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Questions and answers

Access to government records

How does parliamentary privilege differ from the Access to Information Act when it comes to accessing documents from government institutions?

  • The entire parliamentary process, and all the discussions that take place in Parliament regarding requests for information made to the government, are part of a separate and distinct process from the one we use for access to information.
  • I understand that the House of Commons as a whole, has the right to order and compel the production of documents.
  • As an individual present in Canada, you have the right to make an access to information request. If you're not satisfied with the response you receive, you can file a complaint to my office.
  • I cannot comment on a specific access to information request without having gone through the process the legislation asks me to do, which is to conduct a fair and thorough investigation, review all the documents, get all the representations from the parties, and then make recommendations or orders based on my findings.

Would a declassification system help Parliamentarians access national security documents?

  • A declassification system would improve access to historical and national security records by making them available outside of the overburdened access to information system.
  • Documents should be easily accessible to historians, librarians, archivists, and others interested in Canadian history.
  • A classification of “Secret” or “Top Secret” does not mean that the exemptions in the Access to Information Act have to apply. These classifications should not automatically result in the application of the national security exemption under the Act. Attention must be paid to apply the Act as it is written, not based on how a document is classified.
  • TBS guidance on the downgrading of government records is not binding and will have little impact on the work of declassification.
  • A pilot project on declassification was marked as completed in 2022 - no records were declassified as a result of this project.

Budget Deficit

Last month, you mentioned that you were facing a structural deficit. You talked about a budget reduction amounting $375,000 annually. Why have these numbers changed in a matter of weeks?

  • In 2019, amendments to the Access to Information Act resulted in new responsibilities for my office and an increase in my workload.
  • In December 2020, following these changes and a sustained increase in complaints, my office received permanent funding for 27 additional investigators for a viable and sustainable investigations program.
    • Last April, upon reviewing the funding allocation for new collective agreements, we discovered that Treasury Board Secretariat (TBS) did not provide the money to cover raises for these investigators, resulting in a critical funding gap for my office.
  • On May 3rd, the Law Practitioner (LP) group collective agreement was renewed.
    • When TBS took its snapshots for calculating the funding required for the new collective agreement for the LP group, some salary files had not been transferred within the Phoenix pay system, and were therefore not included in the calculation.
    • As these lawyers are still working for my organization, this oversight will result in an additional shortfall for my office of $350,000.
  • We are now looking at a total funding shortfall of $700,000, which represents a reduction in my budget of approximately 5 per cent.
  • I have sent a letter to the Secretary of the Treasury Board detailing the situation and asking for help in resolving it.
  • I may consider requesting an off-cycle budget adjustment through the Minister of Justice.
    • This is the only option available to me under the current funding model for my office.
    • Knowing that the last two budget requests submitted to the Minister of Justice to address the backlog were ignored, I don’t have a lot of hope.

Could you reallocate resources within your organization to resolve the situation?

  • As of today, nearly all OIC positions are filled, leaving minimal room for internal reallocation within my organization.
  • Only 14% of our budget is allocated to Operations and Maintenance (O&M), leaving limited flexibility to absorb funding reductions without impacting core functions.
  • As communicated by TBS, my office was excluded from the 2023 Refocusing Government Spending initiative.
  • I view this decision as a reflection of the critical role I play as an independent agent of parliament in ensuring the right of access to information continues to be upheld.
  • The fact that institutions do not comply to my orders also expends my resources ─ and those of institutions that are deploying their own legal services to deal with these cases. 

Is your office looking into artificial intelligence or any other tools to be more efficient with fewer resources?

  • Improving the operations of my office has been a priority for me throughout my mandate.
  • We are always looking for tools to make us more efficient, but we are also updating our processes to make sure we work smarter.
  • In 2023-2024, for example, we introduced a significant update to our online complaint form.
  • The new form provides features to help complainants submit their complaints. This means they can provide more information at the outset, which allows us to make more efficient decisions regarding complaint admissibility.
  • We have also recently sought input from complainants through an independent third party to better understand their needs. We plan to adopt additional measures to bridge any identified gaps, including improving our website.

Enforcement of orders

In the last year, you filed four applications for mandamus before the Federal Court. Three of them were against DND. What can you tell us about these?

  • My orders are binding. An institution is required to comply with the order, unless it applies to the Federal Court for review. DND did neither.
  • It is unfortunate that I had to resort to the mechanism of mandamus. This type of process to compel compliance should not be necessary. 
  • The first ever mandamus I filed was against Trans Mountain Corporation.
  • One file with DND was discontinued as they finally complied with my order. The two others are still ongoing.
  • I will not comment any further as these issues are before the courts.

Are you planning of filing more applications for mandamus against other institutions?

  • If the mandamus mechanism is the only means of achieving the desired outcome, I will continue to pursue the same approach to compel compliance with my orders.
  • This situation expends my resources and those of institutions that are deploying their own legal services to deal with these cases. 
  • I am sure that Canadians would agree that it is not something we can afford in the current economic context.

How many institutions choose not to comply with your orders or challenge them in court?

  • Non-compliance is a concern as orders are legally binding.
  • So far, I have filed four applications for mandamus before the Federal Court against two different institutions.
  • Upholding the Act is at the heart of my mandate. That’s why I decided to launch these legal actions.

Should there be penalties for institutions that fail to comply with the Act and your orders?

  • This option could be studied by parliamentarians.
  • The new Official Languages Act provides for such penalties.
  • At the very least, the obligation to respect their obligations under the Access to Information Act should be part of public servants’ work objectives, including senior officials.

Allegations - destruction of records

During your last appearance before the committee, we discussed allegations related to the destruction of records that were the subject of access to information requests. Could you give us an update on this and on your investigation into the ArriveCAN app?

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