Bill C-2 (39th Parliament, 1st Session) Committee on May 18th, 2006

[The Chair, Conservative, David Tilson]

Good morning, ladies and gentlemen.

This is the Legislative Committee on Bill C-2, meeting 10. The orders of the day are pursuant to the order of reference of Thursday, April 27, 2006: Bill C-2, an act providing for the conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.

Our witnesses today are representatives of the Office of the Information Commissioner of Canada. We have with us the Information Commissioner, John M. Reid; the deputy information commissioner, J. Alan Leadbeater; the director general, investigations and reviews, J. G. D. Dupuis; and the director of legal services, Daniel Brunet.

Good morning, gentlemen.

Commissioner, we've seen you many times. You know what we do. If you could give us some preliminary comments, I know the members of the committee will have some questions for you.

Thank you for coming.

[John Reid, Information Commissioner, Office of the Information Commissioner of Canada]

Thank you, Mr. Chairman.

I want to thank the members of the committee for the opportunity to assist you in your deliberations on Bill C-2.

I'm going to talk about the provisions of the Federal Accountability Act that amend the Access to Information Act.

As some of you know, on April 28 I tabled a special report in Parliament containing my concerns about the government's access to information reform plan. One aspect is the provisions of Bill C-2; the other two elements of the government's access action plan are a discussion paper on reform of the Access to Information Act and the proposed open government act, which my office tabled with the Standing Committee on Access to Information, Privacy and Ethics.

A special report, which has been distributed to you, sets out my position. Hence, these remarks will be brief.

Since the tabling of Bill C-2, Minister Baird has heard my concerns. I am grateful to him and the government for accepting my criticism of Bill C-2 in the non-partisan spirit in which it was given. My concern is that Bill C-2 proposes to add ten new exemptions and two new exclusions to the Access to Information Act, almost doubling the number of secrecy provisions that are now in the act.

I am concerned that the reasons for including two new exclusions are to prevent independent review of secrecy decisions made by CBC and AECL. Whatever the legitimate needs for secrecy that these institutions have--and I certainly agree there are legitimate secrecy requirements--there is no justification for impeding independent oversight of them by the Information Commission and the Federal Court.

I am concerned that none of the ten new exemptions to the right of access require a showing on a clause-by-clause basis that disclosure could reasonably be expected to give rise to some injury, harm, or prejudice. The very purpose of the Access to Information Act is to impose a burden of justification on those who wish to assert secrecy. Only one of the ten new exemptions for internal audit reports is time-limited; secrecy may be asserted for 15 years. And only two of the new exemptions are discretionary in nature. All the others make secrecy mandatory regardless of circumstances, regardless of how old the information is, and regardless of whether there may be a compelling public interest in disclosure.

The approach to amending the Access to Information Act and to adding new institutions to its coverage is contrary to the stated purposes of the act and in my judgment will not serve the overall goal of improved accountability through transparency. In this latter regard, the blanket of secrecy that Bill C-2 throws over draft audit reports and records about wrongdoing in government is particularly regressive.

In my letter to this committee dated May 9, 2006, I offered my suggested amendments to fix the problems I have identified with Bill C-2. If you take a look at the package you received, you will find copies in English and French of the letters I sent to the chairman. If you want to look at them, I'll just run very quickly through the suggested amendments.

The first would be to remove the broad exemptions contained in sections 89, 147, 149, 150, 152, 172, 183, 189, and parts of 222 and 225. The relevant amendments are drawn from the open government act, and they suffice to protect the sensitive information to which these provisions are directed.

The second is to remove section 161, the exclusions for CBC and AECL. The provisions, drawn from the open government act, provide the necessary protection for the sensitive information to which this proposed exclusion is directed.

I note there are a great many needed reforms to the Access to Information Act that have not found a way into Bill C-2. We need to require the creation of records, make cabinet confidence an exemption rather than an exclusion, clarify that records held in ministers' offices are subject to the right of access, establish criteria for adding new institutions to the act's coverage, and provide a public interest override.

The government has chosen to have these and the other reforms proposed in the draft open government act dealt with by the Standing Committee on Access to Information, Privacy and Ethics. I look forward to working with this committee on the broader canvas of access reform.

Mr. Chairman, I and my colleagues are available to answer any questions that members of the committee may have.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Reid.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Thank you, Mr. Reid. Thank you for your presentation, and thanks for the material that we received in advance of the hearing. It was very helpful.

I'm a little confused here. On page 4 of your presentation, your comments are very clear that you are “concerned that none of the 10 new exemptions from the right of access require a showing, on a case-by-case basis,” that harm or prejudice could result, and that many of them are mandatory, or all of the others, except for the two you mention, regardless of the circumstance. Only one is time-limited. To me it seems very clear that you have concerns and that you are in fact suggesting--with some expertise, I might say, humbly, for you--that these are not good amendments.

I am confused, because I sat in the House numerous times when the president of the Treasury Board said that you said that this is the most radical or expansive act--I won't quote him--that you have ever seen. That you are very pleased with it would be the inference I drew on our side.

I can't reconcile those two comments.

But I might turn to pages 13, 14, and 15 of this little brief--

[John Reid]

Perhaps I could answer that, because it is interesting.

When I did see the President of the Treasury Board, at that point I took a copy of the open government act and said to him, “Minister, if you take this act and include it in your Federal Accountability Act, all your problems are solved on that, because that solves it all.” When I made the statement about the radical reform, I was referring to the fact that the government, in its platform, had suggested giving the Information Commissioner order powers, something that I had not asked for and that, as the chairman understands, I have argued against very often in the committee. I thought that was the radical departure.

I assumed, based on what I had heard, that the Access to Information Act provisions that I had given the minister were going to show up in the Federal Accountability Act. They did not.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you for that intervention, but again I'm confused. On page 16 of this little missive, it sounds to me like you're giving testimony here that you met with the government, Mr. Baird or others, before the act was tabled in the House. And yet--the language is very clear to me--on page 16 you say, “It is regrettable that the new government did not consult with the Information Commissioner with respect to the need for, or the wording of, the 12 new exemptions....”

Before the bill was tabled, did you have a general consultation or a specific one, or somewhere in between?

[John Reid]

I had had a meeting with the parliamentary secretary earlier to discuss the questions of the whistle-blowing legislation. I had an outstanding invitation from the President of the Treasury Board to go and see him on a get-to-know-you basis. It was at that meeting, which was far in advance of...in early March, that I took with me a copy of the open government act report and said, “Look, this solves all your problems, just put it in the act and you'll satisfy my requirements and everybody else's requirements.” From that point on....

I should say that at the same time, my deputy commissioner, Mr. Leadbeater, met with the Deputy Minister of Justice and gave him the same message: “Here's a copy of the open government act, and we are prepared to meet with you at any time to discuss any of those matters.”

Neither he nor I received a call at all from the government. We received no briefing before the bill was brought down. We received no briefing after the bill was brought down.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

That seems unusual, to me.

With respect to pages 13 to 15, this document outlines the ten new exemptions. Presuming, from my point of view, that it's a bit of a hit-and-miss situation, are there, of the ten, any that you clearly think should be exempt from exemption, if you like, or exempt from exclusion? Are there ones not there that you think should be included?

[John Reid]

In the amendments that we have filed with the chair, I have provided the necessary exemptions for the information that has to be kept secret. We have set it up in such a way that each exemption fits under the 13 exemptions that are there. You'll find that there are amendments to those sections to provide clarity to ensure that the information that has to be kept secret is kept secret. For example, you'll find a specific amendment that deals with CBC journalism and programs.

The other thing to remember is that in terms of the crown corporations that are coming in under the act, all of them are not unique in terms of what has to be protected. There are analogies throughout the systems. For example, if you were worried about marketing plans or anything like that, you would look at the fact that the Bank of Canada is there, you'd look to see that the finance department is there, and you would look to see that the Mint is there.

All the exemptions these people have for the top-secret information that they have is well protected under the act. But when there is a conflict, the act allows for a proper investigation to take place under the aegis of the Information Commissioner. These amendments provide an absolutely closed door that is very difficult for us to go through because in many cases there's no way for the information to come out.

We want to see a system that brings in these crown corporations in the same way that all of the other crown corporations and government departments are in.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

It makes sense.

I have a little more time.

Generally speaking, we've received submissions on the audit working papers. You made a comment about it being a time-limited exemption. Do you know why two years would be chosen and, by default, 15 years? What do you think a reasonable time would be for the protection of investigation or audit papers?

[John Reid]

Mr. Chairman, draft audits, audit papers, and what not have been protected under the act for the last 23 years. They've never come out unless there has been a reason for them to come out, so there's nothing new in this.

We also have no problem in saying that the documentation and material on any investigation should be kept secret at least until the investigation is over. That makes eminent good sense, and we agree.

There are occasions, however, when it is necessary to be able to go back and trace what actually happened. There should therefore be a requirement for an injury test to demonstrate that great harm would happen if this information in fact came out beforehand. This has been the pattern that is followed in all of these other cases. For example, it is followed in the RCMP and CSIS. All the national security agencies of Canada come under the act.

In this act, we're actually going to try to give audit reports greater protection than we do for secrets all over the government. We simply think they should be treated in the same way. There should be an injury test and, if it's necessary, we should be able to move the material out when it's required.

I'm not alone on this. The integrity commissioner has also come to the same conclusion. It makes eminent good sense to be able to have this information available when required. An injury test provides protection to everybody concerned.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Murphy.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Reid, good morning and welcome. Thank you for your presentation.

I read with interest your opening statement as well as the special report you supplied to us. I would like to read a few excepts of the special report you tabled at the end of April. If afterwards, you wish to intervene to explain how Bill C-2 might be improved in order to correct this perception, then please interrupt me.

On page 10 of your special report, you state the following, and I quote:

What the government now proposes--if accepted--will reduce the amount of information available to the public, weaken the oversight role of the Information Commissioner and increase government's ability to cover-up wrongdoing, shield itself from embarrassment and control the flow of information to Canadians.

For a bill that aims at ensuring transparency, this to my mind is quite a damning comment. Would you like to add anything, or is it clear enough?

[John Reid]

I agree that you have made my point quite clear. That's what it does.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Fine. Thank you.

You state further on:

No previous government, since the Access to Information Act came into force in 1983, has put forward a more retrograde and dangerous set of proposals to change the Access to Information Act.

Are you still of the same opinion? You have nothing to add?

[John Reid]

I am in agreement with that, Sir.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I am in agreement with you.

Further on in your report, you state:

The current government's proposals are every bit as much “a bureaucrat's dream“ as were those of the Chrétien government.

You then add:

There is no more eloquent testimonial to the power of the forces of secrecy in government that the radical change they have wrought, in a few short weeks, to the Prime Minister's election promises for access reform. In his role of Leader of the Opposition, Steven Harper ridiculed the Martin government's decision to release a discussion paper, rather than to introduce a bill to reform the Access to Information Act.

In conclusion, you state:

Also, the government proposes to keep secret forever all records relating to investigations of wrongdoing in government.

In your opinion, Bill C-2, which purports to be a bill on transparency and accountability, will deliver the completely opposite result if it is passed as it is presently drafted.

[John Reid]

Mr. Chairman, the heart of any kind of system of accountability is openness and transparency, and that is gained through the Access to Information Act. Where the materials are not available, it means there is confusion, there is no transparency, and there is little openness.

So I am concerned about the way in which this legislation is presented. It means that those people coming into the act, the crown corporations and some other changes, what they do is prevent information from coming out. If we are not to get more information from these organizations than we can now get by looking at their websites and their financial statements and what not, why then bring them into the act? It makes no sense to force them into the Access to Information Act if in fact the result will be that no flow of information comes out that's not already available.

I also am concerned about the sections dealing with parliamentary officers, particularly my office. When I became Information Commissioner, I discovered to my surprise that we were not subject to our own act. Furthermore, I've discovered to my surprise that we are not subject to the Privacy Act either. What was done in the office before my coming was that previous commissioners had automatically set up a system where we obeyed the strictures of the Access to Information Act as well as the Privacy Act.

I feel that parliamentary officers, your agents, should be the most open and transparent organizations in the Government of Canada. I think we should lead the way in providing that kind of openness and transparency, not only to members of Parliament, but also to the general public.

These provisions, as they are drafted, do not allow that to happen.

[Benoît Sauvageau, Bloc, Repentigny, QC]

In conclusion, the bill that has been presented to us as a revolution in transparency within the government apparatus is, according to your special report and to what you have stated, a blanket of secrecy that will allow the government to “keep secret forever all records relating to investigations of wrongdoing in government“.

[John Reid]

Insofar as the amendments apply to the Access to Information Act, I agree with that.

[Benoît Sauvageau, Bloc, Repentigny, QC]

We must remember, in closing, that you have not been consulted, that the majority of the members of this Committee are not interested in consulting either nor in hearing witnesses: everything is being done to boycott them. It is as if Bill C-2 were the equivalent of the ten commandments from Mount Sinai. This is why there is such a yearning for perfection.

I thank you very much for your presentation. It goes to show that even though we want to see this bill passed, we must take the time to improve it and to ensure that the philosophy underlying Bill C-2 aimed at increasing transparency and accountability is expressed within the bill and that its enforcement will not bring about the opposite.

[The Chair, Conservative, David Tilson]

Thank you, Monsieur Sauvageau.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Welcome, Mr. Reid.

Mr. Reid, I think you said in one of your articles that it's hard to overstate what a central place freedom of information plays in our democracy, that the public has a right to know what the government is doing with their money, and that this idea is central to everything we stand for.

The Conservatives, during the election, promised to lift this curtain of secrecy in Ottawa. We all welcomed that and looked forward to that opportunity, so I, for one, share the frustration that came through in the language you used in the report you gave recently. We were all crestfallen. Any parliamentary veteran knows that shipping draft proposals to a parliamentary committee is not a way to speedily move forward an issue or get something passed into law. In fact, it's the polar opposite. It's death by committee.

Even though we're crestfallen and disappointed that Bill C-2 won't have meaningful access-to-information amendments, you've put forward a road map for us to at least make sure that Bill C-2 does no harm, and that while we're busy at the ethics committee trying to craft new access-to-information legislation, at least we won't be going backwards; there'll be nothing retrograde about Bill C-2.

First of all, I can say these are very modest ideas. There's certainly nothing radical that I see in the eight recommendations you've made. I am surprised, though, that you didn't advance at least one new idea into Bill C-2 in relation to your frequent comments on the lack of documentation and on the obligation to record what goes on so that the information will be available to subsequent researchers.

Can you say why you chose not to add that into your list of eight recommendations, and speak to how we may add it and still be in order for Bill C-2?

[John Reid]

Mr. Chairman, what I did was provide amendments to Bill C-2 as it is written, to bring it into harmony with the draft of the open government act. We focused exclusively on what was in Bill C-2.

As you know, once the House of Commons gives a bill second reading, it does limit what you can bring into the bill from outside. I determined that I would deal only with what was in Bill C-2, and provide necessary amendments, so that should the committee decide to change Bill C-2 to bring it into accord with the draft open government act and with standard procedures in openness and transparency, members would have the amendments before them.

[J. Leadbeater, Deputy Information Commissioner, Office of the Information Commissioner of Canada]

Could I just add one thing, Mr. Chairman?

To the extent the committee wishes to consider any provisions like that, the wording of the provisions is already available in the open government act. With respect to records, the proposal is a provision worded:

Every officer and employee of a government institution shall create such records as are reasonably necessary to document their decisions, actions, advice, recommendations, and deliberations.

To the extent this committee might want to pick out from the open government act, the language is already there.