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.

[Suzanne Legault]

Based on what C-58 does, yes, it could be denied, because it could generate a large number of requests. It could be denied because it's not specific enough and doesn't meet the criteria of section 6.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

However, if it's required in law and if it's not there up front, then the request can be denied under Bill C-58.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I have a question about this whole notion of “vexatious” or “too many documents”. What is too many?

You mentioned “a large number” in your submission. Who determines what “a large number” is? Your office has about 1000 pages as a benchmark; above that is considered large, and below that, not, but I notice that Treasury Board thinks it's 500.

What worries me in Bill C-58 are these subjective terms. The application of “vexatious”, “too large”, or “inconvenient” to government is defined by whom? Can you help us out there?

[Suzanne Legault]

I have been the information commissioner for eight years and, to my knowledge, there have been very few such cases. That is really on the margin of the access to information system.

That said, I want to come back to what Mr. Baylis was trying to convince me of earlier. It is true that there are very rare cases where the access to information system may be abused. The only provision in Bill C-58 that addresses requests that are frivolous, vexatious or made in bad faith is proposed subclause 6.1(1)(d). In an early phase of amendments to the Access to Information Act, that provision is certainly appropriate under the circumstances, as it enables institutions and the information commissioner to deal with these issues.

[Suzanne Legault]

As I don't have the newspaper article you are referencing on hand, or the date, or the particular file, it is difficult for me to answer the question intelligently.

At first glance, nothing in Bill C-58 focuses on political interference.

We have conducted a few investigations in those circumstances. Since then, I have not heard of anything like that happening in government institutions.

[Suzanne Legault]

I'm the Access to Information Commissioner. What I can say is that if Bill C-58 and proposed section 6 remain as they stand, it will be a lot more difficult for first nations to access the information they need to establish land claims and to establish some past events they might have been involved in and that they need to document in order to resolve.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I want to go back to the question that preoccupies me, and committee members could forgive me.

I represent a constituency in northwest British Columbia with approximately 40% first nations people. Some of the treaties are still unresolved. One took 135 years to resolve. There's a great deal of hope and promise with the new government, because there was this commitment to reconcile—a word that has been so stretched in its application that I'm wondering about its meaning anymore—on specific things like issues around residential schools and the horrors that went on there, and around reconciling land disputes, which are at the heart of enfranchisement for first nations people.

If Bill C-58 were to become law, from your perspective as commissioner, would the ability to reconcile, to resolve, to settle cases, be enhanced or diminished based on the information first nations would be able to pull from the Government of Canada?

[Suzanne Legault]

What I am saying is that what is being proposed in the new section 6 in Bill C-58 is a regression of existing rights.

Under the current legislation, if I made an access request for all records related to “sponsorship budget”, I would be able to have my access to information request processed. If I made an access to information request in relation to all records related to Afghan detainees, I would be able to get my access request responded to. Under Bill C-58, it would not be responded to.

[Suzanne Legault]

I'm saying that if committee and Parliament decide that there really has to be some measure of involvement of the Privacy Commissioner under C-58, it should be first in terms of consulting the Privacy Commissioner during investigations under my legislation, so it should be at the discretion of the Information Commissioner. I say this because of what I highlighted in my remarks, which was that most cases are resolved at the very early stages of investigation.

The way Bill C-58 is currently drafted, it's basically open to a government institution to decide to notify the Privacy Commissioner as soon as they receive the notice of a complaint. If that occurs, then I “shall” consult with the Privacy Commissioner. In that respect, that would really impede the investigation and affect its integrity. If it is at the discretion of the Information Commissioner to consult, only in very few cases would there be contentious issues between the two offices. We really have a long history, over 34 years, of these two offices functioning together in the interpretation of that section. There have been very few instances of disagreement, so that's why.

Bill C-58 already provides that if there's going to be an order, during the time for the government to respond, or the time before the order becomes a deemed order, there has to be a notification to the Privacy Commissioner, and there is an opportunity for the Privacy Commissioner to bring the matter to court. That process is already provided for in C-58.

What the Privacy Commissioner recommends, if I understood correctly, is that even at the level of a recommendation, he would have to be notified. That's what we have now. We have that regime now. We make recommendations to institutions on a regular basis. Very few instances deal with recommendations to disclose personal information, and I have no obligation to consult with the Privacy Commissioner. That's been the case for 34 years.

[Peter Kent, Conservative, Thornhill, ON]

Thank you very much, Chair.

I'd like to come back to the disclosure of personal information. I'm sure you saw the presentation from the Privacy Commissioner before us, and heard his arguments that Bill C-58 would disrupt a balance that he sees between your two offices. He invokes the quasi-constitutional nature of his office, which I assume you would counter with invoking the quasi-constitutional nature of your office and Canadians' right to access to information.

He recognizes your significant experience over the years, but his qualification, his reluctance, would not seem to offer a positive response to your suggestion of discretion. Do you think some mention of discretion in the application and your decision on his inclusion in the process would be a solution?

[Suzanne Legault]

The other aspect of the proactive disclosure proposed in Bill C-58 can certainly support what you are saying. If issues threaten to jeopardize the safety of individuals or judicial independence, it would be appropriate to apply exemptions. The legislation provides for exemptions in cases where individuals' safety may be in jeopardy. I proposed that exemptions also be provided to protect judicial independence. However, since that is really a constitutional principle, I presume that judges could make revisions if they believed that judicial independence was at stake, even if that is not indicated in Bill C-58. This is really my opinion. Like my colleague, I am not an expert in this area.

In addition, when we were preparing for our appearance today, we did not have access to that witness's submission to the committee. We simply based our review on what he said before the committee, as well as the committee's reports. We did not have all the information, so we could not analyze it in detail.

That said, I wanted to discuss this issue before the committee because he is the only witness to have raised it. In my opinion, his arguments deserve the committee's attention. The recommendations he made—publishing total amounts per court rather than for each individual judge—are a happy medium. I think they are worthy of the committee's consideration.

[Nancy Bélanger, Deputy Commissioner, Legal Services and Public Affairs, Office of the Information Commissioner of Canada]

I'm not an expert on constitutional law or on judicial independence. However, I can tell you that some of the information is already public. For example, salaries are provided under the Judges Act. Right now, total amounts are disclosed. In addition, under the Judges Act, judges' salaries are disclosed on an individual basis. For example, the salary of a superior court judge is already known.

What Bill C-58 proposes is to publish judges' names and the cost of their participation in conferences, their travel expenses, their hospitality expenses, and so on. What you heard from that witness is that very specific and individualized information on judges can undermine the independence of the chief justice's court administration. The chief justice is in charge of assigning judges to various places. In addition, according to the witness, publishing that information can compromise judges' personal safety.

I believe that the committee must take that seriously and do the work needed to see whether constitutionality and judicial independence are really at stake under the circumstances.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

That was a bit of a philosophic speech. That said, care should still be taken when bills are drafted.

I want to congratulate you. You were really brave to sound the alarm on Bill C-58.

I hope that our committee will be able to make the recommendations needed to amend the bill. If that does not happen, you will understand that it's because our party does not have a majority.

Thank you.

[Suzanne Legault]

I am here to testify on Bill C-58. I explained in my report my concerns with regard to this bill and I made recommendations. Anything beyond that is outside the scope of my testimony.

[Suzanne Legault]

The provision that provides an exemption for personal information has existed and been interpreted for 30 years. After all, it is a mandatory exemption. It reflects the fact that personal information belongs to the individual and not to the government. So it is appropriate to have a mandatory exemption and notices provided to the privacy commissioner pursuant to section 8 of the Privacy Act.

What I take issue with is that Bill C-58 proposes requiring the information commissioner to consult the privacy commissioner in all cases where institutions have given notice to the privacy commissioner. I think that will make investigations conducted under the Access Information Act virtually impossible. As I explained, it will hurt not only the efficiency, but also the integrity of investigations. That is why I have a lot of difficulty with the proposals of Bill C-58.