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.

[Jennifer Dawson]

The focus of what has been brought forward in Bill C-58 is strongly aligned to the government-specific mandate commitments.

That question of exclusions versus exemptions is something that can be considered in that first full review of the act, which would be one year within the royal assent of the bill. I don't have a view to offer on that particular recommendation, but we observe that there definitely is an intent to undertake a full review that would go much more broadly than the amendments that are proposed today.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

Moving to questions, among the recommendations of this committee last year that were not implemented, specifically recommendation 23 said:

That the mandatory exemption for Cabinet confidences would not apply to: purely factual or background information; information in a record of decision made by Cabinet or any of its committees on an appeal under an act; where consent is obtained to disclose the information; and information in a record that has been in existence for an appropriate period of time as determined by the government and that this period of time be less than the current 20 years.

Was there anything unworkable or inappropriate in that recommendation that the government has chosen not to include in Bill C-58?

[Peter Kent, Conservative, Thornhill, ON]

I agree that given the two hours with the Information Commissioner, who is actually the most relevant to Bill C-58, that an hour for the Privacy Commissioner would be appropriate.

[Peter Kent, Conservative, Thornhill, ON]

Thank you, Chair.

Ministers, I began my questions referring to what the Information Commissioner has characterized in her response to Bill C-58 as failing to strike the right balance for transparency.

Chair, I'd just like to table for the record in both French and English the Information Commissioner's report. In that report, it's interesting that she concludes by doing a very basic grade of Bill C-58 with passes and fails. She found that five elements of Bill C-58 are positive. She found that 15 elements of Bill C-58 are, in fact, regressive. Could you respond to that?

[Scott Brison, Liberal, Kings—Hants, NS]

First of all, by putting into this legislation a mandatory five-year review, it will ensure the Access to Information Act never becomes as out of date as it is today, 34 years after it was first introduced.

We believe that after one year of this bill receiving royal assent, we will have a better understanding of what some of the changes in Bill C-58 made to the act, some of the differences those changes have effected, and it will help inform future changes. We will have a better idea of some of the impacts of the changes, including what we intend on doing in terms of strengthening the technology, the resources, and the training.

We are committed as a government to a more efficient and responsive access to information regime, one that is consistent with open and transparent government. We will have a better idea after one year of this bill receiving royal assent as to what other changes we can make to further strengthen it. The Access to Information Act and its regime ought to be an evergreening process that our government and future governments on an ongoing basis look at to find ways to strengthen the access to information regime for the Government of Canada. I think we'll learn more. Also, technologies change, approaches change, and we learn from other governments. That's part of our role as a co-chair of the Open Government Partnership, that we are learning from and sharing practices with other countries as well.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

You heard my question, though. Has it ever been misused? I think Minister Brison would be more comfortable answering it than perhaps you would be.

My suggestion is that, using, as Mr. Kent suggested and all the experts coming before us say, when a reporter is going after a question on something that's sensitive, one way governments in the past.... There are two ways. You can Post-it note it, as some previous Liberal governments did at a certain sponsorship time—you put a Post-it note on it and don't write it down, and you can take it off later. Another way is to provide advice to ministers whereby they are no longer subject to this.

I guess this becomes a question of whom to believe. We have the Information Commissioner who says that previous committees that sat around this table and looked at the act made recommendations, as did the commissioner. You ignored those recommendations in this new Bill C-58.

I'm not sure it's really time to pop the champagne corks when the commissioner says that this bill would instead result in a regression of existing rights.

[Peter Kent, Conservative, Thornhill, ON]

The aspect of Bill C-58 that gives the commissioner the authority to order disclosure from government departments also prevents the commissioner from doing it if cabinet confidence can be invoked. All of the access to information experts in Canada, in different provincial situations, say that represents the biggest black hole of access to information in Bill C-58.

[Peter Kent, Conservative, Thornhill, ON]

Well, you certainly disappointed the Information Commissioner of Canada.

With regard to the proactive disclosure provisions in Bill C-58, which is something of a bait and switch, I think, in terms of what it qualifies, it is actually a false promise to the opening of ministerial offices. Remember, the Liberal campaign promise was to ensure that access to information applies to the Prime Minister's Office and ministers' offices, as well as to the administrative institutions that support Parliament and the courts. The proactive disclosure provisions don't come anywhere close to that, and compounding that broken promise are the conditions involving requests for information that your government may determine to be frivolous or vexatious.

The experts are unanimous in these criticisms. It's not only the Information Commissioner.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you, Karina.

Mr. Kent, Bill C-58 for the first time provides the commissioner with order-making power. The first time that was called for by a parliamentary committee was in 1987. We're the first ones to actually provide that. It was in 1987 that a parliamentary committee called for the application of the Access to Information Act to ministers' offices. We do, through proactive disclosure, and for the first time ever, we're even applying it beyond that, to the administrative offices supporting the courts and to Parliament.

Peter, we've known each other quite a while. Your party, the Conservatives, actually committed in its platform in 2006 to modernize the Access to Information Act. You had 10 years to do it, and when asked in the final days of your government why it wasn't done, Tony Clement said, “Well, we didn't get around to it.” We're doing this in the first two years of our government.

Beyond that, Peter, your government was the first government to be found in contempt of Parliament for not providing information to Parliament, the first government in the history of the Commonwealth—

[Peter Kent, Conservative, Thornhill, ON]

Thank you, Chair, and thank you, Ministers, for appearing with us today.

The same week that we began debate on Bill C-58, the commissioner issued an extraordinary document entitled “Failing to Strike the Right Balance for Transparency“. I'll just very briefly read into the record a couple of paragraphs from her opening statement. She goes into great detail in the rest of the report.

The Commissioner 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.

The final line that I'll quote, Ministers, is the most telling. The Information Commissioner of Canada writes:

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

Minister Brison, could you respond?

[Scott Brison, Liberal, Kings—Hants, NS]

One of the things Bill C-58 does provide to the Information Commissioner is order-making power for the first time. In terms of the application of her authority over the proactive disclosure part of this legislation, that's something on which I would look forward to receiving—we would look forward to receiving—a recommendation from this committee. We're open to recommendations from the committee on some parts of this, and that could be one of the recommendations you could consider.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Since we're on the topic of proactive disclosure, the Information Commissioner has asked for authority or jurisdiction to police proactive disclosure. I would imagine that if there are redactions in relation to the material that is proactively disclosed, the Information Commissioner would look to make sure those redactions are accurate and in accordance with the law. She says that she doesn't currently have that authority as Bill C-58 is drafted, and wants it. I wonder what would you say to her?

[Scott Brison, Liberal, Kings—Hants, NS]

Nathaniel, one of the things we're looking at—and something we'll be guided by as a government in the future—is that as we see the volumes grow for request-based areas of information, that will be a signal to our government, and we'd hope to future governments as well, to move those areas into proactive disclosure, and as such reduce the burden on the request-based system. That's one of the reasons that the review is every five years, with the first one beginning within a year after this legislation receives royal assent. It will enable us to observe the impact of the changes that are part of Bill C-58. It will also enable us to look at future expansion of proactive disclosure in other areas.

[Karina Gould, Liberal, Minister of Democratic Institutions]

Thank you very much, Minister Brison.

Mr. Chair, colleagues, committee members, thank you for inviting me to appear alongside my colleague, Minister Brison, to address Bill C-58. I'd like to acknowledge that Allen Sutherland from Democratic Institutions is here.

I want to acknowledge the important work of the public service in putting this bill together.

The Government is taking measures to maintain the openness, the transparency and the accountability of our democracy. To this end, we have introduced Bill C-33 in order to increase voter turnout and to enhance the integrity of our electoral system.

We've also put forward Bill C-50, which would make political fundraising more transparent.

As Minister of Democratic Institutions, I have also acted to help protect our electoral system from cyber-threats.

Earlier this year, I asked the Communications Security Establishment, or CSE, to undertake the very first assessment of threats to our democratic process. Since the release of the report, in June, the CSE has communicated with political parties and with provincial and territorial chief electoral officers to provide them with advice against cyberthreats.

Today, I am here with you to discuss Bill C-58. This legislation includes long-overdue amendments to an access to information law that has not been updated since it passed almost 34 years ago. The amendments to the act being brought forward by my colleague, Minister Brison, would help to significantly update and improve how Canada's access to information laws function.

Right now, I would like to focus in particular on how Bill C-58 would impact three areas: the offices of the Prime Minister and his ministers, members of Parliament and senators, and the administrative institutions that support Parliament and parliamentarians.

The bill would require the Prime Minister’s Office and ministerial offices to proactively disclose a variety of documents, including mandate letters, transition handbooks, information packages for ministers and their deputies, as well as information regarding travel and accommodation costs for ministers and their exempt staff.

It would also require disclosure of contracts over $10,000.

Information prepared by departments for question period and parliamentary committee appearances would also be subject to the act.

As you know, some of this information is already proactively disclosed by ministerial cabinets. However, this practice is not consistent and is not set out in the law. The aim of this bill is to obtain uniform disclosure from all cabinets. It would require the public release of those documents for the first time.

Of course, exemptions and exclusions under the law would still apply in the case of requests concerning certain issues, such as personal and national security issues.

Bill C-58 also extends the act to senators and members of Parliament. For the first time, this disclosure will be formalized in law. Bill C-58 also applies to institutions that support Parliament. I am referring to organizations like the Library of Parliament, the parliamentary budget officer, and the Senate and Commons administrations.

We’re improving the openness of these offices while ensuring security laws and parliamentary privilege.

Bill C-58 will make it possible to achieve the necessary balance while implementing measures that will contribute to modernize the Access to Information Act. Canada’s democratic institutions will thus increase their transparency and accountability.

To conclude, Bill C-58 will significantly advance the availability and efficiency of the Access to Information Act as it is related to the Prime Minister's office and ministers' offices, parliamentarians, as well as the institutions that support Parliament.

The reforms proposed in Bill C-58 are an important step in the ongoing review and modernization of the Access to Information Act, and I look forward to working with all members to enhance accountability.

With that, I welcome your questions. Merci.

[Scott Brison, Liberal, President of the Treasury Board]

Thank you, Mr. Chair. I am delighted to be here with you today and with your committee.

I am joined by Parliamentary Secretary Joyce Murray as well as my colleague Minister Gould, and as you mentioned, Jennifer Dawson from TBS.

I want to thank members of the committee for your work and your consideration of issues around Canada's access to information system.

As we developed these reforms, we were guided by the principle that government information belongs to the people we serve.

We remain committed to this principle, which the Access to Information Act first enshrined in law in 1983.

Now, 34 years later, our proposed reforms advance the original intent of that act in a way that better reflects today's technologies, policies, and legislation.

This is not a one-off exercise. Rather, we've kicked off a progressive, ongoing renewal of the ATI system, one that will protect Canada's right of access to government information well into the future.

Our efforts began over a year ago. In May 2016, I issued an Interim Directive that enshrined the idea of government being "open by default".

Open by default means having a culture across government in which data and information are increasingly released as a matter of course, unless there are specific reasons not to do so.

It's about allowing Canadians to better understand how government functions and to give them the information they need to contribute to a healthier democracy.

The Canadian government is being recognized by global partners for our efforts in this area. In March we were elected to the steering committee of the Open Government Partnership for the first time, and on September 21 Canada agreed to take on the role of lead government chair of the OGP in 2018-19.

The OGP is a multi-stakeholder organization that brings together 75 governments and hundreds of civil society organizations. I can tell you that as a government we are excited to take on this leadership role for Canada over the coming two years as co-chair.

The CEO of the Open Government Partnership, Sanjay Pradhan, called our country “a beacon of openness” last month in New York. Additionally, earlier this year, Canada was ranked number two in the Open Data Barometer survey, which is a global assessment of how governments are using open data for accountability, innovation, and social impact. The report commented on how political will in Canada has translated into strong policy foundations on openness and transparency.

A year ago we eliminated all fees for access to information requests, apart from the $5 filing fee, and directed the release of information in user-friendly formats whenever possible.

Now, with the amendments proposed in Bill C-58, we're taking the next step.

These amendments would create a new part of the act relating to proactive disclosure, one that puts clearly into practice the idea of open by default.

Of course this does not absolve us of our responsibility to strengthen the request-based system. We know that the access to information system has been the subject of widespread and warranted criticism. That's why we're developing a guide to provide requesters with clear explanations for exemptions and exclusions; investing in tools and technology to make processing information requests more efficient; allowing federal institutions with the same minister to share request processing services for greater efficiency; and increasing uniform government training to get common and consistent interpretation and application of ATI rules.

Mr. Chair, we are also following the guidance of this committee.

We are moving to help government institutions weed out "bad faith" requests that put significant strain on the system.

By tying up government resources, vexatious requests can interfere with an institution's ability to do its work and to respond to other requests.

Let me be clear: we have heard the concerns expressed about how we must safeguard against abuse of this proposed measure. We need to get this right and recognize that, while this new tool is needed to significantly improve the system, everything, from sound policy to training and proper oversight, must be done to prevent its abuse.

Our proposed amendments also give the Information Commissioner new powers, including, for the first time, the power to order the release of government records. This is an important advancement, which was first recommended by a parliamentary committee studying the Access to Information Act in 1987. Our government is acting on it, and Bill C-58 would change the commissioner's role from an ombudsperson to an authority with the order-making power to order the release of government records.

We are also giving the Information Commissioner's office more financial resources to do its job.

And that's just the first phase of our access to information modernization.

Bill C-58 includes a mandatory review of the act every five years. The first review will begin no later than one year after the bill receives royal assent. What's more, we require that departments regularly review the information being requested under the act.

Mr. Chair, after 34 years, Canada's access to information system needs updating. This is going to be an ongoing work in progress.

I'd now like to pass it over to my colleague, the Minister of Democratic Institutions. Merci.