Secret cabinet documents should be reviewed to verify that they are truly cabinet confidences — and not an attempt to shield government records from the access to information law — Canada’s access to information watchdog told members of Parliament Wednesday.
Questioned during her appearance before the House of Commons committee on access to information, privacy and ethics about secret, or unpublished, cabinet decisions, Information Commissioner Caroline Maynard said she is not allowed even to view records the government claims contain cabinet confidences.
“Cabinet confidences right now are not under my jurisdiction,” Maynard told MPs. “I am not able to see cabinet confidence documents.”
Maynard said Canada should follow the example set by other countries which provide for independent reviews to determine whether a document is truly a cabinet confidence.
Maynard painted a picture for MPs of an access to information system that is struggling. She said 30 per cent of access to information requests being filed by Canadians aren’t being responded to within the timelines provided for in law — and the problem is getting worse.
While some departments are showing improvement, “nobody is doing great,” Maynard told MPs. “Everybody is having difficulty meeting the 30-day time limit. There are a lot of issues with extensions.”
‘Not a good record’
She said her office has seen a 70 per cent increase in complaints over the past year — a record number.
“I may receive up to 10,000 complaints this year if it continues the way it is,” she said. “Every year it is a record. Not a good record.”
Maynard, appointed in 2018, revealed that she also has referred seven possible cases of obstruction to the attorney general’s office. Obstruction can be a criminal offence.
“What we see the most is destruction of documents,” Maynard said. “Documents that we know existed and have disappeared.”
Maynard said she was not able to tell the committee what, if anything, officials with the attorney general’s office have done about the cases she referred to it.
While the law currently has the attorney general’s office refer potential cases of obstruction to the RCMP for investigation, Maynard said she would like to see the law changed to allow her to refer cases of obstruction directly to police.
NDP MP Matthew Green asked that the committee follow up to find out what happened to those seven cases.
Maynard said the track record of each department when it comes to administering the access to information act can be influenced by the people at the top. She said government officials should be held responsible for how their institutions administer the law.
Proactively releasing information could significantly reduce the number of access to information requests that a department has to handle, she said. For example, she added, in the United States if a record is requested by three different people, the policy is to release it proactively.
Pandemic no longer driving delays: Maynard
Maynard also called into question the claim that the growing backlog of access to information requests is the result of the pandemic. While it may have been a factor at the outset, most departments have adjusted, she said.
“At the beginning of COVID, it was really difficult to do investigations because most analysts didn’t have access to their servers or any information. COVID isn’t an excuse any more. You should have access to your server, you should have access to documents,” she said.
Maynard told the committee that the access to information law should be updated to allow individuals to request cabinet confidences and information from the offices of cabinet ministers and the prime minister. Currently, they are excluded from the act.
She said steps could be taken to improve the access to information system without changing the law through improved leadership, innovation, more resources and the declassification of records.
If Canadians can’t successfully use the access law to obtain information, they might lose trust in the government and drive the proliferation of misinformation, Maynard said.
“If they don’t have the information from our own institutions, they will turn to other sources of information, which will lead to misinformation.”