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.

[Caroline Maynard]

In terms of orders, I had recommended during the discussions surrounding former Bill C‑58 that a process for approving orders issued by my office be put in place. Under such a process, it would be enough to have an order of my office approved by the Federal Court for it to be respected in the same way as a court judgment. Such a process would be much easier than a mandamus application.

At the time, the government said that we didn't need a process like that because it was going to comply with the orders of the Office of the Commissioner, which had the force of law. We now have proof that this isn't exactly the case. I think a certification process would be enough for institutions not to want to be charged with contempt of court, if I can put it that way.

When it comes to penalties, people often ask us who should be punished when the department doesn't respond or doesn't comply with the act. I think it would be very difficult to establish a process that would sanction a public servant, director or deputy minister. I think it would be easier to establish within the department a performance evaluation process for responding to access to information requests. When it affects premiums and pay, it can have an impact.

[Taylor Paxton]

We have taken Bill C-58 and really implemented it within our department in the sense that we understand what we're being asked to do. Proactive disclosure is very important. We are working very hard to improve our compliance on proactive disclosure. There have been some instances where we have had to redirect ourselves on proactive disclosure, and we have done so quickly. We'll continue to do that work.

[Marie-France Lalonde, Liberal, Orléans, ON]

Thank you very much.

Last, we talked very briefly about Bill C-58 Ms. Paxton, earlier we were making reference to your maybe wanting to clarify a few things for this committee.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you.

This is just a comment. We've had some talk in this round on Bill C-58, which this government brought in 2017, I think it was. The then commissioner described that law as a step backward, saying, “Rather than advancing access to information rights, Bill C-58 would instead result in a regression of existing rights.” She also said:

The government promised the bill would ensure the Act applies to the Prime Minister's and Ministers' Offices appropriately. It does not.

The government promised the bill would apply appropriately to administrative institutions that support Parliament and the courts. It does not.

The government promised the bill would empower the Information Commissioner to order the release of government information. It does not.

Those are the comments of the then commissioner, that Bill C-58 was actually a step backward.

On that third point about order-making power, the government you serve is presently refusing to comply with an order of the Information Commissioner and is taking the Information Commissioner to court. What is the rationale for that? How does that address openness and transparency?

[Bill Matthews]

Maybe we'll have to come back to that.

I think I will avoid Bill C-58 specifically. One of our best friends on this is making data and information more open by default. In theory, you'll start publishing datasets, which we've been doing, just to make information more accessible to Canadians who are curious. Defence will always be challenged by what needs to be protected and what doesn't. It's a sensitive space.

Maybe in the next round we can turn to Taylor on Bill C-58 specifically.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thank you.

One of the critiques that municipalities had of our provincial government was that the legislation that governed us, MFIPPA, the municipal freedom of information process, hadn't been updated in 30 years. As referenced here today, our government worked on Bill C-58, which passed and updated the legislation. Up until that time, consecutive federal governments were seen as dinosaurs as it relates to access to information, whether it was from journalists, citizens or people in the workplace.

Can I get your thoughts on Bill C-58? How long does it take for a department to nail it down? You would have had to retrain. You had an old system that was in effect for decades. New legislation comes in and we're now changing the rules. How long does it take to right the ship in that regard as it relates to, in this instance, Bill C-58?

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

All right.

I don't have very much time left. There's so much I could get to, but you mentioned Bill C-58 in your opening remarks. The Information Commissioner of the day called it a step backward. She said it actually took away some of the access to information that existed before Bill C-58. It was more than a broken promise; it was a reverse promise of the 2015 election.

You mentioned the order-making powers. Your government is presently refusing to comply with an order of the Information Commissioner and is taking the Information Commissioner to court. Is that openness and transparency at work?

[Bill Blair, Liberal, Minister of National Defence]

Thank you very much, Mr. Chair.

First of all, I'd like to thank this committee for its indulgence last week. Unfortunately, I was not able to attend last Wednesday, and I hope it was not too inconvenient for all to have to reschedule this for today.

Also, I would like to offer my condolences to Mrs. Shelby Kramp-Neuman on the passing of her father. Her father was a well-known and greatly respected former police officer, as well as a parliamentarian. Certainly she's in our thoughts.

I am joined this morning at the table by the deputy minister, Bill Matthews, and Major-General Erick Simoneau, chief of staff, professional conduct and culture, who can provide information on the CAF grievance system and the transformation process, which is currently under way. I'm also joined by Brigadier-General Rob Holman, who is our judge advocate general. He'll be able to provide information on the framework of the grievance process, as well as the legal relationships with various independent actors involved in the military system. Finally, I'm joined by Taylor Paxton, our corporate secretary, who is responsible for the coordination and administration of the Access to Information Act and the Privacy Act for National Defence as well as for providing advice and guidance on the application of the acts themselves.

Our military and civilian staff are guided by several core tenets: They must be politically impartial and must be transparent and accountable first and foremost to Canadians. These tenets are fundamental to our democracy, and we will always work to improve our processes to ensure that we meet our obligations. That includes how we manage access to information and the various complaint mechanisms in place for our civilian and uniformed people alike.

If I may, I will begin with access to information. During fiscal year 2022-23, National Defence received 2,241 new ATI requests. Over that same period, they closed 2,242, with 61.73% of requests closed within the legislated timelines. Last year's rates represent an increase from last year and are part of a general upward trend.

Let's be clear. The Department of National Defence needs to do better, and our team is hard at work to ensure that this, in fact, happens. Despite the fact that DND and the CAF are two large, intertwined organizations that deal with highly sensitive information and are challenged by size and complexity, there is never an excuse for failing to meet our legal requirements. I didn't come here today to offer excuses.

DND and CAF have introduced new programs and initiatives to ensure that the new rules are being met and that the departmental processes are improving overall. These include moving to a paperless process to manage ATIPs and acquiring new software to speed up the processing of ATIP requests; reinforcing the requirements for senior leaders to ensure they are committed to compliance; and improving training required for all members of the defence team on their obligations.

DND must and will improve how it responds to ATIP requests, building upon recommendations from the 2022 “Access to Information Review” report to Parliament and the Information Commissioner's 2020 special report to Parliament, which focused specifically on National Defence.

Of the 2,242 requests that I mentioned earlier, staff provided a “no records exist” response in 593 of cases, or 26%. There are several different reasons why the department may provide a nil response such as this. For example, the retention period for a document may have passed, or the information is not tracked by the department. We all recognize that access to information is a right for all Canadians, and at the introduction of Bill C-58, our ATIP processes changed further to accommodate regulations around proactive disclosure and to respect additional powers granted to the Information Commissioner.

With respect to internal complaints mechanisms, just as all Canadians have a right to obtain information about their government, our employees have the right to hold their leadership accountable through comprehensive complaint mechanisms. These include the National Defence and Canadian Armed Forces Ombudsman's office, the CAF grievance process and the Military Police Complaints Commission of Canada. Similarly, CAF members can choose to submit sexual misconduct complaints through their chain of command or independently. Depending on the circumstances, this may include through the police of jurisdiction or the Canadian Human Rights Commission.

No matter which mechanism members are engaged with, they must know that their complaints will be taken seriously, that investigations will take place free of political influence and that their privacy rights will be respected at all times. For most matters, CAF members can personally make grievances to a commanding officer or designate, which is the initial authority. If they are not satisfied with the decision of the initial authority, they can then ask the chief of the defence staff or a delegate to reconsider their grievance as the final authority. At this point, the Military Grievances External Review Committee will often provide recommendations to assist the CDS in making the final decision.

Members of the defence team can also contact the National Defence and Canadian Armed Forces Ombudsman if they feel they have been treated unfairly and if they are looking for information or are uncertain about how to deal with an issue. The ombudsman's office forwards their findings to the appropriate DND or CAF authority.

The Military Police Complaints Commission of Canada is another oversight agency that operates at arm's length from the Government of Canada. The commission reviews and investigates complaints concerning military police conduct and investigates allegations of interference in military police investigations.

Each of these organizations comprises dedicated, hard-working officials committed to keeping our institutions accountable. It's critical that no interference from the government or senior leadership occur in these investigations.

Mr. Chair and committee members, we are working hard to improve our processes, while ensuring that these organizations remain at arm's length from senior leadership, including the implementation of CAF-wide grievance transformation efforts. We know we have work to do. We welcome any insights into this work and any proposed recommendations that may come from your review.

Thank you very much. I'll now happily answer your questions.

[Caroline Maynard]

As the Auditor General has said before in committee, Parliament sometimes grants us new powers, but there are costs associated with that. That is also true for Mr. Dufresne. For example, since the coming into force of former Bill C-58, I now have the authority to make orders and publish reports. However, that costs a lot of money and we also want to be able to meet the demand.

Right now, I have a backlog of 3,400 complaints, and I don't have the resources needed to investigate them. I would be delighted to be given additional temporary funding to conduct those investigations. On the other hand, I would also be prepared to give money back if the number of complaints that I have to deal with were to decrease. I think that sort of trade-off and accountability are important. If such were the case, we would not be required to extend the time frame for investigating complaints because of a lack of resources.

[Caroline Maynard]

Section 6.1 that Ms. Charette is referring to is a new section of the act, which allows any institution, not just the Privy Council, that receives a complaint or access request that it considers abusive or frivolous to ask me for permission not to respond to it. Such a request is legal and is part of the process put in place following the passage of former Bill C-58.

I can't speak to the request itself because we haven't responded to it yet. However, I can tell you that this process was put in place to prevent institutions from rejecting such requests on their own initiative. They have to ask the Information Commissioner for permission. The Office of the Commissioner then reviews the institution's request and the requester's request to see whether they comply with the wording of subsection 6.1(1).

[Jean-Denis Garon, Bloc, Mirabel, QC]

When we look at Bill C‑58, which was tabled in 2017, we can see that the issue of lack of resources was already highlighted back then. That continues to this day.

When a government fails year after year to provide sufficient resources to the organization that should allow Canadians access to information, should well-informed citizens be interpreting that as proof of intent?

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Okay. A recent report by The Globe and Mail found that B.C.'s access to information requests from media have dropped dramatically, by up to 80%, after they introduced their $10 fee per request. Do you believe that the $5 flat fee for requests introduced by C-58 is a step in the right direction?

[Dean Beeby]

Yes, she seemed to say Bill C-58 was the big improvement. Bill C-58 had some improvements. Order-making power was a half improvement. It also had some restrictions. It introduced for the first time the problem of frivolous and vexatious requests. Certain requests can be ignored. It wasn't all in favour of the user. Some of it was actually against the user.

[Dean Beeby]

Yes, I'd love to.

She was given so-called order-making power in Bill C-58 in 2019, but it wasn't what she had argued for. It was a watered-down version, so her orders do not have the same effect as a Federal Court judge's order.

A Federal Court judge's order cannot be ignored. There are sanctions that will be applied to people who ignore that order. In her case, there are no sanctions. It's simply that her order goes out, and it can be ignored or the institution can go to court. It has no power, impact or authority.

She argued against this watered-down power when Bill C-58 was being debated, but she didn't get it, so we now have this really weak system.

[Duff Conacher]

Thank you.

The Access to Information Act is misnamed. It really should be called the ”Guide to Keeping Information Secret that the Public has a Right to Know Act” because that's what it is. It is more loopholes than rules. As a result, the enforcement changes made by Bill C-58 can empower the commissioner only so much, because of the number of loopholes, exemptions and exclusions that can be claimed.

Stakeholders have made it very clear, including in the government's own consultation report released in December 2021, and all stakeholders have called for 10 key changes. I've listed 18 more detailed, comprehensive changes in our submission, and they all need to be made in order to have an actual Access to Information Act.

Rather than the committee's simply issuing a report—and I was happy to hear, in listening to—