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.

[The Chair, Conservative, Bob Zimmer]

I call the meeting to order.

Good afternoon, everybody. Welcome to the Standing Committee on Access to Information, Privacy and Ethics meeting number 75. Today we're speaking about Bill C-58, an act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts.

Today we have the Office of the Information Commissioner of Canada, Suzanne Legault. Just for information to the committee, the presentation is going to be a little bit longer than the 10 minutes; it's around 20 minutes. Also, I'll announce that we have some committee business at the end of the meeting. We only have one presenter today, so we may exit earlier than we planned.

Go ahead, Commissioner.

[Robert Ramsay]

From CUPE's perspective, I believe that one of the most major deficiencies with Bill C-58 is what is not in Bill C-58. There are a number of issues in the current access to information legislation that are inadequate. Members from all parties have acknowledged this over the years. There have been multiple studies and multiple recommendations. Canada's international counterparts have sped ahead, while Canada's act has stayed the same for a very long time. There are many political reasons for that. I think that this represents an opportunity to address those issues, and they're not in Bill C-58.

One that we are most concerned about, because it is central to our work, is access to information around the provision of public services, whether those public services are provided by government or in co-operation with a private entity. Currently, under the legislation, the so-called trade secrets and commercial and economic information that belong to a third party can be excluded under that blanket language.

[Murray Rankin, NDP, Victoria, BC]

Mr. Ramsay, I think you indicated that a lot of Bill C-58 was unacceptable. I can tell you that you're in very good company with the Centre for Law and Democracy, the Canadian Association of Research Libraries, media organizations, academic experts, and most notably, the Information Commissioner of Canada, Madam Legault, whose report is certainly the most scathing that I've ever read in my 30 years of looking at this legislation. You're in good company in saying that.

You mentioned in an answer to another question that you wanted a harms-based test for the exemptions under the act. If you had to list your most significant concerns, would the failure to address that be the main problem with Bill C-58?

In your judgment, could you tell us what are the most significant problems with this bill?

[Robert Ramsay, Senior Research Officer, Research, Canadian Union of Public Employees]

Good afternoon. My name is Robert Ramsay. I work as a senior research officer with the Canadian Union of Public Employees at our national office here in Ottawa.

I want to start by thanking the committee for this opportunity to present our thoughts on Bill C-58. We look forward to seeing our recommendations as well as the serious concerns expressed by the witnesses in previous sessions reflected in your committee work.

The Canadian Union of Public Employees, or CUPE, is the largest labour union in Canada. We represent 650,000 workers across the country in sectors as diverse as health care, social services, child care, municipalities, schools, universities, and transportation, among others. Our members provide a range of vital public services in thousands of communities, where they and their locals are engaged civic partners.

Since our founding in 1963, CUPE has been one of the strongest and most consistent voices defending public services in Canada. We know that robust, well-funded public services serve Canadians best and that the privatization of these services leads to higher costs, as Auditors General have revealed when they gain access to the full range of information about a privatization project. Privatization, whether through asset sales, P3s, outsourcing, or social impact bonds, also represents a real threat to the quality and level of access that public services should provide. As such, CUPE has serious concerns about Bill C-58, both about the parts of the current Access to Information Act that it proposes to amend and about the existing deficiencies that it fails to correct.

First, this bill leaves intact sections 18 and 20, which exempt from disclosure any material or information that falls under the broadly undefined category of trade secrets of either the government or a third party. The language removes from public scrutiny any financial, commercial, scientific, or technical information that has what is called “substantial value” or is reasonably likely to have substantial value in an undetermined future.

The current language allows the government to refuse to disclose third party information that was treated confidentially by that third party. It exempts from disclosure, in a preposterously broad limitation, any information that “could reasonably be expected to be materially injurious to... the ability of the Government of Canada to manage the economy of Canada”. The scope of information that can be exempted from public disclosure under this language is virtually infinite: contracts with private security or accounting companies, pharmacological research, reports by consultants on proposed government actions, records of foreign investment, information relating to the health and safety performance of a third party entity providing public services. These are some of the possible exemptions under sections 18 and 20, and they are also examples of material and information that must be accessible to Canadians if access to information legislation is to be meaningful.

Certainly we understand that there are legitimate grounds for non-disclosure, such as national security and personal privacy, and that access requests can sometimes require judgment calls by government officials. These exemptions, however, like those in other sections that hide from view the actions and decisions of the PMO, cabinet, and ministers' offices, are overly broad, not subject to a test of real harm, and not subordinated to a meaningful public interest override.

We must note as well the dangerous ways these exemptions intersect with other legislation this government has proposed in what others more cynical than we are might characterize as a war on transparency. For example, Bill C-22 gives the staff of the Department of National Defence the authority to decide what is excluded from disclosure without any independent review. In Bill C-44, section 28 of the Canada Infrastructure Bank Act expands exclusions to include information about proponents, private sector investors, and institutional investors in infrastructure projects, again with no independent review.

The Canada Infrastructure Bank Act provides a clear example, in fact, of the regressive nature of the current legislative trajectory. Not only does the Canada Infrastructure Bank Act lay out overly broad additional exemptions, it also places final decisions before cabinet, essentially shrouding the entire process in darkness, out of the reach of the Information Commissioner, the Auditor General, and even the federal courts.

Let us provide a concrete example. CUPE recently filed an access to information request for information and material related to the government's participation in the private REM light rail project in Montreal, specifically for the reports and analyses prepared by a third party consultancy called Blair Franklin Capital Partners. This is a project to which the government has committed 1.3 billion public dollars, and it is something the government has indicated the Canada Infrastructure Bank may take on as one of its first projects.

Is this a good investment? What information has the government relied on to make that decision? Were environmental, health and safety, or accessibility concerns integrated into the decision? What is the business model and the business case? What is the projected fee structure, and will it be regressive or restrict access?

Answers to these questions are central to the public's understanding of this particular public investment. In other words, the public interest is immense. However, when we received a response—after a delay, of course—Infrastructure Canada invoked section 18 to redact virtually all of the records, making the entire 613-page disclosure incomprehensible and useless.

Rather than apply the exemptions narrowly and with respect for the public interest, it has become common practice for the government to redact by default, to exclude by default. This is an application that runs counter to the stated aims of the act and the bill under review, and counter to international standards of open government.

While there may be legitimate exemptions for disclosure of third party information, they would need to pass the test of real harm in each case. It is not legitimate for government to refuse disclosure simply because the information is related to a third party interest.

A recent report by the Vancouver-based Columbia Institute, entitled “Canada Infrastructure Bank and the Public's Right to Know”, notes that there is virtual unanimity among information commissioners across Canada that private entities that receive public funds or perform a public service or public interest function must be covered by access to information legislation. This is the emerging consensus internationally as well.

Here, though, this government has moved in the opposite direction by establishing a regime in which information on how our public services and public infrastructure are provided, how they are funded, how these decisions are made, and even who is involved in the work can be hidden behind a curtain of third party privilege. CUPE submits that the government instead needs to ensure that access to information under sections 18 and 20 faces far narrower exemptions that are subject to a test of actual harm, to a strong public interest override, and to review by the Information Commissioner, and that this act take precedence over any other act, such as the Canada Infrastructure Bank Act, that seeks to unreasonably limit the public's right to know.

We would also like to take a moment to echo the serious concerns of your previous witnesses. Proposed section 6, as written, creates new hurdles to gaining access by establishing requirements for the structure and content of requests that void the government's duty to assist and that defeat the very purpose of the act. Proposed section 6 also would allow the government of the day to create unilaterally a “do not respond” list of troublesome Canadians who always seem to want to know something and ask too many big questions. The determination that an access request is frivolous, trivial, vexatious, or made in bad faith is one that cannot and should not be made by the government of the day to whom the information request is made. This is a subjective determination that is necessarily rife with conflict of interest.

Another barrier to access is cost. Bill C-58 leaves open the possibility of government requiring new and onerous costs for access. Where is the promise for a nominal $5 fee with all other costs voided, and for the $5 fee itself to be refunded if timelines are not met?

We also agree with other witnesses that Bill C-58 represents a missed opportunity. There are serious problems with the current legislation, problems that the current government correctly identified while in opposition and that remain wholly unaddressed in the proposals before you. Canada, despite its leadership in other areas, sets a very poor example globally with the current act. According to the global right to information index compiled in part by the Centre for Law and Democracy and based on 61 indicators, Canada is ranked 49th out of 111 countries on the quality of its access to information laws.

News Media Canada has criticized this government's approach to access to information as being “even worse” than the previous government's. Your own outgoing Information Commissioner has called Bill C-58 “a regression of existing rights”, as has been mentioned many times at this committee. We urge you to take her 28 carefully considered recommendations.

To summarize, we submit that the law must apply to private third parties who receive public funds or perform a public service function. All exemptions must be discretionary in practice. The Information Commissioner's office must have at its disposal a full tool box of real order-making powers and the authority to enact penalties. We agree with Democracy Watch that the appointment process for the Information Commissioner must be changed so that it is open, merit-based, and not controlled by the very ministers the commissioner will be reviewing.

In conclusion, we cannot recommend that Bill C-58 proceed as written. It is, quite simply, bad legislation. It makes access more difficult rather than improving it.

Instead, CUPE calls on the government to review the problems that these hearings and previous commentary have identified, to research the best examples from your provincial and international counterparts, and to draft amendments that have as their guiding principle what Mr. McArthur, the acting commissioner from B.C., called “access by design”: an act that facilitates access rather than blocks it and that leads to a government that is truly open by default and closed only in the narrowest, independently defensible circumstances.

Thank you again for the time. I would be happy to answer any questions you may have.

[Pierre Bienvenu, Lawyer, Senior Partner, Norton Rose Fulbright Canada, Canadian Superior Courts Judges Association]

Mr. Chairman, members of the committee,

Thank you for inviting the Canadian Superior Courts Judges Association to give its views on Bill C-58. My name is Pierre Bienvenu. I'm a lawyer in private practice at Norton Rose Fulbright, and I have long represented the association in relation to judicial compensation and benefits, and other constitutional law issues.

The association is composed of judges appointed by the federal government at the various levels of courts around the country. It has around 1,000 members, representing approximately 95% of all federally appointed judges, including judges of the superior courts, appellate courts, the Tax Court of Canada, and the federal courts.

Members of the committee, the provisions of Bill C-58 that cover judges are of grave concern to the association. The judiciary was not consulted prior to the bill's being tabled in Parliament, and the association therefore welcomes the opportunity to address this committee on questions that it considers fundamental. I should mention that the association has shared the submission I am presenting to you today with the Canadian Judicial Council, and the council has indicated that it endorses this submission.

Let me say at the outset that the judiciary acknowledges that Bill C-58is pursuing important objectives of transparency and accountability. However, there are compelling reasons that these objectives, in the case of judges, must be pursued by means that differ from the means adopted for elected officials and members of the bureaucracy.

The part of the bill relating to judges would require the publication of individualized information regarding a judge's expenses, including the judge's name, a description of the expense, the date on which the expense was incurred, and the total amount of the expense. The expenses in question are those reimbursable under the Judges Act as so-called “allowances”. There are provisions in the bill proposing to allow the registrar of the Supreme Court of Canada and the commissioner for federal judicial affairs to withhold publication if publication could interfere with judicial independence, could compromise security, or contains information that is subject to privilege or professional secrecy.

There are three basic points I want to make here today.

The first is that Bill C-58 proposes to apply to judicial expenses a regime that, insofar as accountability is concerned, is duplicative of control mechanisms that already exist in relation to reimbursable judicial expenses.

The second is that the proposed expense publication regime is unsuitable for judicial expenses and raises profound concerns for all judges, but particularly for judges on national courts who are required to travel extensively.

My third point is that the important objectives of the bill can be achieved by other means that do not violate judicial independence.

These points are developed in a written submission, a copy of which I've provided to the clerk of the committee, and which I invite members of the committee to read. I have time only to say a few words on each of them.

Bill C-58 is duplicative in relation to federally appointed judges because there are robust measures already in place to ensure that judicial expenses are legitimate, reasonable, and subject to independent verification. The categories of expenses that judges may incur in performing their functions are set out in the Judges Act. Judges cannot seek reimbursement of any expense falling outside of these defined categories.

In addition, there is a federal official, assisted by his own staff, whose responsibility is to review each and every judicial expense claim to determine whether the submitted expense falls within a category set out in the Judges Act and whether it was properly incurred and is reasonable. That person is the commissioner for federal judicial affairs, and for the judges of the Supreme Court of Canada it is the registrar of the Supreme Court.

I come to my second point, which is that there are two fundamental problems with the proposed regime as it would apply to judges. The first is the granularity of the information required to be published, tying named individual judges to identifiable judicial expenses. The second is the designation of a member of the executive to make a final decision as to whether the publication required by the bill could interfere with judicial independence.

Allow me to articulate the first concern by reference to expenses incurred by judges of Canada's national courts, such as the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada. National courts are a service to Canadians and an expression of our commitment to our country. Judges of these courts are required to reside in the national capital region, but they must travel extensively, as they sit on cases across the country. As a result, they have significantly higher expenses than their colleagues at courts that do not require such extensive travel. Even among judges of national courts, some will travel more than others as a consequence of assignment decisions by their respective chief justices.

The point is that the total expenses of a judge may stand out for the reasons just given, but those expenses would have been incurred not by choice but by reason of service on a national court and the assignment decisions of a judge's chief justice. It is grossly unfair, and indeed unacceptable, that the burden of standing out from the lot by reason of high travel expenses be borne by an individually named judge, as opposed to the court to which he or she belongs.

Please also consider that by definition, the judicial function results in at least one party being dissatisfied with the result. The potential for mischief in the use of publicly available individualized expense information is enormous, and unlike persons working in other branches of government, judges may not defend themselves publicly when they stand attacked. There are also real concerns about the security of individual judges if where they stay and eat while travelling on judicial duties or where they gather for legal education conferences were publicly disclosed.

There is a glaring constitutional defect in the safeguard clause in proposed section 90.22 in Bill C-58. That section, coupled with proposed section 90.24, proposes to give the commissioner and the registrar final say on the question of whether the principle of judicial independence could be undermined by publication. The registrar and the commissioner are members of the executive branch. It is not acceptable from a constitutional perspective to give them the responsibility to make a final determination of such a question.

I have presented the problems. I now turn to solutions. This will be my third and final point.

There are ways of balancing the bill's important objectives against the constitutional requirements of judicial independence. The commissioner could publish expense information according to the categories of reimbursable allowances set out in the Judges Act and according to each court. For example, the commissioner could disclose that judges of the Ontario Superior Court of Justice spent x dollars as a whole on legal education and conferences during the period, while judges of the Federal Court spent x dollars as a whole on travel. It would be easy for the public, based on that information, to derive figures on a per-judge, per-court, and per-expense-category basis, which would attain the bill's transparency objective, all the while preserving judicial independence and not compromising the security of individual judges.

As regards the safeguard clause, the decision on whether judicial independence could be undermined by publication could be made to reside with the chief justice of the court concerned.

I thank you for your attention and remain available to answer your questions.

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

Yes. In the new version of Bill C-58, the one we are studying, are there any provisions that could adversely affect the way in which your departments operate, in your opinion?

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

You would at least have to give people the guarantee that access to the information would be private. If they can do that kind of research on themselves, perhaps they could also do it on other people. That is a little touchy. However, I feel that it still could improve the system.

In Bill C-58, have you seen any provisions that could adversely affect the way in which your two departments operate?

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you very much for being here.

I think there's been a lot of discussion about duty to assist, so I would like some clarity from you in what it means for those people who try to seek information under Bill C-58. For procedural purposes, because I have never filled out an access to information request, could both departments take me through the procedure step by step, including how you receive the request, how you evaluate the request, and where you intercede to provide a duty to assist, so I can understand how the whole process works from beginning to end?

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

Other than the ministers, I think you're the first panel we've had—maybe there have been others I missed—that like this bill. Very few who use access to information to seek information from government like this legislation at all; maybe they can find a few worthwhile nuggets.

With the little time I have left, I'm trying to stick to particulars. I can only work in specifics. You're dealing with migrants coming across the border. Right now we're setting up winterized trailers or something for them. If you offered advice to the minister, would it shield him from Bill C-58? If you said you think the cost estimate is going to be $100 million to set up a bunch of trailers and you provided that as advice to the minister under the current legislation, is that shielded from a future ATIP request?

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

I'm not sure that's [Inaudible--Editor] though, if you follow me, if they may be concerned about the same embarrassing documents being slipped out.

The ministers were before us. They tried to make an equivalency between proactive disclosure and access to information, as if they were equivalent.

I'd offer that those are false equivalents. Who's going to argue against the notion of government offering up more information by default? However, when we we seek to correct government behaviour, curb waste, or any of those things that happen in government, it's a very large institution with a very large budget. The idea that they're equivalent seems like a false equivalency in my mind.

Mr. Mundie, you seem to think Bill C-58 is okay. I just went through the commissioner's report and added up as she went through it piece by piece. She saw 13 categories in this bill as regressive, three of them as neutral, two of them positive, and two of them outstanding.

Is she wrong? You seem to pass it, to think it seems okay. She's looking at it from the perspective of the public seeking information. She sees 13 negative, three neutral, two positive, two outstanding. Is she wrong?

[Peter Kent, Conservative, Thornhill, ON]

Briefly, there's been a great deal of discussion over frivolous and vexatious and good faith.

I wonder if, rather than going into a long prologue, you could address your perceptions of frivolous and vexatious requests and in requests made in good faith, as referenced in Bill C-58.

Is frivolous and vexatious an issue for you today?

[Peter Kent, Conservative, Thornhill, ON]

You would agree in that case with his position that Bill C-58 confers order-making powers in an unwise way, in a way that would disrupt your balance.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

Last week we had an appearance by Mr. Therrien, the Privacy Commissioner. One of his key points was that he sees Bill C-58 as a disruption to the balance between his office, himself as commissioner, and the Information Commissioner.

You've spoken to the balance that you try to achieve within your agency and the department. I'm wondering whether you believe there is potential for disruption of an existing balance, in either of your situations.

[Peter Kent, Conservative, Thornhill, ON]

Thank you, Mr. Chair. Thanks to all of you for appearing before us today.

First, I have a general question for the agency and the department. The Information Commissioner has quite roundly considered Bill C-58 to be a regression of existing rights.

I would like to get your opinions, Mr. Mundie and Mr. Olsen. How would you characterize Bill C-58 in the Information Commissioner's terms?

[Michael Olsen, Director General, Corporate Affairs, Department of Citizenship and Immigration]

Mr. Chair, my name is Michael Olsen. I'm the director general of corporate affairs and chief privacy officer at Immigration, Refugees and Citizenship Canada. Accompanying me today is Audrey White. She's the director of access to information and privacy at IRCC.

I thank you for welcoming us here today and giving us an opportunity to discuss Bill C-58, an act to amend the access to information and privacy acts. IRCC has had the opportunity to appear before this committee on two previous occasions to discuss this review.

Mr. Chair, I want to discuss our department's performance first and then move into a discussion about the proposed amendments to the act.

In 2012-2013, the department received 30,124 ATIP requests. Since that time, the number of requests has more than doubled. Over the course of 2016-2017, we received more than 63,000 ATIP requests, representing a 23% increase from the previous year. For the current year, we are again seeing a 23% increase in the number of requests received.

In 2016-2017, our last year of reporting, IRCC received more access to information requests than any other federal institution. IRCC represents approximately half of all ATIP requests received by the Government of Canada.

Despite this increase in volume, IRCC was able to maintain a compliance rate of 79% for access to information requests and 68% for privacy requests. The ATIP division has been efficient in managing the volume of requests received in order to meet the legislative deadline.

IRCC has launched a number of initiatives in an effort to improve its performance and to address current challenges. Although these initiatives have increased productivity year over year, we continue to create strategies aimed at decreasing our backlog and improving our compliance rate.

The majority of ATIP requests received and processed within our department concern immigration case files. The department holds personal information on millions of individuals and collects significant amounts of personal information annually, due to applications for citizenship, passports, permanent and temporary residence. This in turn has a direct effect on the growing number of ATIP requests received by IRCC.

Mr. Chair, a total of 165 official complaints against the IRCC were filed to the information and privacy commissioners last year, representing less than 1% of all requests processed during that period. The duty to assist is taken seriously at IRCC. The ATIP division notifies requesters of possible delays in service. We act proactively to minimize the number of complaints.

ATIP also offers diverse training in person and online to IRCC employees on the importance of safeguarding privacy and protecting personal information. Mr. Chair, as the chief privacy officer at IRCC, I'm pleased to announce that we'll be having our second annual privacy day on November 1. This will provide a forum to spotlight key privacy issues in a complex and rapidly changing technological environment. Most importantly, privacy day demonstrates our continuous efforts to develop a culture of privacy institution-wide as well as our commitment to increased privacy vigilance. At IRCC, protecting privacy and personal information is paramount.

Bill C-58 provides new proposed subsection 6.1(1), which provides government institutions the ability to refuse requests that are vexatious or in bad faith or missing key details. This new power is discretionary, and IRCC will continue to exercise judgment appropriate to the spirit of the legislation.

As I mentioned, IRCC is committed to the “duty to assist” principles embedded in the act. We already process requests that lack specific details, either because they are unknown, unnecessary, or unspecified. Where necessary, ATIP works with requesters to clarify the scope of the request and to obtain missing information. We would only consider refusal in exceptional circumstances where, for example, all “duty to assist” options had been exhausted, processing the request would be impossible, or processing the request would impose a significant burden on IRCC that could not be reasonably managed through time extensions or other provisions of the act.

Mr. Chair, I thank you again for the invitation to provide IRCC's view on this important subject and for welcoming us here today.

I look forward to any questions you or the committee have. Thank you.