My renewed commitment to access to information
Canadian Access and Privacy Association Annual Conference
November 25, 2024
Ottawa, Ontario
(Check against delivery)
Good afternoon,
Before I begin, looking at today’s agenda, I see that you will be hearing from Tom Cardoso immediately following my remarks. The title of Tom’s address is “How Canada’s FOI system broke under its own weight”. I think you will all agree that is a bit of a downer, even if it happens to be accurate, so I thought I might propose a more upbeat title for my remarks. The kind of thing that provides a glimmer of hope in the aftermath—something like “A Weight Loss and Rehabilitation Plan for Access to Information.” However, my staff talked me out of it. Nobody wants to think about weight loss this close to the holidays.
It is fitting that my first address following my reappointment as Information Commissioner of Canada is to this association. As I stand up here, I can’t help but think of Wayne MacDonald, who introduced me last year, and who has played such an important role for this community. Wayne is not with us today, but he and his family are in my thoughts.
For as long as I have been Commissioner, and indeed for many years before that, CAPA has played a crucial role in bringing together the specialists who operate in the very important world of transparency and Freedom of Information.
Let us face it. Working in access to information can be a real grind. I have been told that my accepting the honor of reappointment constitutes proof of masochistic tendencies on my part. With almost seven years under my belt, any illusions I might have cherished regarding the state of the system are long gone. I am all too familiar with the challenges access to information professionals have faced in recent years. As I recently told members of the House of Commons ETHI committee, I have immense respect for all of you who labor in the access to information trenches, doing your best to overcome the many obstacles in your path. This is why I have made it my business to be a champion for ATIP teams whenever I have had the opportunity. I intend to continue to do so.
In spite of the setbacks and disappointments, we have felt a sense of momentum at the Office of the Information Commissioner over the last seven years. Thanks to my team’s ongoing efforts, both complainants and institutions now benefit from an online complaint form and a resource-rich OIC website. This invaluable source of information provides a window into how we approach investigations and interpret the Act, and includes a robust inventory of reports, reference materials, and guidance. The weekly updates to our decisions database, which now contains hundreds of entries, and the publication of final reports on CanLII have established a body of jurisprudence on Federal Access to Information, which helps us guide all parties to a complaint, making the process run increasingly smoothly.
Action on Early Priorities
Nearly seven years ago, when I was nominated for this position, I was an unknown quantity to this community. An outsider if you will. While I had plenty of experience with both access to information and the investigation of complaints, I had never worked in, let alone led, and access to information unit. What I did possess, however, was a firm belief in the value of transparency, a commitment to upholding the law, and a vision for how I would undertake my mandate.
Although I did not realize it at the time, I was about to inherit a team of dedicated employees at the Office of the Information Commissioner. These were people who believed in the right of access as deeply as I do, and were ready on day one to help me implement my vision. So, with a deep desire to serve Canadians, and a relentless focus on results, I got down to business.
Upon my arrival at the Office of Information Commissioner of Canada, I immediately set to work on preparing to implement the legislative reform, ensuring transparency in the day-to-day operations of my office, improving collaboration with stakeholders to address systemic barriers, and tackling my office’s backlog of complaints.
When I first dug into that significant backlog of thirty-five hundred complaints, some of which had lingered for over five years, I was shocked by the lack of responses and little leverage I had to obtain relief, given that I could only recommend release. Remember that this was before the introduction of the Commissioner’s order-making power in the 2019 reforms of the Act.
From day one, I strived to ensure that our operations were as efficient as possible, in spite of the deck frequently being stacked against us. The Office of the Information Commissioner often does not have the resources to meet the ever-increasing demand, and we have no control over the number of complaints we received—does any of this ring a bell with you? I knew that in the face of such challenges, speeding up and streamlining the investigation process would be crucial.
I worked hard to foster a culture of continuous improvement at the OIC, which persists to this day. The results over the last seven years speak for themselves: we have managed to keep pace with the increasing number of complaints and even close more complaints than we received, resulting in a slow, but steady decrease in our inventory, which now stands at twenty-six hundred complaints ─ one thousand less than when I started. The vast majority of these complaints date from the last two years, and we continue to assign and close complaints at an increasingly rapid rate. By the end of this fiscal year, I am confident that we will have an inventory in which the oldest complaints are no older than two years. While this represents progress, clearly, it’s not sufficient. We still have more work to do. Having a contemporary inventory allows us to deal more efficiently with complaints related to current issues, getting complainants the relevant information to which they are entitled.
With the benefit of hindsight, I can say that I am satisfied with my track record for each of my priorities, documented in the annual reports I have tabled since taking on this role. Notwithstanding some bumps along the way, I think that my office has made immense progress and is well positioned to build on that progress as we go forward.
As much as I look forward to my next mandate, I do not want to get ahead of myself. The news is still very fresh—my appointment was only confirmed last week—and my team and I have a lot of planning to do between now and March, when my new mandate officially begins. The good news is that this time around, I get to benefit from a running start. I have a good idea of the lay of the land when it comes to the Federal Access regime, and I have some ideas of what comes next, which I will share with you a bit later. But before I get into that, I want to share some thoughts on what has happened over the last twelve months since I last spoke to you.
Retrospective of Activities Since Last November
Since last November, my office has been incredibly active, addressing numerous challenges and advancing our priorities in significant ways, guided as always by our Strategic Plan and its three pillars of investing in and supporting our resources, innovating and transforming our operations, and maintaining and enhancing our credibility.
Talking about credibility, I take my role of providing advice to Parliament very seriously. In a time of societal and technological change, where we face obsolete systems, inadequate information management, and declining trust in public institutions, I have worked hard to be a dependable source of information and expertise for parliamentarians in the area of access to information.
I have testified before parliamentary committees a record seven times, each appearance providing an opportunity to discuss critical issues and advocate for necessary changes. These committee appearances have been instrumental in highlighting the importance of transparency and the need for legislative reform.
One of the major initiatives we launched this last year was a systemic investigation into the ArriveCan App, in response to allegations regarding the destruction of records and deficiencies identified by the Auditor General in the area of record keeping and information management. As I noted when I learned of these issues, this was precisely the scenario I warned our government about at the outset of the pandemic. I am referring to the warning I issued in April of 2020 on the need to document decisions and actions even during extraordinary circumstances.
In addition to the ArriveCan investigation, we tabled a special report on a systemic investigation on immigration-related information. This report revisited an issue I had first examined in 2021, shedding light on the practice of individuals seeking information on their immigration files through access to information requests and highlighting areas where improvements are urgently needed, including providing that information through other means. I am hopeful that the recommendations from this investigation will ultimately lead to meaningful actions like the creation of a portal for clients that will get these requests out of the access system.
Last June, I had the privilege of attending the International Conference of Information Commissioners in Tirana, Albania. This conference was an excellent opportunity to exchange ideas and best practices with my counterparts from around the world as well as representatives from the Carter Centre and UNESCO, who are at the forefront of advancing the right of access in jurisdictions across the globe.
During Right to Know Week this year, I issued a statement reaffirming our commitment to promoting the right of access to information. In this statement, I emphasized the importance of transparency in building trust between the government and the public. I also highlighted the need for legislative reforms to ensure that our access to information system is robust and capable of meeting the demands of the digital age.
Throughout the year, I worked hard to contribute to improving the overall health of the system. As I pledged to you last November, I continue to meet with both management and employees of institutions subject to the Act to encourage promoting culture change, better performance, and compliance with the Act.
I also did not hesitate to spur institutions to action through my orders. But whenever possible, my first choice is to resolve complaints without resorting to orders. Lastly, if required, I have also not hesitated to resort to the courts to ensure that my orders were enforced. I will not elaborate further on this, as later today, you will be hearing from one of my office’s lawyers, Patrick Levesque, on the topic of litigation affecting access to information.
Trust and Transparency Strategy
Before I turn to the work that lies ahead during my new mandate, I would like to take this opportunity to address the Trust and transparency strategy released by the Government last May.
As you know, this strategy includes an action plan for the modernization of Access to Information. The first thing I noticed was that there was no sign of much-needed legislative changes. Much of the proposed actions center on guidance, information sharing, and training. And most of them are already ongoing.
I also noticed that the Government is planning to provide training to public servants on the impact of the duty to document on access to information. While I am pleased with this initiative, I believe that this training should be mandatory for all public servants. It should also point out that access is the responsibility of all public servants, not just the access to information and privacy unit. Moreover, I continue to believe that a duty to document should be enshrined in the law.
Overall, I can say that this “plan” left me cold. My view remains that in 2024, the best way to better serve Canadians in the area of access to information is through legislative changes that would modernize an Access to Information Act that is “stuck in the eighties” and adapt it to the realities and needs of the 21st century.
In short, I do not believe that the TBS strategy on its own is enough to change the persistent culture of secrecy within some institutions and ongoing delays in responding to access requests. That’s why I eagerly await the start of the next legislative review.
Plans for the Future
Now, let’s talk about the future. I was not joking when I told the member of ETHI a couple of weeks ago that the last seven years have flown by. Perhaps it is a sense that I have unfinished business, rather than masochism, which led me to accept a renewed mandate as Information Commissioner. I have no illusions regarding the scale of the challenge ahead of me, indeed ahead of all of us. Nevertheless, my commitment to transparency and the right of access to information will not waver, because I remain hopeful.
As I begin to examine the work that lies ahead during my new mandate, I am alive to the tempting opportunities and potential solutions. I am very much seized with the topic of artificial intelligence, as is every senior public service leader, and so my office will necessarily examine the implications of emerging technology and AI for the access regime. After all, the integration of artificial intelligence into the access to information system has the potential to revolutionize how we manage information and handle access to information requests, making the process more efficient, transparent, and responsive to the needs of the public.
I feel that we can build on what we have accomplished. I do believe that there are solutions to the ills that affect the access to information regime. For example, I am very pleased to see that my systemic investigations are having an impact beyond the institution that was the subject of the investigation. I have a half-dozen such investigations under my belt so far, with a seventh underway, and more to come. These have provided many recommendations of solutions that the government should and can implement. I also look forward to the Government and Parliament considering my recommendations for the next legislative review when I am afforded the opportunity to provide them. In 2018, when Bill C-58 was tabled, I did not have the benefit of the experience I have gained over the past years, across thousands of investigations.
In closing, after nearly seven years, I am no longer an unknown quantity. You know who I am and what I stand for. We look forward to the changes that will allow Canada to take its rightful place among the leading nations in the area of government transparency and access to information. As I embark upon the next phase of my mandate, you can count on me to continue to champion the right of access, and the people who work to uphold it every day.
Thank you.