Bill C-567 (Historical)

An Act to amend the Access to Information Act (transparency and duty to document)

This enactment amends the Access to Information Act to, among other things,
(a) give the Information Commissioner of Canada the power to order government institutions to release documents;
(b) require government institutions to create records to document their decisions, recommendations and actions;
(c) establish an explicit duty to comply with orders of the Information Commissioner; and
(d) provide that those orders may be filed with the Federal Court and enforced as if they were judgments of that Court.

An Act to amend the Access to Information Act (transparency and duty to document)

[Pat Martin, NDP, Winnipeg Centre, MB]

moved that Bill C-567, An Act to amend the Access to Information Act (transparency and duty to document), be read the second time and referred to a committee.

Mr. Speaker, I am pleased to stand today to introduce Bill C-567.

Sunlight is a powerful disinfectant, and freedom of information is the oxygen democracy breathes. The public has a right to know what their government is doing, and secrecy is the natural enemy of good public administration. These simple principles are the foundation of our access to information laws and the principles that this private member's bill seeks to strengthen and uphold.

I am honoured to have today as the seconder of Bill C-567 one of the country's leading authorities on the subject of access to information and the performance of the federal legislation from its inception to date, the member for Victoria. Parliament is fortunate to have such a learned and experienced fellow to contribute to our efforts to improve and strengthen the access to information regime.

It is the culture of secrecy that allows corruption to flourish and for maladministration and abuse of power to occur in government. Indeed, the seeds of corruption are planted in the dark. While I agree with the great American jurist Oliver Wendell Holmes when he said that one cannot legislate morality or enforce ethical conduct, there is no doubt in my mind that observation and scrutiny have the natural effect of elevating the standards of ethical behaviour and of curbing maladministration and abuse of power.

Again, sunlight is a powerful disinfectant. Being forced to operate in the light of day lifts the performance and raises the bar of good public administration.

Mr. Speaker, if there was less heckling and rattling over there, I could deliver my speech a lot more effectively.

[The Acting Speaker, Bruce Stanton]

Order. I ask all hon. members who wish to carry on meetings and such to perhaps use their own lobbies.

Order. The hon. member for Winnipeg Centre.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, being forced to operate in the light of day lifts the performance and raises the bar of good public administration. Openness and transparency lead to greater care, frugality, integrity, and honesty. Secrecy diminishes performance in all of those categories.

As former information commissioner John Reid put it, “...all the checks and balances designed to limit abuses of government power are dependent upon there being [free] access by outsiders to government's insider information”. That notion of government's insider information speaks to the very root of the problem. The information does not belong to the government or the bureaucracies or the public servants who created it. It belongs to the people. Government information belongs to the citizens whose tax dollars paid for it and whose votes gave the government permission to create it. It should not be like pulling teeth to get hold of it.

Surely parliamentarians who are trying to get information from the government so they can effectively do their jobs on behalf of the people who elected them should not be treated as outsiders trying to get our hands on insider information. Yet increasingly, that is the situation we find ourselves in.

Mr. Reid went on to say that a government and “[a] public service which holds tight to a culture of secrecy is a [government and] a public service ripe for abuse”. Yet too many of our senior public servants still subscribe to the views of Sir Humphrey, in the British TV series Yes, Minister, when he advised, “You can have good government, or you can have open government. But, prime minister, you can't have both”.

While successive Canadian governments have paid lip service to the notions of transparency and accountability to the point where they have become almost meaningless buzzwords in this country, very few have shown any real commitment to open government beyond the bare minimum required to maintain the illusion.

In the words of former auditor general Denis Desautels,

There is a reluctance to let Parliament and the public know how [public] programs are working, because...you may be giving your opponents the stick to beat you with. And even when a minister is not personally concerned with this, senior public servants assume this fear on the minister's behalf. [They]...try to [give out] as little as possible that would ever expose their department to [any] criticism”“.

In spite of Prime Minister Trudeau's lofty language that the new law would promote effective participation of citizens and organizations in the taking of public decisions, successive governments have failed to live up to those noble principles. In fact, the ink was hardly dry on the legislation on July 1, 1983 before senior officials began routinely hiding information that the drafters of the ATIA intended to remain public.

I think the hon. John Crosbie, the first justice minister to be responsible for the new access act, set the tone for all future administrations when he dismissed the new law as a tool for “mischief-makers” whose objective “[i]n the vast majority of instances” is simply to “embarrass political leaders and to titillate the public”.

That attitude certainly created the atmosphere we recognize today. Whether it was the tainted blood scandal, the polling on constitutional reform, the Somalia inquiry, or more recently, the conditions of Afghan detainees, successive governments have shown their unwillingness to live up to the letter or the spirit of the act. In fact, there has developed an increasingly elaborate and almost paranoid game of cat and mouse to keep important information from the prying eyes of the public.

It has been my experience that the amount of crowing about transparency and accountability is directly proportional to the increased devotion to secrecy, deliberate obfuscation, and hoarding of information for no defendable reason.

If inquiries and requests for information are viewed as a pesky nuisance, or worse yet, as a threat, there will continue to be a lack of co-operation, unreasonable delays, poor compliance, and hostility and antagonism toward requesters. A grudging, resentful adherence to the letter of the law will never be enough to meet the spirit of openness.

This private member's bill does not pretend to be a comprehensive rewrite of the access to information legislation, nor does it pretend to fix or correct all of its shortcomings. A comprehensive review of the act is long overdue, and successive information commissioners have called for such a review for almost 30 years.

Commissioner John Reid went as far as to table a whole package of legislative reform called the open government act, which I was proud to table as a private member's bill in 2006, 2008, and 2011. Instead, Bill C-567 is a modest effort and seeks to address only those aspects of reform on which there is a stated and documented consensus.

Colleagues on the government benches will recognize all six elements of Bill C-567, as they are taken chapter and verse directly out of the Conservative Party election platform. In fact, there is nothing in my bill that is not taken word for word from the election promises that the present Conservative government made to Canadians.

There are six simple points. The first would give the Information Commissioner of Canada order-making powers to compel the release of information that he or she determines should be released. Members will find this in clause 5 of my bill.

The second point would be to expand the coverage of the act to all crown corporations, officers of Parliament, and foundations and organizations that spend taxpayers' money or perform public functions. Members will find that in clause 9 of the bill.

The third point would subject the exclusions of cabinet confidences to the review of the Information Commissioner of Canada. That is in clause 4 of my bill.

The fourth point would oblige public officials to create documents and retain the records necessary to document their actions or decisions. That is in subclause 2(1).

The fifth point would provide a general public interest override for all exemptions so that the public interest is put before the secrecy of the government.

The final point, number six, would ensure that all exemptions from the disclosure of government information are justified only on the basis of harm or injury that would result from the disclosure, not blanket exemption rules.

As I said, all six of these points are directly from the Conservative Party's own election campaign platform.

In my final few minutes, I would like to recognize and pay tribute to some of those who have been champions over the years of the public's right to know, and who are therefore champions of democracy, in my view. First of all, I would like to pay tribute to the hon. Gerald Baldwin, a nine-term Progressive Conservative MP, from Peace River, whose groundbreaking private member's bill from 1969 languished under the scrutiny of the regulations committee until 1978. That bill would serve as the foundation of the act that came about a few years later.

Next is Svend Robinson, a nine-term NDP MP, from Burnaby—Douglas, who was an early champion of access reform. He helped to develop the current legislation in 1982.

John Bryden, former Liberal MP and former editor of the Toronto Star, dedicated his entire career as a member of Parliament to freedom of information reform. John founded and chaired the ad hoc parliamentary committee on access to information, when his own government of the day would not put forward the amendments that he sought. I was proud to take over as sponsor of John Bryden's private member's bill on ATI reform in 2004, when he lost his seat.

The hon. Bill Blaikie, a 30-year veteran NDP MP, and former Dean of the House of Commons, was a tireless advocate of the people's right to know and better access reform.

Former information commissioner John Reid went as far as to table a total rewrite of the legislation as a result of his profound frustration in trying to administer a dysfunctional act. It was his open government act that formed the foundation of the Conservative Party campaign promises that created this bill.

Finally, I would like to recognize the sitting member for Mount Royal, who as the former Liberal minister of justice worked closely with me to try to introduce access to information reform measures. When he was unable to do so, he was honest enough to admit that the forces against such reform were legion, and they proved to be insurmountable. I respect him for trying, and I respect his honesty after failing.

Today's Access to Information Act is terribly outdated and dysfunctional. It is broken and in desperate need of repair. The current Information Commissioner of Canada, in her October 2013, report said, “there are unmistakable signs of significant deterioration in the federal Access to Information system”.

The Conservatives agreed, when they were running for office, that all of the changes suggested in Bill C-567 are desirable and necessary if we are to make manifest the lofty principles of freedom to information and the people's right to know. They promised the Canadian people that, if elected, they would implement the six specific changes to the Access to Information Act found in Bill C-567, and today I hold them at their word.

[Erin O'Toole, Conservative, Parliamentary Secretary to the Minister of International Trade]

Mr. Speaker, I have to admit to the House that I listened with great interest, but a bit of shock at the irony of the hon. member's speech. He mentioned the importance of bright lights and transparency; he mentioned noble principles; he even quoted famous jurist Oliver Wendell Holmes. However, the member had the opportunity, with respect to a defence fund that he was involved with, to provide that same level of transparency and disclosure in terms of the structure and governance of the fund and the compliance sought for the fund with Elections Canada and the Ethics Commissioner, including donations to that fund to become public for transparency.

I would ask the hon. member whether the spirit of his bill might lead to the transparency efforts on the hon. member's behalf now on that fund, to allow those same bright lights and that spirit of transparency to shine down on that member's defence fund.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I am glad to have the opportunity to remind my colleague of the Conservative Party platform, “Stand up for Canada”. A lot of members will recognize it and remember it well. My colleague even says he sleeps with a copy of it under his pillow. That is how committed he is to these promises.

I could direct my colleague, as he is relatively new to the House, having been elected in a byelection, I believe, after the Conservative member of Parliament in his area had to resign in disgrace. He should be aware of page 12 of the very Conservative campaign platform that I am referring to, which has the six points that comprise the six points in my bill. It says the Conservative government would “give the Information Commissioner the power to order the release of information”.

This is a common theme throughout the access to information community. Instead of the Information Commissioner having to seek satisfaction in the courts when government departments refuse to disclose information that she, after investigation, has deemed should be released, she can order and direct the release of those documents.

The other five points I will leave to my colleague to read. Perhaps he could ask his colleague, the Minister of Industry, for his copy that he keeps under his pillow and they could study it together.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Speaker, I would like to congratulate my colleague on this wonderful bill, which comes at a critical time, since this Conservative government is showing an increasing lack of transparency.

A Montreal Gazette editorial quotes the Prime Minister. I would like to read what he had to say.

Before the Prime Minister came to power, he said:

Information is the lifeblood of a democracy. Without adequate access to key information about government policies and programs, citizens and parliamentarians cannot make informed decisions and incompetent or corrupt governments can be hidden under a cloak of secrecy.

He said those words when he was the opposition leader, but his government has done exactly the opposite.

Why does the member think the government has taken so long to fulfill its promises? Can he also comment on whether government members are disappointed when they look at the promises that were made and the plan for 2014?

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, there was great hope and optimism that the Conservatives were going to be different. In fact, John Bryden, the Liberal MP I made reference to, crossed the floor. He was so frustrated with his own party for failing to introduce the measures he thought were the single most important thing one could do, that he crossed the floor to the Conservatives and ran as a Conservative when he lost his election.

The campaign promise was that the Conservatives would introduce all of the Information Commissioner's recommendations in his open government act and, in fact, it was part of the Federal Accountability Act until it was pulled out. I was instrumental in passing the Conservatives' Federal Accountability Act as the swing vote on the parliamentary committee that passed it. Every motion needed my support. We were shocked when the freedom of information chapter was lifted out of the Federal Accountability Act.

I think I can only quote the former minister of justice, the member for Mount Royal. He underestimated that the opposition to freedom of information is legion and, when the powers that be got to the Conservatives and asked what they could possibly be thinking and why they would stipulate themselves to that level of scrutiny voluntarily, they chickened out, backed out, and broke their promises. We are asking them to fulfill their commitment to Canadians today with these six simple measures.

The House resumed consideration of the motion.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I rise to speak to Bill C-567, introduced on January 28 by the hon. member of the NDP for Winnipeg Centre, entitled, An Act to amend the Access to Information Act (transparency and duty to document).

My colleague spoke about the requirement to document decisions and actions. I agree that this can be problematic and requires careful consideration.

Let me turn the attention of the House to another important and problematic feature of Bill C-567. It appears in clause 3, which would modify the current exemption that government institutions can use to protect records relating to the operations of government. I believe it is important to draw the attention of the House to the fact that the current exemption in the Access to Information Act that can be used to protect advice prepared for government is referred to as a “discretionary exemption”. This means that the head of a government institution must first decide whether a particular record contains advice prepared for government. Next, the head must decide whether to exercise that discretion by way of protecting the record or by way of releasing it. To me this seems to be a fair approach.

This exemption is an important one. It is used to protect the advice and recommendations that public servants give to a minister or advice or recommendations that may be coming from a minister. The exemption is also used to protect the confidential deliberations taking place within the public service on policy options.

The rationale behind this exemption is that disclosure can, at times, have a chilling effect on the candidness of advice, recommendations, consultations, and deliberations given or received by the federal public service and can lead to a reluctance to deal frankly with a difficult situation.

The modification proposed by Bill C-567 would require that government institutions conclude that the disclosure of a record is harmful to their operations and their processes before they decide to refuse to disclose the record. I wonder how workable it would be for government institutions that have a genuine reason to protect, at least temporarily, advice prepared for government to be able to demonstrate that the release of the advice would be harmful to their operations.

I will also add that the bill would not only add this prejudice test, but it would also shorten the time period of application of this exemption to five years instead of twenty years. If I understand correctly, this exemption would, after five years, no longer be applicable by a government institution to protect the policy advice it gave to a minister.

Let me turn to another provision of Bill C-567. Clause 4 constitutes a crucial aspect of this bill. As a result of clause 4, the bill would considerably modify the way that confidences of the Queen's Privy Council for Canada have been treated under the Access to Information Act for the past 30 years. We can all agree with the Supreme Court of Canada when it said that cabinet confidentiality was essential to good government in Babcock v. Canada, 2002, SCC 57, at paragraph 15.

There exists in Canada a constitutional convention wherein private deliberations between ministers of the crown for the purpose of rendering advice to Her Majesty should remain confidential. This constitutional convention has been recognized in three statutes, the Access to Information Act, the Privacy Act, and the Canada Evidence Act. It is in recognition of this convention that cabinet confidences have been excluded from the Access to Information Act and the Privacy Act. It is in recognition of this convention that in the context of litigation, under the Canada Evidence Act, cabinet confidences cannot be reviewed by a court. Because of this exclusion in the Access to Information Act and the Privacy Act, the information and privacy commissioners do not have access to cabinet confidences to review them or make findings on them. The courts, reviewing a decision from a government institution, cannot see cabinet confidences either. That is the current state of the law.

What Bill C-567 proposes to do is to replace the exclusion for cabinet confidences that has been in existence for less than 20 years by an exemption that would apply to cabinet confidences in existence for less than 15 years. Because records subject to an exemption, as opposed to an exclusion, are subject to the act, this amendment would give the Information Commissioner the power to review cabinet confidence documents during his or her investigations and would give the Federal Court a right to review these documents. With this bill, the non-exhaustive list of records that could be included as cabinet confidences would be replaced by a more narrow definition of the concept. It is unclear whether the definition would capture all of the types of documents currently included in the list of examples of cabinet confidences.

I would also remind the House that as the bill touches only on the Access to Information Act, there would be inconsistencies with respect to other legislation that also govern the treatment of cabinet confidences, such as the Privacy Act and the Canada Evidence Act.

Another important feature of Bill C-567 is that it would give the Information Commissioner of Canada the power to order government institutions to disclose documents, including cabinet confidences. This is a fundamental change in the role of the information commissioner. It constitutes a shift from her role as an ombudsperson to one of a quasi-judicial order-making body. This is a substantial amendment that is not at all likely to improve our access to information regime.

In his proposed reforms to the Access to Information Act, former information commissioner Reid did not recommend that the role of the information commissioner be changed in any such way. Mr. Reid's view was that the ombudsman model works effectively; that fewer than 1% of complaints end up in courts; and that based on experience in other jurisdictions, the order-making model would not reduce litigation or improve outcomes. His predecessor, the late John Grace, also voiced similar views during his mandate.

The bill also contains a requirement that the head of a government institution disclose a record if the public interest in disclosure clearly outweighs the need to maintain the secrecy of the information, even if an exemption would otherwise apply. What this means exactly is not clear to me, and what guidance could be given to government institutions on this matter is also equally unclear.

What members of the House would need to think very carefully about is the impact that such a public interest override test would have on the application of certain very important exemptions in the Access to Information Act. Most notable is the one that relates to information obtained in confidence from our international allies or provincial counterparts. This exemption, which is mandatory for very good reasons, under Bill C-567, would be subject to a public interest override test.

What would this mean? What greater public interest could justify the disclosure of records provided to us in confidence by another government? How would we explain that the documents that we received in confidence from our international or provincial counterparts may not necessarily remain protected? These are serious concerns.

The same public interest test would apply to the exemption protecting personal information. We all know that personal information about an individual is protected under the Privacy Act. The Courts have recognized that the Access to Information Act and the Privacy Act are two-sided coins. Together, they set out the rules governing disclosure and protection of information held by the federal government. They are equally important statutes, and when applying them, judges must read them together. The Supreme Court of Canada said that the Access to information Act and the Privacy Act are a seamless code, with complementary provisions that can and should be interpreted harmoniously.

There are provisions in the Access to Information Act that allow for personal information to be disclosed in very specific circumstances and as instructed by the court. These provisions are carefully drafted to work harmoniously with the Privacy Act. This means that more personal information cannot be disclosed under the Access to Information Act then would be authorized under the Privacy Act. Both statutes regulate the disclosure of personal information to third parties in the same way.

It is important to note that what is being proposed could be very damaging to privacy interests. As most of us no doubt realize, the federal government relies on Canadians' willingness to provide the government with their sensitive personal information so that the government, in turn, can run a myriad of important programs and activities. I would emphasize that in many situations, individuals are actually obliged to provide the government with their personal information.

There is a fundamental bargain involved here, which is that because the government requires so much personal information in order to do its business, it bears a heavy burden to take great care with the personal information with which Canadians entrust their government. I believe that the introduction of a public interest override in the Access to Information Act requires great consideration.

To conclude, I would reiterate the message that the former minister of justice, the member for Niagara Falls, gave, in 2009, in the government's response to the report of the House Standing Committee on Access to Information, Privacy and Ethics, which studied the 12 recommendations for reform by Commissioner Marleau. He indicated the following:

The Access to Information Act is a strong piece of legislation. It is crucial that careful consideration be given to the impact changes to the legislation may have on the operations of the [access to information] program. Legislative amendments must be examined in the context of administrative alternatives, such as enhanced guidance and training that can be equally effective to realize continued improvements.

I believe that this message is still sound today.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is with pleasure that I rise today to speak to Bill C-567, introduced by the member for Winnipeg Centre.

I can safely say that over the years I have witnessed first-hand what has been a relatively slow but important evolution, if I can put it that way, of governments at different levels, both in Ottawa and at the provincial level, where we have seen the benefits of trying to ensure that the citizenry and other stakeholders have better and more access to government documents. It was interesting that the member for Winnipeg Centre, in his opening remarks, talked about transparency and the shedding of light and how we as a community and a society can benefit if we are able to make greater strides toward getting just that: greater access to information.

Quite often over the years I have found there is a great willingness from opposition benches and from a few others who want to see, in a more public way, more transparency on the whole issue of access to information. We find that opposition members are constantly raising the issue in different forms, whether through letters to different departments or by requesting information through the House, trying to draw out details on different types of programs and services that are provided by the government.

It is important that we recognize that in this case the Information Commissioner plays a very strong role in ensuring the integrity of our system. Most Canadians would be somewhat surprised at the degree the Information Commissioner and the roles and responsibilities of the office have in ensuring we see more transparency within the government. This is something I believe is absolutely critical for us to continue to move forward. On that particular note, that is the reason it is important that we recognize this bill for what it is and, at the very least, allow it to go to committee. I listened to the previous speaker, and there is no doubt that the government does have some concerns related to the bill, and I suspect there might be opportunities to, at the very least, make some amendments that might improve upon it.

However, I would suggest that there is a potential for a consensus that we can do more in terms of being more progressive at improving what we currently have. The member for Winnipeg Centre made reference to a platform, and it is important to recognize that Bill C-567 has been drafted to include commitments that actually were made by the Conservative Party and the Prime Minister in 2006 as a campaign platform. Back in 2006, the current government had recognized deficiencies and the way in which we could actually improve upon those deficiencies. That is why I say that through time I believe what we are seeing is a stronger drive toward that higher sense of accountability and transparency. I would suggest it is only natural that we would want to have further debate and changes to legislation that would ultimately ensure more transparency and more accountability on what issues are important to Canadians.

Less than an hour ago, we had an important vote on the Liberal Party's opposition motion that dealt with the whole issue of proactive disclosure and how much we were able to accomplish in nine months.

The leader of the Liberal Party stood in his place, at the seat right in front of me, and proclaimed that we need to have proactive disclosure. Canadians are demanding more transparency and more accountability. He then took it to the next step and said that his expectation was that all Liberal members of Parliament would comply with that, and participate in proactive disclosure.

Not much longer after that, the Conservative Party recognized the merits of what the leader of the Liberal Party was talking about. Today, we ultimately passed an opposition motion that is in essence going to enact exactly what the leader of the Liberal Party talked about last June.

I would suggest that this is something we should reflect on when we look at this particular piece of legislation. Why not recognize the very tangible public policy that Canadians will get behind and support? I believe this is one piece of legislation that does have merit.

We have all sorts of annual conferences taking place with different stakeholders. The commissioner is no different. We have different agencies across the country, ombudsmen and access to information officers, that deal with the delicate issues of privacy and access to information.

They had a conference back in October 2013 where ombudspersons and information and privacy commissioners from across the country passed a resolution urging the federal, provincial, and territorial governments to update their respective laws.

These independent agencies recognized the deficiencies there, and are challenging legislators, whether at the provincial or national level. Here we are talking about a proposed national bill that has a great deal of merit.

Some, including myself, would ultimately argue that this legislation, if allowed to go to the committee stage, might be able to address some of the issues raised at the conference of independent, non-partisan, apolitical organizations established by different governments of different political stripes.

Their recommendations are, and maybe I will cite some: creating a legislative duty to document deliberations, actions, and decisions of public entities to promote transparency and accountability; strong monitoring and enforcement powers for regulators, such as binding orders and penalties for non-compliance; and establishing when and how individuals should be notified when their personal information has been lost, stolen, or improperly accessed.

As the member for Winnipeg Centre pointed out, the changes being proposed here are part of a platform. The Liberal Party has seen the merit in accepting many of the ideas and suggestions being brought forward.

As we saw with the leader of the Liberal Party on the proactive disclosure issue, we have an issue that if the debate is allowed to continue here, hopefully members, in particular the Conservative members, will see the merit in allowing the bill to go to committee, where we could have a more wholesome, full discussion on what is an important issue for all of us.

We need to feel comfortable in knowing that having access to information is of critical importance, and that there is a way we can appeal to someone, such as the Information Commissioner, when we feel there needs to be more or that we are missing out on something.

For Canadians and others who want to get a better idea there are resources that they can tap into. The commissioner has a well-developed website. There is all sorts of information even at the different levels that we need to have access to. There are agencies to protect that access and to ensure that we continue to move forward.

By allowing this bill to pass and go to committee, we would be taking a step forward on the important issue of access to information, which would ensure more accountability and more transparency.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I am delighted to rise today to speak in strong and enthusiastic support for the private member's bill introduced by my friend from Winnipeg Centre.

I am a little concerned. I thought this bill would have found unanimous support in the House. I say that because I know that my friend utilized the 2006 campaign promises in the Accountability Act by the Conservative Party. These were principles, every single one of the six that are before us tonight, that found their way into that document. I assumed that we were here to give support to those principles.

I want to thank my friend from Winnipeg North who just spoke and who made a very constructive suggestion in urging the House to pass the bill and allow it to be sent to committee where we can look at it in greater detail.

I have a great interest in this topic. I studied freedom of information in the United States in graduate school. I was invited by the former Government of British Columbia to draft its freedom of information and protection of privacy act, the first bill of its kind in that province, which received unanimous support in the legislative assembly.

This is a topic I care a great deal about. I worked as a lobbyist for the Canadian Bar Association some 30 years or more ago when the Conservatives had to grapple with the new Access to Information Act. That was a bill under the Joe Clark administration, which was visited upon Mr. Trudeau's regime subsequently, and it was finally Mr. Mulroney who had to live with the consequences of Canada's first Access to Information Act.

Concern has motivated this reform initiative, concern that it has been over 30 years that we have had the act. Imagine what has changed in that period. The advent of computers is something that needs to be considered. Emails, correspondence, that sort of thing, were not even part of the scene back in 1982 when our Access to Information Act was first brought in.

The act attempted to change a culture of secrecy that is part of our Westminster parliamentary system, alas, and there was great optimism that it would do so.

Since that time, the courts have said that access to information is what they term a “quasi-constitutional” right; not quite a charter right, but something approaching that in its importance.

I had the great honour to work with the Conservative member of Parliament for Peace River, the late Jed Baldwin, who has been called the father of freedom of information in this country, and who worked tirelessly to promote the first such bill.

I worked on a committee of the House of Commons with my friend and constituent David Flaherty, one of Canada's leading experts on data protection. That committee came up with 102 recommendations for reform of the legislation before us, the Access to Information Act and the Privacy Act. I am pleased that there was unanimous support for that bill, including a backbencher at the time, the member of Parliament for Niagara Falls, who subsequently has become the Minister of National Defence in the current government, joining in a unanimous report to promote change in this legislation.

I thought that there would be no difficulty in having the six principles that were in the 2006 accountability platform of the Conservative Party of Canada brought forward and implemented. I heard the parliamentary secretary speak to those six elements and I think they deserve greater attention.

The first element is the order-making power, not to simply have an ombudsperson who recommends to government what it should do, but an order-making power. That was the centrepiece of the legislative change in Ontario, Quebec, British Columbia, Newfoundland, Saskatchewan, Alberta, and on it goes. Every province has that power; the federal government chooses not to. I concede that the parliamentary secretary is right in referring to John Reid and Mr. Grace in saying they did not think that was necessary, but subsequently that has been what most critics have said is required.

The second thing in the bill is the expansion to crown corporations, officers of Parliament, and the like. I cannot see why that is particularly controversial.

Third, there is controversy about the nature of cabinet confidences. The parliamentary secretary spoke to that. I would be the first to agree that it is central in our system of government that there be cabinet confidences.

The issue is whether we need the only exclusion in the Commonwealth, the only exclusion of which I am aware anywhere, that is protecting cabinet confidences. That came from a time when the clerk of the Privy Council, Mr. Pitfield, argued that the only way we would get the law in Canada would be if we had it.

It has been 30 years. None of the provinces have it. We have not seen the world come to an end. Cabinet confidences are still an exemption, not an exclusion. That is, there is a box around cabinet confidences that would remain. There is no problem with this that the other provinces have encountered. It has not been a problem.

The exclusion that was in here was a cost of getting this bill through the then Liberal government. It is no longer necessary. I believe that would bring us in harmony with what other provinces uniformly have.

My friend from Winnipeg Centre stressed the importance of the fourth element, which was the requirement to create records, to document government, to not have an oral culture. If we talk to archivists and people who work in the public service, they will acknowledge that there needs to be such a section. There needs to be a place we can go to find out what the government is doing with our money to create records that are the public's.

The next thing that was talked about, which was the public interest override, is something that is likewise found certainly in the British Columbia and Ontario statutes and I believe in others as well. It is not something that has proven to be a great obstacle. I concede that the drafting of that, vis-à-vis the other exemptions, does need attention, and that could be done at committee and given some attention.

The last issue that was problematic, and the one with which the parliamentary secretary began his remarks, is the policy advice exemption. Those in the freedom of information business call this the Mack truck clause. That is, everything can become advice to government and then not be able to be seen.

What is in place now is a class exemption. If it is called policy advice, that is the end of the story. The reform the Conservatives promoted back in 2006, and that we hope will be accepted now, is that there be an injury test to determine whether the disclosure, although it would be policy advice, would reasonably be likely to harm some government interest.

In response to the parliamentary secretary, there are still lots of other exemptions if that one were no longer available. We would still be able to argue that it would be injurious to national security, to use an example the parliamentary secretary used, or it could be a cabinet confidence or one of the many other exemptions that are listed in this statute. The difference would be that the government could not just say that it is in that box, that exemption, that category. It would have to say, and prove, that it would cause harm.

That does not seem like a particularly radical notion. Indeed, it is one that is found in statutes across the land and across the world. When the Conservative governments of England brought in a freedom of information act, they had no trouble with the principles being proposed by my friend from Winnipeg Centre.

This is modern legislation that takes into account the computer era in which we live. I have tried to go through the six elements of the bill, all of them accepted and promoted by the Conservatives when they were seeking office. That is why I hope we can persuade the Conservatives to go back to where they came from, to their roots, and seek the kind of transparency, the kind of accountability, I think Canadians elected them to promote.

I do not think there is any need to be partisan about this. It is a quasi-constitutional right, the courts have said. Let us get it right. Let us make it as good as we can.

Again, I am indebted to my friend from Winnipeg North, who suggested that we send it to committee so that we can look at it, examine it, hear from experts, and see what the problems may or may not be.

It is not just my friend from Winnipeg Centre and I who are concerned about this. Our current Information Commissioner, Suzanne Legault, has said as follows:

Access is one of the tools that make citizen engagement in government and the public policy process possible. When institutions falter in their service to requesters, it is more than just an inconvenience to those individuals and organizations; ultimately, it is the health of Canadian democracy that is at stake.

Thirty years later, we stand before this House again to try to realize the dream that Canadians have of an accountable government, and access to information is the root of that. I say it is time to join together and create a transparent and accountable government through this legislation.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I rise at this time to comment on Bill C-567, an act to amend the Access to Information Act, transparency and duty to document. This private member's bill by the hon. member for Winnipeg Centre would make a number of amendments to the Access to Information Act.

I do not know if members of this House are aware that the NDP member for Winnipeg Centre introduced his first private member's bill to amend the Access to Information Act in May 2008. Bill C-554 was at the time entitled “An Act to amend the Access to Information Act (open government)”.

I will say that the proposals contained in that bill were not new. The member of Parliament was essentially introducing proposals developed by Information Commissioner John Reid in 2005. Some of these proposals were even endorsed by Justice John Gomery in his 2006 report for the commission of inquiry into the sponsorship program. The proposals are overall the same: expanded coverage of the act, duty to create records, repealing the exclusion for cabinet confidences, et cetera. Bill C-554 died on the order paper with the dissolution of Parliament in 2008.

The member for Winnipeg Centre reintroduced his bill in the 40th Parliament in February 2009. It was then numbered Bill C-326, and it was also called “open government”. The bill did not progress after first reading.

The same proposals were reintroduced by the member for Winnipeg Centre in September 2011 in Bill C-301 under the same title. The bill did not go further than the first reading.

Here we are today with Bill C-567, an act to amend the Access to Information Act. Bill C-567 is subtitled “transparency and duty to document” instead of “open government”, but it is essentially the same as the previous bills.

We can all agree that strong access to information legislation is essential to a properly functioning democracy. It is true that an effective system of democracy requires the government to be accountable for its policies and their administration. We all recognize that access to information legislation acts as a check on government activity.

In one of its first judgments regarding the act, the Supreme Court of Canada clearly stated that for a country to have access to information legislation is an integral part of democracy. Our government wholeheartedly agreed with this view.

Let me turn now to all the steps our government has already taken to promote open government, transparency, and accountability.

In April 2006, our government introduced the Federal Accountability Act and action plan. Through the Federal Accountability Act and action plan, the Government of Canada brought forward specific measures to help strengthen accountability and increase transparency and oversight in government operations. The comprehensive action plan includes the Federal Accountability Act as well as supporting policy and other non-legislative measures.

The Federal Accountability Act amended the Access to Information Act in important areas. It focused on openness and accountability by expanding the coverage of the act to include a number of officers of Parliament and all Crown corporations, as well as various foundations created under federal statute. It also facilitated openness by creating a duty for government institutions to assist requesters without regard to their identity, and to make reasonable efforts to respond accurately and completely to their requests, in the format requested.

However, the federal accountability action plan did not just amend the Access to Information Act to improve transparency, openness, and accountability of government; it also amended other specific legislation and strengthened the policy framework to improve accountability.

I will give a short list of the main things that were achieved through the action plan, which all translate into more openness, transparency, and accountability of government.

We cleaned up the procurement process for government contracts by enshrining in a law a commitment to fairness, transparency, and openness in the process and by appointing an independent procurement auditor to provide additional oversight. That is a major achievement toward transparency.

We did more.

We strengthened the power of the Auditor General by expanding the reach and scope of the Auditor General's investigative powers to help Parliament hold the government to account.

We strengthened auditing and accountability requirements within departments by clarifying the managerial responsibilities of deputy heads within the framework of ministerial responsibility, and by bolstering the internal audit function within departments and Crown corporations. This translates into a requirement to document decisions and actions in a variety of areas.

I stress once more that our government has already done a lot in the area of transparency, openness, and accountability, and we continue to find ways to do more.

For example, my hon. colleague, the President of the Treasury Board, who shares with the Minister of Justice the responsibility for the Access to Information Act, is currently modernizing the policies regarding the act and examining ways to simplify the process for access requesters.

Last June, the President of the Treasury Board launched the Government of Canada's next generation open data portal, providing unprecedented access to government data and information, and demonstrating Canada's international commitment to transparency and open government. The open data portal contains datasets compiled by over 20 departments and agencies, covering a broad range of topics, from housing to health and environmental data. By accessing the portal, people have the opportunity to explore local census or crime statistics, immigration data, air quality data, coast-to-coast mapping data, and much more.

In January of this year, the President of the Treasury Board launched an initiative where access requesters can make their demands online via the access to information and privacy online request tool. More federal organizations are now a part of this initiative. In the first 10 months since the tool was launched, almost 21,000 requests have been submitted using this option.

Let us not forget the open government initiative, which Canada is a part of. This international movement has translated into key achievements for Canadians, such as their capacity now to browse online through summaries of completed access to information requests from key federal institutions, their capacity to search the Government of Canada's expenditure database for detailed departmental spending information, and the proactive disclosure of financial and human resources related information of federal government departments.

What our government has realized is that there is no one single vehicle to improve transparency and accountability and to achieve openness of government. Transparency and accountability can and must be achieved through a variety of measures and instruments. The Access to Information Act is not the only vehicle by which to achieve transparency.

The purpose of the Access to Information Act is quite clear. It is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution, in accordance with the principles that government information should be made available to the public and that necessary exceptions to the right of access should be limited.

Thirty-one years ago, when it enacted the Access to Information Act after many studies, Parliament recognized that a balance was needed between transparency and secrecy, that not every government document should be made available to the public and that certain interests deserved to be protected.

The Access to Information Act is, by its nature, all about a complex balancing of openness, transparency, and accessibility to Canadians, and accountability. The Access to Information Act is a powerful piece of legislation that works. It works because it reveals what needs to be revealed, and equally importantly, through its exemptions, it protects information that must be protected for a properly functioning democracy.

Although we are prepared to examine the proposals in the bill, we also need to keep in mind everything that we have done to achieve transparency and accountability in this government.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Speaker, I will be brief because I do not have much time.

I would like to congratulate my colleague on his initiative. The Access to Information Act is extremely outdated. We have been suggesting changes for a long time, but nobody has done anything. Today our colleague wants us to take action.

I was disgusted when I heard the parliamentary secretary say that the bill had quite a few problems. After all, it was copied right from the Conservative platform. He might as well have been commenting on the Conservatives' commitments and their promises to Canadians.

The Conservatives should keep the promises they made to Canadians in the hopes of getting elected. They should support my colleague's bill. Numerous experts, including the Information Commissioner, Suzanne Legault, who is doing an excellent job, have asked the government to update the law because it is outdated.

[The Acting Speaker, Bruce Stanton]

The hon. member for Terrebonne—Blainville will have nine minutes to speak when the House resumes debate on this motion.

The hour provided for the consideration of private members' business has now expired. The order is dropped to the bottom of the order of precedence on the order paper.

The House resumed from March 5 consideration of the motion that Bill C-567, an act to amend the Access to Information Act (transparency and duty to document), be read the second time and referred to a committee.