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.

[Ken Rubin]

Bill C-58 destroyed the access act because it hived off, as a phony proactive measure, the Prime Minister's records, ministers' records and a host of other things.

[Duff Conacher]

Bill C-58 was a step backwards in some ways. It certainly didn't keep the 2015 promises of the Liberals to make government information “open by default”, which is a direct quote from the Liberals' 2015 platform. The commissioner now has power to make orders, but it's not strong enough. You need power and a requirement for minimum penalties if they violate the law: That's going to change the whole incentive to comply right away. That's a key change.

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

Okay. Just to follow up, I have a few thoughts, and then one more important question that I want to ask.

Mr. Conacher, are there any thoughts on Bill C-58 that you'd like to share with the committee?

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

—for a lot of news organizations, so you dropped the whole thing.

This government also brought in Bill C-58, which gave the Information Commissioner the power to make binding orders related to access to information, the release of government records, time extensions, the language of access and the format of disclosed information.

Can you comment on that legislation and what sort of impact it's had on the system?

[Ryan Williams, Conservative, Bay of Quinte, ON]

Bill C-58 allowed departments to reject ATIP requests with your permission. I see in the report that you received 36 requests and approved just two. Why were just the two approved, and was there a massive spike in requests for rejection last year?

[Ryan Williams, Conservative, Bay of Quinte, ON]

Thank you, Chair, and thank you, Commissioner Maynard, for joining us today.

I want to focus for a few minutes on Bill C-58. The last time the recommendations were made in Parliament, this bill was supposed to correct some of the problems we saw. It's been three years since that bill was implemented and changes were made to the ATIP system.

Has that helped or hindered your work and the work of the Privacy Commissioner?

[Caroline Maynard]

Totally.

We definitely needed more people and resources with respect to the new authorities with Bill C-58. Some of the money you see in the increase comes from that.

We requested additional funding for four years in a row through a submission to Treasury Board. That was given to us on a temporary basis for three years, but finally I got it on a permanent basis two years ago. That's definitely helpful because with temporary funding, all you can do is hire people and let them go at the end of the year. There is no retention possibility. Now we have a more permanent base, but as I said earlier, it's already not enough, unfortunately.

[Caroline Maynard]

At the time, I did agree that it was not enough, but we did make a lot of changes. Unfortunately, on Bill C-58, there was not a lot of consultation when it was first tabled.

If you look at the first draft of Bill C-58 and what was actually passed, there were a lot of changes, and those changes were actually very helpful for my office and for the system as well. It was a good start.

[The Chair, Conservative, Pat Kelly]

Thank you.

I've gone way longer than I had intended, but I have a specific question just really quickly.

Your predecessor actually described Bill C-58 in quite a remarkable meeting that took place at this committee and suggested that it was a step backward, not forward. Do you agree with her?

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chairman; and thank you, Commissioner Maynard, for being with us today.

Through Bill C-58, passed during the previous Parliament, the Information Commissioner was given unprecedented new responsibilities and authorities, including the power to order institutions to release records at the end of an investigation when the commissioner found that the complaint was well founded. The commissioner now is also able to issue such orders on new complaints that cannot satisfactorily be resolved through informal resolution mechanisms that you also have in place.

Can you tell us how this is helpful to you and how it has improved your work and maybe even helped with the issue of delays in rendering decisions?

[Caroline Maynard]

If you compare the legislation itself, there is a group that does an evaluation of the legislation in all the countries every year. Canada finished 52nd in 2018 and 50th last year so I guess the changes we have made with Bill C-58 brought us back by two ranks, but this is only looking at what the legislation allows. It's not evaluating how it's being applied in practice.

[Kelly McCauley, Conservative, Edmonton West, AB]

Let me follow up on that, then. How do we make our ATIP laws with more teeth? I know Bill C-58, in the 42nd Parliament.... We actually looked at it in this committee. It took us a step backward. We've heard, for example, DND hiding items from ATIP that involved Admiral Norman. We've heard the Information Commissioner just put the current government over the rails about the RCMP not providing information in a timely fashion.

What do we have to put in to actually bring in this change of culture that is perhaps pushed by the regulations?

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you so much.

On May 28, 2020, the president wrote to his cabinet colleagues, encouraging ministers to proactively publish as much information as possible related to COVID-19 and reminding them of the importance of ensuring best practices in information management. The government has committed to making information related to COVID-19 and the government's response proactively available online, using the open government portal. The portal will host open data related to the applications received and processed under the Canada emergency response benefit. As stated, “All public servants are expected to manage, secure and document information according to legislative requirements and [TBS] policies, whether working on-site, or remotely, and regardless of the tools we use.” As well, “We continue to provide guidance to organizations on information management and security. We recently released guidance and a toolkit to guide employees in managing government information when working remotely.”

In conclusion, Mr. Chair, we are committed to openness and transparency. We've made reports like the departmental results report more transparent, enshrined the principle of “open by default” and modernized and strengthened the Access to Information Act. We are committed to upholding the importance of the act. Redactions to requested documents are done with the right to know at the forefront and in keeping with our legislation.

As a last point, I would note that the purpose of the legislation was updated by Bill C-58 to reflect the important role it plays in our democracy. Section 2 of the act states that its 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.” Those are the principles at the forefront when the act is administered.

Mr. Chair, that ends the last of my two speeches. I think it importantly reflects the commitment of our government to transparency and openness. I think it was reflected not only in the commitment on the political side; I think we also saw that translated through our bureaucrats, as evidenced, again, through what Mr. Fraser took us through today in terms of the transmittal letters as well as the exceptions that he made. We have a very clear idea that the access to privacy and the availability of data during this COVID crisis are taken very seriously by our civil servants and by our government. We believe it's important for us to continue to be transparent and accountable every step of the way.

I think I will pass the baton. I think there are other colleagues who would really like to speak.

Thank you very much for the opportunity to speak, Mr. Chair.

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you so much, Mr. Chair.

I appreciate my colleague raising that point. I know you were riveted and you were listening, but I wasn't talking about the issues with the act. I was saying how we've been improving it, making sure that it's kept up to date, that it's relevant and that it continues with the principle of maximum transparency and accountability to all Canadians.

Canadians expect their government to stay ahead of the digital game and make its information accessible to them. With new technology and capability comes the expectation that organizations offer their products and services online. The goal is to make the information and the data held by the government even more accessible to Canadians. With changes to the legislation and accompanying policy changes, we are now getting more government information and data into the hands of our citizens, who can use it to participate in democratic debate, hold the government to account and spur innovation in society.

We've introduced many measures over the years to do just that. In 2017, just three years ago, the annual departmental results report was tabled in a new, more transparent format. As this committee knows, these reports provide an important insight into departments' program achievements against measurable indicators. This made these reports more useful and transparent for parliamentarians.

Another example is InfoBase. It pulls data from annual reports to provide online snapshots of what one department or the entire government has done during the fiscal year. Providing all of this information isn't useful if it's not readily accessible in various formats. Canadians expect to have government information delivered to their electronic devices and at their fingertips when they need it.

In May of 2016, the President of the Treasury Board issued an interim directive that enshrined the principle of “open by default”. The interim directive told government that institutions have to make themselves open by default as their guiding principle when it comes to making government information available to the public. This principle applies to provision of information to Canadians, and most importantly today, to parliamentarians, including through motions for the production of papers, such as the order that prompts our debate today.

In 2017, with Bill C-58, we moved forward to improve the Access to Information Act. The bill was introduced in the summer of 2017 and was reviewed in the House and Senate committees. It also received valuable input from several stakeholders, including the Information Commissioner; the Privacy Commissioner; representatives of indigenous organizations, who provided important insights into their need to access records of important historical and archival value; and legal experts and journalists, who shared their unique experiences and explained the importance of the legislation to their work.

The bill provided Canadians with easier access to a huge amount of government information. The government is now legally required to proactively publish a broad range of information to a predictable schedule without the need for anyone to make an information request. This law applies to 240 government departments, agencies, and Crown corporations. It also applies to the political side, including the Prime Minister and the ministers' offices, senators, members of Parliament, institutions that support Parliament and administrative institutions that support the courts.

For the first time the bill put in law the proactive publication of travel and hospitality expenses for ministers, their staff and senior officials across government; contracts over $10,000; all service contracts for MPs and senators; grants and contributions over $25,000; mandate letters and revised mandate letters, which would have to be published within 30 days of being issued; briefing packages for new ministers and deputy ministers; lists of briefing notes from ministers and deputy ministers; and briefing binders used for question period and parliamentary committee appearances. Making all this information available to Canadians on a predictable schedule leads to better public understanding of how government functions in establishing a strong foundation for greater citizen participation in government.

At the same time, we introduced changes to the request-based side of the system. Bill C-58 eliminated all fees for access to information requests, apart from the $5 administrative fee. As well, Canadians can also request the original documents that are proactively released to validate the information that has been published.

Mr. Chair, the bill has also provided the Information Commissioner with greater powers to oversee the access to information system. Specifically, the commissioner now has order-making powers. The role of the commissioner has gone from an ombudsperson to an authority with the legislative ability to make binding orders for the release of government records. I would say that this is an excellent move. I think it ensures much more transparency and accountability.

In addition to advancing our commitment to being open by default, we have also invested tools to make processing information requests more efficient and allowed federal institutions that have the same minister to share the request processing services for greater efficiency.

The Access to Information Act strikes a balance between the right of Canadians to access information and the need to withhold certain types of information to protect other important values such as privacy, confidentiality of information provided to the government and national security.

Bill C-58 introduced other measures to improve the system. Both the former information commissioner and the House of Commons Standing Committee on Access to Information, Privacy and Ethics at the time recognized that requests made in bad faith can gum up the system. Requesters may, for a variety of reasons, use the right to request information to achieve goals that may not be consistent with the spirit of the act. Though the number of these types of vexatious requests is estimated to be quite small, the effort and cost involved in responding to them can put a significant strain on the system.

There is a fundamental issue at stake here. Such requests defeat the underlying purpose of the act, which is to give Canadians access to the information they need to participate in public policy decision-making and to hold their government to account. By tying up government resources, these requests interfere with an institution's ability to respond to other requests and to do important work.

As a remedy, Bill C-58 gave government institutions the ability to decline to act on such requests after receiving approval from the Information Commissioner to do so. Amendments were made to the legislation to clarify the circumstances in which this can happen. For example, institutions would not be able to decline to act on a request solely on the basis that the requester didn't provide a specific subject matter, type of record and period or date for the record sought.

As I mentioned a minute ago, Mr. Chair, the Information Commissioner would need to give her or his approval before an institution could decline to act on a vexatious or bad-faith request. This provides assurance to Canadians that legitimate requests will not be declined, and indeed this authority has been used rarely since Bill C-58 came into force.

The bill also ensures that the Access to Information Act remains relevant in an ever-changing world. It included a provision that required that the act be reviewed every five years, with the first review to begin within one year of the bill receiving royal assent. This review was launched just this June. This will ensure that the act never again becomes as outdated as it has before.

Mr. Chair, I'm getting almost to the conclusion. I know that while many people would like me to go on for another 20 pages, I am getting towards the end. I want to just spend one moment first discussing the realities of access to information, writ large, during the pandemic.

The government remains committed to managing information securely and effectively in accordance with its sensitivity, while ensuring transparency, openness and accountability to Canadians. On April 29, 2020, TBS published guidance on information management practices while working remotely for all public servants. This guidance is intended to reinforce employees' awareness of their collective responsibility to document decisions of business value and to ensure that government information is managed securely and effectively with respect to legislative and policy requirements, including the requirements of the Access to Information Act and the Privacy Act.

On May 28—

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you so much, Mr. Chair.

I really appreciated the health break; that was very helpful.

Before I go on to a couple of prepared texts, I just want to address a couple of things that were raised by my colleagues. I know that Mr. Poilievre pops up once in a while to raise points of order and say that we should start pre-budget consultations. I just want to remind everyone, because I think when we get so tired we tend to forget things, that as soon as we came back as the finance committee on October 8, the very first thing we did was to introduce a motion. That was me, and I introduced a motion for us to begin our pre-budget consultations. Unfortunately, it was interrupted by a point of privilege that Mr. Poilievre put on the table, and that is what has led us to where we are right now. I think it's important for us to state that.

I also want to remind everyone that we started this meeting with an opportunity for everybody to unanimously approve moving right to pre-budget consultations, or at least a motion on that, so that we could have our clerk and her team get started on booking some of our witnesses. Then it was brought back again by my colleague Mr. Fraser. So that's twice. I want to make sure that anybody who arrived late knows that. There is nothing more that we want to do than what the finance committee should be doing at this point in time, which is engaging in pre-budget consultations.

I also want to address a point that was mentioned earlier by one of our Conservative colleagues, namely about the Prime Minister trying to push for an election. There is absolutely zero desire to do so. We know Canadians don't want one. I will also say to you that we're going through an unprecedented pandemic, and I don't care how many times we have to say that, because I think sometimes, when we're in a little bit of a bubble and we to talking for hours, we forget that we are living in unprecedented times during this health and economic crisis.

We've spent over $300 billion have introduced almost 80 programs. We had a very serious speech from the throne laying out a vision and a plan on how we want to proceed. Given that we're in a pandemic, time is of the essence. We want to use this time only to continue to support Canadians, to get workers back to work, to continue to support our small businesses, and to continue to build a foundation of our economy and keep all Canadians safe moving forward.

I join not only with the Prime Minister but also with my Liberal colleagues of the governing party in saying that we want to govern. In fact, I want to do the impossible and make politics the art of the possible, so that we can find a way to maybe withdraw this motion before us and move right to pre-budget consultations and get busy on hearing some ideas.

I know that 793 submissions have been submitted to us, and we know that there are lots of amazing ideas out there, and I think we're all looking to find a way to get there. This might not be exciting for everyone, but I do think it's important, as we're still talking to the subamendment to the amendment of the motion that Mr. Poilievre moved in response to my original motion on starting our pre-budget consultations.

I will talk a little bit more about how and why we redact, including more particularities and details. I want to make sure that we have as good an understanding as possible of the acts and the principles guiding the redactions done by our excellent, highly skilled, independent civil servants.

With that, Mr. Chair, thank you again for giving me the opportunity to provide some more information about the disclosure and production of government documents regarding the Canada student service grant in response to the request by the Standing Committee on Finance.

First, I want to reiterate that I know that this government is committed to the principle of being open by default. In fact, it was this principle that guided the government's response to the request for production of papers by the committee.

Let's be clear, the government has disclosed large amounts of documentation on the matter we are discussing today. I think we heard my colleague Mr. Fraser painstakingly go through a lot of the details, not only on what was submitted but also on what was redacted and why it was redacted.

Indeed, as the media has reported, the government has disclosed almost 6,000 pages to the finance committee. I know that these were from a number of different departments, as we have spelled out a number of times. Within those departments, officials worked very hard to provide the most information possible within the time frame allowed by the finance committee to respond, while also ensuring that cabinet confidentiality and privacy concerns where applicable were respected.

I think it's important to note as well that it was important to produce the documents. It was something that the finance committee had agreed to. I believe our civil servants did their utmost to ensure full transparency and accountability. I also want to acknowledge that it also took the time of our civil servants, who have been working around the clock during this pandemic, to come up with some of the almost 80 programs I was talking about. I just want to say a huge thanks to them. I know they've been working double time. We always say they're working around the clock, but I would say they're working double around the clock. I know that in addition to producing these types of documents, they've been trying to come up with creative ideas in terms of programs and providing all the support that we very much have been introducing. This has taken a lot of their time, and I want to acknowledge that. Additionally, I will note that most of our civil servants did this remotely to respect public health and safety rules and to ensure their ongoing safety during the pandemic.

Protecting cabinet confidence is very important to our system of government. Indeed, the Supreme Court of Canada has recognized that cabinet confidentiality is essential to good government: “The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.” The committee's motion stipulated that cabinet confidences be excluded from the package, but in keeping with the public disclosures of related information by members of the cabinet, the government did not redact considerable information that was cabinet confidence, and indeed provided it to the committee. I really laud our civil servants for following through on the principle of transparency and accountability. I think it is extraordinarily important, not only to our government and not only during this extraordinary time, when we're spending an extraordinary amount of money. I really laud them for doing their utmost to ensure that the most information gets out.

The government applied the same principled approach to release as much information as deemed possible as it related to solicitor-client privilege and personal information. I think we heard numerous times Mr. Fraser during this session, and Mr. Gerretsen during the last session, as well as my colleague Mr. Fragiskatos during the last session, explain or give examples of all the items we had to exclude due to personal information and solicitor-client privilege.

The package provided in response to the order by this committee builds upon the Government of Canada's ongoing commitment to uphold the principle of “open by default”. It can be seen in the context of the proactive disclosure regime and amendments to the Access to Information Act. That said, there is as well the need to strike the proper balance between the fundamental values of openness and transparency and other obligations the government has to Canada and Canadians, such as national security or the protection of personal information.

I would like to say a few words about the Access to Information Act. Many of us are familiar with it, but I think it's important in relation to this subamendment for me to speak a little more specifically to it. I say so because the that act has helped us frame the approach to the response to the committee. The act creates an enforceable right of access to records under the control of a government institution in accordance with the following principles. The first one is that government information should be available to the public. The second one is that necessary exceptions to the right of access should be limited and specific. The third one is that decisions on disclosure of government information should be reviewed independently of government. It applies to all institutions listed in schedule I of the Access to Information Act and all parent Crown organizations and wholly owned subsidiaries of such corporations within the meaning of section 83 of the Financial Administration Act.

The act provides this right of access for Canadian citizens and permanent residents “within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act”. Further, the Access to Information Act extension order number one extends this right to include all individuals and all corporations present in Canada.

That said, there are necessary limitations on access to records, which exist as exemptions and inclusions. There are a number of these kinds of restrictions. I would like to highlight a few to give you a sense of the care and the balance struck by the act, between optimizing openness and transparency, on the one hand, and safeguarding individuals, companies and legitimate commercial and competitive interests, on the other.

One such class of limitation is “Information obtained in confidence”. For instance, the act provides for the following:

the head of a government institution shall refuse to disclose any record...that contains information that was obtained in confidence from (a) the government of a foreign state or an institution thereof; (b) an international organization of states or an institution thereof”.

Examples include the United Nations, NATO and the International Monetary Fund. Examples of international organizations of states include UNICEF and the World Health Organization, which are agencies of the United Nations.

The third bullet on this point reads:

(c) the government of a province or an institution thereof

This includes the governments of the provinces and the three territories, and their ministries, departments and agencies. The fourth point reads:

(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government

The last point on this particular section reads:

(e) an aboriginal government.

For this exemption to apply, the information must have been obtained in confidence.

There is also an exception covering federal-provincial affairs, which applies, for example, to the following information:

(a) on federal-provincial consultations or deliberations; or (b) on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial affairs.

To invoke this exemption, a government institution should be convinced that disclosure of specific information “could reasonably be expected to be injurious to the conduct” by the federal government of federal-provincial affairs.

Another area of exemption deals with international affairs, defence and national security. An access to information request may be denied if disclosure could reasonably be expected to be injurious to the following: the conduct of international affairs—this includes not only state-to-state affairs but also commercial, cultural or scientific links established by citizens with counterparts in other countries—or the defence of Canada or any state allied or associated with Canada. An allied state is one with which Canada has concluded formal alliances or treaties, while an associate state is a state with which Canada may be linked for trade or other purposes outside the scope of a formal alliance. Last is the detection, prevention or suppression of subversive or hostile activities. This exemption protects specific types of information pertaining to the security of Canada.

Another exemption applies to law enforcement, investigations and security of penal institutions. We actually have this particular exemption because we're aiming to protect a number of items.

The first is effective law enforcement, including criminal law enforcement. We want to protect the integrity and effectiveness of other types of investigative activities, for example, ordinary administrative investigations under an act of Parliament, investigations in regulatory areas, and investigations of air accidents.

Last is the security of penal institutions and an exemption providing protection of “information that could reasonably be expected to facilitate the commission of an offence”. For example, a government institution may refuse to disclose the security plans or other information about the vulnerable aspects of federal government buildings and other installations that would be of strategic importance in civil emergencies or in time of war.

The act also restricts third party information including but not limited to trade secrets; confidential financial, commercial, scientific or technical information; and information used for emergency management plans. For example, the head of a government institution must refuse to disclose any record containing trade secrets to third parties. This restriction applies as well to confidential financial, commercial, scientific or technical information.

Another class of restrictions set out in the act is what are known as exclusions. This refers, for example, to published material or material available for purchase by the public. It also refers to library or museum material preserved solely for public reference or exhibition purposes. It also refers to material placed in Library and Archives Canada, the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature, the National Museum of Science and Technology, the Canadian Museum for Human Rights, or the Canadian Museum of Immigration at Pier 21, by or on behalf of persons or organizations other than government institutions.

The process of democratic governance works best when cabinet members charged with government policy and decision-making are free to express themselves around the cabinet table unreservedly.

Exclusions also apply to certain records of the Canadian Broadcasting Corporation, also fondly referred to by many as the CBC. The act, for example, removes information relating to journalistic, creative and programming activities held by the CBC from the coverage of the act. It protects information about journalistic sources, as well as the creative and programming independence of CBC.

In addition, Mr. Chair, you'll be interested to hear that certain records of Atomic Energy of Canada Limited are also considered exclusions. The act creates an exclusion for any information under the control of Atomic Energy of Canada Limited other than information relating to its general administration or its operation of any nuclear facility within the meaning of section 2 of the Nuclear Safety and Control Act, subject to regulation by the Canadian Nuclear Safety Commission. The purpose of this exclusion is to ensure protection of information related to research and commercial activities of the Atomic Energy of Canada Limited.

Distinct from the act there are also well confidences of the Queen's Privy Council for Canada. The Supreme Court of Canada has recognized that cabinet confidentiality is essential to good government. In the Babcock v. Canada decision, meaning the attorney general, in 2002 SSC 57, at paragraph 16, the court explained the reason for this. It said, “The process of democratic governance works best when cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.” Yet it also stated that “'Council' means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.” It included all of those. The committees of cabinet include standing committees, ad hoc committees and any other committees of ministers. In addition, meetings or discussions between ministers can result in the creation of records that are cabinet confidences, providing the discussions concern the making of government decisions or the formulation of government policy.

The act also defines cabinet confidences by way of a list of seven types of documents. The list is not exhaustive, but provides examples of records considered to be cabinet confidences. It includes the following. The first is memoranda presenting proposals to cabinet. The second is discussion papers. The third is agenda and records of cabinet deliberations or decisions, records of communications between ministers on policy-making and government decisions, records to brief ministers on cabinet matters, draft legislation and records containing information about confidences.

Mr. Chair, there are also protections for the economic interests of the Government of Canada. There is a discretionary exemption based on a class test that aims to protect proprietary information of the Government of Canada. Exemption may include information that is patentable or that the government may want to license. For this exemption to apply, the record must contain the following: trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution that has substantial value or is reasonably likely to have substantial value.

Another exemption, Mr. Chair, applies to contractual or other negotiations of a government institution. This is intended to protect a government institution's ability to negotiate effectively with other parties.

Mr. Chair, let me underline the fact that the act protects not just the security of organizations but also the safety of individuals. A government institution may refuse access to information if it has reasonable grounds to expect that the disclosure of information would threaten the safety of an individual. This could be information that either directly or indirectly reveals the identity, home address or other identifier of such an individual, and I think we heard multiple examples from Mr. Fraser today of that being the exact case. In addition, personal information is also protected, and that absolutely makes sense as well.

In this case, section 19 of the act strikes “a balance between the right of the public to access information in records under the control of a government institution and the right of each individual to his or her privacy. It incorporates by reference sections 3 and 8 of the Privacy Act, which are essential for the interpretation and application of this exemption.”

The Access to Information Manual states:

The Privacy Act defines “personal information” as “information about an identifiable individual that is recorded in any form”. This definition is broad and contains examples of personal information. Information not specifically mentioned in the list but clearly covered by the broad definition, such as information related to an identifiable individual's income, DNA, body sample, sexual preference or political inclination, is to be considered personal information.

In the Privacy Act, however, you might be interested to know, Mr. Chair, that the definition of personal information excludes “specific types of information, normally considered personal information, from the meaning of the term when a request is made under the Access to Information Act.” This would include information about “the current or past positions or functions of a government employee or officer, services performed by an individual contracted by a government institution, a discretionary benefit of a financial nature conferred on an individual or an individual who has been dead for more than 20 years.”

The exclusions...reflect the fact that there is certain information about government employees, persons performing services under contract for a government institution, and discretionary benefits which, barring other considerations, the public has a right to know.

In addition, the act “provides that the head of a government institution may disclose any record that contains personal information if the individual to whom it relates consents to the disclosure, the information is publicly available or the disclosure is in accordance with section 8 of the Privacy Act.”

Mr. Chair, in conclusion, I say all this because, in compiling our submission in response to the committee, we took great care, for example, to obtain the consent to disclose certain personal information for relevant exempt staff referenced in the material. I should note as well that no material was withheld on the basis of national security, which the motion had indicated should be excluded. I would add as well that this exclusion was not pertinent.

On the matter of cabinet confidences, it bears repeating that considerable information on the Canada student service grant that was a cabinet confidence was provided to this committee. This was in keeping with the overarching objective of “open by default” and supporting the work of the committee.

Any redactions to requested documents were done with all due consideration for how to best respond to the committee's order, balanced with the understood need for protection of certain information, as I've outlined. We understand that government information belongs to the people and should be open by default. It's why we updated the Access to Information Act: to make it easier for citizens to get information and to publish more information up front more than ever.

The act balances openness with another value we feel strongly about, which is the protection of important democratic values. That means safeguarding Canadians' personal information and such important principles as cabinet confidence and judicial independence. Getting this balance right is fundamental to ensuring a healthy, functioning democracy.

That was prepared by some very kind colleagues who wanted to make sure that as we're talking about this subamendment, we have a much clearer understanding of the acts and the principles and the values that are behind how we redact certain things and are behind the examples that Mr. Fraser painstakingly took our committee through earlier this evening. I think it was important for us to make sure that was understood and read into the record.

Mr. Chair, I do have some more information. I know that people were riveted by my first speech, so I have some additional information that I'm happy to talk a little bit more about. I want to talk a little bit more about some additional principles that are consistent with the “open by default” principle I spoke to a little bit in my previous speech. I have an additional one that I want to talk about.

The reason “open by default” is important is that it aligns with the provision of documents by the government, as requested by this committee in our last session. As discussed earlier, we largely talked about the issue of redactions. We talked about why they were done. We disclosed the letters by deputy ministers that Mr. Fraser read in relation to the logic behind redacting certain documents. I think it was important for us to hear that and to have it on the record.

To that point, there was the committee's motion stipulating that cabinet confidences be excluded from the package. I also want to talk about that. We did spend quite a bit of time talking about the fact that we should have some exclusion around cabinet confidences. I know I talked a little bit about that, so I don't want to go through that again, but I do want to talk about how we have spent some time in terms of strengthening the Access to Information Act. We did that because we wanted to be consistent with ensuring the maximum amount of transparency and accountability. I think the best practice is to always keep the Access to Information Act up to date and current to meet with our values and principles of openness and transparency.

I'd like to note that while we introduced several measures since 2015 to improve the act, I think it would be helpful to provide some context, as prescribed in the act, for why and when certain information cannot be disclosed by the government, as those principles guide the government in its production of documents for parliamentary committees. Certain limitations on access to records exist in the form of exemptions and exclusions. Some exemptions are discretionary, while others are mandatory.

The act states that the head of the government institution “shall refuse to disclose” records when it relates to certain criteria. These mandatory exceptions can relate to information obtained in confidence, obtained via some law enforcement action and security, obtained through third party information, and/or obtained through personal information. With regard to personal information, the act strikes a balance between the right of the public to access information records under the control of a government institution and the right of each individual to his or her privacy.

Discretionary exemptions relate to information that the head of the government institution may refuse to disclose.

Excluded information relates to information where the act does not apply. Examples include published information and cabinet confidential information. "Confidences of the Queen's Privy Council for Canada (Cabinet confidences)" states:

In order to reach final decisions, ministers must be able to express their views freely during the discussions held in cabinet. To allow for the exchange of views to be disclosed publicly would result in the erosion of the collective responsibility of ministers. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality, which upholds the principle of collective responsibility and enables ministers to engage in full and frank discussions necessary for the effective functioning of a Cabinet system.

Now, to preserve this rule of confidentiality, subsection 69(1) of the Access to Information Act provides that the act “does not apply to confidences of the Queen’s Privy Council for Canada”. The act also strikes a balance between the right of the public to access information and records under the control of a government institution and the right of each individual to his or her privacy. As you can see, there are many reasons that some information cannot be disclosed under the Access to Information Act. These are limited and specific exceptions to the general rule of openness.

That said, as mentioned earlier with respect to redactions in documents provided for this order, considerable information that would normally be redacted through these processes should not be redacted and was provided to the committee. This was in keeping with the public disclosure of information on this matter made by members of cabinet through consent obtained to disclose certain personal information and the above-referenced limited waiver of solicitor-client privilege. Indeed, as I stated earlier, the government has undertaken several initiatives to strengthen transparency.

I think it would be helpful to provide an overview of our rigorous access to information system.

As this committee knows, access to information has been a staple of Canadian democracy for over 35 years. Since then, both parliamentarians and Canadians have come to regard the right to government information as quasi-constitutional in nature. In many ways, it has become part of our culture and important for our democracy.

This hasn't always been the case. Canadians didn't have this right in 1867, at the time of Confederation. In fact, up until post-World War II, most governments around the world operated without any general law permitting access to information, nor did they function with any general law restricting the collection, use and disclosure of information that could affect the privacy of individuals. During World War II, the Canadian government expanded, and so did the amount of information we collected. As a result, it was rightly perceived that access to such information was required to ensure democratic and accountable government. On the privacy side, it also came to be understood that information collected by the government about individuals should be treated as confidential.

In the early 1970s, the federal government took steps in that direction when it began to study both the right of access and privacy. It wasn't until the early 1980s that the government introduced comprehensive legislation addressing both issues. That bill, which contained both the present Access to Information Act and the Privacy Act, became law on July 1, 1983. Its principles reflect the right of access that we have today. These principles are that government information should be available to the public, that necessary exemptions to the right of access should be limited and specific, and that there should be appropriate independent oversight of the decisions on the disclosure of government information.

Before Bill C-58, the Access to Information Act had not been substantially updated in 34 years. When the act first became law in 1983, there was no Internet. Information was locked away in steel filing cabinets. The first mobile phone had just come onto the market. They were those really big clunky things that were really heavy to carry around and put up against your ear. We know that a 34-year-old access to information system was not equipped for the sheer volume of information and the lightning speed of today's communication. The old system was seriously outdated and served neither government nor Canadians efficiently.

The size of government has also grown. Its information holdings have increased since the act was implemented in 1983, and so too have the number of information requests that the government receives every single year, or probably every single day at this point.

Canadians expect their government to stay ahead of the digital game and make its information accessible to them. With new technology and capability comes the expectation that organizations offer their products and services online. The goal is to make the information and the data held by the government even more accessible to Canadians. Through changes to the legislation and accompanying policy changes, we are now getting more government information and data into the hands of our citizens, who can use it—