Bill C-58 (Historical)

An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

This enactment amends the Access to Information Act to, among other things,
(a) authorize the head of a government institution, with the approval of the Information Commissioner, to decline to act on a request for access to a record for various reasons;
(b) authorize the Information Commissioner to refuse to investigate or cease to investigate a complaint that is, in the Commissioner’s opinion, trivial, frivolous or vexatious or made in bad faith;
(c) clarify the powers of the Information Commissioner and the Privacy Commissioner to examine documents containing information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege in the course of their investigations and clarify that the disclosure by the head of a government institution to either of those Commissioners of such documents does not constitute a waiver of those privileges or that professional secrecy;
(d) authorize the Information Commissioner to make orders for the release of records or with respect to other matters relating to requesting or obtaining records and to publish any reports that he or she makes, including those that contain any orders he or she makes, and give parties the right to apply to the Federal Court for a review of the matter;
(e) create a new Part providing for the proactive publication of information or materials related to the Senate, the House of Commons, parliamentary entities, ministers’ offices, government institutions and institutions that support superior courts;
(f) require the designated Minister to undertake a review of the Act within one year after the day on which this enactment receives royal assent and every five years afterward;
(g) authorize government institutions to provide to other government institutions services related to requests for access to records; and
(h) expand the Governor in Council’s power to amend Schedule I to the Act and to retroactively validate amendments to that schedule.
It amends the Privacy Act to, among other things,
(a) create a new exception to the definition of “personal information” with respect to certain information regarding an individual who is a ministerial adviser or a member of a ministerial staff;
(b) authorize government institutions to provide to other government institutions services related to requests for personal information; and
(c) expand the Governor in Council’s power to amend the schedule to the Act and to retroactively validate amendments to that schedule.
It also makes consequential amendments to the Canada Evidence Act and the Personal Information Protection and Electronic Documents Act.

Access to Information Act

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, given the Harper government's record, the member's new commitment to transparency and access to information is refreshing. I am interested in the member's thoughts on the major loophole that remains in Bill C-58. I would like his comments on the failure of the Liberals to keep their campaign promise to include the Prime Minister's Office and ministers' offices in being subject to access to information requests.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

The hon. member for Richmond—Arthabaska has 45 seconds or less.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Mr. Speaker, I can answer that in five seconds.

My colleague is absolutely right: that is a major loophole. That is the biggest flaw in this bill, and as I see it, if we do not have access to information from ministers' offices, which is to say from the government itself, then all of this work, the Liberal government's attempt to introduce a supposedly more transparent bill, is a total write-off.

That is why we have to oppose the bill, and I hope people will have transparent access to that information so they can see what the government's real intention was.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, I am honoured to rise in the House to oppose Bill C-58. That is about as clear and transparent as it gets.

This is about yet another broken Liberal promise. My colleague just listed off at least 20 broken Liberal promises. The Liberals made promises during the campaign. In fact, when he was just an MP, the Prime Minister himself introduced a bill promising openness and transparency, but we see none of that in this bill. It seems to me that our friends in power have developed a nasty habit of breaking their promises, and Canadians are clearly getting sick of it. This is not the first time, and it will probably not be the last.

I get the feeling that the sunny ways are about to be gone.

One of those election promises was electoral reform. That was no minor Liberal promise; it was extremely important. However, when the committee finished its work and tabled its report, the Liberals realized that Canadians clearly saw through their charade. In other words, the Liberals' real objective was to bring in a preferential ballot system, which would put them at an advantage. In the end, given that the committee report did not support the Liberals' position, they decided to abandon that promise. When you abandon a promise as important as electoral reform, how Canadians vote for their elected officials, basically you are telling them that they cannot be trusted. That is what we heard from Canadians.

The government struck an independent committee, but it had to be changed because initially, it had a Liberal majority. Pressure from the four opposition parties, including the Green Party, made a difference. From that moment on, the Liberals dropped the whole thing and the promise changed. In the case of Bill C-58, once again, the Liberals are reneging on an election promise and doing the opposite now that they are in power.

Earlier, my colleague from Mégantic—L'Érable and I counted the broken Liberal promises. We got to 20 broken promises, but there are more yet. By breaking all these promises, the government is sending a message to Canadians that fuels cynicism. During the election campaign, the Liberals promised they would inform people better and increase transparency in ministers' offices and the Prime Minister's Office. However, two years later, that is just another broken promise. This is unacceptable. That is why I am voting against this bill.

Over the past few weeks, a number of people have spoken out against this bill. Some organizations that were rather tough on the Conservative Party when it was in power are now being just as tough on the government in power. They are making statements worth noting. For example, when the government promises clarity and transparency, then it has to live up to that, but the Liberal Party that is in power is really not up to the task.

The Liberals said they would make all of the information exchanged within ministers' offices and the Prime Minister's Office accessible. What kind of information are we talking about? At what point did that information become irrelevant to the people? The moment the Liberals introduced this bill.

Let me make sure we all understand what is going on. When the government came to power, it decided to take a close look at an act that has been around since 1983 and modernize it. That is all well and good, but earlier, I heard parliamentary secretaries say that they had covered a substantial portion of it. A substantial portion of it? Why not modernize the whole thing? It looks like they have a problem with disclosing information or making any information public that could come back and bite them. That is my conclusion based on what I heard today.

I have been listening to the debate since early afternoon, and every time an MP or a parliamentary secretary talks about the bill, we get the feeling that they deliberately left out the obligation to make the information clear and transparent so they would not get trapped by the information that is circulating, especially within the Prime Minister's Office.

If the journalists who defend the democracy that these MPs serve each and every day here in the House cannot have access to the information that is relevant to Canadians, how can they do their jobs properly? It is essential that the bills we put forward not be half measures. That way, we can ensure they meet their stated objectives. The Liberals are saying very little yet again, and the answers they give are all the same.

Sadly, after promising Canadians the world in 2015, the government is keeping neither of these promises. There are organizations that act as watchdogs of Canadian democracy. Most of them are non-profit organizations and are totally independent from any government, like Democracy Watch, for example. These organizations are very critical of the work we do, and rightfully so. They spend an enormous amount of time analyzing everything we parliamentarians do on a daily basis in order to strengthen our democracy, to increase transparency and to improve communications with Canadians. They were very outspoken, to put it mildly, about the current government. They said that the bill represents not one step forward, but two steps back.

A sentence like that says a lot about the relevance of the bill and how it was designed and drafted. I can imagine being the Prime Minister, who in 2015 promised to be open and transparent and to allow all Canadians to see everything that happens in the ministers' offices and in his own office. Once in his office, however, he realized that not everything that happens in ministers' offices, and especially the Prime Minister's Office, can be disclosed to the public.

What information does he not want to make public? That is a very relevant question, and one that we should put to the Prime Minister. We will be sure to do so. A government does not introduce legislation for no reason. A government introduces legislation because it really wants to keep a promise. I say again, 20 promises have been broken so far; my colleague listed them earlier. Bill C-58 is definitely not the first broken promise, and it will not be the last.

[Denis Paradis, Liberal, Brome—Missisquoi, QC]

Mr. Speaker, I would like to begin by commending the member for Montmagny—L'Islet—Kamouraska—Rivière-du-Loup on his spirited remarks, as well as the member for Richmond—Arthabaska, who spoke before him.

First, I would like to say that our government is all about transparency and consultation. Just look at all of the consultations that this government has held compared to the Harper government. My colleagues were not part of that team, but one need look no further than the consultations that are being done now.

For example, when it comes to filling job openings in the government, there is a consultation process conducted by independent groups, and people have to apply. That is not how things were done before.

It is also important to look at what has happened in the Senate. All of the rules have changed. People have to apply for a seat in the Senate, and the files are analyzed. That is a major change, as far as transparency and consultations are concerned.

I think we are certainly on the right track, and I would like to hear my colleague's comments about this right track to transparency that we are currently on .

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, I have a great deal of respect for my colleague from Brome—Missisquoi, but he just left himself wide open.

We are talking about openness and transparency. My colleague is the chair of the Standing Committee on Official Languages. Last spring, we witnessed the worst possible debacle around the appointment of a commissioner of official languages. There was no openness or transparency. Everything was done in secret. We found out from journalists who had conducted investigations that the candidate, Ms. Meilleur, had donated $5,000 to the Liberal Party. That is a prime example of what this government did not do and what it should do with regard to openness and transparency.

I thank the member for Brome—Missisquoi for making my job so enjoyable.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, the Ladysmith mayor would be very happy to hear his municipality named first. We will work on that.

The terrible record of the Conservative government on transparency and access to information notwithstanding, I imagine that the member would share the New Democrats' deep concern that although the Liberal government is wrapping itself in a cloak of transparency and openness, in fact, the Prime Minister's Office and ministerial offices will not subject to access to information in Bill C-58.

I would like the member's comments on that and whether he shares my concern.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, I thank my colleague for the question.

Today's debate is not about the appropriateness of the measures we have taken in the past, but rather about the appropriateness of the ones the government has included in the bill before us. When a government makes a promise, it must keep it. It is not rocket science. It must keep its promises. The government promised that ministers' offices and the PMO would be open and transparent, that that would be in the bill. Well, it is not in the bill. Promises made should be kept. It is not rocket science.

[Joyce Murray, Liberal, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, the member spoke of cynicism; I was struck by his choice of word.

The Conservatives knowingly restricted access to information when they were in power. The Information Commissioner conducted an investigation and concluded that political aides blocked or delayed requests without authorization.

Will the hon. member admit that the former Conservative government was not interested in transparency regarding access to information?

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, speaking of transparency and openness, the Prime Minister, when he was only the member for Papineau, promised that ministers' offices and the PMO would be open and transparent and that the bill would provide for access to information. That is not the case. It is really quite simple: the Liberals did not keep their promise.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I am quite pleased to have the opportunity to put some remarks on the record.

When I first came to Parliament, I was made a member of the Standing Committee on Access to Information, Privacy and Ethics, and had the privilege of participating in the study and the preparation of what ended up being a unanimous report by the committee on what was required in order to bring Canada's access to information laws up to speed. That legislation originally was introduced and passed in 1983, the year before I was born. In my entire lifetime that law has not been changed. It seemed to me to be a pretty good idea.

A lot of things have happened in the 30-plus years since I have been on the planet, particularly electronically, things such as the Internet. We have not had a change in the access to information laws in Canada. People are chuckling and they should be. It is ridiculous to think that Canada's access to information laws, through successive Liberal and Conservative governments, were not changed to reflect the advent of the Internet. The Internet has obviously had a dramatic effect on government practices and the way government goes about its business, the way citizens go about their business, and therefore the kinds of requests they make of government and the ways in which they expect that information to be delivered.

When we were undertaking that study, the President of the Treasury Board came to committee a number of times. In all of his appearances, he was quick to get to the issue of access to information, how important it was to reform those laws because they were so dated, and how committed he and his government were to changing those laws, bringing Canada up to speed. Having a state-of-the-art access to information regime was of course a platform commitment of the Liberals, Their mantra of transparency and openness is something we have heard, ad nauseam, in this place. It was the cornerstone of the Prime Minister's private member's bill in the last Parliament, where he made a number of proposals for an access to information regime that would work properly.

Expectations, rightly, were high. This has been a long time coming. The government made it a focus within its election platform document. The Prime Minister chose to highlight that issue with his own private member's bill in the last Parliament. The President of the Treasury Board came to the committee a number of times to say that the government would do this and that it would be great.

When the Liberals finally got around to tabling a document, in light of those expectation, in light of everything the parliamentary committee has heard in the course of its study, and in light of the excellent and comprehensive report the Information Commissioner delivered to Parliament in the last Parliament, it is a major disappointment. There is just no way to get around. I do not even think that is a partisan observation, although there will be members on the other side of the House who disagree.

We looked at what the experts asked for. We looked at what the information commissioner asked for. The committee studied it and unanimously came in with recommendations. For those who need a reminder, six Liberals were on that committee. This is not coming from some kind of partisan outlying realm or something where people cannot think sympathetically with respect to the government. This is a disappointment.

A lot of Canadians work with this kind of legislation every day, not just opposition politicians. They are journalists and advocates on all sorts of issues. We have heard about the environment, health, defence policy, name it. If they are working in a public policy area, the bread and butter of that, in order to do good work, is to get some insight on what the government is doing. I know from being in this place that oftentimes what cabinet ministers have to say in question period and in the House is not the place to get insight as to what government is doing. It might not even be the place to get insight generally, but I do not want to say anything unparliamentary so I will leave it with my first formulation. I have some encouragement from these benches, but I do not think I have it from the other side. Therefore, here we are, left with legislation that is a disappointment.

On top of that, in order to mask the fact that it is a real disappointment on the substantive issues, we have heard a lot about proactive disclosure. That has been the cornerstone of the very few Liberal speeches that were offered today, none of which were made by the members of the committee who issued the unanimous report on how to fix the access to information regime in Canada. No one is arguing against proactive disclosure on the part of the government. The more that the government can offer up information to citizens, particularly that which is asked for on a routine basis, and come up with ways to make information available in a timely and proactive way, that is great. The government did not need legislation to do that. As much as the minister would have liked to bring it up when he was at committee, during the committee study and committee work, and in all that we heard from the witnesses, proactive disclosure was not the focus because we were examining the legislation. The question we were asking was how the law needs to change. The law did not need to change at all in order to have more proactive disclosure from government. There was no law prohibiting proactive disclosure of any information that the government wanted to release. I have to say at the outset that this is a complete red herring.

What we also hear often from government members and cabinet ministers is how much they look forward to the bill clearing the House. It can go to committee, and all the great ideas of the MPs can be shared. However, they fail to mention that those great ideas of the MPs were shared at committee. We had a report with over 30 recommendations on how to do access to information law properly. The stunning thing was that the government picked up on only a few of those recommendations.

The idea that this would then be referred back to committee, as if that were the place where the government would hear what other MPs had to say, is laughable. It is a waste of the time for these MPs, and it feels disingenuous; I will put it that way. That work was already done. The idea of doing that work over and over again means that the work will never stop. The work that needs to be done is the work by the government to change the law and bring in an appropriate access to information regime. We are not much closer to that, even if this law gets passed. That is part of the disappointment.

I want to get into the substance of the bill, and 10 minutes is not very long when we studied the issue for months at committee. One of the committee recommendations that the government did accept has to do with conferring order-making powers to the Information Commissioner. The idea behind that was to bring in an independent oversight regime so that Canadians would have confidence that when the government ruled it was not appropriate to disclose information, someone would be looking over its shoulder to say whether it made sense or not: “That was politically motivated, maybe it was an oversight, but that is information that should be released.”

As long as the government keeps exclusions for cabinet confidences, as it has chosen to do with this proposed bill, which do not allow the Information Commissioner to check up on whether something was properly excluded, which is the case with exemptions, not to get too technical, but one could have mandatory exemptions as opposed to exclusions. That would at least allow the Information Commissioner to review these instances.

However, it did not do that. Even where the government did pursue one of the recommendations of the committee, it did not bring in the other infrastructure we require to realize the goal of that recommendation. That is, to have an instituted independent oversight over government decisions about what to release and what not to release. I would say that it has failed significantly in that regard.

I am pleased to have had the opportunity to address some of the main arguments that we have heard the Liberals making in the chamber today with respect to this bill, and to show why they are deficient in my view, as well as to speak to at least one of the substantive items within the legislation. If we had we more time, I would have been happy to provide further thoughts about the inadequacies of the legislation.

The House resumed from September 25 consideration of the motion that Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

[Raj Saini, Liberal, Kitchener Centre, ON]

Mr. Speaker, I rise today to speak on the amendments to the Access to Information Act and the significant reforms our government is proposing in Bill C-58.

Ours is the first government in 34 years to substantially revamp Canada's access to information system, and it is about time. Our existing access to information legislation came into force in 1983.

The word that some have used to describe this legislation is “antiquated”. It is hard to disagree with this view when we consider that in 1983 government information was mainly recorded on paper and stored in filing cabinets.

Moreover, the federal government has grown over the past 34 years, and the sheer volume of government-related information has grown right along with it. The number of requests to access that information has gone up too.

Since 1983, more than 750,000 access to information requests have been processed, and the number of requests the government receives has grown by an average of 13% annually.

The current access to information system is under considerable strain. The information age has resulted in higher expectations for access to government information. Digitization and the Internet have made information readily available and at our fingertips 24/7. Canadians now expect this level of accessibility from their government as well.

Canadians expect an open and transparent government. They expect access to government information so they can engage meaningfully in the demographic process and demand government accountability.

In the access to information, privacy and ethics committee, the one thing we heard over and over again was that the 1983 Access to Information Act regime was not built for our times and is insufficient to meet our needs. That is why we are committed to modernizing the act to make government more open and transparent. This is what we are proposing to do in Bill C-58.

First, the bill would amend the act to create a new part relating to proactive publication. This would entrench in law for this government and future governments the requirement that government organizations proactively publish a broad range of information in a timely manner and without anyone having to make an access to information request. This new part of the act would apply across more than 240 government departments, agencies, and crown corporations. For the first time, the act would also apply to the Prime Minister's Office and ministers' offices, senators and members of Parliament, institutions that support Parliament, administrative institutions that support the courts, and more than 1,100 judges in the superior courts. This would create an obligation to proactively publish information that is known to be of interest to Canadians. The system would be routinely reviewed so that the information that would be proactively disclosed would remain relevant and of interest to Canadians.

This information would be available to all Canadians on the government website, no ATIP request required. Our goal is to continue to expand the type of government information that can be disclosed proactively. This measure is consistent with our view that the government should be open by default.

It reflects the future of access to information in the digital age, and the future is now.

Bill C-58 would put in place a range of measures to ease the strain on the antiquated access to information regime. Specifically, we would invest in tools to make processing information requests more efficient; provide training across government to get a common and consistent interpretation and application of the new rules; allow federal institutions that have the same minister to share the request processing services, for greater efficiency; and develop a new plain-language guide that would provide requesters with clear explanations for exemptions and exclusions.

Government institutions would also have the authority to decline to act on requests that were vague or made in bad faith. We want to make sure that people are using our access to information system properly and that it is not being used to intentionally bog down the government. As an example of the type of requests we are talking about, there are some requesters who ask for millions of pages worth of documents without providing a clear reason for that request. Others submit hundreds or thousands of requests at a single time. Such requests are not in keeping with the purpose of the act, which is to give Canadians access to the information they need to participate in decisions about public policy. At the same time, Bill C-58 would amend the Access to Information Act to provide the Information Commissioner with the oversight of this new authority.

Requesters can file an appeal with the commissioner if an institution or organization refuses to process their requests. The Information Commissioner can then examine the complaint and, if it is justified, she can exercise this new power to order the release of information to resolve the matter.

At the same time, this legislation would affirm the right of Canadians to make broad and deep information requests that were consistent with the spirit of the act. The bill would also give the Information Commissioner's office more financial resources to do the job.

The Information Commissioner's power to order the release of information is an important step that will strengthen access to information in Canada. It is an innovative proposal that would change the commissioner's role from that of an ombudsperson to that of an authority with the power to order the release of government records.

Bill C-58 proposes a mandatory review of the Access to Information Act every five years so that it never again becomes outdated. The first review would begin no later than one year after this bill received royal assent.

We can never become complacent when it comes to transparency. By revitalizing access to information, our government would raise the bar once more on openness in government.

With this bill, we will be modernizing our law and the access to information system, which is outdated.

With this bill, we would modernize our antiquated access to information law and system. We would strengthen the trust between Canadians and their government, and we would reaffirm the principle of openness and transparency as a hallmark of our democratic system. I am proud, as both a parliamentarian and a member of the ethics committee, to support this legislation.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Madam Speaker, I want to remind the member that during the 2015 election campaign, we all heard the Liberals say that they would open up the Prime Minister's Office and the ministers' offices to public scrutiny, because many Canadians felt that the Conservative government had gone too far in closing those doors. They also promised to bring in an access to information policy that would give access to materials from those offices.

On what grounds did the Liberals decide to break that promise to include ministers and the Prime Minister in the access to information policy?

[Raj Saini, Liberal, Kitchener Centre, ON]

Madam Speaker, on the contrary, this act, which was first formulated in 1983, has not had an update in almost 34 years. This is the first time a government has had the courage to proactively disclose certain issues within the ministers' offices and the Prime Minister’s Office.

As is well known, the issue was studied at committee. This would be the first phase of the act. It would be a new regime being put in place, and we would evaluate, as time went forward, how things worked out. The first time this act would be reviewed would be one year after it received royal assent. After that it would be continually reviewed every five years. We want to make sure that what has happened over the last 34 years does not happen again. This act would be continually reviewed. It would be a living document.