Bill C-58 (Historical)

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

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

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you.

Mr. Cutler, do you see anything more open and transparent in government since we've had Bill C-58?

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you, Chair.

Thank you to our witnesses for being here today.

I'd like to go back to Bill C-58, which allowed proactive disclosure of lots of information from this government. I'm wondering—I guess from all three of you—if you think this helped to make government more open and transparent in any way.

Mr. Rubin, you can start.

[Ken Rubin]

Bill C-58 destroyed the access act because it hived off, as a phony proactive measure, the Prime Minister's records, ministers' records and a host of other things.

[Duff Conacher]

Bill C-58 was a step backwards in some ways. It certainly didn't keep the 2015 promises of the Liberals to make government information “open by default”, which is a direct quote from the Liberals' 2015 platform. The commissioner now has power to make orders, but it's not strong enough. You need power and a requirement for minimum penalties if they violate the law: That's going to change the whole incentive to comply right away. That's a key change.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Okay. Just to follow up, I have a few thoughts, and then one more important question that I want to ask.

Mr. Conacher, are there any thoughts on Bill C-58 that you'd like to share with the committee?

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

—for a lot of news organizations, so you dropped the whole thing.

This government also brought in Bill C-58, which gave the Information Commissioner the power to make binding orders related to access to information, the release of government records, time extensions, the language of access and the format of disclosed information.

Can you comment on that legislation and what sort of impact it's had on the system?

[Ryan Williams, Conservative, Bay of Quinte, ON]

Bill C-58 allowed departments to reject ATIP requests with your permission. I see in the report that you received 36 requests and approved just two. Why were just the two approved, and was there a massive spike in requests for rejection last year?

[Ryan Williams, Conservative, Bay of Quinte, ON]

Thank you, Chair, and thank you, Commissioner Maynard, for joining us today.

I want to focus for a few minutes on Bill C-58. The last time the recommendations were made in Parliament, this bill was supposed to correct some of the problems we saw. It's been three years since that bill was implemented and changes were made to the ATIP system.

Has that helped or hindered your work and the work of the Privacy Commissioner?

[Caroline Maynard]

Totally.

We definitely needed more people and resources with respect to the new authorities with Bill C-58. Some of the money you see in the increase comes from that.

We requested additional funding for four years in a row through a submission to Treasury Board. That was given to us on a temporary basis for three years, but finally I got it on a permanent basis two years ago. That's definitely helpful because with temporary funding, all you can do is hire people and let them go at the end of the year. There is no retention possibility. Now we have a more permanent base, but as I said earlier, it's already not enough, unfortunately.

[Caroline Maynard]

At the time, I did agree that it was not enough, but we did make a lot of changes. Unfortunately, on Bill C-58, there was not a lot of consultation when it was first tabled.

If you look at the first draft of Bill C-58 and what was actually passed, there were a lot of changes, and those changes were actually very helpful for my office and for the system as well. It was a good start.

[The Chair, Conservative, Pat Kelly]

Thank you.

I've gone way longer than I had intended, but I have a specific question just really quickly.

Your predecessor actually described Bill C-58 in quite a remarkable meeting that took place at this committee and suggested that it was a step backward, not forward. Do you agree with her?

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chairman; and thank you, Commissioner Maynard, for being with us today.

Through Bill C-58, passed during the previous Parliament, the Information Commissioner was given unprecedented new responsibilities and authorities, including the power to order institutions to release records at the end of an investigation when the commissioner found that the complaint was well founded. The commissioner now is also able to issue such orders on new complaints that cannot satisfactorily be resolved through informal resolution mechanisms that you also have in place.

Can you tell us how this is helpful to you and how it has improved your work and maybe even helped with the issue of delays in rendering decisions?

[Caroline Maynard]

If you compare the legislation itself, there is a group that does an evaluation of the legislation in all the countries every year. Canada finished 52nd in 2018 and 50th last year so I guess the changes we have made with Bill C-58 brought us back by two ranks, but this is only looking at what the legislation allows. It's not evaluating how it's being applied in practice.

[Kelly McCauley, Conservative, Edmonton West, AB]

Let me follow up on that, then. How do we make our ATIP laws with more teeth? I know Bill C-58, in the 42nd Parliament.... We actually looked at it in this committee. It took us a step backward. We've heard, for example, DND hiding items from ATIP that involved Admiral Norman. We've heard the Information Commissioner just put the current government over the rails about the RCMP not providing information in a timely fashion.

What do we have to put in to actually bring in this change of culture that is perhaps pushed by the regulations?

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you so much.

On May 28, 2020, the president wrote to his cabinet colleagues, encouraging ministers to proactively publish as much information as possible related to COVID-19 and reminding them of the importance of ensuring best practices in information management. The government has committed to making information related to COVID-19 and the government's response proactively available online, using the open government portal. The portal will host open data related to the applications received and processed under the Canada emergency response benefit. As stated, “All public servants are expected to manage, secure and document information according to legislative requirements and [TBS] policies, whether working on-site, or remotely, and regardless of the tools we use.” As well, “We continue to provide guidance to organizations on information management and security. We recently released guidance and a toolkit to guide employees in managing government information when working remotely.”

In conclusion, Mr. Chair, we are committed to openness and transparency. We've made reports like the departmental results report more transparent, enshrined the principle of “open by default” and modernized and strengthened the Access to Information Act. We are committed to upholding the importance of the act. Redactions to requested documents are done with the right to know at the forefront and in keeping with our legislation.

As a last point, I would note that the purpose of the legislation was updated by Bill C-58 to reflect the important role it plays in our democracy. Section 2 of the act states that its purpose “is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.” Those are the principles at the forefront when the act is administered.

Mr. Chair, that ends the last of my two speeches. I think it importantly reflects the commitment of our government to transparency and openness. I think it was reflected not only in the commitment on the political side; I think we also saw that translated through our bureaucrats, as evidenced, again, through what Mr. Fraser took us through today in terms of the transmittal letters as well as the exceptions that he made. We have a very clear idea that the access to privacy and the availability of data during this COVID crisis are taken very seriously by our civil servants and by our government. We believe it's important for us to continue to be transparent and accountable every step of the way.

I think I will pass the baton. I think there are other colleagues who would really like to speak.

Thank you very much for the opportunity to speak, Mr. Chair.