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

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Speaker, I wish I had sat on that committee. It would perhaps have given me a break from explaining all the issues on Phoenix which the Liberals have inflicted on Canadians. I was not part of the committee, and I was not aware, but very clearly presenting amendments, just like the NDP did, would have had absolutely no effect. The minister made it very clear from the beginning that this was the world's greatest proposed law, which would bring in changes to access to information. The government would brook no advice or changes from anyone else. Why we did not, I am not sure, but it would have made no difference.

However, another colleague talked about the whistle-blower act. My party, together with the NDP and Liberals in the government operations committee, put through a unanimous report to protect whistle-blowers, presenting a lot of great suggestions on how we can make amendments and legislative changes to improve it. However, the same President of the Treasury Board, who shot down all the amendments in the committee on Bill C-58, took the whistle-blower suggestions and put them in the dustbin with all the other great amendments that were suggested by the NDP and other parties on the Access to Information Act.

[Erin Weir, NDP, Regina—Lewvan, SK]

Mr. Speaker, it is a privilege to once again speak to Bill C-58, but it is a bit disappointing to have to make some of the same criticisms of it that we on the opposition side have been making throughout. Notwithstanding some of the comments we have heard from the government, the bill actually has not been significantly amended and many of the original problems with it persist.

I would like to address this legislation in terms of three headings: first, the scope of the act; second, exceptions to the act; and third, the difference between proactive disclosure and access to information.

In terms of the scope of the bill, it is important to note that the Liberals were elected on a promise to extend access to information to the Prime Minister's Office and to the offices of other cabinet ministers. Bill C-58 would not do that. It is really part of a litany of broken promises by the government. Here we think of electoral reform. We think of the promise to close the stock option tax loophole. We think of the promise to restore door-to-door mail delivery. The government is building up quite a track record of broken promises and, unfortunately, the commitment to extend access to information to cabinet ministers, including the Prime Minister, is another one of those broken promises.

I had an opportunity at the committee on access to information, privacy and ethics to ask the Privacy Commissioner whether there were any privacy reasons that the government could not extend access to information to those cabinet offices. He confirmed that there were no such privacy reasons and that as far he was concerned, it would have been and would be feasible to extend access to information to the offices of cabinet ministers. Our first major disappointment with the scope of the bill is the fact that it fails to extend access to information to the very cabinet offices the government promised to include.

The second heading I would like to address is exceptions to the act. There are already exceptions related to cabinet confidences and policy advice to ministers. These exceptions have proven to be quite troublesome, because it is easy for the government to define almost anything as policy advice to a minister or as somehow being subject to a cabinet confidence. It is a very broad-sweeping exception that the government can use to not disclose information. Unfortunately, Bill C-58 would not correct this exception.

The really bad thing about Bill C-58 is that it creates new exceptions that would allow the government to not disclose information that citizens are requesting. In particular, it empowers the government to deem that an access to information request is frivolous or in bad faith. It is difficult to put government officials in the position of having to try to define the motivations of people making access to information requests. This is a very poor criterion on which to accept or deny access to information requests.

What is this really all about? The example we heard from a couple of different government members throughout this debate is the case of “an ex-spouse [who] ATIPs his or her former spouse's work hours on a daily basis or their emails”. There is obviously a problem with that type of request, but the way to respond to that is through proper protections of privacy, not by deeming the request itself to be frivolous or in bad faith. It is obviously the case that the government cannot disclose certain information for privacy reasons, and the privacy protections need to be very robust in federal legislation.

However, the idea of protecting privacy is not a justification for giving the government broad, sweeping powers to deem that particular access to information requests are frivolous or in bad faith. We do need to have proper protections for privacy, but those in no way justify the new exceptions introduced in Bill C-58, which try to get into the motivation behind an access to information request, which is a very difficult thing for the government to ascertain, and a very difficult thing for citizens to trust the government to ascertain in an objective and proper way.

The third aspect of the legislation that I would like to address is the difference between proactive disclosure on the one hand and access to information on the other hand, because of course one of the aspects of Bill C-58, which the government touts, is the notion of increased proactive disclosure. We have the idea, for example, that the government will proactively disclose ministerial briefing books. A cynic might suggest that this provision will to result in government officials and ministers' assistants spending time drafting briefing books for public consumption. Knowing they will be proactively disclosed, they will just prepare documents that they are happy to have disclosed and that do not really contain a lot of sensitive or controversial information. We are very concerned about that, but even if we assume that would not happen and that everything would be done entirely in good faith, we still have to face up to the fact that proactive disclosure, as positive as it might be, is no substitute for access to information.

Proactive disclosure is about the government choosing to disclose certain things. On the whole, it is good for the government to proactively disclose more documents, but access to information is fundamentally about citizens being able to request information that the government does not want to disclose and does not think it should have to disclose. There is a very important distinction to be made here between proactive disclosure, which is a good thing and the government is touting, and access to information, which is what the bill is supposed to be about.

To sum it all up, I would like to conclude by reading a quote from the Information Commissioner's report on Bill C-58 entitled “Failing to Strike the Right Balance for Transparency”. She said:

In short, Bill C-58 fails to deliver. The government promised the bill would ensure the Act applies to the Prime Minister's and Ministers' Offices appropriately. It does not.

The government promised the bill would apply appropriately to administrative institutions that support Parliament and the courts. It does not.

The government promised the bill would empower the Information Commissioner to order the release of government information. It does not.

Rather than advancing access to information rights, Bill C-58 would instead result in a regression of existing rights.

[The Assistant Deputy Speaker, Anthony Rota]

It being 5:45 p.m., pursuant to the order made earlier today, the question on the motion is deemed to have been put and a recorded division deemed demanded and deferred until Wednesday, December 6, 2017, at the expiry of the time provided for oral questions.

The House resumed from December 5 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 third time and passed.

[The Speaker, Geoff Regan]

It being 3:13 p.m., pursuant to order made Tuesday, December 5, the House will now proceed to the taking of the deferred recorded division on the motion at third reading stage of Bill C-58.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #432

[The Speaker, Geoff Regan]

I declare the motion carried.

(Bill read the third time and passed)

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

Mr. Speaker, I think you will find unanimous consent of the House to adopt the following motion: That, in the opinion of this House, in keeping with the declaration signed by over 100 prominent figures and companies in Quebec, the government cannot allow foreign giants to avoid the taxes that all Canadian companies must charge, that it must right this injustice, which penalizes our cultural businesses, our artists, our artisans, and our workers, and that it has a duty to protect Quebec and Canadian culture.

[The Speaker, Geoff Regan]

Does the hon. member have the unanimous consent of the House to move this motion?

[Some hon. members]

Agreed.

No.

[The Speaker, Geoff Regan]

I wish to inform the House that because of the deferred recorded division, government orders will be extended by eight minutes.