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.

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you so much, Mr. Chair.

I appreciate my colleague raising that point. I know you were riveted and you were listening, but I wasn't talking about the issues with the act. I was saying how we've been improving it, making sure that it's kept up to date, that it's relevant and that it continues with the principle of maximum transparency and accountability to all Canadians.

Canadians expect their government to stay ahead of the digital game and make its information accessible to them. With new technology and capability comes the expectation that organizations offer their products and services online. The goal is to make the information and the data held by the government even more accessible to Canadians. With changes to the legislation and accompanying policy changes, we are now getting more government information and data into the hands of our citizens, who can use it to participate in democratic debate, hold the government to account and spur innovation in society.

We've introduced many measures over the years to do just that. In 2017, just three years ago, the annual departmental results report was tabled in a new, more transparent format. As this committee knows, these reports provide an important insight into departments' program achievements against measurable indicators. This made these reports more useful and transparent for parliamentarians.

Another example is InfoBase. It pulls data from annual reports to provide online snapshots of what one department or the entire government has done during the fiscal year. Providing all of this information isn't useful if it's not readily accessible in various formats. Canadians expect to have government information delivered to their electronic devices and at their fingertips when they need it.

In May of 2016, the President of the Treasury Board issued an interim directive that enshrined the principle of “open by default”. The interim directive told government that institutions have to make themselves open by default as their guiding principle when it comes to making government information available to the public. This principle applies to provision of information to Canadians, and most importantly today, to parliamentarians, including through motions for the production of papers, such as the order that prompts our debate today.

In 2017, with Bill C-58, we moved forward to improve the Access to Information Act. The bill was introduced in the summer of 2017 and was reviewed in the House and Senate committees. It also received valuable input from several stakeholders, including the Information Commissioner; the Privacy Commissioner; representatives of indigenous organizations, who provided important insights into their need to access records of important historical and archival value; and legal experts and journalists, who shared their unique experiences and explained the importance of the legislation to their work.

The bill provided Canadians with easier access to a huge amount of government information. The government is now legally required to proactively publish a broad range of information to a predictable schedule without the need for anyone to make an information request. This law applies to 240 government departments, agencies, and Crown corporations. It also applies to the political side, including the Prime Minister and the ministers' offices, senators, members of Parliament, institutions that support Parliament and administrative institutions that support the courts.

For the first time the bill put in law the proactive publication of travel and hospitality expenses for ministers, their staff and senior officials across government; contracts over $10,000; all service contracts for MPs and senators; grants and contributions over $25,000; mandate letters and revised mandate letters, which would have to be published within 30 days of being issued; briefing packages for new ministers and deputy ministers; lists of briefing notes from ministers and deputy ministers; and briefing binders used for question period and parliamentary committee appearances. Making all this information available to Canadians on a predictable schedule leads to better public understanding of how government functions in establishing a strong foundation for greater citizen participation in government.

At the same time, we introduced changes to the request-based side of the system. Bill C-58 eliminated all fees for access to information requests, apart from the $5 administrative fee. As well, Canadians can also request the original documents that are proactively released to validate the information that has been published.

Mr. Chair, the bill has also provided the Information Commissioner with greater powers to oversee the access to information system. Specifically, the commissioner now has order-making powers. The role of the commissioner has gone from an ombudsperson to an authority with the legislative ability to make binding orders for the release of government records. I would say that this is an excellent move. I think it ensures much more transparency and accountability.

In addition to advancing our commitment to being open by default, we have also invested tools to make processing information requests more efficient and allowed federal institutions that have the same minister to share the request processing services for greater efficiency.

The Access to Information Act strikes a balance between the right of Canadians to access information and the need to withhold certain types of information to protect other important values such as privacy, confidentiality of information provided to the government and national security.

Bill C-58 introduced other measures to improve the system. Both the former information commissioner and the House of Commons Standing Committee on Access to Information, Privacy and Ethics at the time recognized that requests made in bad faith can gum up the system. Requesters may, for a variety of reasons, use the right to request information to achieve goals that may not be consistent with the spirit of the act. Though the number of these types of vexatious requests is estimated to be quite small, the effort and cost involved in responding to them can put a significant strain on the system.

There is a fundamental issue at stake here. Such requests defeat the underlying purpose of the act, which is to give Canadians access to the information they need to participate in public policy decision-making and to hold their government to account. By tying up government resources, these requests interfere with an institution's ability to respond to other requests and to do important work.

As a remedy, Bill C-58 gave government institutions the ability to decline to act on such requests after receiving approval from the Information Commissioner to do so. Amendments were made to the legislation to clarify the circumstances in which this can happen. For example, institutions would not be able to decline to act on a request solely on the basis that the requester didn't provide a specific subject matter, type of record and period or date for the record sought.

As I mentioned a minute ago, Mr. Chair, the Information Commissioner would need to give her or his approval before an institution could decline to act on a vexatious or bad-faith request. This provides assurance to Canadians that legitimate requests will not be declined, and indeed this authority has been used rarely since Bill C-58 came into force.

The bill also ensures that the Access to Information Act remains relevant in an ever-changing world. It included a provision that required that the act be reviewed every five years, with the first review to begin within one year of the bill receiving royal assent. This review was launched just this June. This will ensure that the act never again becomes as outdated as it has before.

Mr. Chair, I'm getting almost to the conclusion. I know that while many people would like me to go on for another 20 pages, I am getting towards the end. I want to just spend one moment first discussing the realities of access to information, writ large, during the pandemic.

The government remains committed to managing information securely and effectively in accordance with its sensitivity, while ensuring transparency, openness and accountability to Canadians. On April 29, 2020, TBS published guidance on information management practices while working remotely for all public servants. This guidance is intended to reinforce employees' awareness of their collective responsibility to document decisions of business value and to ensure that government information is managed securely and effectively with respect to legislative and policy requirements, including the requirements of the Access to Information Act and the Privacy Act.

On May 28—

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you so much, Mr. Chair.

I really appreciated the health break; that was very helpful.

Before I go on to a couple of prepared texts, I just want to address a couple of things that were raised by my colleagues. I know that Mr. Poilievre pops up once in a while to raise points of order and say that we should start pre-budget consultations. I just want to remind everyone, because I think when we get so tired we tend to forget things, that as soon as we came back as the finance committee on October 8, the very first thing we did was to introduce a motion. That was me, and I introduced a motion for us to begin our pre-budget consultations. Unfortunately, it was interrupted by a point of privilege that Mr. Poilievre put on the table, and that is what has led us to where we are right now. I think it's important for us to state that.

I also want to remind everyone that we started this meeting with an opportunity for everybody to unanimously approve moving right to pre-budget consultations, or at least a motion on that, so that we could have our clerk and her team get started on booking some of our witnesses. Then it was brought back again by my colleague Mr. Fraser. So that's twice. I want to make sure that anybody who arrived late knows that. There is nothing more that we want to do than what the finance committee should be doing at this point in time, which is engaging in pre-budget consultations.

I also want to address a point that was mentioned earlier by one of our Conservative colleagues, namely about the Prime Minister trying to push for an election. There is absolutely zero desire to do so. We know Canadians don't want one. I will also say to you that we're going through an unprecedented pandemic, and I don't care how many times we have to say that, because I think sometimes, when we're in a little bit of a bubble and we to talking for hours, we forget that we are living in unprecedented times during this health and economic crisis.

We've spent over $300 billion have introduced almost 80 programs. We had a very serious speech from the throne laying out a vision and a plan on how we want to proceed. Given that we're in a pandemic, time is of the essence. We want to use this time only to continue to support Canadians, to get workers back to work, to continue to support our small businesses, and to continue to build a foundation of our economy and keep all Canadians safe moving forward.

I join not only with the Prime Minister but also with my Liberal colleagues of the governing party in saying that we want to govern. In fact, I want to do the impossible and make politics the art of the possible, so that we can find a way to maybe withdraw this motion before us and move right to pre-budget consultations and get busy on hearing some ideas.

I know that 793 submissions have been submitted to us, and we know that there are lots of amazing ideas out there, and I think we're all looking to find a way to get there. This might not be exciting for everyone, but I do think it's important, as we're still talking to the subamendment to the amendment of the motion that Mr. Poilievre moved in response to my original motion on starting our pre-budget consultations.

I will talk a little bit more about how and why we redact, including more particularities and details. I want to make sure that we have as good an understanding as possible of the acts and the principles guiding the redactions done by our excellent, highly skilled, independent civil servants.

With that, Mr. Chair, thank you again for giving me the opportunity to provide some more information about the disclosure and production of government documents regarding the Canada student service grant in response to the request by the Standing Committee on Finance.

First, I want to reiterate that I know that this government is committed to the principle of being open by default. In fact, it was this principle that guided the government's response to the request for production of papers by the committee.

Let's be clear, the government has disclosed large amounts of documentation on the matter we are discussing today. I think we heard my colleague Mr. Fraser painstakingly go through a lot of the details, not only on what was submitted but also on what was redacted and why it was redacted.

Indeed, as the media has reported, the government has disclosed almost 6,000 pages to the finance committee. I know that these were from a number of different departments, as we have spelled out a number of times. Within those departments, officials worked very hard to provide the most information possible within the time frame allowed by the finance committee to respond, while also ensuring that cabinet confidentiality and privacy concerns where applicable were respected.

I think it's important to note as well that it was important to produce the documents. It was something that the finance committee had agreed to. I believe our civil servants did their utmost to ensure full transparency and accountability. I also want to acknowledge that it also took the time of our civil servants, who have been working around the clock during this pandemic, to come up with some of the almost 80 programs I was talking about. I just want to say a huge thanks to them. I know they've been working double time. We always say they're working around the clock, but I would say they're working double around the clock. I know that in addition to producing these types of documents, they've been trying to come up with creative ideas in terms of programs and providing all the support that we very much have been introducing. This has taken a lot of their time, and I want to acknowledge that. Additionally, I will note that most of our civil servants did this remotely to respect public health and safety rules and to ensure their ongoing safety during the pandemic.

Protecting cabinet confidence is very important to our system of government. Indeed, the Supreme Court of Canada has recognized that cabinet confidentiality is essential to good government: “The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.” The committee's motion stipulated that cabinet confidences be excluded from the package, but in keeping with the public disclosures of related information by members of the cabinet, the government did not redact considerable information that was cabinet confidence, and indeed provided it to the committee. I really laud our civil servants for following through on the principle of transparency and accountability. I think it is extraordinarily important, not only to our government and not only during this extraordinary time, when we're spending an extraordinary amount of money. I really laud them for doing their utmost to ensure that the most information gets out.

The government applied the same principled approach to release as much information as deemed possible as it related to solicitor-client privilege and personal information. I think we heard numerous times Mr. Fraser during this session, and Mr. Gerretsen during the last session, as well as my colleague Mr. Fragiskatos during the last session, explain or give examples of all the items we had to exclude due to personal information and solicitor-client privilege.

The package provided in response to the order by this committee builds upon the Government of Canada's ongoing commitment to uphold the principle of “open by default”. It can be seen in the context of the proactive disclosure regime and amendments to the Access to Information Act. That said, there is as well the need to strike the proper balance between the fundamental values of openness and transparency and other obligations the government has to Canada and Canadians, such as national security or the protection of personal information.

I would like to say a few words about the Access to Information Act. Many of us are familiar with it, but I think it's important in relation to this subamendment for me to speak a little more specifically to it. I say so because the that act has helped us frame the approach to the response to the committee. The act creates an enforceable right of access to records under the control of a government institution in accordance with the following principles. The first one is that government information should be available to the public. The second one is that necessary exceptions to the right of access should be limited and specific. The third one is that decisions on disclosure of government information should be reviewed independently of government. It applies to all institutions listed in schedule I of the Access to Information Act and all parent Crown organizations and wholly owned subsidiaries of such corporations within the meaning of section 83 of the Financial Administration Act.

The act provides this right of access for Canadian citizens and permanent residents “within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act”. Further, the Access to Information Act extension order number one extends this right to include all individuals and all corporations present in Canada.

That said, there are necessary limitations on access to records, which exist as exemptions and inclusions. There are a number of these kinds of restrictions. I would like to highlight a few to give you a sense of the care and the balance struck by the act, between optimizing openness and transparency, on the one hand, and safeguarding individuals, companies and legitimate commercial and competitive interests, on the other.

One such class of limitation is “Information obtained in confidence”. For instance, the act provides for the following:

the head of a government institution shall refuse to disclose any record...that contains information that was obtained in confidence from (a) the government of a foreign state or an institution thereof; (b) an international organization of states or an institution thereof”.

Examples include the United Nations, NATO and the International Monetary Fund. Examples of international organizations of states include UNICEF and the World Health Organization, which are agencies of the United Nations.

The third bullet on this point reads:

(c) the government of a province or an institution thereof

This includes the governments of the provinces and the three territories, and their ministries, departments and agencies. The fourth point reads:

(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government

The last point on this particular section reads:

(e) an aboriginal government.

For this exemption to apply, the information must have been obtained in confidence.

There is also an exception covering federal-provincial affairs, which applies, for example, to the following information:

(a) on federal-provincial consultations or deliberations; or (b) on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial affairs.

To invoke this exemption, a government institution should be convinced that disclosure of specific information “could reasonably be expected to be injurious to the conduct” by the federal government of federal-provincial affairs.

Another area of exemption deals with international affairs, defence and national security. An access to information request may be denied if disclosure could reasonably be expected to be injurious to the following: the conduct of international affairs—this includes not only state-to-state affairs but also commercial, cultural or scientific links established by citizens with counterparts in other countries—or the defence of Canada or any state allied or associated with Canada. An allied state is one with which Canada has concluded formal alliances or treaties, while an associate state is a state with which Canada may be linked for trade or other purposes outside the scope of a formal alliance. Last is the detection, prevention or suppression of subversive or hostile activities. This exemption protects specific types of information pertaining to the security of Canada.

Another exemption applies to law enforcement, investigations and security of penal institutions. We actually have this particular exemption because we're aiming to protect a number of items.

The first is effective law enforcement, including criminal law enforcement. We want to protect the integrity and effectiveness of other types of investigative activities, for example, ordinary administrative investigations under an act of Parliament, investigations in regulatory areas, and investigations of air accidents.

Last is the security of penal institutions and an exemption providing protection of “information that could reasonably be expected to facilitate the commission of an offence”. For example, a government institution may refuse to disclose the security plans or other information about the vulnerable aspects of federal government buildings and other installations that would be of strategic importance in civil emergencies or in time of war.

The act also restricts third party information including but not limited to trade secrets; confidential financial, commercial, scientific or technical information; and information used for emergency management plans. For example, the head of a government institution must refuse to disclose any record containing trade secrets to third parties. This restriction applies as well to confidential financial, commercial, scientific or technical information.

Another class of restrictions set out in the act is what are known as exclusions. This refers, for example, to published material or material available for purchase by the public. It also refers to library or museum material preserved solely for public reference or exhibition purposes. It also refers to material placed in Library and Archives Canada, the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature, the National Museum of Science and Technology, the Canadian Museum for Human Rights, or the Canadian Museum of Immigration at Pier 21, by or on behalf of persons or organizations other than government institutions.

The process of democratic governance works best when cabinet members charged with government policy and decision-making are free to express themselves around the cabinet table unreservedly.

Exclusions also apply to certain records of the Canadian Broadcasting Corporation, also fondly referred to by many as the CBC. The act, for example, removes information relating to journalistic, creative and programming activities held by the CBC from the coverage of the act. It protects information about journalistic sources, as well as the creative and programming independence of CBC.

In addition, Mr. Chair, you'll be interested to hear that certain records of Atomic Energy of Canada Limited are also considered exclusions. The act creates an exclusion for any information under the control of Atomic Energy of Canada Limited other than information relating to its general administration or its operation of any nuclear facility within the meaning of section 2 of the Nuclear Safety and Control Act, subject to regulation by the Canadian Nuclear Safety Commission. The purpose of this exclusion is to ensure protection of information related to research and commercial activities of the Atomic Energy of Canada Limited.

Distinct from the act there are also well confidences of the Queen's Privy Council for Canada. The Supreme Court of Canada has recognized that cabinet confidentiality is essential to good government. In the Babcock v. Canada decision, meaning the attorney general, in 2002 SSC 57, at paragraph 16, the court explained the reason for this. It said, “The process of democratic governance works best when cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.” Yet it also stated that “'Council' means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.” It included all of those. The committees of cabinet include standing committees, ad hoc committees and any other committees of ministers. In addition, meetings or discussions between ministers can result in the creation of records that are cabinet confidences, providing the discussions concern the making of government decisions or the formulation of government policy.

The act also defines cabinet confidences by way of a list of seven types of documents. The list is not exhaustive, but provides examples of records considered to be cabinet confidences. It includes the following. The first is memoranda presenting proposals to cabinet. The second is discussion papers. The third is agenda and records of cabinet deliberations or decisions, records of communications between ministers on policy-making and government decisions, records to brief ministers on cabinet matters, draft legislation and records containing information about confidences.

Mr. Chair, there are also protections for the economic interests of the Government of Canada. There is a discretionary exemption based on a class test that aims to protect proprietary information of the Government of Canada. Exemption may include information that is patentable or that the government may want to license. For this exemption to apply, the record must contain the following: trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution that has substantial value or is reasonably likely to have substantial value.

Another exemption, Mr. Chair, applies to contractual or other negotiations of a government institution. This is intended to protect a government institution's ability to negotiate effectively with other parties.

Mr. Chair, let me underline the fact that the act protects not just the security of organizations but also the safety of individuals. A government institution may refuse access to information if it has reasonable grounds to expect that the disclosure of information would threaten the safety of an individual. This could be information that either directly or indirectly reveals the identity, home address or other identifier of such an individual, and I think we heard multiple examples from Mr. Fraser today of that being the exact case. In addition, personal information is also protected, and that absolutely makes sense as well.

In this case, section 19 of the act strikes “a balance between the right of the public to access information in records under the control of a government institution and the right of each individual to his or her privacy. It incorporates by reference sections 3 and 8 of the Privacy Act, which are essential for the interpretation and application of this exemption.”

The Access to Information Manual states:

The Privacy Act defines “personal information” as “information about an identifiable individual that is recorded in any form”. This definition is broad and contains examples of personal information. Information not specifically mentioned in the list but clearly covered by the broad definition, such as information related to an identifiable individual's income, DNA, body sample, sexual preference or political inclination, is to be considered personal information.

In the Privacy Act, however, you might be interested to know, Mr. Chair, that the definition of personal information excludes “specific types of information, normally considered personal information, from the meaning of the term when a request is made under the Access to Information Act.” This would include information about “the current or past positions or functions of a government employee or officer, services performed by an individual contracted by a government institution, a discretionary benefit of a financial nature conferred on an individual or an individual who has been dead for more than 20 years.”

The exclusions...reflect the fact that there is certain information about government employees, persons performing services under contract for a government institution, and discretionary benefits which, barring other considerations, the public has a right to know.

In addition, the act “provides that the head of a government institution may disclose any record that contains personal information if the individual to whom it relates consents to the disclosure, the information is publicly available or the disclosure is in accordance with section 8 of the Privacy Act.”

Mr. Chair, in conclusion, I say all this because, in compiling our submission in response to the committee, we took great care, for example, to obtain the consent to disclose certain personal information for relevant exempt staff referenced in the material. I should note as well that no material was withheld on the basis of national security, which the motion had indicated should be excluded. I would add as well that this exclusion was not pertinent.

On the matter of cabinet confidences, it bears repeating that considerable information on the Canada student service grant that was a cabinet confidence was provided to this committee. This was in keeping with the overarching objective of “open by default” and supporting the work of the committee.

Any redactions to requested documents were done with all due consideration for how to best respond to the committee's order, balanced with the understood need for protection of certain information, as I've outlined. We understand that government information belongs to the people and should be open by default. It's why we updated the Access to Information Act: to make it easier for citizens to get information and to publish more information up front more than ever.

The act balances openness with another value we feel strongly about, which is the protection of important democratic values. That means safeguarding Canadians' personal information and such important principles as cabinet confidence and judicial independence. Getting this balance right is fundamental to ensuring a healthy, functioning democracy.

That was prepared by some very kind colleagues who wanted to make sure that as we're talking about this subamendment, we have a much clearer understanding of the acts and the principles and the values that are behind how we redact certain things and are behind the examples that Mr. Fraser painstakingly took our committee through earlier this evening. I think it was important for us to make sure that was understood and read into the record.

Mr. Chair, I do have some more information. I know that people were riveted by my first speech, so I have some additional information that I'm happy to talk a little bit more about. I want to talk a little bit more about some additional principles that are consistent with the “open by default” principle I spoke to a little bit in my previous speech. I have an additional one that I want to talk about.

The reason “open by default” is important is that it aligns with the provision of documents by the government, as requested by this committee in our last session. As discussed earlier, we largely talked about the issue of redactions. We talked about why they were done. We disclosed the letters by deputy ministers that Mr. Fraser read in relation to the logic behind redacting certain documents. I think it was important for us to hear that and to have it on the record.

To that point, there was the committee's motion stipulating that cabinet confidences be excluded from the package. I also want to talk about that. We did spend quite a bit of time talking about the fact that we should have some exclusion around cabinet confidences. I know I talked a little bit about that, so I don't want to go through that again, but I do want to talk about how we have spent some time in terms of strengthening the Access to Information Act. We did that because we wanted to be consistent with ensuring the maximum amount of transparency and accountability. I think the best practice is to always keep the Access to Information Act up to date and current to meet with our values and principles of openness and transparency.

I'd like to note that while we introduced several measures since 2015 to improve the act, I think it would be helpful to provide some context, as prescribed in the act, for why and when certain information cannot be disclosed by the government, as those principles guide the government in its production of documents for parliamentary committees. Certain limitations on access to records exist in the form of exemptions and exclusions. Some exemptions are discretionary, while others are mandatory.

The act states that the head of the government institution “shall refuse to disclose” records when it relates to certain criteria. These mandatory exceptions can relate to information obtained in confidence, obtained via some law enforcement action and security, obtained through third party information, and/or obtained through personal information. With regard to personal information, the act strikes a balance between the right of the public to access information records under the control of a government institution and the right of each individual to his or her privacy.

Discretionary exemptions relate to information that the head of the government institution may refuse to disclose.

Excluded information relates to information where the act does not apply. Examples include published information and cabinet confidential information. "Confidences of the Queen's Privy Council for Canada (Cabinet confidences)" states:

In order to reach final decisions, ministers must be able to express their views freely during the discussions held in cabinet. To allow for the exchange of views to be disclosed publicly would result in the erosion of the collective responsibility of ministers. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality, which upholds the principle of collective responsibility and enables ministers to engage in full and frank discussions necessary for the effective functioning of a Cabinet system.

Now, to preserve this rule of confidentiality, subsection 69(1) of the Access to Information Act provides that the act “does not apply to confidences of the Queen’s Privy Council for Canada”. The act also strikes a balance between the right of the public to access information and records under the control of a government institution and the right of each individual to his or her privacy. As you can see, there are many reasons that some information cannot be disclosed under the Access to Information Act. These are limited and specific exceptions to the general rule of openness.

That said, as mentioned earlier with respect to redactions in documents provided for this order, considerable information that would normally be redacted through these processes should not be redacted and was provided to the committee. This was in keeping with the public disclosure of information on this matter made by members of cabinet through consent obtained to disclose certain personal information and the above-referenced limited waiver of solicitor-client privilege. Indeed, as I stated earlier, the government has undertaken several initiatives to strengthen transparency.

I think it would be helpful to provide an overview of our rigorous access to information system.

As this committee knows, access to information has been a staple of Canadian democracy for over 35 years. Since then, both parliamentarians and Canadians have come to regard the right to government information as quasi-constitutional in nature. In many ways, it has become part of our culture and important for our democracy.

This hasn't always been the case. Canadians didn't have this right in 1867, at the time of Confederation. In fact, up until post-World War II, most governments around the world operated without any general law permitting access to information, nor did they function with any general law restricting the collection, use and disclosure of information that could affect the privacy of individuals. During World War II, the Canadian government expanded, and so did the amount of information we collected. As a result, it was rightly perceived that access to such information was required to ensure democratic and accountable government. On the privacy side, it also came to be understood that information collected by the government about individuals should be treated as confidential.

In the early 1970s, the federal government took steps in that direction when it began to study both the right of access and privacy. It wasn't until the early 1980s that the government introduced comprehensive legislation addressing both issues. That bill, which contained both the present Access to Information Act and the Privacy Act, became law on July 1, 1983. Its principles reflect the right of access that we have today. These principles are that government information should be available to the public, that necessary exemptions to the right of access should be limited and specific, and that there should be appropriate independent oversight of the decisions on the disclosure of government information.

Before Bill C-58, the Access to Information Act had not been substantially updated in 34 years. When the act first became law in 1983, there was no Internet. Information was locked away in steel filing cabinets. The first mobile phone had just come onto the market. They were those really big clunky things that were really heavy to carry around and put up against your ear. We know that a 34-year-old access to information system was not equipped for the sheer volume of information and the lightning speed of today's communication. The old system was seriously outdated and served neither government nor Canadians efficiently.

The size of government has also grown. Its information holdings have increased since the act was implemented in 1983, and so too have the number of information requests that the government receives every single year, or probably every single day at this point.

Canadians expect their government to stay ahead of the digital game and make its information accessible to them. With new technology and capability comes the expectation that organizations offer their products and services online. The goal is to make the information and the data held by the government even more accessible to Canadians. Through changes to the legislation and accompanying policy changes, we are now getting more government information and data into the hands of our citizens, who can use it—

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

Madam Chair, we thank the public servants. It's the Liberals who have a problem with accountability.

There are reports that ministerial staff have indicated that submitted ATIPs will simply not be followed up on. This is not only a stunning lack of transparency but also a contravention of the act. It's illegal and goes against a government bill, Bill C-58.

Has the minister issued a directive, or has the TBS issued direction to its department, regarding how essential it is to ensure that ATIP requests are fulfilled?

[Caroline Maynard]

Under Bill C-58, there's a part 2 now, about proactive disclosure. What they've done is codified, basically, the policy that existed before on proactive disclosure. It is also applied to a number of new institutions, including the ministers' offices, the Senate, judges—

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you for being here. Your role is vital to our democracy. My former colleague Pat Martin used to say that access to information was the oxygen and lifeblood of the democratic process. With every government that comes in, including this latest one, its first promise is open government. Then the first thing they do, when they realize that open government means that people can ask questions about bad decisions, is to start to try to find all manner of ways not to have open government.

There are a number of tricks. Cabinet confidence, I think, is section 23. No, that's solicitor-client confidence; that's the second one. There's solicitor-client confidence, cabinet confidence, and then the great black hole of ministerial offices. That used to drive the former commissioner, Madame Legault, crazy, how it could be that anything that goes on in a minister's office had to be protected from the public finding out. That's where all the decisions are made.

Under Bill C-58, did any of that change?

[Stephen Zaluski]

I wouldn't be singling them out by name, but I think the idea of reporting more globally was consistent with what the government had done in Bill C-58 in terms of the way expenses were being reported at aggregate levels, so it moves it towards a better balance of respecting judicial independence.

Access to Information Act

[The Speaker, Liberal, Geoff Regan]

It being 3:10 p.m., pursuant to order made on Tuesday, May 28, the House will now proceed to the taking of the deferred recorded division on the motion to concur in the Senate amendments to Bill C-58.

Call in the members.

The House resumed from June 17 consideration of the motion in relation to the amendments made by the Senate to Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Mr. Speaker, I am here today to speak to the government motion on the Senate amendments to Bill C-58.

Before I do that, though, I also want to take this opportunity to congratulate my brother Toron and his wife Jacqui.Today is their wedding anniversary, and I know that they are spending the day with my nieces and nephew, Abby, Malcolm, Josie and Zylia. I just wanted to acknowledge that this is another day, as many of us know in this House, that we do not get to be with family. I wanted to make sure that they know that I am thinking about them today.

Today we are talking about something that is fundamentally important, which is access to information, the tools we have to access information as parliamentarians representing everyday Canadians, and how that information can be accessed by journalists and reporters in this country.

I have been in this place for almost four years. I have worked really closely with my constituents on these issues. I have talked to them about the different tools I have as a parliamentarian and where they need to go to get information. They need to feel more connected to the government and to the people who represent it here in this place. I am very passionate about this issue.

Today we are talking about Senate amendments that would improve what I felt was a bad bill by making sure that the Information Commissioner would have real teeth, real power, to address some of the issues that come up in this place.

One of the things I have found very distressing, and the member who spoke before me also addressed this issue, is how often folks request information and are given a letter from a department authorizing itself to delay. Someone asks a question and now is told that the wait will be another 200 days for that information.

One of the most startling examples was that The Globe and Mail reported in April 2018 that it took one year to receive RCMP statistics for its well-received investigative series “Unfounded”, which revealed that police have been dismissing one in five sexual assault claims as baseless. This is really important information. When we see these kinds of startling facts, we know that there is something happening in this place and in this country that we need to address. These important investigations need to happen so that we know that something in the system is not working that we need to see addressed in multiple ways. If that information is not released, how are we supposed to do our work, and how do Canadians trust us?

I asked a question earlier about cynicism. I see that growing. I see it growing all the time. I talk to people who are frustrated with the government. They feel that when they want information, they have no way of knowing it. The automatic response is that something sneaky is happening and that they cannot trust those people.

I think we need to discuss what happens to democracy when we have everyday Canadians feeling that every politician is sketchy. We have an oath in this country. We sit in these seats and represent thousands of our constituents. We have the honour, as I do, to represent hard-working people who do everything in their power to live a good life, look after each other and look after their community. If they cannot trust the people who represent them, that should concern every single one of us.

If information cannot be uncovered to understand how things work, and, when something seems unfair, why it happened, how do we build that relationship, and how do we improve democracy?

I just want to take a moment to acknowledge the member for Vancouver Granville, who used to be the justice minister. I have a deep respect for her. I have known her for many years. I am very proud to represent the nation she comes from. I am very proud to represent the people of her traditional territory.

When that happened with SNC-Lavalin, it sent shock waves through my riding. It was very personal. I had constituents from my riding calling me and saying that she was in their class, that they know who she is, that she was from their family. They could not believe what was happening. They asked, do Liberals not know who she is, because they know who she is? Constituents were frustrated by the lack of information. They were frustrated by the process that unfolded. It was very troubling to them.

When I think about that and look at that happen, it takes away that sense of trust and connectivity. It brings all of these issues to the forefront when they are not addressed in a good way, and, in my opinion, these issues were not addressed in a good way. A lot of constituents contact me and say that they still do not know what happened, but that what happened was not right.

We look at the systems, and that is important. As legislators in this place, what we look at, debate and discuss is the process, how something is going to happen. Right now, we know that the Information Commissioner still will not have the ability to review whether in some cases like that one cabinet confidence is being claimed and whether it should be claimed.

I think about this a lot. I want to see a better democracy. I was very frustrated when the government campaigned to have electoral reform. It was very meaningful. I did multiple town halls in my riding. It was really interesting. People came forward. They were not sure and they did not know if they wanted to move to a different system, but they wanted to talk to me about it. They wanted to hear information. We tried to bring people in who were non-partisan to talk about different systems and how they would work. We had a lot of intelligent questions.

I will admit, people walked out the door saying that they were not sure; they were not sure if that was the right way to go forward. However, when they were told that it was no longer a discussion, when the Prime Minister stood up and said that Canadians do not want electoral reform, people were upset. They felt that they did not get to be a part of the decision-making process. That is really important.

Sometimes people get frustrated in this House, and they let us know by their heckling. However, we need to look at these systems. We need to make sure that everyday Canadians are part of the decision-making process. When that does not happen, we should have systems in place for them to be able to find out why it did not happen that way.

Again, we are seeing a failed piece of legislation. I am really disappointed. It is another broken promise. One of the things that was talked about in the last election was making sure that the PMO and the ministers were subject to these acts. That was one of the promises of transparency, that Liberals were going to do it differently and that Canadians would see a more open, transparent government.

Unfortunately, what we are seeing, again, is that the PMO is still blocked off. It is something to really think about. When everyday Canadians cannot get access; when journalists cannot get information from these particular departments, these ministries, what are we telling people? We are telling people that their voice does not belong in those places. However, they do belong in those places. In fact, we are here to represent those very voices.

I am really disappointed in this legislation. I think we could have gone so much farther. It is time for daringness. When I listen to constituents in my riding, what they want to see is honesty, openness and an authentic touch. They do not want to hear lines repeated. Some people think that if they just keep saying the same thing over and over that people will believe them.

However, when we look at democracy, the invigoration of democracy, and when we talk about why people do not get out to vote, it is because we are allowing cynicism to grow. We are not making sure that we open these doors and allow things to go forward.

Toby Mendel, the executive director of the Centre for Law and Democracy, said, in response to this bill, “The proposed reforms are just not good enough. At this point, we need root and branch reform, not incremental tinkering.”

I am a person who stands in this House, who looks at a lot of legislation. Most recently, in my role as vice-chair of the indigenous and northern affairs committee, we looked at Bill C-92, which talked about indigenous children in care. One of the things that was really heartbreaking for me is what I see happening again and again, which is this: “We will do a little better. It will not be enough. It is not going to save people's lives in a profound way. It is not going to look at the very foundation of the things that are broken. But we are going to make it a little prettier on the surface, and hopefully that will fix it.”

A little bit better is not good enough. It is not good enough for democracy, and it certainly is not good enough for indigenous children in this country who are struggling in profound ways every single day.

We were told very clearly that the new score for Canada would be 92 out of a possible 150 with this legislation. That means we would get bumped up from 49th to 46th.

I do not like our country to be in the middle. I want our country to be challenged to do better, because I want Canada to be at the top. I want other countries in the world to see the work we are doing in this place and think they have to aim higher because of what Canada is doing. I want them to look at how accountable we are to our constituents, to the Canadian public, to our reporters, and that we are not afraid to have these discussions, even if they are really painful and really hard.

We have to talk about really painful things in the House. If we are not brave enough to do that, if we do not allow people to have the information they need to make decisions for themselves, it is like saying that we are separate. However, we are all one.

I remember one of the elders in my community, Alberta Billy, telling me that a long time ago the cedar trees were so big that they would go into the forest and pick one to build a canoe for the community. They would respect that tree and then they would make a canoe out of it to be used by the community.

We do not have those big trees anymore. We have to find two trees now and find a way for them to come together. Finding two trees that are going to fit seamlessly together is a lot of work. That is the world we live in now. We do not have those big trees.

If we look at that canoe as if we were all in this together, then we know we have a western world that came here as colonizers and we have an indigenous world and we are trying to build a canoe together.

Let us look at the fact that indigenous communities around this whole country had great systems in place. Let us look at how we can do better, be more accountable to the people we serve. That is what a leader is. It is the person who follows behind, who serves from behind. This legislation fails to do that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, as we debate Bill C-58 tonight, I cannot help but share the disappointment of my colleagues on the NDP benches. We were promised that this access to information legislation would create information available essentially by default, with more transparency.

I recall that when I used to practise environmental law, the joke among all of us at the time was that Canada's access to information legislation constituted freedom from information.

Now, we know that quite a lot of amendments were made in the Senate, and I know that the hon. parliamentary secretary wants to make sure that we are not caught in a time warp where we miss them. It is important to note that a lot of those amendments came from the government side. Amendments tightened up some of the language around vexatious questions being used as an excuse to reject access to information requests. However, I still find that this legislation falls far below the bar of what was promised. We did try, as Greens, to improve this legislation. I had 18 amendments come before the committee. Lots of us, as parliamentarians, tried to improve this legislation.

Given that there were some improvements, some significant ones from first reading, is there any temptation on the NDP benches to pass it as marginally better, or is it better to defeat it because it falls so far below the mark?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Speaker, I would like to thank my colleague from Beloeil—Chambly. I have been here for 15 years and I have never seen a more dedicated member of Parliament. He is a good representative for his region, which I know very well from going door-to-door in the Chambly area. He is always here and he asks questions that get to the heart of his constituents' concerns. Like many other members, I continue to be very impressed by his work, his dedication, his discipline and his way of addressing people's concerns. I thank him for his excellent work. He just asked an excellent question.

Transparency and access to information are not rocket science. Witnesses told us what to do. They said that Bill C-58 was inadequate. The Information Commissioner said that he preferred to keep the status quo rather than seeing this bill pass. The Liberals refused to listen and include in the bill all the solutions, amendments and recommendations that were proposed by witnesses and the NDP. We proposed three dozen amendments.

The Liberals had all the solutions they needed in hand. We were not asking them to do the work. We were simply asking them to agree to let the NDP do it for them, because we were chosen to be the watchdog of Canadians in the House of Commons. We are always seeking to improve legislation. All the Liberals had to do was accept the work that we did for them and for all Canadians. Unfortunately, they refused to do so. They said that they would not accept the amendments or the testimony and that they were going to do as they pleased. That is why we have here a bill that is just a tiny step forward when we could have made some real progress. That goes against everything the Liberals promised in 2015.

As the member mentioned, in 2015 the Liberals promised democratic reform. They promised to put an end to omnibus bills, which are undemocratic. They also promised to work with the opposition parties and all members. Instead, they are imposing gag orders, a bit like in the 1950s, when the opposition was prevented from saying one more word about bills once a closure motion was adopted.

For all those reasons, I would say that this is yet another missed opportunity on the part of the Liberals.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Speaker, I have to comment on what just transpired. The Liberals are slapping each other on the back because they passed a motion that is meaningless. Tomorrow they are going to rubber-stamp the Trans Mountain pipeline, which will dramatically increase greenhouse gas production in the country. The hypocrisy is beyond belief.

That is extremely appropriate when we see the hypocrisy contained in Bill C-58, which should be called “another Liberal broken promise act”, because, again, the Liberals are breaking the solemn commitments they made back in 2015.

Members will recall that back in 2015, the Prime Minister made a whole series of commitments, including that he was going to work with all members of the House of Commons. Instead what we have seen is a new tool, never used in parliamentary history before, gag closure.

It is a particular motion that does not allow opposition members, once the gag closure motion is moved, to even utter one word on government policy, to offer any amendments, to ask any questions, to, in any way at all, intervene on the bill, the legislation, the business before the House. It has been moved several times already in the last couple of weeks. So much for the solemn commitment to improve the functioning of Parliament.

The Liberals also promised they would do away with omnibus legislation. The Harper government was renowned for that, throwing a whole bunch of different bills into one piece of legislation and throwing at the House of Commons. It was profoundly disrespectful to members of Parliament and profoundly disrespectful to Canadians.

However, the Liberals have doubled down over the last four years. They have now presented more pieces of massive omnibus legislation than in any other Parliament in our history.

Members will recall that Liberals and the Prime Minister talked about bringing in democratic reform, actually reforming our election process so every vote would count. That would make a lot of sense. Canadians voted for that. The Liberals only got 39% of the vote and yet they have 100% of the power in the House of Commons. They bring in gag closure, they bring in omnibus bills and that promise, that solemn commitment to bring forward democratic reform has been thrown away.

The Liberals also talked about dealing with climate change. Tomorrow they will be rubber-stamping a pipeline that will destroy any opportunity for Canada to meet any commitments that have been made internationally.

The member for Rosemont—La Petite-Patrie estimated that even before the pipeline, it would take Liberals 200 years to meet the Paris commitments. The planet will not exist at that time if Canada continues to be as irresponsible as the government has been, both under the Conservative government and the Liberal government.

The Prime Minister solemnly promised he would address the massive housing crisis in the country. Tragically, we know that is not the case. The Liberals said that they would address the health care crisis and promised, yet again, that they would bring in pharmacare. I think it is the third time, with a Liberal majority government, that Liberals promised to bring in pharmacare and yet have failed.

After four years, we have a litany of broken promises. Perhaps one of the most significant promises, even though this bill has not attracted a lot of interest, is the broken promise on information being provided to the Canadian public. That is why I call Bill C-58 the “another Liberal broken promise” bill.

The Liberals committed back in 2015 to provide information to the Canadian public. That makes a lot of sense. Canadians have a right to information from the government. It does not belong to the Harper government. It certainly does not belong to the Liberal government. That information belongs to Canadians.

Putting in place an effective information regime that allows people to access information, important government information, important information that should be available to the public, was a commitment the Liberals made back in 2015. Like so many other commitments, it has ended up on the scrap heap.

The Information Commissioner called Bill C-58, the “another Liberal broken promise” bill, regressive and went so far as to say that the access to information regime would be better under the status quo than under Bill C-58.

Is that not a sad commentary, that a Liberal government, four years later, has so little to show for itself except for a litany of broken promises solemnly delivered in 2015? Canadians believed them. I certainly thought, and I think most Canadians believed, that when the Prime Minister made those solemn commitments that he had at least the intention of keeping them. However, the Liberals have not. As the Access to Information Commissioner reminds us, the bill that the Liberals have brought forward is worse than what currently exists.

How did the Liberals fall so short? Despite committing to so many things, discarding their promises on the scrap heap of broken Liberal promises history, how did they even get the access to information wrong? Four points need to be brought to bear regarding why the Liberals failed so lamentably on access to information.

To be sure, the Conservatives did the same thing when they were in power. They said they would enhance access to information for the public, recognizing that Canadians felt they should have a right to access the information that was available to the federal government. It is a fundamental tenet of democracy, that information available to the federal government is available to Canadians. When we do things in the House of Commons and speak in public, that information is available. When government ministers do things in private, that should also be available through access to information.

It is the Canadians' government. It is Canadians who choose their parliamentarians. It is Canadians who ultimately decide who governs them. Because of this, it is fundamental that Canadians have access to information.

Bill C-58, which is worse than the existing access to information law, has a number of key exemptions or shortcomings, deliberate attempts to undercut the access to information regime that the Liberals planted in the legislation. It has essentially put poison pills in the legislation. They have a beautiful title about enhancing access to information, but we must look at the details, as New Democrats do. We always do our homework and always pore through legislation to ensure there is at least a semblance of reality in what is written in the legislation, as opposed to the political spin that comes from the Liberal government.

First, there was a recommendation that the coverage of access to information include ministers' offices and the Prime Minister's Office. This is another key commitment from the 2015 election that has been broken. Given the incredible scandal regarding SNC-Lavalin, it is absolutely fundamental that Canadians can access information related to what transpires in the Prime Minister's Office and in ministerial offices. It is a no-brainer. So many democracies around the world have already incorporated into their access to information regimes that ministers' decisions and decisions of the prime minister's office, that type of correspondence, are subject to access to information rules. Unlike in so many other democracies, the Liberals deliberately exempted the Prime Minister's Office and ministerial offices.

Second, as the Information Commissioner has long recommended, there has to be appropriate sanctions for non-compliance. If the government or government members try to get around access to information rules, there should be sanctions for that. However, that is absent from the bill as well.

The Information Commissioner was critical of what the Liberals offered in access to information, because it would do nothing to reduce delays or extensions. This means the Liberal government can basically rag the puck and ensure that information is not available to the Canadian public.

In the last Parliament, when the New Democrats were the official opposition, we spoke out repeatedly about the Harper government doing this. It simply delayed things beyond belief to ensure that for all practical purposes, access to information was simply not available. Again, the bill would do nothing to address this.

The bill would also do nothing to narrow exemptions for ministerial advice or cabinet confidence, ensuring that, with a broad brush, the Liberals could simply stop the access to information system to which Canadians have a right.

This is the fundamental point I need to make. Yes, Liberals made a whole series of commitments that they have ripped up with complete disregard to the solemn commitments made to the Canadian public. They basically threw them out the window.

However, in terms of access to information, this is one of the most egregious broken promises. The Liberals could have approached this in an open way. They could have said that they actually do want to make sure Canadians have access to information from their government and that this is a fundamental aspect of democracy. They could have said that they would work with the NDP, because we have always been the number one champions in this House of Commons for access to information. We believe fundamentally in it, and, as in so many other areas, we and members in the past have always championed the most effective approach possible on access to information, including the member for Timmins—James Bay, who has felt very strongly about this and has worked in this regard for years.

The Liberals could have done that, but instead they rejected the NDP amendments and refused to improve this. We now have a bill before us that can only be chalked up as another Liberal broken promise. As the Information Commissioner said, the status quo is actually better than what the Liberals have produced. That is a shame, and we are voting against it.

The House resumed from June 13 consideration of the motion in relation to the amendments made by the Senate to Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.

Notice of Closure Motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I wish to give notice that with respect to the consideration of the Senate amendments to Bill C-58, an act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts, at the next sitting of the House a minister of the Crown shall move, pursuant to Standing Order 57, that the debate be not further adjourned.

Bill C-58—Notice of time allocation

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I would like to advise that agreements could not be reached under the provisions of Standing Orders 78(1) or 78(2) with respect to the consideration of certain amendments to Bill C-58, an act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage of the bill.