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.

[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—

[Dean Beeby, Journalist, As an Individual]

Thank you, committee members, for inviting me back as a witness as you wrap up your report on access to information.

Almost three years ago, the then Treasury Board president announced a review of access to information. Monsieur Duclos said in June 2020 that the review would focus on three things—the legislative framework, proactive publication and the administration of access to information. The minister said the review would also “seek the views of Indigenous Peoples on aspects of access to information that are important to them”.

I delivered a lengthy brief to the Treasury Board’s review team, proposing nine specific amendments to the legislation, because, after all, a review of the legislative framework was the very first thing on the minister’s list.

Last week I learned that my brief was a complete waste of time. The new Treasury Board president told the committee, “My current priority is to improve [the] administration of the existing law.” She resisted calls for amendments to the Access to Information Act, claiming that Bill C-58 had already done the job four years ago.

I felt duped. Many others who submitted legislative reforms must also feel duped.

Madame Fortier also said last week that halfway through the three-year review, Treasury Board realized that it needed to engage with indigenous people, and so asked for their input. Apparently, the minister and her officials did not get that June 2020 memo from Monsieur Duclos about the need to seek the views of indigenous people.

Once again, a government with no stomach for transparency has ragged the puck for three years. Now they promise a so-called action plan sometime in year number four.

An activist I know talks about something she calls the “cycle of denial”. She works to stop violence against women. Every police agency and government asks that her group supply evidence about the problem. She diligently puts together briefs and reports. Time passes. Agencies and governments with new leaders then ask for fresh evidence. The cycle of denial starts again. Nothing gets done.

The Treasury Board’s report on access to information last fall is the 17th such review since 1982—not a particularly insightful one, by the way—so we have our own cycle of denial in the transparency world. Nothing is getting done. That’s no accident. Governments always lose their appetite for openness one day after elections are held.

Your committee’s work is an opportunity to push back against foot-dragging by bureaucrats and ministers, to give voice to Canadians who dare ask how government is spending their money, and to help backbenchers get answers to questions that are routinely dismissed in Parliament. I hope your report will put important legislative amendments back on the table. They are as important to reform as administrative changes.

I'll be glad to take questions. Thank you.

[Ken Rubin, Investigative Researcher, As an Individual]

Mr. Chair, for a minute I thought I was in a study session instead of a serious legislative committee, but I'm going to show you why you have to take things seriously.

Since I came to testify nearly six months ago, several detrimental changes to the right to information have occurred.

One is the refusal to call a public inquiry, given the lack of substantive public information on foreign influence on Canadian affairs in elections. Another roadblock is the government's accelerated use of artificial intelligence as part of its largest switch to data-driven decision-making operations, which the minister was hinting at. There is also mounting evidence of secrecy in government contract outsourcing. That comes with the comptroller general cautioning officials not to say or reveal much. New entities like the Canada growth fund are being set up largely outside the access to information regime. Public inquiries have made releases showing that dysfunctional and secretive cultures of the RCMP and National Defence are being allowed to flourish.

In addition, the new federal employee hybrid workplace scheme makes processing access requests more difficult and less of an essential service.

Finally, before the committee, it's very late and she didn't really get into the Treasury Board review, with no recommendations and no hope for any recommendations except some vague action plan. She only confirms that the government wants to impede and delay meaningful access reform. The truth is that Treasury Board has done incredible harm over four decades, making full disclosures impossible.

This committee must sanction Treasury Board for its inept, self-serving review and recommend that Parliament remove it from having a central role in access to government records. In its place, the committee should recommend that an arm's-length freedom of information agency be set up under a revised law to handle and promote public information disclosures. What is first required is that the right to information squarely and clearly should be seen as a guaranteed constitutional right falling under the freedom of information section of the charter.

A transformative right to know has to be immediate with full disclosure of health, safety, environmental and consumer data, with the same disclosures for decision-making records and financial transactions and accounts. That requires quick access without fees. Should officials not honour their obligations for documenting, servicing and disclosure but try all kinds of creative avoidance, they must be subject to stiff penalties.

The inclusion of broad coverage of agencies receiving or using public funds can no longer be ignored. What also has to come to an end is the broad array of exemptions and exclusions to access. Authorities have created myths about cabinet and bureaucratic operations and records being sacrosanct. This must change as places like New Zealand have shown it can.

The last time around in Bill C-58, what was created and what needs to be undone was a retreat from full disclosure through a two-tier system. It's a system in which sanitized summary data on permanent exclusions of ministers and the Prime Minister's Office was falsely sold as a so-called advance. Ottawa needs to drastically change from being a place of spin communications, closed-door meetings and gagging employees.

Canadians need a dramatic new way to access data and be able to participate in and know about Canadian government affairs.

This committee and its 28 or so recommendations can help lead the way. Let's hope so. The minister isn't going to do it for you.

Thank you.

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

I've filed a number of them, and 60% closed in 30 days is a pipe dream compared to my experience—to give you some context.

I'm glad you brought up Bill C-58. However, when hearing from witnesses, they had a very different experience and in fact outlined quite a few times how a few disclosures and reduced fees seem to be a way for the government to hide behind increased secrecy in their actions.

In light of all of that—and we've heard a lot of criticisms of Bill C-58—why are the criticisms about Bill C-58, which your government passed a number of years ago, not included in your report?

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you.

Appearing before the committee on March 7, 2023, the Information Commissioner also stated that, although Bill C‑58 conferred the power to issue orders, those orders are not always respected because they are not the same as court orders.

Do you think it would be helpful to amend the Access to Information Act to make the Federal Court approve those orders in order to streamline the process?

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

Thank you.

We have seen and heard that changes through Bill C-58, while improving transparency and openness in government, have changed the nature of requests.

Can you elaborate on the changes of these requests and how they impact the ATI system overall?

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Just to make sure that I clarify the remarks that I made at the end of the first round, Mr. Chair, Bill C-58 introduced legal requirements for proactive publications that apply to ministers and not to cabinet. I used the word “cabinet”, so I just wanted to make sure.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

I believe that in C-58 we said that we'd review the legislation—

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

When we announced Bill C-58, we said that we would carry out a review of the act in five years. Part of that work is already under way, to see how we can make legislative changes. The most important thing to note at this point is the necessity of putting tools in place. The digital system plays a vital role in meeting the demand. As Ms. Luelo mentioned, in the past, records tended to be paper-based, but today, many records are available through Teams meetings, for instance, or are stored in databases. That means the data are not limited to paper records, so we are in the process of introducing administrative tools to enhance the system.

I hope that partly answers your question.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

I only have about 30 seconds, if you could just comment on this. Bill C-58 was a start, and really the government is working on improving a system that has been increasingly backlogged for more than 30 years.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Yes. Thank you for your question.

Let's remind Canadians who are watching today that Bill C-58 was adopted by our government four years ago, and we are in a process of reviewing the act. Many of those decisions at the time gave more power to the Information Commissioner, and we were also able to eliminate all fees beyond a five-dollar application fee.

I would like to now turn to the fact that, since then, we've been putting a lot of effort into working on more administrative tools that we need to bring forward to reduce the burden and the load that we have seen increase over the years. For example, we now have the Open Government portal, which is really helpful in getting those requests done more quickly. As I said to a question earlier, we have also tried to give staff more tools by training them and by giving them more opportunities to manage.

Maybe I'll turn to Catherine to talk about the digital aspect, if we have time to do so.

[Caroline Maynard]

The change was made through Bill C-58 in 2019. The commissioner's authority was to issue recommendations to institutions. Now it has been changed. I can make recommendations, but I can also order disclosure or order that a certain time for disclosure be done.

The change is tremendous, because when we only made recommendations our office felt that it had to negotiate. For a long time, there was a lot of negotiating with institutions, because we were worried that the requester would not get what he or she was asking. We realized that it created long delays. We didn't have the power to really work with the institution and make it happen.

Now, with the order, we don't negotiate anymore. We ask for representations and we ask why they are late or why an exemption has been applied. If we don't agree, we agree to disagree and the order is issued. Now the institution has to respond to the order. It's a lot quicker and it's a lot more efficient.

[Caroline Maynard]

I have to say that, until 2019, my office could only make recommendations. That was, I think, the biggest issue with the system, because for years, complaints resulted in simply a recommendation. The institution could ignore it unless my office took them to court.

Now we are issuing orders, and if they don't agree with the orders, they have to take it to court. What I see, however, is that sometimes they don't say that they don't agree with it, but they don't do it. I don't have the authority to make sure that they comply with the order. Imagine.... They don't comply with the act, but they don't comply with the order as well.

This committee needs to look at providing a process by which the orders can be certified in court. Then you can go to the institutions with this order. It's something that is now in the bill for the Official Languages Act. They are changing the Commissioner of Official Languages' authority. They actually put a certification provision in there, and I think it's been done for the Privacy Commissioner as well.

It exists. It's something that is there. I asked for it for Bill C-58. It was not given to me. However, we do have the orders and we publish those, so that is something that is also very helpful.

[Caroline Maynard]

I'll say that Bill C-58 gave me the power to order institutions to issue disclosure and to meet some deadlines. Unfortunately, my orders are sometimes being ignored. I don't have a certification process to go to the Federal Court to make sure that these orders are seen as having the power of an order from a court. It is still better than recommendations; I can tell you that.

What we need are better training and more retention of the people who are doing this. We need to have better analysts, and we need to have an act that is modernized. The act was tabled four years ago, and it has not been changed much. Apart from my ordering power, the exemptions and exclusions have not been reviewed. There's also a lot to be done within the system. The report talks about information management and declassification programs. Those are huge issues within our government, but there doesn't seem to be concrete action on how to tackle these issues.