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

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I will have to disagree with my hon. friend from Winnipeg North. We cannot support something that will do so little to deal with the fundamental problems that, after 34 years, governments on both sides of the aisle have created.

The amendments from the NDP that the government can anticipate will be very much like the amendments from the committee that studied this. They will be very much like the amendments from the Information Commissioner. They will be very much like the amendments that were proposed over years. They may even be like the amendments the Prime Minister sought to make to the legislation when he was in opposition, which I would suggest are very different than what we see before us today in the legislation.

[Andy Fillmore, Liberal, Parliamentary Secretary to the Minister of Democratic Institutions]

Mr. Speaker, I will be splitting my time with the member for Vancouver Quadra.

I am proud to rise in the House to speak to Bill C-58, an act to amend the Access to Information Act and the Privacy Act.

Our government was elected on a promise to reinforce public trust in our democracy, and over the course of our time in office, we have put action behind our words. For example, we are reforming campaign finance laws to make one of the world's most respected democracies even more transparent. We have introduced legislation to make Canada's democracy more accessible to all Canadians. The debate today is about another of the fundamental concepts of any modern democracy.

We know Canadians cannot meaningfully participate in democracy when they are in an information vacuum. Access to government data is vital. Without it, neither the public nor the media are able to hold governments to account. That is why our government promised to firm up one of the key pillars of our democracy: access to information.

We told Canadians we would make information open by default, and in formats that would be modern and simple to use. Canadians pay for the information that is assembled in the Government of Canada, so why should they not have access to this data? This greater openness in turn will lead to greater confidence in our democracy, which is why this government has put such a great emphasis on amending the Access to Information Act with Bill C-58.

This is the first major overhaul since our predecessors in this very institution voted in favour of the current act 35 years ago, so it is long overdue.

The act, which was enacted in Parliament in 1982, and took effect the following year, came long before anyone had ever heard of the Internet. Governments in those days had far more administrators and clerks, because there was so much paperwork to file and record. One could not just flip a written message to a colleague by email. If one wanted to send an interesting news article to a counterpart in another department, one could not just forward a link. One's options were limited to things like a fax machine or an inter-office courier.

Today, technology has dramatically changed how governments operate, and we need to align our laws to take into account this new reality. We have a responsibility to make it easier to obtain information and once Canadians get it, that information should be in easy-to-use formats. We can think of the graduate students, like those at Dalhousie University or Saint Mary's University in my riding of Halifax, who are out there doing groundbreaking research but operating on tight timelines. We want them to be able to, when possible, obtain an electronic version of government records so they can more easily navigate and analyze the documents. Think of the time that will be saved if they do not have to go through hundreds of pages to find what they are looking for.

Now Bill C-58 has many components, but for now I would like to focus on how it impacts parliamentary institutions. I am talking about the Library of Parliament, the parliamentary budget officer, the Parliamentary Protective Service, the Office of the Conflict of Interest and Ethics Commissioner, the Office of the Senate Ethics Officer, and the administration of the Senate and of the House of Commons. These institutions are foundational components of our democracy, and Bill C-58 proposes to bring them under the Access to Information Act to make them more accountable. The proposed legislation will require these institutions to publish each quarter their travel and hospitality expenses as well as disclose over the same timeline any contracts with a value above $10,000.

Another important component of Bill C-58 is the new powers it would give to our Information Commissioner. This is of particular interest to me, both in my role as a Parliamentary Secretary to the Minister of Democratic Institutions as well as the member of Parliament for Halifax.

Not too long ago, I met with representatives from a group based in Halifax called the Centre for Law and Democracy, whose mission is to:

...promote, protect and develop those human rights which serve as the foundation for or underpin democracy, including the rights to freedom of expression, to vote and participate in governance, to access information and to freedom of assembly and association.

Some members may be familiar with the centre's work on the right to information rating, or RTI, which is developed along with Access Info Europe to calculate and rate the overall strength of countries' right to information laws.

The topic of the Information Commissioner was one I discussed with representatives of this group in my office during a meeting in the spring. They believe, as I do, and so too does our government believe, that the Information Commissioner ought to have the ability to order the release of records, or so-called “order making”. I am proud to say that Bill C-58 would give the Information Commissioner that power. I would like to congratulate and thank the Centre for Law and Democracy on its strong advocacy on this point, and for its ongoing work in Canada and across the world to strengthen democratic institutions.

It is important to note that the legislation would also give government institutions the ability to decline requests that are excessively broad or requests of information already in the public domain.

The government has limited resources, and this will free up government institutions to respond to other requesters. Of course the applicant subjected to a decision like this would be able to make a complaint to the Information Commissioner.

Bill C-58 would also oblige members of Parliament and senators to publish all travel and hospitality expenses, and all service contract amounts. In both cases, this information would have to be made public on a quarterly basis.

We know senators and members of Parliament already publish travel and hospitality expenses pursuant to their own internal rules, and senators disclose service contract information, while MPs publish the total costs of awarded service contracts.

Importantly, Bill C-58 would enshrine the current practice of also requiring additional details on the service contracts and travel costs of MPs.

This legislation will require a review of the act every five years, starting in 2019. This will give Canadians an opportunity to look for further improvements.

We believe Canada deserves a vibrant democracy that is transparent, open, and accountable, but our efforts do not begin and end with changes to the Access to Information Act.

We have been relentless since taking office to look for other ways to improve our democratic system. For instance, Bill C-33 would amend the Canada Elections Act to increase voter participation and improve the integrity of our electoral system. Bill C-50, meanwhile, if passed, will make important changes to the same act to make political fundraising more open and transparent. We are also taking action against cyber threats and the danger they pose to our electoral system.

We live in one of the most respected democracies in the world, but our government will remain relentless in ensuring that any weaknesses are dealt with. Bill C-58 is a major part of this effort, and I am proud to work with the Minister of Democratic Institutions to advance it. With that, I welcome any questions from my colleagues.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, the Centre for Law and Democracy will give a rating out of 150 points, and the rating says that this so-called improvement, this amendment law, only improves the rating by two points. That is two points for all of this supposed historic milestone that the government has reached in amending the law.

Other points it makes are about vexatious and frivolous claims for access to information, or what the department considers vexatious. The centre says that should be reversed, that it should first go to the Information Commissioner to determine whether it is vexatious. People should not have to go to the Information Commissioner if they disagree with the department.

Could the member tell us why the government did not just ask the Centre for Law and Democracy to write the bill for it?

[Andy Fillmore, Liberal, Halifax, NS]

Mr. Speaker, I want to thank the Centre for Law and Democracy for the concept of the RTI and for its contribution to the bill, through its advocacy, as it stands now.

Our government is raising the bar and enshrining a culture of openness and transparency across government. The legislation will require a proactive disclosure of mandate letters, question period binders, travel and hospitality expenses, and contracts over $10,000. This will ensure Canadians have more information about the way their leaders work.

This would replace the current patchwork approach for proactive disclosure with one commonly and evenly applied set of rules. These reforms are an important step in an ongoing review and modernization of the Access to Information Act. We look forward to working with all members and the Centre for Law and Democracy to enhance accountability.

[Sheri Benson, NDP, Saskatoon West, SK]

Mr. Speaker, some of the comments we have heard from the government have been around the fact that it has been so long, that we should be grateful it is doing something.

That type of attitude really bothers me, because I think it creates cynicism in the public. I do not see why we need to take incremental steps, particularly with some of the things the Prime Minister said during the election campaign.

I want to focus on one part of the bill, and that is not extending the coverage of the Access to Information Act to the Prime Minister's Office and the ministers' offices. From what the Prime Minister said during the election, this should be a highlight of the bill.

On what grounds did the government decide that Canadians did not deserve this transparency of these offices?

[Andy Fillmore, Liberal, Halifax, NS]

Mr. Speaker, it is hard to imagine anything that creates more cynicism than being chastised for doing the right thing.

We are very proud to be doing the right thing. It is overdue. We are taking a very good, fundamental step toward increasing openness and transparency through this bill and through many actions across the mandate of the government. We are ensuring that these changes impact a variety of our parliamentary institutions, including the Library of Parliament, the parliamentary budget officer, the Parliamentary Protective Service, the Office of the Conflict of Interest and Ethics Commissioner, the Office of the Senate Ethics Officer, the administration of both the Senate and House of Commons, and the list goes on.

We are fundamentally doing the work of good democracy in Canada to create the most open and transparent democracy we can.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, the member must know that past legislation the government put forward, such as Bill C-44, Budget Implementation Act, 2017, No. 1, actually limited access. Section 28 actually limited the access Canadians could have to documentation related to the Canada infrastructure bank.

The member must know that in this legislation, the government is actually getting rid of the section that forces departments to list the types of documentation and records they keep. That is not me saying it. Ken Rubin and the Centre for Law and Democracy say this. How can the Liberals claim that this is somehow a vast improvement, when they are actually drawing back on certain elements and have kept every single exemption in the law?

[Andy Fillmore, Liberal, Halifax, NS]

Mr. Speaker, as I said, this is part of our massive effort across government to increase openness and transparency, not just through this act but through amendments to other acts that are on the Order Paper as well. We are fundamentally increasing the openness and transparency of our government and are increasing the ability of Canadians to have less cynicism and more trust in what we are trying to do here.

I look forward to working with all members of this House and of the other place, as does the Minister of Democratic Institutions, to make sure we can achieve those outcomes together.

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

Mr. Speaker, I welcome the opportunity to speak to Bill C-58, a comprehensive set of amendments to the Access to Information Act that would deliver on our government's key commitment to improve openness and transparency in government. If passed, these amendments would make progress in bringing Canada's access to information legislation in line with the communication advances of the last three decades.

The act has not been significantly updated since it came into force 34 years ago, when fax machines were cutting edge and information was stored in huge filing rooms. As we all know, however, the world has evolved considerably since then. Today, it is smart phones and social media, big data and high-speed Internet.

Canadians seek out information through digital channels, and government can now interact with the public through the web and social media. Moreover, the volume of information the government manages has dramatically increased.

I think we can all agree that the current act needs to be brought up to date.

We have certainly been hearing that so far in the debate.

This is why the government committed to reforming Canada’s access to information program. This modernization began with early action to improve access to information.

In May 2016, the President of the Treasury Board issued an interim directive that enshrined the principle of open by default. He eliminated all fees, apart from the $5 filing fee, and directed the release of government information in user-friendly formats wherever possible. Fees for processing large-volume requests could run into the hundreds, and sometimes thousands, of dollars and sometimes deterred people from having access to public information.

Those were good first steps. Today we are maintaining that elimination of fees, and we are bringing forward transformative measures to enhance Canadians' access to government information.

Let me begin with one of many ground-breaking features of our proposed legislation. For the very first time, the Information Commissioner would have order-making power. No access to information regime is complete without powerful and meaningful oversight. We promised Canadians that we would find ways to empower the Office of the Information Commissioner to order government information to be released.

The bill before us today would do just that. This is something that has come up again and again in the debate as one of the key things that are a necessary change, and we are making that change. This change would strengthen the commissioner's role from that of an ombudsperson to that of an authority with a legislative ability to order government institutions to release records.

The legislation also proposes to entrench in law, for future and current governments, an obligation to proactively publish a broad range of information on a predictable schedule and without the need for anyone to make an access to information request for that information.

The amendments would create a new part of the act on proactive publication which builds on current best practices, applies consistent requirements across government institutions, and seizes on the opportunities of our digital age.

These amendments would result in the proactive release of key information throughout government.

This is a process that would take place across literally hundreds of offices and departments of the government. It would allow our citizens a greater understanding of government and would demonstrate effective stewardship of public funds.

Here is another first. Through this legislative system of mandatory proactive disclosure, the act would, for the first time ever, include ministers' offices, the Prime Minister's Office, institutions that support Parliament, administrative institutions that support the courts, and more than 1,100 judges of the superior courts.

This system of mandatory proactive disclosure puts a strong emphasis on increasing the information that is open by default and making information that is of interest to Canadians freely available on the web.

I would like to take this opportunity to highlight a few more features of the reforms we will make to our access to information regime.

Having just spoken about the proactive publication that is key to our commitment to openness by default, I also want to mention a few other things we are doing in the bill.

We will develop a new plain language guide that will provide requesters with clear explanations of exemptions and exclusions. The rationale for these exclusions will be laid out, a rationale that will be in the public interest.

We would invest in tools to make processing information more efficient. That is an important way to address one of the key weaknesses of our current system, which is how many access to information requests are not responded to in a timely way.

The bill would allow federal institutions that have the same minister to share their request processing services for greater efficiency and timeliness. It would support the new legislation with government training. There are many things we would do.

It is important to note that many of our changes were initiated at the recommendation of the Standing Committee on Access to Information, Privacy and Ethics.

It would be subject to the oversight of the Information Commissioner. The bill proposes that if a department decides to decline to act on a request, the requester will have the right to appeal to the Information Commissioner, and the Commissioner could use the new order-making power to resolve the issue.

This is a new authority that could significantly improve the system, but it needs to be implemented with care.

We look forward to debating the proposed provisions with parliamentarians in a thoughtful way. All these changes were designed to address criticism from Canadians about delays and inconsistencies in the current request-based system and recommendations from stakeholders, such as the Information Commissioner and our colleagues at the ETHI committee.

We can never become complacent when it comes to openness and transparency. That is why the reforms before us today are the first legislative phase in what would be an ongoing review and modernization of the act.

The legislation would require a review of the act every five years, and as I pointed out earlier in the debate, the first review would start no later than one year after royal assent, so this is really an ongoing improvement process. These five-year reviews would provide an important opportunity for Canadians to have their say on access rights and would help us make sure that the system met their needs.

These reviews will assess what is working and how, and ensure that the act is never allowed to become so outdated again. Today, I am proud to be part of the first government to bring significant change to the Access to Information Act since it was first introduced over 30 years ago.

I encourage all members to support this work and this bill, and in doing so help us take a great step forward in updating the Access to Information Act.

I also look forward to continuing to work with Parliament, the Information Commissioner, the Privacy Commissioner, and other stakeholders to further strengthen our access to information regime.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, the parliamentary secretary said that this bill delivers on a key commitment of transparency for the government. I ask her why the government chose not to change one single rule, one single exemption, or the cabinet exclusion by which it is allowed to hold information back. If it delivers in the way that she suggests, why the scathing criticism from the Canadian Civil Liberties Association, Democracy Watch, the BC Freedom of Information and Privacy Association, and even the Canadian Association of Research Librarians?

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I would say to my colleague from Victoria that exclusions and exemptions are there to protect highly sensitive information related to national security, the privacy of Canadians, commercial sensitivity, and cabinet confidence. This is a historic upgrade and improvement to our Access to Information Act, and it must include the ability to exclude certain information from public access. That is just what we are doing.

I want to remind the member that this is a historic first for Canada in that the Information Commissioner will have order-making powers. If there is a concern that an exclusion is not based on one of these requirements, that person can go to the Information Commissioner, who can order the government to do it differently.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

Mr. Speaker, we are familiar with my colleague's deep experience.

Does she realize that many people get the impression that this is like a mother-in-law going down into the basement to see if it is tidied up, but two or three things were strategically placed so that she would not have to look too far? I get the impression that that is more or less what the government is doing right now. It promises to provide access to all sorts of things, to several examples to prove that everything is just fine, then closes the door that provides access to other secrets and locks and seals it up. It is more complicated than ever to get information.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

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

I would say that these changes to the Access to Information Act are truly important and powerful for Canadians. They follow the great principles of openness and transparency and put mechanisms in place for disclosing information.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, in her response to one of the questions, thehon. parliamentary secretary referred to order-making powers. She said that the exclusions did not need to be fixed, because they will now be the subject of order-making powers by the commissioner. If a category in the legislation is very wide, which in other jurisdictions covering the same issues, such as policy advice, is more narrow, then giving an order-making power to someone to say that it is indeed in that category does not really achieve the goal of greater transparency.

I would invite the House to look at proposed section 36.1 as presented in clause 16 of the new bill to see if anyone can make sense of the order-making power of which she speaks. It is a long way from a situation in which the commissioner makes an order, and that is it, unless there is judicial review.

Therefore, on those two counts, I hardly think we can be pleased with what we have before us.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, let me be clear for the member for Victoria. What I said was that there are very good reasons for certain exclusions and exemptions. We respect those reasons. The member himself pointed out that it is an important pillar of a proper access to information approach. The focus of this bill is to implement our mandate letter of commitment, and that is exactly what we are doing.

We have also been clear that this is the beginning of an ongoing process. We look forward to continuing to strengthen the system at the first occasion, which is the mandatory review that would be started within a year of this bill receiving royal assent.

I want to also point out that exclusions such as cabinet confidences have been recognized by the Supreme Court of Canada as a part of our democratic principles.