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

Sponsor

Scott Brison  Liberal

Status

In committee (House), as of Sept. 27, 2017

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-58.

Summary

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

This enactment amends the Access to Information Act to, among other things,

(a) authorize the head of a government institution to decline to act on a request for access to a record for various reasons, including because it is vexatious or made in bad faith, and give the person who made the request the right to make a complaint to the Information Commissioner if their request is declined;

(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 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.

Elsewhere

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

Votes

Sept. 27, 2017 Passed 2nd reading of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

Access to Information ActGovernment Orders

September 25th, 2017 / 5:55 p.m.
See context

Vancouver Quadra B.C.

Liberal

Joyce Murray LiberalParliamentary Secretary to the President of the Treasury Board

Mr. Speaker, I also thank my Conservative colleague for his speech.

It is important that our access to information system work well for Canadians. At present, there are no limits to the number of requests an individual can file or regarding the scope of the request.

A number of members have taken aim at that aspect of Bill C-58, including my colleague, and I have a question for him.

Our system is currently being delayed by frivolous and sometimes vexatious requests. With this bill, we want to change that, because it is unfair to Canadians who file legitimate access to information requests.

Is the member aware that several provinces and territories have a different version of the legislation we are proposing to protect the effectiveness of their respective access to information systems, and that that is also the case for Australia, New Zealand, and the United Kingdom?

I heard several concerns regarding our decision, but I have to ask the following question: do we not have a duty to make the system more effective for Canadians who submit requests in good faith, and to reject those that are not in good faith and are frivolous and vexatious?

Access to Information ActGovernment Orders

September 25th, 2017 / 6:05 p.m.
See context

Conservative

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.

Access to Information ActGovernment Orders

September 22nd, 2017 / 10:05 a.m.
See context

Kings—Hants Nova Scotia

Liberal

Scott Brison LiberalPresident of the Treasury Board

moved 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.

Mr. Speaker, I am proud today to discuss Bill C-58, an act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts.

This legislation, which I introduced on June 19, is built on a foundation of work by many people through consultations: parliamentarians, the Information Commissioner, the Privacy Commissioner, important stakeholders, and, of course, Canadian citizens. All have strong views, sometimes conflicting, as to what we ought to do to modernize this 34-year-old act.

I would like to thank each of them for their careful consideration of the issues involved in updating our access to information regime.

The Liberal Party has spent over a decade defending and strengthening the principles of openness and transparency, both in government and in opposition. In fact, I remember when I served in the Right Hon. Paul Martin's cabinet. That was the first time a prime minister required the proactive disclosure of ministers' expenses. In fact, Mr. Speaker, you were a colleague in that same cabinet.

Later, in opposition, under the leadership of the current Prime Minister, our Liberal caucus was the first to proactively disclose parliamentarians' expenses. Now we are bringing this ongoing effort toward openness and transparency to government.

On day one, our Prime Minister made the ministers' mandate letters public, for the first time ever. This week, when I was in New York at the UN General Assembly, the CEO of the global organization Open Government Partnership told me that making public ministerial mandate letters is a real game changer that is going to raise the bar globally in terms of other countries.

Ministers are no longer just accountable to the Prime Minister for their mandates. Today, having our mandate letters public means that we are more accountable to Parliament, and of course, are more accountable to Canadian citizens.

That was just the beginning. Within our first two days of government we unmuzzled government scientists and restored the mandatory long-form census. All these measures are consistent with our drive toward openness and transparency and providing higher-quality information to Canadians.

Our actions are being recognized by global organizations. In March we were elected to the steering committee of the Open Government Partnership for the first time. This week we agreed to take on the role of co-chair of the OGP. This is the world's largest multilateral organization dedicated to open, transparent, and accountable government.

As we developed this first set of legislative reforms of the Access to Information Act, we have continued to be guided by the principle that government information belongs to the people it serves. If anything, it is truer today than ever before.

The Access to Information Act, in 1983, first enshrined in law the following principles: that citizens have a right to government information, that transparency makes government more accountable and responsive to the needs of citizens, and that access to information allows citizens to participate meaningfully in the democratic process and hold their government to account.

The amendments we are proposing to the act will strengthen its original purpose in a way that reflects today's technologies, policies, and legislation. Now more than ever, open government is good government. We want to work with parliamentarians, independent officers of Parliament, and stakeholders to ensure that this first major Access to Information Act reform in three decades reflects that intention.

A lot has changed since the ATI Act first came into force. Thirty-four years ago, government information was paper-based and stored in file cabinets.

Since then, information technology and our communications infrastructure have been revolutionized and personalized.

Over the same period, the volume of information collected and held by government has grown, and the Internet has made it easier for the government to make large amounts of information widely available.

The Access to Information Act played an important part in bringing about a change in public expectations. It was in fact ground-breaking.

Since the act became law, in fact, more than 750,000 information requests have been processed. That is 85 requests every working day for more than three decades. Since 1983, the number of requests has grown by an average of 13% annually. In fact, 2015-16 saw more than 75,000 requests. I would like us to consider that number: 75,000 information requests in one year. That represents almost 10% of the overall number of information requests processed since 1983, so demand for information is actually growing.

Clearly, there is a rising demand for government information and government transparency. That demand has strained government, and it has frustrated Canadians who are accessing information.

We have heard the complaints about government delays in responding to requests or about denied requests. We believe that the changes we are making will help address some of these issues. However, in 2015-16, for example, 64% of all completed information requests were answered within the initial statutory time limit of 30 days. That number jumps to 86% if we consider the requests closed within an extension period provided for within the act. More than nine million pages were processed in 2015-16, and more than 80% of the records were disclosed either in full or in part.

In some cases, exemptions were invoked for valid reasons, including the privacy of personal information, national security, and the ability of the public service to give full and frank advice to government.

Nonetheless, to say that reforming the 1983 act has been a long time coming would certainly be an understatement.

That is why we are modernizing the act today. This is not just a one-off exercise that might have to wait another 34 years for an update. We are making it law that there will be regular reviews of the act. We began these efforts just over a year ago. In May 2016, we issued an interim directive that enshrined the principle of open by default. This refers to a culture shift across government in which data and information are increasingly released as a matter of course unless there are specific reasons not to do so.

This culture of openness helps Canadians engage with their government on policies, programs, and services.

We believe that good public policy comes out of conversations and consultations with Canadians and that it needs to be two-way communication. Even in the last few months since introducing this legislation, we have continued to engage the commissioners of information and privacy, along with many other experts on this subject. We paid close attention to the concerns raised, and I look forward to pursuing that conversation with this Parliament and with parliamentarians here today and in the coming weeks.

“Open by default” involves providing more information to the general public, engaging citizens in identifying issues and problems, and helping to develop solutions around them.

The interim directive we issued in May 2016 also eliminated all fees for access to information requests, apart from the standard $5 fee, and directed the release of information in more user-friendly and shareable digital formats whenever possible. Now is the time to take more steps on this path of open government.

The legislative package we have introduced proposes amendments that would further improve Canadians’ access to government information.

To begin with, the amendments would create a new part of the act relating to proactive disclosure.

Proactive publication puts into practice the principle of “open by default”.

With modern technologies making it easier to share information in real time, we are looking at new ways to meet Canadians' expectations by sharing government information more quickly and automatically while relieving some of the pressure from our demand-based system.

This approach would build on current best practices, and apply consistent requirements for the publication of information across the government.

It would apply to more than 240 government departments, agencies, and crown corporations. It would include 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 of the superior courts.

We would be putting in law the proactive publication of the travel and hospitality expenses of ministers and their staff as well as of senior officials across government; contracts over $10,000 and all contracts issued by members of Parliament and senators; grants and contributions over $25,000; mandate letters and revised mandate letters; briefing packages for new ministers and deputy ministers; lists of briefing notes for ministers and deputy ministers, including the titles of the notes and their tracking numbers; and the parliamentary binder used for question period and committee appearances. We developed this list by examining some of the most sought after documents in access to information requests.

We expect, in fact, that this approach would guide us over time in terms of expanding proactive disclosure. In other words, if there are certain categories of information that are frequently being requested through the demand-based system, that would be a signal to our government and to future governments that we ought to consider proactively disclosing those categories as we move forward.

This will lead to better public understanding of government decision-making, fostering more participation and public trust in government. We also understand that proactive publication does not absolve us of our responsibility to strengthen the request-based system.

That is why we are also developing a new plain-language guide that will help provide requesters with clear explanations for any exemptions and exclusions. We will be investing in tools to make processing information requests more efficient. We will be allowing federal institutions that have the same minister to share request-processing services to achieve greater efficiency.

Because one of the most common complaints we have heard has been directed at the consistency of how the act is applied across government institutions, we will invest in better government training to get a common and consistent interpretation and application of ATI rules across the government.

We are also following the guidance of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

We are moving to help government institutions weed out what are genuinely bad-faith requests that put significant strain on the system, slowing responses for everyone else. Repetitive, vexatious requests can gum up access to information processes while providing little new information, and as such, can do a disservice to all Canadians.

Federal institutions spent more than $64 million in 2015-16 to cover the direct cost of administering the act, and this government wants those resources spent efficiently and effectively. Our intent is to ensure that no government, ours or any future government, can abuse this provision. Let me be clear. A large or broad request, or one that causes the government discomfort, does not of itself represent bad faith on the part of a requester.

We need to get this right. We recognize that while this tool is needed to significantly improve the system, everything from sound policy to proper oversight must be done to prevent its abuse. I have faith that this House and this Parliament and the work that will be done at the committee can help us achieve that objective.

We are not stopping there. The proposed amendments would also give the Information Commissioner new powers.

These include the ability to order the release of government records. This was a power long sought by successive Information Commissioners. We are also giving her office more financial resources to do its job.

This is a significant step forward.

We will change the commissioner's role from that of an ombudsperson to that of an authority, with the legislative power to order government institutions to release records. These are significant reforms to our ATI system, but there will always be more we can do to strengthen the trust between citizens and their government.

That is why the reforms being proposed are only the first phase of our modernization of access to information.

In fact, the amendments legislate a review of the act every five years so that the law never becomes as outdated as it is today. The first review would begin within one year of this bill's receiving royal assent. In addition, through policy, we will require that departments regularly review the information being requested under the act. This is important because the trend analysis that we conduct on an ongoing basis will help us understand and increase the kinds of information that should be made more easily available, including through proactive disclosure. This analysis would also inform the five-year reviews and future changes to strengthen the act.

After 34 years, we are the first government to significantly revitalize Canada's access to information law and system. It is the most comprehensive access to information reform in a generation. As I said, these reforms are only the first phase. It is a work in progress to strengthen access to information and openness and transparency in Canada, not just for our government but for future governments. With the support of the House, we can continue to work together to modernize our access to information law and system and to make governments today and in the future more open, transparent, and accountable to Canadians.

Access to Information ActGovernment Orders

September 22nd, 2017 / 10:30 a.m.
See context

Conservative

Tom Kmiec Conservative Calgary Shepard, AB

Mr. Speaker, listening to the President of the Treasury Board speak, I think we should be breaking out the champagne for this once-in-a-lifetime change to the access to information law that will achieve everything. I heard him say that it is early in the day. I am sure he will make some time in the lobby behind us for other government members. However, I have bad news for them. The supposed openness and transparency law that the Liberals have introduced, where they faked themselves into thinking they have accomplished something, falls far short of what they promised during the election campaign. Also, according to the experts, it falls far short of what should have been achieved over this 30-year gap between when the ATIP law was introduced and the amendments they are proposing to make.

What is interesting is that we rise in the House in question period to ask questions that we never get answers to. The Liberals could have provided fulsome answers then. We have Order Paper questions asking for simple definitions that should be textbook, yet they fail to provide the answers for these Order Paper questions. These are privileges that each member of this House enjoys, and the government should be providing complete answers to those Order Paper questions. Therefore, it is no wonder that this access to information amendment it is proposing will fall far short of what should be achieved.

Many times I have heard the member for Carleton ask what the definition of “middle class” is and what the impact of the carbon tax would be. He has tried to get that information through the access to information laws. However, we never get that information from the government. What the Liberals are proposing today will never fix that. What is needed is a cultural change. I call this system that they are proposing the Potemkin ATIP system. It has all the window dressings, the image that is needed, but none of the changes they have promised to make will be in the guts of it.

I do have a Yiddish proverb, because I think it speaks volumes to what the government is proposing to do. It is, “The luck of an ignoramus is this: He doesn't know what he doesn't know.” I am not speaking with respect to the President of the Treasury Board, I am speaking of the government in general.

I will quote from the access to information law experts from the Centre for Law and Democracy, which noted a couple of disturbing elements in this bill.

It stated, “a large majority of the proactive publication obligations are already being implemented in practice by these bodies. While it is some progress to formalise these commitments, this is hardly groundbreaking”. I agree.

It goes on to state, and this is an important point, that the bill “fails to address the serious problem of delays in responding to requests. It does nothing to address the broad regime of exceptions....” That was my first question to the President of the Treasury Board.

It goes on to note that the bill “would also remove the obligation on public authorities to publish about the classes of records it holds, which is designed to facilitate the making of requests for access to information” in the first place. Therefore, that will be removed.

When I came here as a rookie member of this House, one of the very first things I did was to learn and understand how each department worked and the areas in which it specialized. I wanted to understand how to better keep the minister accountable. To do so, I looked for the type of information and the type of records the department was keeping. That was so I could better understand what types of records I could request through an access to information request if I did not get an answer to an Order Paper question or an answer in question period.

The Centre for Law and Democracy notes that section will be removed, which takes me back to my Yiddish proverb. If we do not know that a document exists, then how could we ever ask for it? It is interesting that the government is removing that one section. It is not just me saying that, but so is the Centre for Law and Democracy, which is the expert on this. It does analyses of all access to information laws in every jurisdiction in Canada, and it rates them. It is those experts who are saying that it falls short.

Who else is saying that it falls short? Robert Marleau, the former information commissioner from 2007 to 2008, stated, “there's no one [in government departments] to review what they choose not to [publish]”. This is contrary to the principles of the act. They put the commissioner out of the loop. If we requested briefing notes and parts of them had been blacked out, you had someone to appeal to. This is no longer the case. You cannot even ask the court. It is a step forward, two steps back.

Let us see what the Liberals say they have done. We have heard about mandate letters now being released to the public. It does not help if one does not follow the mandate letter and fulfill what is in it. It is just a letter, a piece of paper. It does not help us to understand anything. Also, I have news. The Alberta government has been releasing mandate letters for well over a decade. Therefore, it is not as if this is groundbreaking and setting some type of new frontier regarding access to information. Alberta has been doing it for years. I remember when the member for Calgary Confederation and the member for Calgary Signal Hill were in the provincial government, and they had mandate letters that were published. The difference is that they followed through with the contents of their mandate letters and were held accountable by the premier of Alberta for the contents. Here, they are not held accountable.

The other thing they say they will be doing is documentation on the training of new ministers, titles and reference numbers of briefing notes, development notes for question period, backgrounders for appearances before parliamentary committees, travel and hospitality expenditures, and contracts of more than $10,000. Other governments have been doing some of these things for a long time now, through freedom of information laws that are provincially based. These are not new frontiers. These are very basic documents.

Some of them are here. However, if they remove from the law the very basis of what type of records the department has to keep, how am I supposed to know that a record exists in the first place? It is like chasing a needle in a haystack a lot of times.

I have experienced this first-hand when doing access to information requests to the health department where I have been stalled out for lengthy periods of time. Sometimes I stumble upon new documents that I did not know even existed before. Then I do another access to information, and my staff and I continue in this manner. Many of the changes being proposed here will not end any of that.

It is hardly historic in terms of changes. There is an RTI rating, which is the methodology that assesses each access to information law to determine its score. The score is based on 150. On the RTI rating, according to the Centre for Law and Democracy, Canada will go from 90 to 92 points. That is a two-point increase. One would think after two years that the government could have cobbled together an amendment to the access to information law that would live up to the promises it made during the last election, because it has broken them here. It could do much better than a two-point increase in its score on access to information laws.

It is not as if Canada will be rising greatly. It is not as if the government did not know how to increase its score. It is not as if it did not have a comparator that it could look at, such as Serbia, which supposedly has a much better rate than we do.

Many experts in the field have said that there are issues, and I note in the law there are interesting oddities and amendments. One of them, and we have heard this before, is with regard to frivolous or vexatious claims for access to information requests. A department would be able to say that they cannot do that.

According to Policy Options, a well-respected think tank, the power to prevent such abuse is included in many ATI laws. However, that power should rest with the Information Commissioner, not the department that is subject to the request. If the department can determine what is frivolous and vexatious, then it can block any type of request it feels is frivolous and vexatious. It could up to the individual civil servant who receives the request.

Bill C-58 also includes a five-year review. The first five-year review would take place only a year after the legislation comes into force. Given the glacial pace of how legislation makes its way through the House and then to the Senate and then bounces back from the Senate, because the government does not really know what it is doing there, I do not think we would have a review of it before 2019, before the next election.

My other concern is that it does not have a sunset clause. Even the Bank Act has a sunset clause. It is set every five years. It forces the parliamentary committee to review the legislation through a mandatory review. It knows that it will sunset unless it provides feedback on its contents. I like the idea of mandatory reviews and sunset clauses in legislation, because it forces us, as parliamentarians, to review legislation on a consistent basis. When I worked as a staff member in the provincial legislature in Alberta, it was one of the things I kept pushing for in regulation and statutes with the minister I had the privilege of working for. I pushed that every single piece of legislation, regulation, should have that included, to mandatorily force members to review the legislation to make sure it still made sense, that the amendments that had been proposed in the last five years, and the improvements, were actually worth carrying on and being included in the final legislation.

I have a page from the Liberal policy platform from the last election. The Liberals promised many things on access to information, some of which they achieve here, and some which they absolutely do not. They said they would expand the powers and role of the Information Commissioner. They have done some of that. They also said that government data and information should be open by default, and that formats should be modern and easy to use. I have no problems with that. That is a great idea.

It is interesting to note that the previous President of the Treasury Board and the previous government started an open data, open government website, where people could download data on Excel spreadsheets. I know this, because we used them in the office that I worked in before. We downloaded bits of data, and used it to supplement Statistics Canada data that we were purchasing as well.

In this policy platform, the government talks about ensuring that the system continues to serve Canadians while it undertakes a full legislative review of the Access to Information Act every five years. I have been to many parliamentary committees where we get a cursory review.

In fact, on the small business tax change, the biggest tax change in a generation, the Liberals on the committee forced it through after we heard only six hours of testimony from witnesses. That was all the time allowed. The Carter commission took six years. If that is the standard the Liberals are going to go by, then I have worries about the mandatory five-year review. I have to wonder if in three or four years will we get six hours to review the legislation. Will the committee be stuffed with members from the Liberal side who will simply say that the committee will be given three hours every five years to figure it out and then they will be done with it? The Liberals have not lived up to the real change, the open and transparent government that they promised.

I will keep referring to the Centre for Law and Democracy, because it has produced a lot of information on the shortcomings and some of the improvements that it sees. There are a lot of shortcomings.

The centre also says that the bill fails to address the serious procedural problems, namely the highly discretionary power of public authorities to extend the initial 30-day limit for responses to requests. I have been the victim of this. I was told that I had asked for too many documents, or they were too difficult to get or too complicated. They tried to get me to pare down my request. That is when I knew I should keep pushing forward and get all of the documentation I was requesting.

With respect to the 30-day time limit for responding to requests, power has been applied with disturbing regularity they say, often to create very lengthy delays in responding to requests. On one access to information request, I was told it would take two years to respond. I reminded them that by then I may no longer be a member of the House and therefore the information they provide may be of limited use to me, which would be a shame.

There are a number of options for reducing official discretion in this area, for example, by requiring officials to obtain prior permission from the Information Commissioner for delays beyond the set period of 60 days. In fact, many access to information laws say that the government must respond within the 60-day time limit. That would be a vast improvement. No courts would be involved, and there would be no need to go to another body to get a document that has been lawfully requested. The documents would simply be released within 60 days.

There are hundreds of thousands of public servants who work for the federal government. Why can they not do a request within 60 days when a reasonable request for documents is made? Why should I, as a member of Parliament, need to go to a court to obtain them? I am not going to get questions answered in the House in question period or through an Order Paper question. My only recourse is to get documentation through access to information.

The commissioner would acquire new order-making powers, but they would be largely crippled and counter-productive. Ken Rubin, the CFE senior fellow who provided a critique on Ryerson University's website on Bill C-58, said it is counter-productive and largely crippled “because no amendments were put forward to change the numerous broad exemptions in the Access to Information Act that cut off access to [these] government records”.

If there are a bunch of exemptions and rules that can be used to not release documents for national security reasons, documents pertaining to cabinet confidences, which is perfectly legitimate, are things like third-party proprietary corporate information at all times really proprietary? It might be better to shed some light on the procurement process so that parliamentarians could better understand what is going on.

We have seen delay after delay, and huge costs associated with the government's failed procurement process. Maybe it is time to shine some light on the problem. The government did not do that in this legislation. It just did the trimmings on the edge, the Potemkin village that I talked about.

The exemptions still exist, and the exemptions are the core of the access to information law. The government has left them as they are so then it could always find an excuse not to release information, to black out information, and to not provide it under the exemptions.

I think the majority of Canadians interested in access to information were looking for the exemptions to be tweaked. The Liberals could have amended, diluted, or removed some of them to make it much easier to access this information.

Another point that Ken Rubin makes is that the Prime Minister has put forward other legislation that makes certain records off limits to the commissioner and the courts for review or their ability to order releases of information. One is the National Security and Intelligence Committee for Parliamentarians, again, on national security grounds. However, that can become overbroad and used as an excuse. We see this in some countries overseas, which use national security to limit access to all types of information, for all types of reasons. It is a blanket catch-all. I hope it does not become that way. However, for national security, I can see legitimate reasons for the government to deny access to information, such as because it would put Canadians at risk or it would put the national security of the country at risk.

The omnibus budget bill, Bill C-44, contains a section devoted to setting up the Canada infrastructure bank. This was a big point of contention in the last session. Section 28 gives the government the power to decide unilaterally what is privileged information, commercial, infrastructure, financial, and political transactions, with no independent review. It is an already controversial enough bill. With these provisions, we can see the government saying that this is a wonderful, new, once-in-a-generation, open and transparent access to information law. However, section 28 limits access to information on the Canada infrastructure bank.

The Liberals are putting exceptions in other bills, but not in the main bill, which should be of great concern to parliamentarians. If the exemptions are not put into the main ATI Act but are put into other legislation, then the government cannot claim to be open and transparent. I do not think anyone would claim that.

Another point Mr. Rubin makes is:

...one amendment in Bill C-58 also directly increases secrecy by expanding and broadening the legal definition of what is able to be exempt under solicitor-client relations.

The Liberals have put some wording around it so the Information Commissioner could have access to it, but they still broadened and expanded it, and Mr. Rubin details that.

Mr. Rubin also makes this point, overall, on Bill C-58, which supposedly would meet the government's promises made in the last election. He says:

It is a stopgap, government-controlled, limited administrative information system not subject to appeal to the information commissioner or the courts, containing a few sanitized offerings the government wants to provide.

I am a big believer in access to information laws. When I worked in the Alberta provincial government, the government there released information. Yes, it took a long time to meet every single requirement. Yes, there were administrative problems. Yes, not everybody was satisfied with the level of customer service they received from the FOIP office there. However, a lot of times it released information eventually and it embarrassed the government to no end. I was in a minister's office at the time, and sometimes it embarrassed our office. However, at least we knew people were getting the same information that we had. The briefing binders were perfectly available to people, and they could ask for the content of them. The only portions blacked out were portions that civil servants determined should not be released. We played absolutely no role in that.

I am sure members on the opposite side, and hopefully all members, will agree that access to information laws are part of our democratic process. People should have a right to get information. I totally agree with that. We cannot fight for the little guy, we cannot fight for the middle class, and then tell them they cannot know things that the government is doing or how it has came to a decision.

However, I will not be able to support the bill, because it does not meet with what the government said it would do during the last election. The Liberals fall far short of the majestic, historic promises they made. This is why I believe members on this side of the House should all oppose the bill. I look forward to continued debate on this.

Access to Information ActGovernment Orders

September 22nd, 2017 / 12:15 p.m.
See context

NDP

Murray Rankin NDP Victoria, BC

Mr. Speaker, I rise today to speak to Bill C-58, the access to information reform legislation. It is with considerable disappointment that I must, on behalf of the NDP, be opposed to the initiative. However, I am also pleased to hear the President of the Treasury Board acknowledge that at committee, there might be a possibility for improving the legislation to give it some credibility.

If I may be permitted at the outset to make a personal statement, access to information, freedom of information, has been one of my passions. I did graduate work on this topic. In law, I worked with the Government of British Columbia in drafting the legislation there, as well as in Yukon. Back in the early eighties, I worked on behalf of the Canadian Bar Association to try to get the first access to information act through in a credible way. The former member of Parliament for Peace River, Conservative member Jed Baldwin, gave me an award of merit from the House for my work on freedom of information. Therefore, I come to this with a passion for the topic.

Three things are necessary for any credible law and, after 34 years, we all agree that this law needs modernizing. I salute the government for finally doing something in that regard. First, it has to have a clear statement that information is a right. Second, there have to be exceptions to the rule of openness that are narrow and have to demonstrate some harm from the disclosure. Third, there has to be an umpire, someone neutral, who can order a government that does not wish to provide the information to make it public. Those are the three things by which any reform must be evaluated. Sadly, this bill comes up short.

People sometimes have their eyes glaze over when we talk about access to information. That is usually the end of a conversation. People go back to doing something else. I want to tell Canadians who may be watching this why it is important. How many times have we read an article that starts with “Information released today under the Access to Information Act” reported thus and so? The answer is frequently.

The Globe and Mail used the Access to Information Act for its April 2016 investigative series “Unfounded”, which revealed that police had been dismissing one out of every five sexual assault claims as baseless. It took a year to get the information. The delays were ridiculous, and I will come back to that. That was the tool that was necessary for Canadians to understand what their police were and were not doing about sexual assault.

Just last week, the CBC reported that the Prime Minister's controversial Bahamas vacation cost Canadians over $215,000, far more than was initially disclosed to Parliament. That came about through a document released under this act.

Yesterday morning, I woke up to hear that after a year, reporters finally obtained the original contract from the Phoenix pay fiasco, once again thanks to this act.

Transparency is important. It was a major theme for the Liberal Party during the 2015 election. In fact, before that, the Prime Minister introduced Bill C-613, an act to amend the Access to Information Act. I would invite all Canadians to look at what the Prime Minister wanted to do with that bill while in opposition compared to what is being proposed today. I think they will see a yawning divide. What he said, though, in introducing that legislation, was that “a country's access to information system is at the heart of open government”. He is right.

Our Supreme Court also said that what we are talking about today is in fact quasi-constitutional in nature. This is not an ordinary act. It is something that the courts have recognized as essential to an open, modern democracy.

The New Democratic Party has introduced private members' bills to modernize the act so many times I do not want to list them all, but in 2006, 2008, 2011, 2014, this is something we tried to fix. Every time, the Conservatives and then the Liberals voted them down.

In March of 2015, the Information Commissioner released 85 recommendations to modernize the act. I invite Canadians to look at that list of recommendations and what we are left with today.

The point is that this is essential to fix, as the President of Treasury Board properly pointed out.

When we introduced this bill in the early eighties, computers were hardly a fact of life, email did not really exist in the public service, and record-keeping was very different than it is today. Clearly this is long overdue. It is too bad that the government has not taken the opportunity to do the job properly. Almost all civil society groups that have studied this have been outspoken in their opposition, some angry, but most simply sad and disappointed that this is what we are left with.

Let me talk about what the government did not do. That is how we have to assess this exercise. The exemptions to the rule of disclosure, the list of the things that the government can properly withhold, are very badly drafted, very discretionary, do not even have to show a harm. However, there is one that is different from all the others.

Back when this bill was introduced under the former Prime Minister Trudeau regime, it decided to cut out a category of records called “cabinet confidences”. It does not even apply to cabinet confidences. Everyone who has ever studied this has said that this is the Mack truck clause. In fact, some of the more humorous commentary describes this as “cabinet laundering”. All the government has to do if it does not want something disclosed is to slip it into a cabinet briefing book, and voila, the black hole. It never gets to be seen. It is not even subject to the act. One would have thought that after 34 years, job one would have been to maybe talk about that. It is not even mentioned. The black hole remains. Cabinet laundering can continue.

Information delayed is information denied. Every journalist in the land understands that. I had a journalist stop me on the street the other day, and she said that when she is asking for information, she usually gets something on the very last day of the 30-day period. Day 29 she is told that there is going to be a delay, and then the government asks for another delay. If she complains to the Information Commissioner, she is told that the office is swamped and it might take several months to get the story out. Even then, if the government does not want to do it, the Information Commissioner would recommend that it can say no.

Information delayed is information denied. That will not be fixed by this bill in any meaningful way.

The other thing is that we live in an oral culture. In fact, one of my colleagues refers to it as “the Post-it culture”. I will explain. If a government member has a record that they know is going to be subject to disclosure, maybe they put a little Post-it note on the document that says what the juicy bits are. That happens. I know that the Speaker will be surprised to hear that.

The duty to document decisions is not even part of this bill. I talked earlier about computers where we can delete transitory records and the like. However, the fact is that an oral culture is alive and well and living in Ottawa.

Let me get to the bill. What does Bill C-58 do, and why can we not support it? I would first like to quote from the Centre for Law and Democracy which said:

the Bill is far more conspicuous for what it fails to do....

It fails to expand the scope of the Act. It does place a number of proactive publication obligations on various actors – including the Prime Minister’s and Ministers’ Offices...but this falls far short of bringing these bodies within the ambit of the Act.

Certain types of information have always been available, at least in recent years, such as travel expenses, contracts over $10,000. By policy, these have been available for years. Now it is put in the bill, and the government thinks it should get a gold star for doing that. I am not sure why.

Again, quoting from the Centre for Law and Democracy:

While more proactive disclosure is always welcome, as anyone who has used the Act knows, it is absolutely not a substitute for the right to be able to request the information one is interested in from public authorities.

I think that is clear.

Today the minister made a lot of the notion that there is to be order-making powers under this bill. It is true that if we look closely, we can see that it is, in the words of a colleague, a chimera. It does not really do that.

Let me talk about how it works in the provinces. Let us take British Columbia, for example. The Information Commissioner makes an order: “Disclose that record, government. I know you do not want to do it, but it is not able to be withheld legitimately under the exceptions.” That is it. If the government wants to seek judicial review of that decision, it does so.

Let us compare that to the convoluted order-making power that the minister was so proud of in this bill. It seems to say that if the government agrees with a decision of the commissioner to release the document, it will be released. So what? If the government disagrees with the commissioner's recommendation, then the government could take him or her to Federal Court. Imagine how expensive and litigious this would all be. The government has created, in my submission, an unwieldy, unnecessary, and unaffordable system.

I wish I had time to go into the section that deals with this. It talks of the ability to make an order, but in the interest of time, suffice it to say that it is beyond complicated and likely unworkable. It would not really do what the minister has said it would do. I wish the Liberals had followed the simple route that most provinces have followed.

Though it is true that there would be proactive disclosure of a number of kinds of information from ministers' offices, the point is that Canadians would still not be able to request the information they want from those offices, appeal to the commissioner, and get an order to release it. It is just not there. The promise made in the election that we would have open offices and that people would get the information is not what is happening. That is very disappointing.

The Liberals also talked about the five-year review that is a feature of this act, and thank goodness it is there. That is nothing new. However, it is not like the Bank Act, for example, under which the legislation would sunset if that review did not take place by that time, so who knows how long it will actually take before we get to the review that is promised? That is very different from what the platform promised.

The Liberals talked today about something new, which is the ability to go after bad-faith, long, frivolous, and vexatious requests. That is a new restriction, not a change for the positive. I can appreciate why it is necessary, and, yes, it exists at the provincial level, but here is the punchline: this bill would give the final decision to the government to decide whether the request is too big, too long, or frivolous. Everywhere else, of course, it is the commissioner who gets to decide. Do members remember what I said about an umpire in the game who is neutral? I do not think the minister who does not want the information to be disclosed is in the best position to do that. I cannot believe they think that is a significant reform that we should be proud of.

The government is probably going to pat itself on the back for this bill. It is probably going to say, “We promised openness and transparency, and openness by default, and that is what we delivered.” The truth is far from that. I want to be optimistic—I always try to be—and give the government the benefit of the doubt. The minister stood in this place and said, “We will be open to amendments at committee”, and we are certainly going to be there to try to give him the opportunity to make this credible, because it is not credible now. It is kind of like the promise the Liberals made in 2015, when they said that 2015 would be the last election that would be fought under the first-past-the-post rules. That was a different promise. That was a different time and place.

The Prime Minister came to my riding when he was running in the election and said that he would have a full review of the Kinder Morgan pipeline proposal. Do members remember that promise? That kind of did not happen either. There was one about mail delivery. We were going to be open to mail delivery, I think. That was another promise.

Canadians deserve better than this bill. It is a start, to the extent that it adds exemptions; it does not go after the big changes and exemptions. Members heard me talk about cabinet confidences; the other nice one is the policy advice to the minister. They did not touch it. All they have to do is put all these documents into something that they give to the minister, and that is policy advice to the government. That massive loophole remains.

Once again, what they did not do is how we judge their reform initiative. It actually adds a loophole that would allow the department to refuse to process a request if it deems it to be overly broad, deems it would unreasonably interfere with the operations of government, or deems it to be made in bad faith. It is quite remarkable that the Liberals are patting themselves on the back. By simple comparison to the other legislation in the country, it is obvious that this bill does not pass muster.

The bill also ignores so many of the recommendations made by the Information Commissioner, as I pointed out, and by the ethics committee that also studied this legislation. It appears the government did not even read those. Much like the Harper government, the Liberals continue to disregard the recommendations made by the non-partisan watchdog. One sympathizes with the Herculean efforts made by Ms. Legault over the years to try to get both sides of this place, Conservative and Liberal alike, to take seriously the citizens' right to know. I salute for her efforts, futile though they have been to date.

I want to say by way of conclusion that the New Democrats have long advocated for giving the Information Commissioner real oversight and order-making powers. We believe that proactive disclosure is important and offer congratulations for putting into legislation what has been the practice to date so far, but I point out that the commissioner does not have oversight powers with respect to that proactive disclosure, so I guess we have to take the government's word for it.

Even if the Liberals were well intentioned, let us remember that we are making legislation that applies for future Canadians, for future generations of Canadians. How long did it take to get to this place with a new bill? It has taken 34 years. We have to get it right. We cannot say, “Don't worry; we are going to have a review in five years, or maybe another year or two after that”, because they do not have to do that if they do not want to. That has been our history, excepting the Bank Act.

We have to do it better. We can do it better, and I am not the only one saying this. The Centre for Law and Democracy, which has been cited already, has made the same point. Democracy Watch has explained it. Professor Mark Weiler, the web and user experience librarian who testified, wrote to our critic, the hon. member for Skeena—Bulkley Valley, on this file, as follows: “I am greatly concerned that Bill C-58 will actually diminish the capacity of Canadians to access unpublished materials held by the government. The Access to Information Act should enhance the ability of Canadians to access information the government chooses not to publish.... Bill C-58 would actually make the Access to Information Act more difficult to use.”

What are we going to do about this? To go back to the basics, there has to be a strong statement of the right to know, and there is some verbiage to that effect in the new law. The exemptions have to be narrow, and they have to be about injury, not just in a box, a particular category of records, such as policy advice. It has to be shown that disclosure would harm some government interest. The Liberals did not do that; they didn't touch any of them. They only added one.

The third thing is that there has to be real order-making power when the umpire says the government has got it wrong. That did not cause a revolution in British Columbia when we did it, and that order-making power led to something like 90% of cases being mediated without the need to have a formal order-making hearing. Very, very rarely do we go to court; it is statistically insignificant.

There are ample precedents for doing this right. The order-making power that is in the bill is beyond comprehension. It will be expensive and it is totally unnecessary. Why do we have to make it so complicated when the principle is so obvious and when there are so many examples across the land?

I want to end on a positive note. We hope the government was serious when the President of the Treasury Board stood in the House earlier today and talked about the need to modernize this law and said that this is only the first phase and it is only a work in progress. He said he welcomes reports at committee, including amendments.

Trust me, we will have many of those amendments. We can do better. We must do better for Canadians.

Access to Information ActGovernment Orders

September 22nd, 2017 / 12:40 p.m.
See context

NDP

Anne Minh-Thu Quach NDP Salaberry—Suroît, QC

Mr. Speaker, I thank my colleague from Victoria for his very enlightened speech, which helped us understand why Bill C-58 does not really address ethics issues.

This only adds to the cynicism that already exists around politics, when the government says it want to modernize legislation to give Canadians access to information, when in fact, transparency is not enhanced at all, since ministers' offices, including the PMO, are not obliged to report to the commissioner.

Right now, it can take up to 200 days to get crucial information. For instance, according to the Globe and Mail, in April 2016, the RCMP took over a year to forward some statistics it had requested for an investigative report called Unfounded.

When the police declare one in five sexual assault complaints unfounded, this creates further hardships for the people already going through a very difficult situation following a sexual assault. One in five complaints is dismissed as unfounded, and it took a year to provide that information. I find that completely unacceptable, and this bill does absolutely nothing to address this problem.

What are my colleague's thoughts on that?

Access to Information ActGovernment Orders

September 22nd, 2017 / 12:45 p.m.
See context

Halifax Nova Scotia

Liberal

Andy Fillmore LiberalParliamentary 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.

Access to Information ActGovernment Orders

September 22nd, 2017 / 12:55 p.m.
See context

Vancouver Quadra B.C.

Liberal

Joyce Murray LiberalParliamentary 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.

Access to Information ActGovernment Orders

September 22nd, 2017 / 1:10 p.m.
See context

Conservative

Pat Kelly Conservative Calgary Rocky Ridge, AB

Mr. Speaker, Canadians deserve a government that is accountable and open by default. For that to be possible, Canadians must have access to information about government decisions and practices to hold their government to account. While the Liberal government pays lips service to those ideals of openness and accountability, it has consistently fallen short of implementing them. We have seen this in a variety of areas, particularly with the statement by the Prime Minister on open and accountable government.

The stated aim of Bill C-58 is to update the Access to Information Act with necessary reforms. However, as with many Liberal promises, it fails to achieve them. We have heard them invoking flowery language and buzz words and making grand-sounding claims as a substitute for action in many instances in this Parliament. This bill is no different in many respects, and I will get to some of them.

An open and accountable government requires citizens to have access to information about decisions made by Parliament and government entities. Since the first Access to Information Act was introduced in 1983, the act has provided Canadians with the means to request information about themselves, or decisions affecting them. However, because of significant changes in information technology and in government operations and the passage of time, the act has not been meaningfully updated since it was first introduced, and many critics across all party lines have identified the need for reform.

The Conservatives introduced the idea of openness by default in the previous parliament. In 1983, it was originally a Liberal government that introduced the act. However, successive Conservative and Liberal governments have neglected to update it as required. Although I guess the current Liberal government is to be commended for undertaking the task in the first place, we see many shortcomings in the resulting bill. Bill C-58 does not adequately address many of the flaws in Canada's current access to information regime that we heard about in detail at committee.

When I was a member of the Standing Committee on Access to Information, Privacy and Ethics, we conducted a detailed study of the act and the issues surrounding it. We heard from numerous witnesses, from accountability watchdogs to ATIP officers in government departments to Canada's Information Commissioner, and others. We reviewed the commissioner's comprehensive report on the state of access to information in Canada and adopted many of her key recommendations in our own report. All three parties on the committee co-operated to draft a thoughtful report, with sensible recommendations for access to information reform. However, the government's response to our report is both late and underwhelming. The Liberals promised that phase one of the ministerial level review of Canada's access to information regime would be completed in time to produce legislation in early 2017. Here we are in late September and just beginning today to debate the bill, which many critics consider to be a half measure.

One of the primary flaws that witnesses at committee pointed out is the culture of secrecy throughout government. Such a culture runs contrary to both Liberal promises and Conservative initiatives. This has run across party lines over time. For example, the Conservatives hold that Canada's government should be open by default. In the last parliament, the Conservative government released a study titled “Canada's Action Plan on Open Government”, in which the Conservatives recognized the following:

The key challenge for governments is how to shift to an environment where data and information are released openly to the public by default while respecting privacy, security, and confidentiality restrictions.

Such an environment represents a fundamental change in government culture that requires government-wide direction to drive the release of federal information and advance overall objectives for transparency, accountability, and citizen engagement.

Such an environment of disclosure would be a stark departure from what witnesses at the Standing Committee on Access to Information, Privacy and Ethics described as a culture of secrecy among government entities.

According to witnesses like Sean Holman, vice-president of the Canadian Association of Journalists, the general attitude of the public service is one of withholding instead of disclosing information, and one of caution instead of candour. This attitude flows from the act and from cabinet. Mr. Holman put it clearly when he said:

We have a cultural problem when it comes to secrecy....Fixing the Access to Information Act is only one part of addressing those problems....the problem with the Access to Information Act when it was introduced was that it was grafted onto a secretive political system. We did not deal with the actual problem; we instead introduced legislation that conformed to the system as it currently existed.

He was referring to the adoption of the original act in 1983, which has remained virtually unchanged since then.

This is not to criticize Canada's public servants, since they respond to direction from the top. Those that enter the public service walk into a culture that already exists. Bringing about a culture of openness by default requires buy-in from ministers, the Prime Minister, deputy ministers, and senior managers among all departments. Culture cannot be changed overnight and simply by adopting a new law in Parliament.

Openness and accountability require timely responses. Witnesses at committee complained bitterly about the delays in the service standards for responding to ATIPS. They mentioned that extension after extension can take response times of up to over a year in some cases. This diminishes the news value of information for journalists. It puts people's lives on hold in some circumstances when they need vital information, and brings to mind the adage that justice delayed is justice denied.

Bill C-58 includes some of the committee's recommendations, the most significant of which is granting the commissioner the power to issue binding orders for the disclosure of particular information. Although it should increase the public's access to information, such order-making power is not a panacea for solving a culture of secrecy. Also, it was not uniformly endorsed in witness testimony, although it was the final recommendation of the committee.

The committee heard from witnesses like Professor Michel Drapeau, a retired colonel and access to information and privacy lawyer. He argued that switching to an order-making model is unnecessary because the issue and the problem that existed was the culture in government and the lack of openness in which departmental ATIP officers responded or operated in.

If within a department the ATIP officers and other members of the public service have a mindset and a culture to openly disclose information and to think first of ensuring that it is released on a timely basis, we might not be arguing about whether or not order-making power is necessary to compel disclosure. Delay is the biggest failure perhaps, which will not be solved by merely establishing order-making power for the commissioner.

We are glad to see that Bill C-58 requires the minister to undertake a review at least within one year of royal assent and every five years thereafter. Hopefully, that will prevent us from going another 34 years without a review of the act. It is important, because we know that the pace of change in information technology and the evolution of that technology is very fast, and as long as political will continues to exist to review the act in the future, it is good to have the built-in provision for review.

The provisions in Bill C-58 requiring proactive publication of materials related to Parliament, ministers' offices, superior courts, and other government institutions are a welcome addition to the access to information regime and should contribute to the culture of openness by default, but there is certainly a long way to go to establish that change of culture.

Proactive disclosure of sought after information should increase democratic accountability and pre-empt many requests, but proactive disclosure by various parliamentary and governmental entities is not the same as extending the scope of the Access to Information Act to cover them. It is not what the committee recommended nor what the commissioner recommended and not what the Liberals promised in their 2015 election platform, and it is not what the Prime Minister ordered in the mandate letter of the President of the Treasury Board.

The minister's mandate letter instructs him to lead a review of the act and implement certain reforms, such as ensuring that “the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.”

Ensuring that the act applies to the prime minister's and ministers' offices requires more than proactive disclosure of a limited list of useful information, but this is not the only recommendation that the bill either ignores or only partially addresses.

Our report suggested several matters that the government should consider or consult on during the second phase of its review. I welcome an update from the government on the state of those considerations and consultations.

Open and accountable government requires an access to information regime that ensures timely responses to ATIP requests. This applies to all elements of the Government of Canada, with a few important exceptions, namely, to protect parliamentary privilege, cabinet confidence, and national security. This prevents government entities from wiggling out of disclosure obligations. That is why the committee recommended that the minister consult the organizations that support Parliament, such as the clerks of the Senate and the House of Commons, and the parliamentary librarian to determine how to effectively protect parliamentary privilege and create an independent review process for such provisions.

To improve timely response to ATIP requests, we recommended limiting extensions to only those cases where strictly necessary, and even then, only for a maximum of 30 days. We also recommended repealing exclusions in the act and replacing them with exemptions as needed. As Ken Rubin mentioned, when responding to a question at committee, we cannot expect to change a culture of secrecy just by giving order-making power to the commissioner, and especially not if all the carve-outs remain in place through the retention of an extensive list of exemptions.

Eliminating exclusions, which are stated areas that the act does not cover, and replacing them with exemptions, which would allow government entities to refuse requests on specific grounds, would provide greater oversight of Canada's access to information regime. It would also shift the culture of the public service more toward openness by default.

To protect the vital governance work of Parliament, the committee recommended adding a mandatory exemption for cabinet confidences when disclosure would reveal the substance of cabinet deliberations, except when such discussions cover a period of factual or background information when there is consent for disclosure of the information, and so forth.

For ease of understanding, to reduce the volume of requests received and to contribute to a culture of openness by default, the committee recommended that institutions respond to ATIP requests by providing information in open, reusable, and accessible file formats, such as pdf, Word, Excel, and similar formats, instead of obscure and highly specialized ones.

Although useful in their own right, the measures the committee recommended would not create a comprehensive access to information regime with great swaths of government entities that are not subject to the act.

Aaron Wudrick of the Canadian Taxpayers Federation pointed out at committee that “as a general principle the federal Access to Information Act should cover all of the federal government, including both government-controlled and government-funded areas.” The principle here is quite simple: where taxpayers' money is being spent, the public deserves accountability and transparency.

To address such an extension of the act, the Information Commissioner stated that “The use of criteria as a way to determine which entities should be subject to the Act is a rational approach to coverage, as it promotes predictability with respect to which entities are subject to the Act.” Moreover, it guarantees that institutions performing similar functions are also subject to it. Her criteria included whether an entity is covered because it is publicly controlled in whole or in part by the government; whether it performs public functions under federal jurisdiction because it has power to regulate and set standards under federal jurisdiction because it is charged with executing federal policy; whether it is established by federal statute; or whether it is one of the many covered by the Financial Administration Act.

The government has undertaken a review of Canada's access to information regime and has made a first attempt at updating the act. We are disappointed that the President of the Treasury Board has ignored many of the committee's recommendations. What could have been a good start on a worthy project has become something of a disappointment to the members, witnesses, and the Information Commissioner herself, who contributed to a detailed study on the topic. The President of the Treasury Board seems to expect extraordinary credit for these meagre steps that do not seem likely to fix all of the problems in an access to information system that is widely described by critics as broken.

This morning, the minister made it out as if Bill C-58 would instantly transform Canada into a world leader in access to information. That is simply not the case. Many of the problems will remain in place. Comparatively, we have a country like Serbia, which was not even a sovereign nation but part of a federation under a communist dictatorship in 1983 when our act was brought in. It is ranked ahead of Canada by international observers. This is not a credit to the current system. As well, we can compare to countries like Sweden that have had access to information law for 250 years. Witnesses could not believe that in Canada it would take months and months to get information that would routinely be released in 24 hours in countries like that.

The government is trying to take far too much credit for this reform. I urge the minister to reconsider Bill C-58 and correct its many deficiencies. I encourage the new members of the Standing Committee on Access to Information, Privacy and Ethics to take advantage of review stage and amend it. Canada indeed deserves an open and accountable government, with a sensible and comprehensive access to information regime. We deserve better than Bill C-58.

I will not support this bill. To do so would be to reward the government for breaking its election promises and taking credit for window dressing, which it has described as a grand and comprehensive solution.