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.

Speaker's Ruling

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

Mr. Speaker, I am pleased to take part in the debate on Bill C-24, which amends the Salaries Act.

I have had the great privilege of representing my riding in the House of Commons since January 23, 2006, and the royal treatment that the Prime Minister and his ministers have been indulging in since they took office in 2015 is completely unheard of. It is insulting to the Canadians that we are.

Since this Liberal government took office, no one has been spared. The regions, families, companies and every sector of the economy are hurting. It is important to point that out. Everyone is hurting except, of course, the Liberal's little clique. Canadians never expected that they would be misled like this after the election.

I would first like to tell the people of Lévis—Lotbinière that only the Conservatives will continue to fight to put an end to the Liberals' improprieties and to show Canadians that the old Liberal culture shell games that have always benefited the Liberals are still going strong. We will fight back against the practices of Liberal ministers, such as the Minister of Finance, who is currently showing a clear lack of ethics . He is gouging Canadians to build his family empire on the sly in a nice safe tax haven in Barbados.

There is a great deal more that could be said about the Minister of Finance, but I will simply offer him a piece of advice. He may not like having his personal spending discussed in the House, but Canadians expect those who hold high office in the Canadian government to adhere to the principles of transparency, accountability, and trust, in accordance with the spirit of the Conflict of Interest Act.

All of us here in the House, including all the ministers in this government, are required to comply with this act. There is a Canadian legal principle that stipulates that a person cannot plead ignorance of the law to avoid compliance.

This Liberal government is unique in Canadian history for its boundless hypocrisy. Worst of all, its word means nothing. It is truly appalling. Bill C-24 creates eight new Liberal ministerial positions, including five for ministers of state who were appointed after the 2015 election and three as yet unspecified.

Members may recall that this time last year, we found out that preferential treatment was being given to supporters willing to make a contribution to the party in exchange for access to ministers, who were all too willing to prioritize the interests of a minority over the common good.

Bill C-24 will eliminate the positions of regional development agency ministers and transfer their many responsibilities to a single minister, one with special privileges, naturally. We are very concerned about Canada's regions. Indeed, how can a single minister be expected to replace 5 other ministers and fully grasp the situation in every region of a province, for instance Quebec?

I have had the privilege of visiting Quebec's regions and I can say that, like everywhere else in Canada, our situation is unique. This summer, the Prime Minister said that appointing a minister from Toronto to oversee all the regional development agencies would do away with the sort of politics that we always had. What a joke.

We have known for a long time that Toronto is the one pulling the country' strings, not the Prime Minister's Office, which explains the finance minister's huge influence. He is one of the government's untouchables, though we cannot understand why.

Worse still, when the Prime Minister said he was putting a minister from Toronto in charge of ACOA because of the kind of politics in Atlantic Canada, that was a defamatory insult to Atlantic Canadians. Since the government did the same with the Quebec regional development agency, can we infer that the Prime Minister's attitude toward Quebeckers is just as cynical?

The Liberal-dominated committee responsible for studying Bill C-24 did not hear from a single witness about the plan to cut regional development minister positions. That kind of political manoeuvring from a government that claims to make its decisions based on evidence is not acceptable. Unlike the Liberals, the Conservatives will fight for appropriate regional representation and authority without insulting Canada's regions.

The most basic right in a democratic country is the right to be heard. This kind of thing is unprecedented. Bill C-58, which limits access to information in Canada, is yet another example of the Liberal Party's conceit and lack of transparency. Canadians are ashamed of this government.

The Standing Committee on Government Operations and Estimates only heard from a government house leader and a teacher during the course of its study. That is an insult to the intelligence of Canadians and our most fundamental right of expression as full participants in the decision-making or policy development process.

Since when is a decision like this made in Canada? The arrogance it must take to have the audacity to make such an important decision without consulting the grassroots, those who understand the situation in every region.

As if that was not enough, Bill C-24 also amends the Salaries Act to grant equal salary to all ministers, giving junior ministers the same salary as ministers with more important portfolios without having new responsibilities. This is a bit surprising. Given the government's poor record, we wonder if anyone over there is actually working in the right direction here, in other words, working to ensure our economic prosperity in Canada.

On this side of the House, we believe that taxpayers’ money belongs to the taxpayers, not the Liberal Party. I prefer making my own investments rather than the Liberals making them for me. The announcement by the government of a new minister does not mean additional rewards for friends, and these budget allocations will not benefit all Canadians. Our official critics on this side of the House are more productive, and at no additional cost to Canadians.

Moreover, the Minister of National Revenue does not even know what is happening in her own department, as she has said so well in the national media and as I heard her say again last night. Clearly, the net is tightening on the Minister of Finance.

What we have here is a careless government. They have given up on defending democracy, accountability, their commitments, protecting everyone regardless of status, their responsibilities and the common good, all to benefit a minority. Most reprehensibly, they have given up on future generations, whom they leave in a financial abyss. By delighting in showering today's taxpayers with money, the government is misleading voters, because governments never really give money away, as they can only do so by mortgaging our children’s future.

Currently, the Liberal debt represents $2,500 more per year for a family with two adults and two children. This means that, for the next 30 years, because the government has told us that we will undoubtedly have a deficit for the next 30 years, an extra debt of $100,000 per Canadian family will be left to future generations by this government opposite. That is shameful. Only the Conservatives can ensure a financial balance that will eliminate the deficit by not living on credit at the expense of our future generations.

We can never say it enough: the Liberals, who believe they are above the law and have to be caught out before admitting their mistakes, have no claim to the label they gave themselves; they are anything but a responsible, open, and transparent government. The mistakes that led them to explain themselves before the Ethics Commissioner are multiplying, but there is worse: now they want to play a guessing game with Canadians. With Bill C-24, the Liberals are also asking Parliament to approve the appointment of three mystery future ministers. What nonsense.

I often rise to seek answers from the government. Like many, I remain in the dark, surrounded by the Liberal fog, a thick fog that will very soon mix, I’m afraid, with marijuana smoke. I will close by saying that too many Liberal decisions remain unjustifiable, irresponsible, unethical, and illogical. It costs too much to elect a Liberal government with a parade of preferential ministers, when it is us, the official opposition, who do all the work in Canada.

[Peter Kent, Conservative, Thornhill, ON]

As you have laid it out here and you suggested in your remarks, this is a reason to enshrine the constitutional nature of privacy in the act itself, in Bill C-58 amendments.

[Peter Kent, Conservative, Thornhill, ON]

Thank you very much, Chair.

Thank you to you and your staff, Commissioner, for appearing before us today.

I'd like to focus on your disagreement with the Information Commissioner with regard to consultation, and although you see an improvement in Bill C-58 in terms of strengthening the relationship, there is still disagreement.

I'd like to ask you about the past, or coming to the present, do you often meet with your counterpart to discuss some of these issues, your concerns, her concerns?

[Daniel Therrien]

That's another point that goes to the Access to Information Act being a means to a broader end. On that point, my understanding is that my colleague the Information Commissioner has sought provisions allowing for refusing to investigate complaints based on their having a vexatious or frivolous nature. She has not recommended, I believe, based on her special report, that she is opposed to other access limitations provided in proposed sections 6 or 6.1 of Bill C-58, including the need for complainants or requesters to identify in some manner the information they are seeking. The Information Commissioner herself is in favour of the concept of “frivolous and vexatious”, but not other limitations.

As a fellow commissioner, having to balance the desire to respond positively to complaints under my act, the Privacy Act, for personal information, and to do that in an effective manner, I can see the need for “frivolous and vexatious” as a ground to refuse to investigate certain complaints. Moreover, I would see that this is something that would make sense to give to departments as well, as long as, as the bill provides, there is a review of the decision by the relevant commissioner. So I'm not opposed to the notion of the concept of frivolous and vexatious.

The other limitations are new, and I'm not opposed to them in principle, on the basis that perhaps some requests could be so voluminous that they would impede the normal workings of a department. The question for me goes back to the objective and purpose of the act. Is it linked to transparency and accountability to answer that request or not for a number of reasons. I'm not opposed to the concept of the limitations, but the language in the wording of the limitations deserves close consideration.

[Erin Weir, NDP, Regina—Lewvan, SK]

I think that's an important point to get on record.

A second aspect of Bill C-58 that is quite concerning is that it would give the government new grounds on which to deny access to information requests. Specifically, it would provide the power to decide that a request is frivolous or vexatious. The argument we heard in Parliament in favour of that provision was the example of an ex-spouse requesting a former spouse's address and work hours. It strikes me that this information should already be protected as personal information and that there's really no need to empower the information officers to determine that the request itself is frivolous or vexatious, but I'm curious what you think about that.

[Daniel Therrien]

It's true that the identity of officials or other people may sometimes have to be protected and that, in other cases, it is unreasonable to protect them.

I imagine that there may be differences of opinion, and the circumstances are important. I'll talk to you about the provision of Bill C-58 that states the purpose of the act, because I think it's important to the question you're asking. The purpose of the act is amended to read that the purpose is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions”.

So there will be cases where information affecting a political position or topic x from the public service will be disseminated, which is very much in the public interest. Do the individuals involved in this policy need to be identified? I think the new purpose of the act is helpful in answering this question. It's a tool that did not exist previously.

In the example you gave, would knowing the identity of the public servant enhance the accountability and transparency of federal institutions? It may, or it may not.

Would it promote democratic debate? It may, or it may not.

The purpose of the act is very helpful here in answering these questions. Sometimes, the public debate can be complete, quite democratic, without the need to identify the individuals involved. Sometimes, it will be quite relevant to know the individuals involved to judge the merits of someone's point of view, in order to have an open and informed democratic debate.

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you very much, Mr. Chair.

Members of the committee,

thank you for inviting me to provide my views on Bill C-58.

First of all, I want to say that we support the government's commitment to open government, and we see this review of the Access to Information Act as welcome and long overdue. Making more government information available to the public is crucial to fostering transparency, accountability, and trust.

The OPC has frequently championed transparency. For example, as part of Privacy Act reform, but also in our submission to Treasury Board Secretariat on revitalizing access to information, we expressed support for open government, particularly in enabling informed citizens to participate fully in democratic debate. However, it is recognized internationally that open government can and should only be achieved in conjunction with appropriate privacy protections, for societal acceptance is predicated on trust that privacy will not be unduly infringed.

The online environment requires rigorous de-identification techniques to be applied and validated by experts prior to disclosure. The OPC and Statistics Canada can play key roles in minimizing the inadvertent release of personal information by government in the course of implementing open data initiatives.

We are confident that access and privacy are parallel goals that can be reconciled. The Access to Information Act and the Privacy Act have long been considered by the Supreme Court to be a “seamless code” of informational rights, the combined purpose of which is to carefully balance both privacy and access.

The court has further held that the personal information exception to access is mandatory and “should not be given a 'cramped interpretation' by giving access pre-eminence over privacy”.

Our previous comments on the Access to Information Act focused on the importance of maintaining this balance. We spoke in favour of maintaining ATIA's public interest exception that permits the disclosure of personal information only where the public interest clearly outweighs a claim of privacy.

We had also recommended that the definition of “personal information” not be amended. We are pleased that Bill C-58 leaves these concepts unchanged.

We further recommended that Parliament defer changing the Information Commissioner's power to order the disclosure of personal information until a legislative review has been done of the Privacy Act and its interplay with the Access to Information Act.

Nonetheless, Bill C-58 proceeds to confer upon the Information Commissioner order-making powers, including in respect of personal information disclosures. This would significantly and clearly disrupt the balance struck in the current legislation. We acknowledge that Bill C-58 takes limited steps to restore balance, primarily through notification requirements and legal recourse against formal OIC orders. However, this falls far short of maintaining the required balance, as privacy would be impacted outside formal orders or through OIC recommendations or institutions' decisions to disclose personal information to avoid OIC orders. I would not be notified or given the opportunity to intervene in such cases, even though the OIC and OPC may diverge on key legal issues relating to the balance of both rights.

For example, the offices may disagree on the degree of risk of re-identifying anonymized information or metadata, which could be determinative in assessing whether it constitutes personal information that should not be disclosed. The commissioners may also diverge on whether personal information is publicly available and whether the public interest clearly outweighs a privacy invasion, particularly in light of the new purpose clause in Bill C-58, which the Information Commissioner finds concerning, but which I find helpful.

Recently, in response to the bill before you, the Information Commissioner has taken issue with the proposed obligation to consult the Privacy Commissioner. She says consultation is unnecessary as the OIC has years of experience in interpreting the relevant provisions. This is very unfortunate, and clearly inappropriate as the Supreme Court has recognized the—quote, unquote—“central role” of my office in protecting privacy.

It is true that the OIC has significant experience in interpreting the personal information exception to access, but that experience has been developed as a champion for access rights. To ignore the views of other actors who have a legal role in ensuring the balance between access to information and other rights plainly makes the case that, as legislators, you must recognize in Bill C-58 the role of the OPC as privacy champion. Furthermore, this should be extended to all situations where privacy is in need of protection. The quasi-constitutional nature of the right to privacy is another reason to enshrine this role in the bill before you.

To restore the balance between access and privacy in Bill C-58, I propose two legislative solutions.

First, the bill should require mandatory notification of and consultation with the OPC in all cases where personal information is at real risk of being disclosed without the individual's consent, and not just when there is a formal order about to be issued. The point would not be to consult in every case in practice. Although the obligation to notify and consult with the OPC would be the rule, this obligation in the interests of resource efficiency would not apply to lower-risk situations where the OIC and the OPC had agreed that consultation would not be necessary. This type of agreement would support collaboration with the OIC to ensure the best balance between these two fundamental rights.

Second, I recommend that Bill C-58 give the OPC the opportunity to seek judicial redress in all cases where personal information is at material risk, and again not only those where an order has been made. Again, this right of redress would not be exercised in every case in practice, but only where necessary to protect privacy and to develop jurisprudence that would guide both commissioners, departments, and citizens on the applicable law.

To bring further clarity to my proposals, I have attempted to put them in statutory language. I believe you have these texts before you now.

Mr. Chair and the committee, with your indulgence I will spend a few more minutes to explain—I think that's crucial—why this bill disrupts the current balance between access and privacy.

The current balance upheld by the Supreme Court of Canada in several judgments is based on a number of factors including, first, the substantive provisions of the Access to Information Act and the Privacy Act, including the definition of personal information, the fact that the personal information exception in the access act is mandatory rather than discretionary, and the wording of the public interest exception, which requires that the public interest and disclosure “clearly outweigh” privacy invasions in order to prevail.

As a result, the Supreme Court held that as the law now stands, the combined purpose of the two acts is to protect both privacy and access rights and strike a careful balance between the two. The court even added that as things stand, privacy is paramount over access.

The second consideration, the roles of the two commissioners currently, one being the access champion and the other having a central role in protecting privacy, both being ombudspersons who can only make recommendations and not orders, and the role of departmental heads who ultimately have the discretion to decide on exceptions in general and specifically when the public interest and disclosure clearly outweighs privacy.

It's important to understand that while Bill C-58 maintains some of these factors, which are important for the Supreme Court in maintaining the balance, it changes others, notably the roles of the Information Commissioner and Privacy Commissioner and their authority to make binding orders. Changing the balance between the roles of the two commissioners and departmental heads may well have an impact on the interpretation of the substantive provisions. Giving the OIC the authority to make these orders could well mean that the OIC's interpretation will prevail between disclosure in the public interest and privacy.

The problem is not that the OIC is inherently unfair or unknowledgeable—it's true that they have experience—but rather that it is a champion of one side of the balance. Someone needs to speak for the other side, particularly when the Information Commissioner in her special report on this bill is on record as saying it is unnecessary and inappropriate to consider the other side.

The OPC will rarely be involved according to Bill C-58, despite having a central role according to the Supreme Court. The bill provides that the OPC will be notified only in the case of formal orders and only in these cases will we be able to see judicial redress. Yet, privacy may be at risk not only where OIC formal orders are made, but in other situations. Departments are much more likely to comply with the OIC's interpretation, knowing that the OIC ultimately has the authority to make binding orders. As government officials acknowledged to you last week, it is only in very rare cases that departments will use their resources to challenge OIC orders.

Similarly, when the OIC makes a recommendation under the new regime, or even when discussions take place between the OIC and departments during the investigation of a complaint, departments are much more likely to comply with the OIC's view, knowing that the OIC can ultimately order the department to accede to its interpretation of the law.

Bill C-58 ultimately creates an incentive to give access pre-eminence over privacy, which is contrary to the Supreme Court jurisprudence. I am deeply concerned about this and have suggested a few simple solutions to this poor balance.

Thank you for your attention, and I look forward to answering your questions.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

In B.C.'s legislation, you mentioned the reasonableness review. It's a JR with reasonableness There are other judicial reviews that are de novo.

The Information Commissioner has indicated some concern about the ability to enforce the order-making powers that should be granted pursuant to Bill C-58. In your legislation, I think it's section 59.01, it explicitly says, “the commissioner may file a certified copy of an order”.

Do you think that the federal commissioner ought to have the same power?

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

While they're still in office.

I have a question for our friends here. I'm looking at this notion.... You identified flaws in the bill as it stands right now. First of all, I don't know if you've read the Information Commissioner's recommendations to the committee on ways to fix it...access to the PMO.... You've got it. Do you support what she's recommended to the committee broadly?

Okay, that was a nod yes.

You mentioned that one good thing is that the mandate letters are public. I'm reading the mandate letter for Mr. Brison, who sponsored this bill, one of the few witnesses we've had who fully likes it. In the end, his mandate letter says, “...the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices....”

In his mandate letter that is now going to be by default publicly disclosed, and that is good. They're not following.... There's some irony here somewhere that the one thing that's going to be made public is an example of one thing that they're just not following in the design of their own Bill C-58.

My question is the same for you. Does Bill C-58 move us forward? Does it move us backwards as it is? What would be the one or two main amendments to give it some chance of improving access to information for Canadians?

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

We all hope for good intentions by everybody in government and all folks working in politics.

I did an ATIP on the sinking of the Nathan E. Stewart. You'll remember the ship that went down near Bella Bella. This is what I got back. This is the unified command situation report, by the way, a publicly available document, but my ATIP looks likes this. What happened? When did it happen? Who was there? Who didn't show up? I can find these, but my ATIP proved this, hundreds of pages of this.

I have a question for Mr. Taylor-Vaisey.

Is it fair to say access delayed can be access denied? If a government simply doesn't want something to be revealed, be it embarrassing or costly in some way, is simply just running the process...? We heard about four years waiting on scientists being muzzled, and two years since this government took power....

Is that another form of accessibility delayed? Is transparency delayed transparency denied? Are those fair statements?

Does Bill C- 58 make things worse or better as it's written right now?

[Peter Kent, Conservative, Thornhill, ON]

Thank you very much.

Thanks to you all for appearing today. It's obvious from each of your presentations that you've expressed very clearly your general agreement with the commissioner herself in terms of her characterization of Bill C-58 as regressive, and with any number of amendments required to develop the sort of fulsome legislation that you've all recommended.

I'd like to make a few comparisons. I'll start with you, Mr. Taylor-Vaisey. Let me just say that I remember fondly the original founding moments of the first incarnation of the CAJ back in the seventies. What has been the experience of your membership with the B.C. commissioner's office as opposed to the federal office?

[Kathleen Walsh]

Thank you, Mr. Chair and members of the committee, for having Evidence for Democracy here today.

We're very pleased to be here to discuss Bill C-58 and we're happy to see that the Access to Information Act is being revitalized for the first time in a long time—and actually for the first time within my lifetime.

Evidence for Democracy is a non-partisan, not-for-profit organization promoting the transparent use of evidence in government decision-making. E for D works with parliamentarians, public servants, scientists, and the public to ensure that the best available evidence and science make it into policy, and in a method that is transparent and open.

Robust evidence and facts underpin our democratic process. When Canadians do not have access to the science and evidence created and used by government, we cannot effectively hold our governments to account and our democracy suffers. As many of you are aware, access to scientific information in government has not always been available. When scientists are muzzled, cannot speak to the media, or fear for their employment if they speak about their research, our democracy is greatly impacted.

This government and many other members have worked hard over the last two years to ensure that government science can be openly communicated to the media and to the public. We're pleased to see these positive steps forward; however, this is only one part of being able to access government information. The ambitious undertaking of revitalizing the Access to Information Act is certainly another part of it. The revitalization of this act was long overdue and is an opportunity to truly modernize it, improving accountability and trust between the government and the Canadian public.

It is our opinion that there are serious flaws with Bill C-58 as it stands now; however, we recognize the opportunity to change and strengthen it. Our recommendations are similar to those of the other witnesses today: to focus on proactive disclosure, the denial of requests, and the ability for the Information Commissioner to order records.

On proactive disclosure, the decision to make ministerial mandate letters open by default was a commendable step by this government. We're pleased to see it enshrined in Bill C-58 and look forward to the normalization of this practice. These mandate letters have helped us as advocates and researchers to understand government priorities and desired changes. This is a positive step; however, it does not go quite far enough.

Evidence for Democracy, like many, interpreted the access to information reform presented by the Liberal Party in its election platform as including the ability to ATIP ministers' offices and the PMO. We are disappointed that this is not part of Bill C-58 and are concerned that proactive disclosure, while laudable, in its current configuration does not reach far enough.

We're deeply concerned that proactive disclosure of information is not overseen by the Information Commissioner. We see the information commissioner role as an incredibly important one and do not want to see parts of access to information legislation removed from that office's oversight. It is imperative that proactive disclosure be under the purview of the Information Commissioner.

Additionally, there must be shorter timelines for disclosure specified in the act, and it should allow for individuals to still request access to information.

We agree with this committee's recommendations, particularly recommendation number 23, that purely factual or background information, information on, and a record of decision made by cabinet or by any of its committees on an appeal under the act also be disclosed.

Furthermore, the ministers' offices and Prime Minister's Office must be required to respond to access to information requests. Proactive disclosure on its own is not sufficient; right to access should be extended to these offices.

With that, I will hand it over to Katie Gibbs, my colleague.

[Nick Taylor-Vaisey]

Thank you, Chair.

Thank you to the committee for inviting the CAJ today.

I'm Nick Taylor-Vaisey. I'm the president of the Canadian Association of Journalists. I'm here today in that capacity and do not speak on behalf of my employer, which is Rogers Communications and Maclean's magazine.

Today I'm speaking to you from Toronto, but our national board represents almost every corner of Canada. The CAJ is a truly national association of working journalists with members all over the country and across all forms of media.

Before I offer you our thoughts on how this committee could proactively improve the access to information reform on the table in the form of Bill C-58, I'd like to spend just a few seconds telling you about the CAJ.

The CAJ was founded in 1978 as the Centre for Investigative Journalism, a non-profit organization that encouraged and supported investigative journalism. Over the years we broadened our mandate and now offer high-quality professional development, primarily at our annual national conference, and also outspoken advocacy on behalf of journalists.

Our members include some of the most dogged investigative reporters in the country, journalists who have read freedom of information laws back and forth and have actively used them to inform their stories. They serve the public interest by digging up information their readers require to be informed citizens.

As you know, because you see it every day, excellent journalism reshapes public policy and improves people's lives. An effective access to information law allows journalists, and by extension the broader public, to be better informed, and at an even more basic level a good law serves the public's right to know.

This committee is well aware of the need for access to information reform. You've studied this issue exhaustively and have made important and necessary recommendations to the government. You now have before you a bill that the government has called “the most comprehensive reform of access to information in a generation”.

Of course, the Information Commissioner's opinion is different. She has said that Bill C-58 “would result in a regression of existing rights”. Heather Scoffield from the Canadian Press told you earlier this week that her Ottawa bureau, one of the most active in Canada when it comes to using the law—journalists like me are usually pretty jealous of the CP bureau's work—is “alarmed” to “see more ways for the government to turn us down and deny us information”.

The CAJ hopes the committee will work to change several damaging aspects of Bill C-58.

The first is that the government promised to expand the number of offices, including ministers' offices, that were subject to the act. Instead, Bill C-58 subjects ministers' offices to increased proactive disclosure. You'd be hard pressed to find a journalist who doesn't celebrate increased proactive disclosure. The problem is that governments control what is proactively disclosed, and a strong access to information law actually shifts that balance of power to the public. The CAJ urges the government to keep its election promise and subject ministers' officers to the right of access.

The second point is that Bill C-58 would allow departments to decline to act on requests deemed “vexatious” or “made in bad faith”. Both the Information Commissioner and this committee recommended that the government add a “bad faith” clause to the law. The proposed clause, however, could kill requests that don't include narrowly defined criteria, including the specific subject matter of the request, the type of record being requested, or the period for which the record is being requested.

Now, as journalists go about their work—our work—they will not always have all that information at their disposal. To dismiss those requests that lack only certain details as vexatious or in bad faith is an unnecessary overreach. The CAJ, like the Information Commissioner, urges the committee to remove these amendments in clause 6 from Bill C-58.

The third point is that Bill C-58 doesn't give the Information Commissioner effective order-making powers. The bill does technically enshrine order-making power, but the Information Commissioner has criticized the toothlessness of that element of Bill C-58. She's also suggested a different approach that would enact real enforceability, and the CAJ supports those recommendations. Of course, Mr. McArthur just spoke in some detail about that particular element of the bill.

The last recommendation is that Bill C-58 is a step backwards on fees for access. Early on in its mandate this government made a decision to waive all fees except for the mandatory $5 application fee. Bill C-58 reintroduces those fees and only says that they “may be prescribed by regulation”. Fees act as a barrier to access, and the CAJ believes the government should follow its interim directive of 2016.

Ultimately, journalists are hoping for an access to information law that shifts the culture within government, including that of both political actors and the broader public service. Bill C-58 will not get there. It adds new restrictions to the right of access and, outside of more government-managed proactive disclosure, won't instill a culture of openness by default. Journalists will spend more time clarifying or appealing requests, often with no clear path to a resolution, and sometimes at a significant financial cost.

Access to information coordinators, who are often caught between journalists and citizens who want information and government officials who don't want to give it up, will continue to have one of the most unenviable jobs in the public service.

Thanks for your time. Once the witnesses have finished their statements, I'm of course happy to answer your questions.

[Drew McArthur, Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia]

Thank you very much.

I want to talk about the proposed reforms to the Access to Information Act from the B.C. perspective. I think I will start by characterizing the scope of the act, which is the ideal of openness and transparent access to information, so the public can be involved in the debate. However, we find most of the act is focused on exceptions to access, so I find it a bit ironic that the bulk of the act is about exceptions, as opposed to access, and openness, and transparency.

With that opening perspective, the same thing exists in British Columbia, but in terms of right of access and making requests for information, proposed Bill C-58 suggests to require the requester to specify the subject matter, the type of the record, and the period for which they are requesting.

The federal commissioner's position has been that she feels the current requirements in the act are sufficient. B.C.'s law requires an individual to request records in writing, to provide sufficient detail for an experienced employee to identify them, and to submit their requests to the public body the applicant believes has the information. In other words, there is a duty to assist in B.C. and that is enshrined in our legislation, so you can't just turn away an applicant. You must assist them in getting the records that they are looking for. In some cases, if a request goes to the wrong ministry, it can be transferred to the correct ministry, rather than saying there are no responsive records.

In order to refuse an access request, Bill C-58 will allow institutions to decline to act on a request if it does not include enough detail, if the person has already been given access or can access by other means, or in circumstances where the volume of pages could interfere with operations. The federal commissioner is also concerned about that because she believes it's overly broad.

In B.C., public bodies must apply to my office for an authorization to disregard a request and we will then review that. Public bodies have a duty to assist applicants and as part of that duty, they may ask the applicant for more information about what records they are requesting for the purpose of assisting that individual. However, they cannot ask why they are requesting it.

Public bodies can charge an applicant fees to respond to a request, except when that request is the applicant's own personal information. This increases the public body's duty to assist, as the fees assist in some level of cost recovery, but typically not entirely, for some requests that would otherwise appear disruptive to operations, but just because it might be disruptive to operations does not mean that the public body must not respond to the request. Quite often, our office does receive complaints around the fee structure that a public body proposes to charge and often those are at issue in terms of gaining access to the records.

As it relates to the coverage of the Prime Minister's Office, Parliament, and courts, the issue is that the Prime Minister's Office, Parliament, and the courts are not covered under Bill C-58. It does provide for mandate of proactive disclosure of certain records for those entities, but with timelines longer than the regular access requests. The commissioner has no oversight over the information that those entities would disclose proactively and an institution can decline to respond to someone, if they are requesting information that the institution has already disclosed.

In B.C., our law applies to the office of the premier, to the ministers, and to cabinet records, but not to court records. The access to records held by these government departments is not unfettered. Exceptions do exist and they are clearly in our act.

For example, our act prohibits a public body from disclosing information that would reveal the substance of deliberations of the executive council or any of its committees, including advice, recommendations, policy considerations, draft legislation, or regulations submitted or prepared for submission to the executive council or any of its committees.

The government receives many access requests for records held by those government departments each year and the records are fundamental to the accountability and to the object of access to information.

Bill C-58 proposes to insert the words “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions”. That's proposed to be put in the purpose clause. If that's the purpose, then access should be extended to those offices where those decisions are made.

On order-making power, the proposal is that the courts would review the Information Commissioner's order de novo, allowing for submission of other information and other facts after the investigation by the Information Commissioner. In B.C. we have full order-making power and orders can be registered with a supreme court. These orders are produced by adjudicators after an investigation and mediation process. It's a separate process. The two do not overlap.

In most cases, parties do not apply for a judicial review of our orders or a decision of my office, although they can. In B.C., with limited exceptions, such as in cases where a public body is claiming solicitor-client privilege over records, the courts have determined that the appropriate standard of review of my decisions is reasonableness. They review all our decisions and our orders on that basis.

If Bill C-58 were to be implemented in B.C., it would not provide incentive for public bodies to be meaningfully engaged with our office in the investigation or mediation phase. We resolve probably 95% to 99% of our investigations at the investigation mediation phase and rarely have to go to orders. That's a much better process for the applicant and the public body.

In other areas of concern, there is the transition period. Parts of the bill that relate to complaints to the Office of the Information Commissioner and the commissioner's power to investigate would not take effect for a year. It would only be applicable to those complaints received after that effective date. In British Columbia, our act was amended in 2011, and it came into force immediately upon royal assent. That just removed any uncertainty between applicants and government about their requirement to respond under those new conditions.

I will make a little note on information management. The government is now telling my office that they get requests for access to information that may involve hundreds of thousands of pages. They're not allowed to ignore those requests because of the size. In fact, we've encouraged them to start to disclose on a staged basis. But I note that if the information systems designed by government ministries to manage their operations also included thoughtful consideration of the requirement for access to information and transparency of their work, the work taken to respond to requests would be much easier and simpler as the information systems would already be anticipating that the information might be having to be disclosed.

It doesn't help in today's world but as we're designing our information systems going forward it's as if we say privacy by design to protect personal information, but it's access by design to enable the transparency and the delivery of those records to people who have a valid reason to know them.

I'll end there.

Thank you.

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

Chair, as I said, I was conscious of having very good and important witnesses in front of us on Bill C-58. This is the mechanism that we have. As I said at the beginning, I don't wish to belabour this.

The frustration and question for many Canadians whom we hear from is what exactly the rules are and how the interpretation of the rules manifests in real life for us as public office holders.

We have a case in front of us that I think helps illustrate some of the problems with the act. We put a motion before Parliament. I'm not sure whether any colleagues here spoke to it, but when colleagues of mine spoke to it, all we got from the benches opposite was a speech about everything except ethics, everything except the ethical guidelines and the code.

We tried in Parliament in debate. We tried in question period to ask simple and straightforward questions about disclosure, about ownership, about conflicts of interest. I think it's a fair assessment to say that we haven't received answers. I watched the finance minister last night in front of the media on CBC. He was asked very straightforward questions—nothing scatological, nothing like “Have you sold your shares”, for example. Again, there was no answer.

If committees aren't the place to charge that, if Parliament is not the place to charge it, if speaking to the media is not the place to discharge this, then where is? At some point the government can't say in their mandate letters that ministers must “bear the fullest public scrutiny”—I think that is the call, the commitment for each of the ministers of the crown. The opposite has been true: we don't have full public disclosure; we can't know what ethical rules have been broken. We also can't know that simply saying “the Ethics Commissioner gave me this advice”, when we don't actually hear from the Ethics Commissioner as to what the process is when an MP goes before her and says, “This is my financial arrangement”....

I have pertinent questions, and I think all members likely have pertinent questions for her asking how she manages conflicts of interest. How does she manage, for example, when the conflict of interest shield is your own chief of staff, whom you hired? Is there not a dynamic and a tension there, that a person whom you hired is now responsible for telling you “no, no, and no” and not explaining it?

These things, for which we think there are legitimate places within the ethics act to guide us, and in the members' code, I would argue, which can be exploited simply by doing something quite common—well, not common for most middle-class people, but simply common in business, to set up a numbered account.... Then suddenly our ethics code no longer speaks to it. Well, that's no good.

I think that if the finance minister wants, and I think he is sincere in this, to focus on his job, which is to run and administer and regulate the financial sector—in which he has holdings, by the way, but regardless—the best way to do so, in my experience, is to clear the air, to come forward, to tell us everything. If he says there's no conflict of interest, then there should be no problem in clearing the air, in being transparent, which is also in his mandate letter.

We have found the opposite to be true, in debates in the House, in question period, and in his dealings with the media. We turn then to committee, because committee is a deliberative place, where we put people here in front of us and ask them questions.

I hear Nathaniel's concern about politicization, but to vote against this, to say that we're not interested in hearing from the Ethics Commissioner, that we're not interested in hearing from the finance minister, is in fact an act of politics. It's to say these things aren't important, when clearly they are for everybody watching.

If there is some amendment they seek to move on this, if there's some other way to crack this nut, we're very interested in the conversation. To simply reject efforts to fix the loopholes in the act, however.... It's hard to draw any other conclusion than that the government is not sincerely interested in getting to the bottom of this.