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

This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.

Sponsor

Pat Martin  NDP

Introduced as a private member’s bill. (These don’t often become law.)

Status

Defeated, as of May 7, 2014
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

May 7, 2014 Failed That the Bill be now read a second time and referred to the Standing Committee on Access to Information, Privacy and Ethics.

Access to Information ActPrivate Members' Business

May 5th, 2014 / 11:05 a.m.
See context

Liberal

Scott Andrews Liberal Avalon, NL

Mr. Speaker, it is a pleasure to add my voice to this private member's bill that would amend the Access to Information Act. The Access to Information Act is a piece of legislation that keeps governments to account. No matter what government is in power, giving people the right to access information keeps everybody on their toes. When we are governing this country, we have to ensure that Canadians have a right to information that the government collects on them, and a right to the information on the actions of a particular government. If we were not to participate in active and proactive access to information, it would create a lot of secrecy. We would not be able to keep a government to account.

Our access to information laws have been there for many years now, but there comes a time to review our legislation and update it with the times. This piece of legislation would help access to information commissioners do their jobs in getting information, compel governments to provide the information, and ensure there is recourse for individuals who do not get the information they are seeking to go to an information commissioner and put out a case.

Also, there is a need for timely disclosure of information. Quite often information is not disclosed in a timely manner. Some of these requests are legitimate. If there are many documents that the various departments have to go through, that is important to know.

However, over the years, governments have more and more not been compelled to disclose information. In an article, the Canadian Journalists for Free Expression reported that from 1999 to 2000 the federal government disclosed information from requests under the act about 40% of the time. It is not acceptable that only 40% of the time it is disclosing information. However, by 2011-12, under the current government, that number dropped to 21%.

A recent study for the Centre for Law and Democracy reported that Canada ranked 56 out of 96 countries for the quality of its information laws. It clearly identifies a need to change our information laws. Whether it is by design that this information has been made available less and less, it is something that needs to be addressed.

As stated in its summary, the bill would do the following, 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.

Time and again, we see the Information Commissioner having to go to the court to compel the government to release information. This is a long and drawn-out process, and it needs to be updated.

With regard to order-making powers, we recently saw an example with our fair elections act bill, where the current Conservative government does not want to make order-making powers that would compel different commissioners of the House of Commons to provide information. This is something we have been calling for on that piece of legislation, but also on this one. It would give order-making powers to compel the release of documents to the Information Commissioner. We are not talking about just releasing it to anyone, but to allow the Information Commissioner to have the tools to do her job and to release the information to that office. That is the office that would make the decision on what information should be released.

Of course, there are always good reasons for information not to be released, such as to protect public safety, public security, the armed forces, individuals' rights of information, and commercial confidence. There is always a good set of reasons why information should not be released, but we should allow the Information Commissioner to have the ability to see that information, compel the government to provide the information to that office, and for that office to make the decision on whether the information is to be released. It should not be the government department in question.

Bill C-567 contains commitments made by the Conservative Party in its 2006 election campaign platform, “Stand up For Canada”. In 2006, after the Conservatives were in opposition for a number of years, they saw a need to update our access to information laws and thought enough of it that they put it in their platform. However, since they have become government, they have not done a whole lot on that. A lot of these commitments should be supported by all members of the House, including the government. The Conservatives are the ones who made these commitments in their platform, and it is important.

It would give the Information Commissioner the power to order departments to release information to her. A freedom of information request goes to a particular department, and each department has an individual or individuals who review that information and release the information to the person who made the request. Then, if the person who requested the information is not satisfied that all the information was received, he or she can ask the Information Commissioner to review the request to see what was and was not given. The only way to do that is if the Information Commissioner can obtain all of the documents and review them for herself. That is essential to freedom of information legislation.

Currently, if a department fails to release documents, the Information Commissioner may have to go to court to challenge the release. A lot of time and effort goes into making sure that people's information is released. When the Information Commissioner has to go to court, lawyers and the applicable department are involved, and it could take a long time. This is something we are trying to avoid. We should allow the Information Commission to be the one to look at the information and decide what information is to be released.

The commissioner has no authority to review information that the government has failed to release claiming cabinet confidence. Cabinet confidence is a very important part of our system, but at any time the government could say that everything is a cabinet confidence. If a piece of information is being requested, it is easy for the government to say it falls under cabinet confidence and it cannot release it. There needs to be a backstop. There needs to be an individual or a department, which is the Information Commissioner, to confirm whether it is cabinet confidence or not. The Information Commissioner is appointed to work on everyone's behalf, and that is the in between on that. Of course, cabinet confidences cannot be disclosed, but to have everything put into that broad window really does not give access to information any teeth in our country.

The current Information Commissioner has indicated her support for this particular reform. It has been on the table for several years now, and it is important. I am hopeful that we can move this piece of legislation through this place to committee to review it. It is a very important piece of legislation to keeping government to account on the governing of our country. My party will be pleased to support this piece of legislation, and I hope that all parties do.

Access to Information ActPrivate Members' Business

May 5th, 2014 / 11:25 a.m.
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NDP

Matthew Kellway NDP Beaches—East York, ON

Mr. Speaker, I am pleased to stand today in the House in support of an act to amend the Access to Information Act, Bill C-567.

There is a critical issue at play here, and that is the transparency of government. Many have spoken through many years in simple and profound terms about the centrality of this characteristic, transparency, in a good, and importantly, democratic government. The concept is simple enough. Absent the ability of citizens and elected representatives to see into the workings of government to access information concerning the decisions and decision-making processes of government, government is free from scrutiny.

Access to information is a precondition for the kind of government we want, one that is accountable to the opposition and to the electorate. Importantly, we are talking about a continuous state of accountability, and by extension, constant access to the information necessary to ensure that condition.

We all agree, in words if not in deeds, in principle if not in practice, that accountability should not rise and recede with the electoral cycle. No one professes the least satisfaction with a system that would allow government to disappear and operate behind a curtain between opportunities to throw it out.

One can find a long and interesting history of this bill and the principles of transparency and accountability that motivate it. A good place to start is 2005. With the Access to Information Act nearly two decades old, then information commissioner John Reid put forward a package of legislative reform for consideration. My colleague, the member for Winnipeg Centre, put forward that package in the form of private member's legislation in 2006, 2008, and again in 2011. While it never passed, it is not as though there was not support outside of this House for greater access to information.

In February 2009, then federal information commissioner Robert Marleau released his 12 recommendations for strengthening the Access to Information Act. The House access, privacy, and ethics committee issued a report in June of that year endorsing some of those recommendations. In 2010, there was a call from information and privacy commissioners across this country for more open government.

There are calls for reform of the act. I remember not long after being elected that a constituent, who was at one time a journalist and an editor for more than one national newspaper chain, came to my office for a chat. At the time, I was the critic for military procurement, and the government's plan to purchase F-35s was a hot topic. In that context, we were talking about access to information.

“As a general rule”, he advised, “if you want to know what's happening in Canada, cross the border into the United States and ask from there. Government is far more open there”. I confess that I was shocked by that, but my experience has proven this to be true.

More importantly, greater authorities have done ample analysis on this issue to support the contention that here at home, we find ourselves in very sad shape on this important measure of democratic government. For example, an international report comparing Canada to four other parliamentary democracies, Australia, New Zealand, Ireland, and the United Kingdom, put Canada in last place on access to information. That report graded us an “F”, for fail, in fact.

In 2011, a joint project by the Halifax-based Centre for Law and Democracy and the Madrid-based Access Info Europe ranked Canada in 51st place against measures of access to information.

In 2013, Canada's information and privacy commissioners and ombudspersons passed a resolution on modernizing access and privacy laws for the 21st century that included recommendations to improve access to information. Just last November, Suzanne Legault, our federal Information Commission, tabled her annual report to Parliament, which highlighted weaknesses in the information system that need to be urgently addressed.

According to the Information Commissioner:

All together, these circumstances tell me in no uncertain terms that the integrity of the federal access to information program is at serious risk....

It is imperative that the problems in the system be fixed promptly and substantively.

Here we are today with a substantive and obviously prompt response to problems in the system.

Now, this is not the full package of reforms to the act the member for Winnipeg Centre previously tabled in this House. Instead, Bill C-567 is, in his terms, “a modest effort and seeks to address only those aspects of reform on which there is a stated and documented consensus”.

The bill, therefore, contains six key clauses.

The first would give the Information Commissioner of Canada the power to make orders to compel the release of information that in his or her view should be released.

The second would expand the coverage of the act to all crown corporations, officers of Parliament, foundations, and organizations that spend taxpayers' money or perform public functions.

The third would subject the exclusion of cabinet confidences to the review of the Information Commissioner of Canada.

The fourth would require public officials to create and retain documents and records necessary to document their actions or decisions.

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

The sixth and final part would ensure that all exemptions from the disclosure of government information would be justified only on the basis of harm or injury that would result from the disclosure and not on blanket exemption rules.

Let me applaud my colleague for Winnipeg Centre for being such a consistent, indeed stubborn, advocate for greater openness and transparency, not just over time, but importantly, within this House. Over time, there have been just a handful who have led this cause from a seat in this place. There are others who have called for reform of the act and for greater openness and transparency, but rarely from inside this place. The former selves of the Conservative government are one such example.

In fact, the substance of the bill, the six simple points set out above, as the member for Winnipeg Centre happily acknowledges, is lifted straight from the 2006 electoral platform of the current Conservative government. Throwing back the curtains and shining a light into the dark recesses of government was once a good idea, they thought. In fact, they raised the principles of openness and transparency and accountability into an ideology unto itself. Fair enough, but now, having listened to this debate and having read the speeches from across the aisle, we find, again, that they left the white horse they rode in on tied up outside.

We have a government justifying keeping those curtains shut tight and the light out, justifying governing hidden from the gaze and scrutiny of those whose lives and country they govern. “How can we be open and honest all at the same time?”, they ask, in opposition to the bill and in opposition to their former selves.

It is a government obsessed with ensuring its own privacy but equally obsessed with knowing the business of Canadians. The Conservatives' objection to governing in the light of day comes coincident with news, further evidence, I should say, that they have virtually no regard for the privacy of Canadians, it just being revealed that the current government has made 1.2 million requests for private information from telecommunications companies. So egregious is this level of warrantless snooping into the phone and Internet records of Canadians that we, the NDP, are dedicating the rest of the day in the House to a motion calling on the government to take better care to safeguard the privacy of Canadians and to put an end to indiscriminate requests and the disclosure of the personal information of Canadians.

There is an opportunity here today for reconciliation, for the government to reconcile its current self with its former self, for the government to reconcile what it proposed in opposition with what it does in government, to reconcile its brand with its product and its ideology with its practice, to reconcile its obsessive grip on its own privacy with its disregard for the privacy of Canadians. I urge it to support Bill C-567.

Access to Information ActPrivate Members' Business

May 5th, 2014 / 11:30 a.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I am very pleased to rise in the House today on behalf of the people of Gatineau to wholeheartedly support the bill introduced by my colleague from Winnipeg Centre, Bill C-567, An Act to amend the Access to Information Act (transparency and duty to document).

I never would have thought that we would need to go to the Conservative government and make such a direct, clear and strong case for this bill. This is a common-sense bill, and people have been calling for it for decades. A society that lacks transparency and access to information is crippled in many ways.

This is all the more surprising considering that back in 2006 the Conservative government promised to be more transparent and accountable than previous governments. I know because I lost my seat in 2006. I remember full well that people bought into that Conservative promise. People put their faith in the Conservative government, but they have been regretting that decision ever since. It is unfortunate.

Open access to information is the foundation of government accountability. Our system is in crisis, but I will come back to that a bit later.

In September 2013, which was not very long ago, I was a member of the Barreau du Québec. To maintain our licence, we have to participate in professional development. That is why I had the pleasure of taking part in a day-long seminar at the University of Ottawa for Right to Know Day and Germain Brière Day. It was fascinating to listen to the panellists who participated.

We heard many things during that day. I just about fell over when I heard access to information experts say that, according to a recent Centre for Law and Democracy study, Canada ranks fifth worldwide when it comes to access to information. They also said that Canada performed poorly in a comparison of the Access to Information Act with provincial legislation. Unfortunately, in Canada, various levels of government tend to take their cue from each other, which means things are likely to get worse over time.

What are the leading-edge standards for access to information? Various panellists talked about that. I especially enjoyed the panel on the need and the right to know, which included Robert Fife, a CTV journalist and host and a recipient of the Charles Lynch Award for outstanding news coverage, and Benoît Pelletier, the former minister of intergovernmental affairs and a constitutional law expert. That day, Guy Giorno, a partner at Fasken Martineau, delivered an extraordinary presentation. Everyone knows him because of his connection to the Prime Minister.

I was so impressed to hear these people agree that Canadian society should be a lot more open and transparent and that the general public should have more access to information. As many people said to Mr. Giorno, a man I respect, it might have been nice had he given that kind of advice to his boss back in the day. Given the Prime Minister's Alliance and Reform background, we had high hopes, because that was what he hinted at in several respects.

As I was saying at the beginning of my speech, in 2006, the government was elected in the wake of the sponsorship scandal. The former auditor general was the government's shining star and it hid behind her. With hard work and the help of her team and the media, she managed to uncover what was likely the biggest scandal in Canadian history so that such a thing would never happen again.

I think that is very sad. It would be nice to believe that we learn from history and that the negative aspects, at least, do not repeat themselves, but unfortunately, that is not what happened. Instead, we got a government that made a point of promising us a law on government accountability with more teeth and then finally introduced a really weak bill. As a result, we are seeing scandal after scandal from the Conservative government.

We are talking about access to information legislation, yet we have never had such a secretive government in the entire history of Canada. If the Prime Minister has been looking for a legacy to leave behind, he has found one. After all these years as Prime Minister, I think that he will go down in history as the most secretive Prime Minister this Parliament has ever known. Soon we will celebrate the 150th anniversary of Canada. Unfortunately, those 150 years include these Conservative years, which we will remember with a bit of a shudder. I hope these years will soon be behind us.

Whether we are talking about the Auditor General—who was a superstar when it suited the Conservatives but is now an outcast—the Chief Electoral Officer or the Parliamentary Budget Officer, all of these individuals in our major institutions have become persona non grata. That is very unfortunate.

There was also the controversial appointment of Justice Nadon. As the justice critic, I nearly fell off my chair when the Prime Minister said that he was yielding to the Supreme Court's decision. That is what everyone usually does because the Supreme Court is the highest court and an extremely important pillar of our democracy. When the highest court renders a decision regarding the legal situation in our country, we yield to it and move forward with it in a positive manner. At least that is what we thought until the Prime Minister showed us what I believe is the most striking side of his personality: his vindictiveness and his refusal to accept different views. That is unfortunate.

When preparing this speech, I consulted statements that the Prime Minister made to his caucus at various points in time, whether it was with regard to the Federal Accountability Act or quite simply their way of being. I came across the following:

“Back in 2002, before the Accountability Act saw the light of day, [the Prime Minister] had some thoughts to share with the House about the idea of a legacy as he criticized the then-Liberal government’s recent Throne Speech, as well as then-Prime Minister Jean Chrétien and Paul Martin”:

We heard grandiose rhetoric delivering little or even the opposite of what it promises. We heard communication strategies that talked around real issues, ignored previous failures, gave no details, no plans and no price tags. Why? The most obvious explanation is that yesterday's throne speech was not really about anything except two men: one desperate to leave a legacy and the other whose legacy will simply be leading, if only for a short period....

He continued by saying, “What is a legacy? The word is bandied about a lot here. Why does the government not have a legacy after nine years? Creating a real legacy was the reason my party was founded.” Boy, did I laugh this weekend when I read that phrase. “It was not the lure of power nor the attraction of the spotlight. It was not to pad our resumes, reward our friends...”.

Do I have to remind the House about all the nominations the government did in the Senate and elsewhere? I could go on, but I think I will conclude with a letter I received from one of my constituents, Sylvia Renaud.

I asked her for permission to share her cri de coeur and she said, “Go for it”.

Referring to the Prime Minister, she said:

I cannot stand to see that guy leading our country. He gives me panic attacks.

That man is in the process of destroying, and quietly to boot, everything that holds our country together. He is making it hard to provide necessary services to the public (the government keeps cutting and cutting the big bad public service),...cutting transfers to the provinces (health care and education), cutting home mail delivery, at a time when the population is aging...What is this government thinking?

The government buries parliamentarians under mountains of bills and bundles of hastily made amendments in order to confuse people and leave little time for properly studying or reacting to them. Isn't this starting to look like anything but a democracy?

Now he is helping himself to our personal information without asking for permission? He was never given that mandate. Aren't you starting to scared?

By using the highly calculated strategy of remaining silent, by draping himself in a cloak of silence, the Prime Minister has given himself a great power, which is amplified by the fact that he has a majority government:...the justification for all the abuses.

When you think about it, isn't it surprising to see our Prime Minister remain so silent, even invisible, as he runs the country? Isn't it surprising to see this lack of explanation and justification, this refusal to engage in conversation, enter into dialogue, or even listen to the challenges the public is really facing?

My constituent continues on like that. I am issuing the same cri de coeur to the backbenchers who were elected on a platform of transparency, openness and representing their constituents.

For goodness' sake, I urge them to support Bill C-567. It cannot hurt.

Access to Information ActPrivate Members' Business

May 5th, 2014 / 11:45 a.m.
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NDP

Linda Duncan NDP Edmonton Strathcona, AB

Mr. Speaker, I do not want to reiterate what has been said by my colleagues, but unfortunately, it is necessary, to try to communicate across the way how the government has let Canadians down on what it has promised for so long. Many of my colleagues have read back what the Conservatives promised in 2006, and it continues to espouse that it is the government that believes in open, transparent and participatory government. However, bill after bill shows that it is going in exactly the opposite direction.

It is really important at the outset to read out what the Conservative government promised were when it ran on a platform of open, transparent and participatory government. In fact, at that time it was commended by Duff Conacher from Democracy Watch as having the best accountability package, and therefore Canadians should consider supporting the Conservatives.

What did the Conservatives promise? They promised: first, they would give the information commissioner the power to order the release of information; second, expand the coverage of the act to all crown corporations, officers of Parliament, foundations and organizations that spend taxpayer money or perform public functions; third, subject the exclusion of cabinet confidences to review by the information commissioner; fourth, oblige public officials to create the records necessary to document their actions and decisions; fifth, provide a general public interest override for all exemptions so that the public interest would be put before the secrecy of the government; and finally, ensure that all exemptions from the disclosure of government information would be justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules.

Here we are. How long has the government been in power? How many elections has it gone through continuing to promise to have an open, transparent government? What are the exact measures it has failed to bring forward in its accountability legislation? It is exactly those measures.

It is absolutely reprehensible that it is up to the official opposition to table the very measures the government has promised. Therefore, it is very logical, and Canadians out there can very logically presume, that we will have the full support of the government of the day to this excellent bill, Bill C-567 tabled by my colleague. He has tabled exactly the measures that the government long ago promised and that are necessary to ensure we have an open democratic government.

Why would we want to have open disclosure of information to the public? There are a good number of reasons. How about, simply, we have fact-based law-making? How about, when the government is actually delivering on its constitutional duty to consult, consider, and accommodate first nations interests, does it not seem normal and reasonable that it would be necessary for both sides to have access to the same information so they can proceed in a constructive way based on the same facts and information?

The government is actually bragging that it has received 27% more requests for access to information, as if that should mean it is an open, transparent government. It is quite the opposite. It is absolutely reprehensible that there has had to be a 27% increase in the public having to go through the complicated process of a formal access to information request. While the law requires a 30-day response to that information, people have to wait much longer. Why is that critical? Because decisions are made every day by the government that impact Canadians, whether it is health, the environment, drinking water or equal access to education. They need that information to ensure their rights are being considered and looked after.

What are the main provisions Bill C-567 is bringing forward? One of the most important provisions, and as a person who used to draft legislation I fully concur with the proposal, is the first amendment to clarify the purpose of the law and to expand it to make government institutions fully accountable to the public to make good record-keeping necessary by government institutions and that it be fully accessible to the public. Very clearly, that is exactly what an access to information act should provide for. I commend my colleague for coming forward with that proposed amendment, which is very straightforward.

Why is that necessary? Because we have lost track of the times where people have sought access to information and have been denied. Those of us who were in the previous session of Parliament recall when the government absolutely refused to disclose information on the Afghan detainees and were up against the wall. Canadians should have the right to information about the way the government is conducting itself, not only in our country but overseas. It is very important to the reputation of our nation.

The second proposal the member has recommended goes to the application of the law and that the duty to disclose the right of access should take precedence over other laws. The way the law is written right now is it is an exception. The proposal in this private member's bill says that we would still have reasonable exceptions to that, including national security and under the Privacy Act.

The third provision the member is proposing is on record keeping. That is just common sense. How is the public going to gain access to information if the government does not actually record its decisions? We have seen circumstances arise in which the government simply says that there is no record or a record has not been kept because so much of the information has been exchanged by tweet, email or text. This provision is very sensible and would require the documenting of decisions, actions, advice, recommendations, and deliberations.

Why would that be important? We can think of a good number of critical decisions before the country right now, for example, the approval of pipelines to the west coast. Even though departments are mandated by legislation to give ministers the powers to make decisions, those decisions are increasingly concentrated in the cabinet. Why is that significant? Because the legislation right now excludes decisions by the cabinet and the PCO. The recommendation in the legislation is that there should be more open access, in fact a lessening of the exclusions and exemptions, and that cabinet confidences should not necessarily be automatically excluded. I am advised that Canada is the only commonwealth nation that actually provides for cabinet exclusion.

There is also a recommendation to add a public interest criterion. That seems to be common sense. Obviously, when the government is measuring whether it should be holding information in confidence, if it would be in the public interest rising above all other interests, then that information absolutely should be released.

Duff Conacher with Democracy Watch has called this law, rather than the Access to Information Act, “The Guide to Keeping Information Secret”. That may sound like a rather humorous description of the act, but when we see example after example of the struggles that Canadians go through to simply gain access to information, it is probably an apt description.

Suzanne Legault, who is the Information Commissioner, has actually called for substantial reforms to the legislation. Because the government has not taken action, it is incumbent upon all members of the House to take a serious look at this bill. It contains the kinds of measures that she has been recommending. They are the kinds of measures that a good number of legal experts have been recommending. They exactly parallel the amendments that the government promised to make in 2006, and has still not done so.

I would like to close by simply speaking to an area that I am deeply concerned about and have had the opportunity to work in for a number of decades, and that is the area of the protection of the environment. Nowhere is it more important to have access to information than the protection of the environment: access to timely science; access to deliberations by the government, whether it is a regulated a toxin or whether it will make a decision to protect a river; and on its goes.

It is important to keep in mind that the government often forgets or ignores undertakings that it has previously made. The government is committed to the North American Agreement on Environmental Cooperation, in which it has an obligation to promote transparency and public participation in environmental decision making. It actually has an obligation under article 4 of the agreement to publish in advance any such measure it proposes to adopt and provide interested persons and parties reasonable opportunity to comment. There is obviously not much point in commenting unless people can see the details of what the government is considering.

Access to Information ActPrivate Members' Business

May 5th, 2014 / 11:55 a.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, I rise to close the debate on my bill, Bill C-567. I appreciate the member for Victoria who seconded the bill.

I thank all my colleagues who have entered into the debate. I am surprised and disappointed that no members from the government side have seen fit to enter into the debate on this important subject.

In the few minutes that I have, let me say that this is a fundamental cornerstone of our democracy, that the public has a right to know what their government is doing with their money. The instrument by which they are allowed to exercise that right is the Access to Information Act, our freedom of information laws.

The reason I put have forward this bill is that our access to information regime is broken. It is dysfunctional. The wheels have fallen off it. If I was in Newfoundland, I would say “Da arse is out of er.” The alarm has been sounded by better speakers than I in this whole regard.

Part of the problem is that the government treats information as if it were theirs, as if it has some proprietary right to information and it will ration it out in little tidbits, only when necessary and only when it serves its purpose. The government is completely off-centre on this. It is not the government's information. It does not belong to the government. It does not belong to the bureaucracy. It does not belong to the public servants who created it. It belongs to the people, the taxpayers of Canada, who commissioned that information and whose tax dollars paid for its creation. The public has a right to know.

The government members used to profess this. Members on the government side will recognize all six points in my private members' bill, because all six points come from this very document, “Stand up for Canada”, the Conservative Party of Canada's federal election platform.

Some of the members across stood on doorsteps and promised Canadians, with this very document, that if they were elected, they would give the freedom of information commissioner the right to compel evidence and documents, the duty to document. All of the six points I put in my bill are directly from this document.

Either the government members are going to support their own promise to Canadians, or we are going to witness the outer limits of hypocrisy. They are going to push the envelop and expand the notion of hypocrisy to something that Canadians have never seen.

Never before has a government been challenged by its own words in so obvious and clear a way. It was tempting for me, as the chairman of the access to information, privacy and ethics committee, to put forward a whole rewrite of the bill. God knows, there are many clauses of the bill that would benefit from amendment. However, I used some restraint and I limited my bill to exactly the promises the Conservatives made.

How, in all good conscience, will my Conservative colleagues stand later this week and vote against their own promise to Canadians?

It was the culture of secrecy that allowed corruption to flourish in the Liberal years. A lot of Canadians believed the Conservatives who said that when they were elected, things would be different. I guess in their minority government, they could have used the excuse that it was a minority, but if they had a majority, they would fulfill all the lofty promises they made to Canadians.

Well, they have had a majority for years, and now they have the opportunity to make manifest those lofty promises they made at the doorstep by voting for this bill, at least sending it to committee, so we can, for the first time since 1983, have a serious review of the Access of Information Act at a parliamentary committee.

In my closing remarks, I will quote the former information commissioner, “A government, and a public service, which holds tight to a culture of secrecy is a government and public service ripe for abuse”. Secrecy, I could not agree with him more.

The seeds of corruption are planted in the dark, and the black shroud of secrecy will become the most lasting hallmark of that administration if it does not stand, be honest with Canadians and vote for what it promised it would do as soon as it can on Bill C-567.

Safeguarding of Personal InformationBusiness of SupplyRoutine Proceedings

May 5th, 2014 / 5:15 p.m.
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NDP

Matthew Kellway NDP Beaches—East York, ON

Mr. Speaker, I am very pleased to stand in the House this afternoon in support of the motion by my colleague, the MP for Terrebonne—Blainville, on this great opposition day.

It is a day in the House to be talking about privacy issues. This morning I had the privilege of speaking in support of Bill C-567, an act to amend the Access to Information Act (transparency and duty to document), put forward by my colleague from Winnipeg Centre.

This morning's bill and this afternoon's motion complement each other very well. Together they demonstrate to Canadians our NDP desire that it be the citizens of this country, not the government of this country, who are able to conduct their lives with a reasonable expectation of privacy and that it be the government of this country, not its citizens, that has the obligation to operate in a manner that is transparent, open, and accountable.

If there is a simple conclusion to draw from the sum of the whole day, it is that the current Conservative government has it backwards, upside down, and twisted all around. The Conservatives stand in support of government privacy, of, in fact, the necessity to operate free from the scrutiny of the citizenry of Canada and those they elect to hold the government accountable.

How, the Conservatives ask in response to Bill C-567, can they operate at once openly and honestly? If they are to tell the truth, it must be behind the curtain, they argue, in the dark, out of earshot, and away from the gaze of the public and opposition members of this place. On the other hand, they demonstrate no mere disregard of the privacy rights of Canadian citizens. They demonstrate an appetite, a voracious, seemingly insatiable appetite, for the private information of Canadians.

Much is made of the fact that we live in new and different times, with new forms of information and new means of accessing that information. There is truth, of course, to this, undeniably. I think all of us are alive to the ease with which information we consider private is accessible to those who want to put some effort, and not much is required, into accessing it. Our expectation of privacy is diminished as a result, simply because we know the ease with which we are vulnerable. Therefore, we see the narrative here being one of the need to modernize our laws to take these new circumstances into account. That does not account for the conduct of the current government.

The problem before us is not simply one of a government that has not come up to speed, that has failed to respond in a timely way to these new circumstances, and that has left exposed loopholes in the formulation of the laws of this country. That would paint a picture of an incompetent or slow, but certainly benign, government. No, the current Conservative government is anything but benign.

Confronted with a loophole for accessing the private information of Canadians, a benign government may simply fail to close that loophole. The current government lets through that loophole, fully, completely, and head first, with great enthusiasm and an obvious lust for what it might find on the other side. What we have before us is evidence of this lust.

Very recently, the Privacy Commissioner of Canada, Chantal Bernier, revealed that Canadian telecom companies disclosed massive volumes of information to government agencies, including the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, Canada Border Services Agency, and provincial and municipal authorities.

Telecom companies disclosed personal data to the Canadian government 1.2 million times in a single year. We can of course concede that a balance is to be found between privacy rights, public security, and other concerns, including immediate danger to life. However, this can be nothing other than an indiscriminate fishing expedition of monumental proportions that the Privacy Commissioner has revealed to us.

These volumes equate to information requests with respect to one in every 34 or so Canadians. The vast majority of these requests are made without warrants. These volumes equate to a request for personal data, by the federal government to a telecom company, once every 27 seconds.

So great is the volume of information requests that one telecom company has advised that it has installed what it calls “a mirror” on its network so that it can send raw data traffic directly to federal authorities. Michael Geist, a digital law professor at the University of Ottawa, says this of what is happening:

This is happening on a massive scale and rather than the government taking a step back and asking is this appropriate...we instead have a government going in exactly the opposite direction—in a sense doubling down on these disclosures

It is easy to find further evidence of this doubling down, of this appetite for private information. One cannot help but note that Bill C-13, which is purportedly about cyberbullying, is more about lowering the bar on government access to information. The “reason to believe” standard is being replaced with a “reason to suspect” standard, opening up much greater warrantless access to electronic information. Moreover, Bill C-13 would allow a broader and lower range of government officials to have access to the private information of Canadians.

Bill S-4 will also be coming before this House, we suspect. That bill would permit non-governmental organizations and corporations to have access to information from telecom companies. FATCA, the Foreign Account Tax Compliance Act, buried deep in the budget bill, would expose the financial information of about one million Canadians to the U.S. government, and so on.

In light of all of this, one could argue that there is a kind of naiveté to the motion I speak in support of today. Certainly the first part of the motion is easy enough. It is, in fact, all the Privacy Commissioner has requested. She has said:

I'm not disputing that there are times when there is no time to get a warrant—life is in danger....

What we would like is for those warrantless disclosures to simply be represented in statistics so that Canadians have an idea of the scope of the phenomenon.

...It would give a form of oversight by empowering citizens to see what the scope of the phenomenon is.

It is a modest enough proposal: at least let me see what it is the federal government is doing here.

However, we are also asking the government to close the loophole that has allowed the indiscriminate disclosure of the personal information of law-abiding Canadians without warrants. In so doing, we must recognize that we are asking the predator to restrain itself, to bind itself, to limit its own appetite for our private information, to guard itself. It has no such impulse, no such sense of constraint, as is obvious from the 1.2 million requests, by Bill C-13, by Bill S-4, and by FATCA.

Here is the very saddest part of this. As we engage with each other through the technologies of this modern world, we do so with some trepidation about how exposed we are to the prying eyes and interests of others, and part of what we need to be concerned about now, we find out, are the prying eyes and interests of our own government. Rather than being able to rely on our own government to support us and to protect our privacy in this modern world, it appears that our government is itself a cause for concern.

Safeguarding of Personal InformationBusiness of SupplyRoutine Proceedings

May 5th, 2014 / 6 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I am pleased to conclude the debate on the opposition motion.

I will read the motion, because after hearing such garbage today, I was beginning to think that I was not talking about the right one. This is what the motion, moved by the hon. member for Terrebonne—Blainville, is asking of the House:

That, in the opinion of the House, the government should follow the advice of the Privacy Commissioner and make public the number of warrantless disclosures made by telecommunications companies at the request of federal departments and agencies; and immediately close the loophole that has allowed the indiscriminate disclosure of the personal information of law-abiding Canadians without a warrant.

I cannot believe that today, May 5, 2014, the Conservatives are going to vote against this motion. It is absolutely incredible. We heard all sorts of drama from the Conservatives about extremely important security issues. They shifted the debate from the opposition motion, which simply calls on the government to grant the Privacy Commissioner's request and make certain information public. It seems quite reasonable to me.

Today is the best possible day to be in the House. This morning, we debated Bill C-567, which was introduced by my colleague from Winnipeg Centre and is all about access to information. This motion is completely justified in light of the context, but they are saying all kinds of things.

I would like to comment on a question that my colleague from Timmins—James Bay asked the last Conservative member who spoke. That member laughed in his face even though the question was completely relevant. It was about peace officers, not as the local paper defines them, but as the Criminal Code defines them.

I would like to give my colleagues opposite a little lesson about the Criminal Code. It is important to define the notion of “peace officer” accurately, because Bill C-13, the government's supposed cyberbullying bill, refers to that notion. That bill is about much more than cyberbullying and the distribution of intimate images.

According to section 2 of the Criminal Code, a peace officer includes:

(a) a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of the peace,

(b) a member of the Correctional Service of Canada who is designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a prison other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act,

(c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process,

(c.1) a designated officer as defined in section 2 of the Integrated Cross-border Law Enforcement Operations Act, when

(i) participating in an integrated cross-border operation, as defined in section 2 of that Act, or

(ii) engaging in an activity incidental to such an operation, including travel for the purpose of participating in the operation and appearances in court arising from the operation,

(d) an officer within the meaning of the Customs Act [or] the Excise Act...or a person having the powers of such an officer...

I could keep reading this definition until 6:15 p.m. It is not so far-fetched for my colleague from Timmins—James Bay to suggest that Mayor Ford could request certain information.

What is more, the NDP has been heavily criticized today for some of its requests. However, in La Presse this morning, there was an article by Joël-Denis Bellavance on the information we are looking for with the official opposition motion moved by my colleague from Terrebonne—Blainville. Mr. Bellavance reported that the Privy Council Office also made a request of all its departments. The PCO wanted to know who these people were who made 1.2 million requests for information about Canadians. There are 1.2 million Canadians who are allegedly affected by these requests.

All day, the Conservatives have been telling us that this is terrible, that what we are asking for is scary and that the NDP does not know what it is talking about.

I even heard one of the ministers of state, a junior minister over there, say the times have changed.

I think we all know that. Information circulates quickly, I agree. Regardless of the fact that times have changed, there are still laws that apply in this country.

We all know that this Conservative government likes to intrude on Canadian taxpayers' privacy and could not care less about almost every law around. When this government gets caught, it takes a holier than thou stance or it suddenly takes a few strategic steps backward and comes back with what I like to call the Trojan Horse tactic. In other words, it disguises its approach in another way.

Everyone in the House remembers Bill C-30, introduced by my favourite minister, the former minister of public safety. I was going to say something unkind, but I will be careful. Thank God the public woke up and made a concerted effort to ensure that the government backed down. This goes to show that ridicule never killed anyone. However, sometimes it kills political careers, even though politicians will often end up becoming a judge somewhere. Everyone kept telling the former public safety minister what he was in the process of doing. They ridiculed his bill. Sometimes that is what it takes with this government.

Their concerns were heard. The Conservatives withdrew the bill and suddenly we had Bill S-4 and Bill C-13, which deals with cyberbullying. Who in the House would not want to protect victims? Who would not want to say at some point that we passed legislation after a number of young people committed suicide as a result of bullying? That is rather disgusting, although there are other unparliamentary words that could be used. It is problematic to rise in the House and say that, on the contrary, we are in favour of cyberbullying. However, once again, the Conservatives introduced five or six pages of text that were more or less accurate and then combined them with tons of provisions that amend all sorts of legislation.

Fortunately, the Minister of Justice told me that he would give the Standing Committee on Justice and Human Rights the time needed to examine those provisions. Perhaps we, the members of that committee, are not the best people to examine those provisions. Fortunately, we will be hearing from many experts.

I still believe that the motion that I moved at the beginning of the debate on Bill C-13 made complete sense. I proposed dividing the bill in two so that that we could do what we do best: examine the provisions of the Criminal Code and make sure that the new provisions regarding the distribution of intimate images fall within the parameters and meet the test of the Criminal Code.

Instead, we are going to be spending a lot of our time looking at the aspects of the bill dealing with privacy and how certain telecommunications providers will be able to disclose information without a warrant, or with a warrant but with a lighter burden of proof, and so on.

Unfortunately, since the beginning, this government has shown us that it has no credibility. Every week, there is a new drama featuring one of the people sitting in the front benches. At the end of last week—and it has continued into this week—it was the Prime Minister and his serious insinuations. Sometimes, not saying enough is the same as saying too much. He attacked the Chief Justice of the Supreme Court of Canada.

Members on the Conservative benches are wondering why we do not trust them. Why are we suspicious when we get bills like Bill S-4 or Bill C-13? We are wondering what is behind those bills.

People have been debating this motion all day in the House. I repeat that it does not get any simpler than this motion, which calls on the government to follow the advice of the Privacy Commissioner. Who does not want to follow that advice? Who is against making public the number of disclosures, when even the Prime Minister's Office is quietly checking into this matter? The Conservatives are simply afraid of doing things. They want public information on our constituents, on Canadian taxpayers, but they do not want anyone other than themselves to have access to that information.

That is why the government does so much behind closed doors. The representatives of the people, here in the House, certainly have a right to know. We are getting questions as well. I hear from people, and I am sure that my colleagues in the House, even on the Conservative side, are hearing from people. I am shocked to see that many of these people, from the Reform Party of Canada and the Canadian Alliance, who made a point of calling themselves the voice of the people, are now the biggest puppets, sitting in their seats, terrified to rise and say that this makes absolutely no sense.

At some point we need to wake up and go back to our ridings to talk to our constituents, who are asking what is going on with their information, who has access to this information, when and why. Are there 1.2 million criminals somewhere in Canada? Is it because we have relaxed our rules so much that everyone—ISPs, telecommunications companies and others—feels justified in passing on information? The companies know that they will go unpunished if they freely share information on anything. That is dangerous.

Some people here in the House say that times have changed. That is true. I can do research. In fact, I do not claim to know all the sections of the Criminal Code, and I was able to find the section on the concept of peace officer right away, in two seconds. It was actually quicker than that as I think it took me one-tenth of a second to find the definition in the Criminal Code. Sometimes I tell young people or future lawyers that they are lucky because, in my day—I do not like to say this because it dates me, but it is a fact—when I did my research, I had to go to the law faculty library and open maybe 18 books before formulating an idea. Now, we just click on a button.

However, just because information travels at astronomical speeds, it does not mean that the privacy guarantees and protections granted to all Canadians under the Charter of Rights and Freedoms must be trampled by a government that does not care about protecting its citizens.

An Act to amend the Access to Information Act (transparency and duty to document)Private Members' Business

March 5th, 2014 / 6:10 p.m.
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NDP

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.

An Act to amend the Access to Information Act (transparency and duty to document)Private Members' Business

March 5th, 2014 / 6:10 p.m.
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NDP

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.

An Act to amend the Access to Information Act (transparency and duty to document)Private Members' Business

March 5th, 2014 / 6:25 p.m.
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Moncton—Riverview—Dieppe New Brunswick

Conservative

Robert Goguen ConservativeParliamentary 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.

An Act to amend the Access to Information Act (transparency and duty to document)Private Members' Business

March 5th, 2014 / 6:35 p.m.
See context

Liberal

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.

An Act to amend the Access to Information Act (transparency and duty to document)Private Members' Business

March 5th, 2014 / 7 p.m.
See context

Mississauga—Erindale Ontario

Conservative

Bob Dechert ConservativeParliamentary 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.

Access to Information ActRoutine Proceedings

January 28th, 2014 / 10 a.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

moved for leave to introduce Bill C-567, An Act to amend the Access to Information Act (transparency and duty to document).

Mr. Speaker, I thank my seconder.

I rise today to introduce the bill to amend the Access to Information Act to strengthen the powers of the Information Commissioner. Conservative members present may recognize the elements of the bill, as they are all taken directly from the Conservative election campaign of 2006, when Conservatives purported to believe in open government.

The bill would give the Information Commissioner the power to order the release of documents and to have those orders enforced as if they were judgments of the Federal Court. It would codify the duty to create and retain documents and would introduce a public interest override to oblige disclosure of documents when the Commissioner determines that public interest outweighs the need for secrecy. It would make cabinet confidences an exclusion subject to the opinion and review of the Commissioner, and it would ensure that all exemptions from disclosure are justified only on the basis of harm and injury that would result from disclosure, not from blanket exemptions.

Freedom of information is the oxygen that democracy breathes. It is a fundamental cornerstone of our democracy that the public has the right to know what its government is doing, and that right should be subject only to a very few and specific exclusions.

It is our hope that these simple reforms would help shine the light of day on the workings of government, and in doing so elevate the standards of ethical behaviour and good public administration.

(Motions deemed adopted, bill read the first time and printed)