Letter to the President of the Treasury Board - Observations from the Information Commissioner following meetings with various ministers (July 2021)

The Honorable Jean-Yves Duclos, P, C., Minister
President of the Treasury Board
90, Elgin street, 8^th floor
Ottawa, Ontario, K1A 0R5

July 8, 2021

Dear Minister Duclos:

In your July 7, 2020, letter inviting me to provide input into the review of access to information that had just been launched by the government, you correctly noted that the success of this exercise hinges on a meaningful exchange of views. With that in mind, I took the opportunity to provide an initial submission this past January, with the promise of future submissions, as required.

As you are aware, the pandemic did not suspend the right of access. If anything, it increased the need for government transparency – an effort that calls for the collective leadership of all members of cabinet.

That is why, earlier this year I reached out to 16 ministers of institutions who have had the most complaints registered with my office. My goal was to open a dialogue, and to discuss with them about their responsibilities under the Access to Information Act, even in the face of a global pandemic.

Until now, I was able to have discussions with 12 of the 16 ministers I had contacted between March and April 2021; CRA, CIRNAC, ISC, Justice, Health Canada, DND, Public Safety, PSPC, Transport Canada, Canadian Heritage, ECCC and IRCC. I have yet to hear back from the Ministers of Finance, Global Affairs, ISED, and the Prime Minister, in his capacity of Minister responsible for the Privy Council Office.

During these initial exchanges, I encouraged ministers to set the example and communicate the importance of upholding the right of access to information through the diligent management and voluntary disclosure of information, as well as through timely responses to all access requests. Given the vulnerable state of the system, I also highlighted the need to take immediate and concrete action, rather than waiting for legislative change.

In the interest of continuing to foster this dialogue, I would like to share a brief summary of some of what I heard from your colleagues:

• A recognition that institutions need to do better – and an acknowledgement that problems existed before the pandemic;
• An intention to show leadership by communicating to all employees the importance of access, in order to instill best practices of openness and transparency across their respective departments;
• An acknowledgement of the importance of having a declassification program. Institutions are starting to think about designing a rapid and efficient declassification system and protocols for handling sensitive information;
• An acknowledgement of the principles of openness by default – approaching disclosure from the perspective of what should be voluntarily published, as opposed to waiting for requests; and
• The commitment to sharing best practices across institutions that could help to unburden the access system.

I was also made aware of points that should be a source of concern for you, as they speak to the current state of the system overall.

• The importance of the Access to Information Act and the legislative obligations flowing from it are often not properly understood and consequently, the right of access is not granted the level of priority it deserves;
• Institutions acknowledge the significant access backlogs;
• The problems that already existed have been exacerbated by the pandemic: several ministers acknowledged that their institutions were not properly equipped to continue processing access requests remotely;
• The pandemic placed enormous strain on institutions with archaic information management systems. For example, institutions with paper-based systems required staff to go to the office to access records; and
• There is a widespread challenge in the recruitment and retention of qualified resources to process access requests.

I am hopeful that the expressions of goodwill on the part of ministers are evidence of a growing realization of the scale of the challenges facing the system, and that this awareness will lead to concrete commitments to effect real change. However, I must emphasize that I am concerned with the pace of change, given the urgency of the situation. We are now almost exactly one year after the launch of the review, and so far, Canadians have little to show for the exercise beyond the commencement of the consultation process and a commitment to table a report in January 2022.

For over a year now, I have observed and reported to both the government and Canadians that the pandemic has exacerbated the challenges that already existed within the access to information system. Importantly, many of these issues do not require legislative change to address. In this context, I invite you to take into consideration the points raised in this letter as well as in my 2020-21 Annual Report and I urge you to mobilize your Cabinet colleagues to take immediate steps towards transparency without waiting for the review of the system to be completed.

Should you wish to discuss further, I would be pleased to meet with you.

Yours sincerely,

Caroline Maynard
Information Commissioner of Canada