is called the Health Information Protection Act. It deals with personal health information. It is much more operative in the health sector. As for principles there: Patients have a right of access to their records, and there is an obligation to protect their personal health information.
A fourth statute that isn’t in place yet is called the Data Matching Agreements Act. This permits entities, mainly government entities, to conduct data-matching processes. It’s not enforced yet. We’re in review of what the regulations may be like. It will allow my office to comment on data-matching projects.
To now turn to the seven points that were outlined, the first one was around timelines. If you make an access request, there is an obligation that the government institution respond within 30 days. They can basically request an extension or indicate to the applicant that they are extending it. For what reasons? Because there is a large number of documents or there is a large number of requests that are creating operational implications.
The second question was: Are there fees charged in our province? Under FOIP and LAFOIP, there are. Basically, fees are categorized into the cost of searching for records; the cost of preparing records, severing them, et cetera; and finally, the cost of reproduction, which either involves photocopying or putting them on a portable computer device.
Some of the regulations are more specific about the fees. If you aren’t covered by a particular fee, then we usually move to an hourly charge. The regulations talk about $15 per half hour. Under those regulations, basically, the first two hours are free. The fee is charged for hours in excess of two hours.
There is a waiver provision where the head of the entity can waive, for different circumstances. Some of those circumstances might include financial hardship and/or the public interest, and the need to know. There’s also the ability, if someone is on social assistance, to waive the fees.
A government institution does not have to prepare a fee estimate if the fee is under $100. To some extent, it’s become kind of a rule of thumb that if the fee is under $100, probably the government institution won’t charge it at all. That is not set out in the regulations. I think when institutions look at the administrative costs, if it’s $100, why slow down the process? Just proceed to provide the information.
The next question: Does FOIP apply to the premier’s and ministers’ offices? FOIP does apply to ministers’ offices for records that relate to the ministry’s obligations and what is in their possession and control, does it relate to the work that they do? Of course, ministers are members of the legislative assembly, and they are individuals. It does not apply generally to their constituency or political work.
As of January 1, 2018, we had an amendment and a new provision says that records in a minister’s or MLA’s office are subject to Part 4 of the act. Part 4 basically says there is an obligation to protect those records. This amendment does not apply to access provisions, in a general, broad sense. I said earlier if a minister’s records relate to functions of the ministry, then, in my opinion, they are covered.
Are there any proactive reporting requirements in the legislation? Yes, there are. All three statutes basically say if a breach occurs, the public institution is obliged to report it to those people who are affected. Now, they are not obliged to report it to my office. They can voluntarily or proactively report it to my office, though, and many do for the practical reason it allows them to indicate they are working with our office to resolve the issue.
If they report it to those affected by the breach, some or one of those may report it to our office.
Thus we can become involved and do an investigation.
The obligation to report to affected victims requires that there be a real risk of significant harm. What does that mean? On our website, we have produced a document that gives some suggestions as to real risk of significant harm. The Saskatchewan court has not ruled on the meaning of that. I think one thing that instantly pops into my mind is the risk of identity theft. If information is breached, the ability for others to create an identity just increases that much more.
Going on to the next item, is there a legislative review provision? There is not, in this legislation. My office has recommended that in the past. It has not been adopted by the legislative assembly. I think it’s an important provision to have in legislation like this. For example, the Freedom of Information and Protection of Privacy Act was introduced in 1992. It had minor tinkering amendments but wasn’t significantly amended until January 1, 2018. More than five years can easily go by without a major look or review of a piece of legislation. A requirement in the act to review it is significant.
The second thing is that in the last 10 or 20 years we have so much changed from a paper oriented world to a digital world. That really forces us, in the access and privacy area and legislators and public servants, to rethink almost every issue in terms of access and privacy. It’s all about databases now rather than file cabinets.
I was asked about the role of my office and the procedure to review. We have a reasonably simple process. We have, posted on our website, rules of procedure that basically outlines the process. When we get a file, we first attempt to see if there is any possibility of a mediated informal settlement. If there is not, we issue a notice of review, ask the public body to respond in 14 days. That time can be extended through discussions.
We ask at that point for a copy of the record and the submission or representations of the body. We do our analysis. We get to a draft report, which is forwarded to the public body. They are asked to respond in seven days and to comment on the facts or the recommendations. We are not asking them to re-argue their case. They have already had that opportunity. That time can be extended if required.
After those seven days, we go to a final report. It is forwarded to the person who has complained to us and the public body, and to other people who may have input or influence into the issue of the recommendations. About three days later, it is posted on our website. Occasionally, we do not post depending on the content. We are at a posting rate of 98 or 99 per cent.
The last point is whether the decisions from my report or recommendations can be appealed. The answer is yes. It occurs this way: The report goes to the public body and the applicant. The head of the public body has 30 days to indicate whether he or she will respond to the recommendations. If the decision is not to comply with the recommendation, a letter is sent to the applicant. The applicant then has 30 days to launch an appeal with our Superior Court. That appeal is what we call appeal de novo, which means the judge can look at whatever issues are raised at the time. People can raise additional arguments they didn’t raise with my office. The judge can look at all the documents that we may have looked at and basically starts from scratch.
Those were the seven points I thought your committee might be interested in. I’m open to answer any questions that committee members may have as they work on Bill C-58.
Thank you very much for listening. I’m now open for any questions.
The Chair: Thank you very much, Mr. Kruzeniski. It was very helpful. Your presentation was efficient and systematic. I might suspect you have previously been a teacher because you have been able to really give us the information we were looking for.
[Translation]
Senator Boisvenu: Thank you for your presentation. Has your province experienced the same increase in access to information requests in recent years as we have seen across the federal government?
[English]
Mr. Kruzeniski: I am not totally familiar with the federal government statistics. I would say that the government has seen an increase in access requests. In turn we have seen, in the last number of years, a considerable increase in the number of reviews we are asked to do where someone didn’t get the information they wanted or expected they would get.
[Translation]
Senator Boisvenu: How have you addressed the problem to reduce the number of requests or to respond within a timeline that is acceptable to the public?
[English]
Mr. Kruzeniski: In part, that is an executive government question. I think the group of people working on access requests has increased. Those would be people inside government. When I communicate with them, they will indicate the resource pressure and the volume pressure and those types of things.
In my office, I have tried to provide as much resources for applicants and for government institutions that hopefully makes people understand the process better. When it comes to people asking for reviews from our office, we have timelines within which we try to get answers from people, and timelines that we impose upon ourselves in order to get the report out the door.
[Translation]
Senator Boisvenu: Have you read the content of Bill C-58, as proposed by the federal government?
[English]
Mr. Kruzeniski: I have not read the text of the bill. I have read a summary. I have read the statements and positions and suggestions to your committee made by both the Information Commissioner and the Privacy Commissioner.
[Translation]
Senator Boisvenu: Does Bill C-58 go as far as your provincial legislation in terms of access to information related to cabinet, the executive council, and therefore the premier and the ministers?
[English]
Mr. Kruzeniski: I don’t know if I can fully answer. In reading the summaries and critiques of the commissioners as they have been witnesses for you, I see some steps forward and then I see the commissioners flagging some steps backwards.
In terms of ministers and premiers I’m probably not fully informed. Here in Saskatchewan, we are making progress in terms of minister’s offices and the premier’s office and the willingness to follow the legislation and comply with it. That doesn’t mean that when a case comes tomorrow the first reaction may be that we didn’t check materials or records in the minister’s office, or that we don’t need to check those records. My response is, if those records are relevant to the work of the ministry, we view them as part of the access request. There is still a bit of an education process there. Possibly our legislation could be a touch clearer. Next time around we could advocate for that. I think we are making progress in that direction and there is a general acceptance that it will embrace those records in ministers’ offices.
[Translation]
Senator Dupuis: Commissioner Kruzeniski, thank you for joining us today. I have two questions for you. I noticed from your annual report last June that this is your fourth annual report. In your experience, what are the advantages of combining the two responsibilities of information commissioner and privacy commissioner, which I believe you have been doing for the past four years?
[English]
Mr. Kruzeniski: I somewhat anticipated that question. I want to refer back to my previous position, that I was the public guardian and trustee in Saskatchewan. In Alberta, they had a public guardian and a public trustee and they split the functions. When we talked about it at federal-provincial conferences it always seemed that people were completely comfortable with whatever structure had been created in their own province. When I talk to people from Alberta they thought two entities worked well. When I looked at it from Saskatchewan, or other places that only had one, they thought it worked well and possibly, behind closed doors, thought it worked better.
I see the same dynamic here in a federal sense. I want to pick my words carefully because I want to get along with both of your commissioners. I think it depends on the culture that has developed. Federally, for many years the culture of two offices has developed. In preparing for my presentation today I saw the dynamic and the interchange when the two offices get involved in the same file. If the information commissioner makes an order, what’s the impact on the privacy side and what does the Privacy Commissioner think of that?
In my circumstance, almost every file, we are constantly balancing access to information and protection of privacy. On a simple file like any document that everyone accepts is a public document, our office is never going to see it. We are only going to see the ones where the public body thinks there is something to protect here, some personal information that should not be released. In those files we are doing the constant balancing. We are doing that internally and to some extent, since it lands on my desk at the end, I guess I’m doing that inside my head. Whereas one dynamic that will add challenge to what your committee is looking at, what the commissioners are dealing with is the procedures to strike that balance. It sounded, to me, as I saw the options and the difficulties, it gets kind of bureaucratic and probably will slow down the process.
I think it depends on what a jurisdiction is comfortable with and people probably go with what they had for 10 or 20 years. I saw that one challenge as I prepared to speak to you today.
[Translation]
Senator Dupuis: My second question is about the specific claims of First Nations. As part of your duties as Information Commissioner, do you occasionally receive requests for access to information from First Nations who would like to have access to the part of their historical record that is in the hands of the provincial government, such as the department of lands and forests? I don’t know the title of that ministry in Saskatchewan, but have you ever received those sorts of requests?
[English]
Mr. Kruzeniski: In the four years I have been in the job I have not even had a request that would come close to that. I find that interesting. I guess my first reaction is more of that information might be held federally. It has not come to my attention.
The issue has arisen in the health sector where Indigenous organizations established health clinics or health organizations. Those health clinics and organizations have to interact with hospitals and organizations that are part of the provincial system. We have been thinking and talking both federally and provincially, and making presentations here to Indigenous groups. I heard an example near Whitehorse where a pretty good arrangement has been made between the Indigenous groups and the territorial health sector. I expect there will be some evolution in that area. On your question directly, no we have not had that type of request.
Senator Gold: I want to make sure I understand correctly: you talked about proactive disclosure. Did I understand it correctly that it is brought to disclosure when there has been some kind of breach? Am I right in thinking the kind of proactive disclosure the federal government has been promoting is not currently a feature of your legislative regime? If I’m correct, then I’ll have a question to follow.
Mr. Kruzeniski: We may be into a terminology issue. The federal government under PIPEDA has basically said it’s mandatory disclosure. I think that came into effect November 1. If you call it mandatory proactive disclosure, it’s still disclosure. Here it is mandatory that you disclose to the people affected or hurt by the breach. It’s not mandatory that you disclose that to me. In due course, with subsequent reviews and amendments, I will recommend that they disclose to me. Frankly, seeing it operate, we find out anyway either through the media or a person has been told their information has been breached and they are very upset and phone our office and ask what they can do? We say you can file a complaint. Ours is a little different in terms of the federal regime. I think you disclose to those affected plus the commissioner.
Senator Gold: Let me broaden my question. When we had the minister and other officials before us, they talked about the initiative to proactively share information with the public falling into the category of the most requested type of information — travel and hospitality expenses, contracts, things like that — designed to eliminate the need for people to make specific access to information requests.
Do you have any thoughts about whether a model like that would enhance public access to information, or might it perversely deteriorate the right of access by giving government the ability to say we have already provided this kind of information?
Mr. Kruzeniski: Leading up to the amendments we now have, we recommended that there be provisions regarding openness. I have in the past discussed with the Minister of Justice how do we make things more open. What you outlined, I agree. I think it would make the system work a lot better. In the legislation that came into force on January 1, 2018, there is a provision where a minister can designate a category of documents that his or her ministry can put on a website, make them open to the public. Because the amendment is new there hasn’t been much progress. I hope there is. It’s probably an education/cultural change now. The legislative framework is there to do it. I think it’s a good thing.
The only caution is when I request documents of the Ministry of Health, in there is going to be some of my personal information or personal health information. You can’t just post that on a website. There has to be a vetting and reviewing so the personal information is not there.
The media has an interest in this. I think this is a little more the B.C experience, where things get posted but investigative journalists say, “Hey, I worked hard on this story and you post it and every media outlet gets it.” That may or may not be of significance to legislators, but if it is then we need to learn to allow rewards to investigative journalists but still be open to the public within 48 or 72 hours or whatever it may be.
Senator Gold: We had a number of witnesses who argued Bill C-58 should do away with all fees, that they were a burden for some categories of applicants, and the revenue they raised was really insignificant relative to the costs and the like. Your system does have fees, understandably varied. Can you comment how you see fees generally and whether you have any thoughts about the recommendations to abolish fees?
Mr. Kruzeniski: I’m generally of the view that some fees are good. I think it brings a rigour and a discipline to the system. We find many access requests are crafted extremely broadly. We have seen access requests that have asked for, in effect, more than 4,000 documents. On the other hand, because each of us are taxpayers I think there should be a certain portion that’s free. In our current set of regulations, basically the first two hours are free. Another way of looking at it is, it looks like the practice is adopted of making the first $100 free. I had lobbied for $200 being free. I probably wouldn’t care if the first $500 of time or effort or energy was free. I think a certain discipline to say, “Sir or madam, you just asked for 5,000 documents. Can you give us an idea what you are really after and maybe we can narrow it to 1,000 or 500? Otherwise, you are going to get an astronomical fee.”
This is where we change from the paper to the database world. People have asked for emails which have been archived a long time ago and are on backup tapes. There have been fee estimates like $169,000. And applicants, of course, just go ballistic and view it as stonewalling et cetera. We need to sort out how in the electronic world those fees always being reasonable and affordable.
I note the government here is attempting to take some steps to make searching through old, old e-mails easier and therefore cheaper. If stuff is on electronic media that we don’t use anymore it becomes very expensive to retrieve information from there.
Senator Batters: Thank you, Mr. Kruzeniski. It’s really great to have you with us today. You are a long-time highly respected public servant for our province. It’s Denise Batters from the province of Saskatchewan. No one at this committee will be surprised to hear me express pride for my home province of Saskatchewan.
The Chair: We were expecting that.
Senator Batters: Yes. Saskatchewan has been a leader, though, in this area for quite some time. When you were speaking earlier about you are both the Information and Privacy Commissioner, I would say that’s probably because Saskatchewanians are known for being highly efficient. For the first Information and Privacy Commissioner of Saskatchewan that was a time in the 1990s when I was a young lawyer working for then Information and Privacy Commissioner Gerald Gerrand at his law firm and helped him with some of those files. He was also the Conflict of Interest Commissioner at the time. That has now been separated out in Saskatchewan.
I’m wondering, given your considerable experience and expertise in this area with the Saskatchewan system, if you could tell us whether there are any particular ways you would suggest this bill and what you know of it could be strengthened for the federal system?
Mr. Kruzeniski: I can think of just one thing, and it’s a bit of what we have tried to do here. I didn’t know, Senator Batters, that I was speaking to such expertise, if you worked with Mr. Gerrand. I should have made my presentation shorter.
Senator Batters: Not at all. It was very good.
Mr. Kruzeniski: When I came to the office, reports were being issued two to three years after the complaint was made to my office. My reaction is that’s just not service to citizens. We made a strong effort to clean up the backlog. We now basically get reports out in three to four months. I would like it to be shorter. You have to allow public bodies time to search the records, prepare the records, do all those sorts of things.
In reading at the summary level and the timelines, I think my head said this is a pretty long process. Anything that this committee could do to suggest amendments that tighten timelines I think helps citizens. Getting information a year later just doesn’t cut it in my books, or two years or whatever. Getting it in three months, citizens might complain about it, but I would say public bodies that have to look at a fair or reasonable process giving everybody input, it’s hard to get it much lower than that. Anything the committee could do to facilitate faster turnaround I think would help every citizen in Canada.
Senator Batters: Thank you.
[Translation]
Senator Carignan: My question is about the calculation. What is included in the calculation of an access to information request? For example, in Saskatchewan, if a request for access to a file is made with respect to the Saskatchewan Workers’ Compensation Board, is it considered to be an access to information request?
[English]
Mr. Kruzeniski: Basically, the Workers’ Compensation Act around sections 172 to 174 had its own process for an injured person getting access to their own file. The Workers’ Compensation Board had a process to provide that information.
There was an exemption where my office could not review certain aspects in 172 to 174. The government has just introduced the amendment on Bill 165 where my office will have some ability to review files in the workers’ compensation world. I am hopeful the Workers’ Compensation Board will continue to follow the practice that it had in that people won’t have to make an access request. Once they put it on a form, it triggers a process and the first thing is the board or any other institution has 30 days to get them their information. If you’re an injured worker and you need the information, you may need it as soon as you can get it.
Like your previous witness, if we can facilitate people getting the information just because they ask for it rather than triggering a legislative process, we probably help all those injured people get to a faster resolution of their issue.
[Translation]
Senator Carignan: Are organizations used to processing media requests differently from those of the public or of researchers, given the nature of a media member’s request, which is more a matter of public interest than private interest? I imagine that, in political offices, we also see a potential for political impact. Is the treatment different when a member of the media makes a request to organizations?
[English]
Mr. Kruzeniski: It’s difficult for me to talk about executive government. I have not become aware of requests to government being fast-tracked because they are from the media. The fact is, media from time to time would complain to me that they feel their requests go slower. I always make a distinction between ordinary access requests that flow through the system rather well, but when there is a hot issue, things get a little more complicated, more lawyers and press involved. To some extent I think the process slows down because more people are looking at it.
There is nothing official I’m aware of that speeds up or slows down the request. In my office, if we’re at the stage where a media person has been turned down, we basically then take their review and it goes into the queue like everybody else’s because the alternative just means if you fast track one, you have slowed down somebody else. Hopefully the media is being treated exactly like everybody else.
Senator Pratte: I understand that when you issue a recommendation to a public body, if that body rejects your recommendation, an applicant can appeal to the Superior Court. Then the proceeding in front of the Superior Court is a de novo proceeding. That is somewhat similar to what is proposed in Bill C-58. Does the fact it’s a de novo proceeding cause any difficulty do you think? Does that in any way render things more difficult for the applicant to get a favourable decision in Superior Court?
Mr. Kruzeniski: The de novo proceeding seems, from what I have observed, to slow down the process. I have lawyers ask, what exactly is the procedure? To some extent lawyers are more comfortable with an appeal process, where you would have recommendation number 4, they would appeal and say the commissioner erred in law in terms of making this particular recommendation. Procedurally, I think that might operate faster.
On the other hand, we have in this legislation since 1992 that it’s an appeal de novo. It allows the parties to take a second look and make any arguments they want, in effect starting from scratch. It is frustrating to me. I see them make a brand new argument, and I wonder why didn’t you make that to me? The de novo process in effect allows them to raise whatever they come up with when they do the analysis and preparation for their case.
I think as we get more jurisprudence in this area, the process may move faster. We just had a recent decision last week that took away a few uncertainties in the process. Once the process is nailed down, I hope things can move quite quickly. Again, for the citizen who is still waiting, has had the access request turned down, gone to my office for three or four months, the head has 30 days to think about it, and then the appeal and then you got to get in front of a judge. It is a long, tedious process.
Senator Pratte: Thank you.
The Chair: Mr. Kruzeniski, we admire your mastership of the file. It was quite helpful to us on issues we are wrestling with. We remain grateful that you made yourself available this morning. Thank you so much, sir. We will keep your name on our file list for expertise on other issues that we might tackle along the road. Thank you so much, Mr. Kruzeniski.
Mr. Kruzeniski: Thank you for inviting me.
(The committee adjourned.)