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

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you.

I do find this very useful. I do want to compliment you, Mr. Reid, and your office, for putting together the open government act at the request of the ethics committee in the last Parliament. This is the road map to move forward. I don't mind saying publicly that I wish we had this at this committee, to be able to implement into Bill C-2.

I do understand the limitations, although as a legislative committee we haven't tested how far we can go with amendments and still be in order. I'll be interested to see if they will allow that kind of substance.

As well, Mr. Reid, you are aware that the ethics committee in the last Parliament issued a seventh report just at the end of the Parliament. It called upon government to craft legislation based on the open government act. It seems that every time we get close to meaningful access-to-information reform--just when it's within our grasp--it slips away again for another decade or so. The enemies of true freedom of information seem ever-vigilant and on guard, and as we get close to breaking down these barriers, they rally once again. It seems that they got to this government in the same way that they got to the last government, just as we're about to make a significant breakthrough.

Do you have any comments on that?

[John Reid]

Mr. Chairman, I always understood that amendments to the Access to Information Act to make the Government of Canada more open and transparent would not be an easy chore. Since I became commissioner, I have been campaigning for improvements to the act to make the necessary changes. When we did the open government act, the committee asked me to bring forward a piece of legislation, but it also told me, “Nothing radical”. So every piece in there has been tested in some other jurisdiction. There's nothing radical that hasn't been done in some other jurisdiction, either in Canada or abroad. All we're dealing with in the open government act is the ability to bring our act up to date because it's 23 years old, and we're providing nothing that is groundbreaking from that point of view.

The government, having made its decision to split Bill C-2--to take the Accountability Act out of Bill C-2--that having been done, I think we have to accept it and proceed as best we can. My concern right now is to make sure those sections in Bill C-2 that impact on the Access to Information Act do so in keeping with the open government draft, and in keeping with the way in which the Access to Information Act currently exists. It would be unfortunate if we made great departures in the structure, because we've had 23 years of experience with the existing structures, and everybody who is in the system understands how it works. There are certainly disagreements, but reasonable people can have disagreements. We all understand how it works. What we want to do is build on that understanding.

[The Chair, Conservative, David Tilson]

Thank you, Commissioner.

Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you for being here.

I want to discuss some of these so-called “new exemptions” you say are created by the Accountability Act. You said ten new exemptions or exclusions concern you. It's wrong. I'd like to go through the ones you've listed.

Let's start with section 183, Privacy Act, relating to the Privacy Commissioner.

Right now, none of the information exempted in the Accountability Act is accessible under the status quo--none of it. You would not be able to access this information if you filed an ATI today, prior to the passage of Bill C-2. There is no new exemption. There is an expansion with respect to the Privacy Commissioner. We have an exemption here; you speak out in section 222, the Public Service Integrity Commission. That is not a new exemption. The Public Service Integrity Commissioner is not required, under the status quo, to respond to any ATI. We have here another exemption, section 225. That relates also to the Privacy Commissioner. Right now, the Privacy Commissioner is not subject to the act, so it's not a new exemption. We're expanding access to information for that officer of Parliament.

We go down to section 147. This is an exemption relating to the Canada Elections Act. Again, those are exemptions created as a result of an expansion of access to information. An exemption for the National Arts Centre is not a new exemption, because the NAC is not covered under the existing act. There is no current access. A number of them--I've just listed six--are not new exemptions. They're the result of the fact we've actually expanded ATI. Prior to this government's introduction of the Accountability Act, these organizations had no responsibility to reply to access to information requests. Now they have some. You're saying we have not gone far enough, but it's not fair to say we've gone backwards, because the existing exemptions are merely exemptions from new access provisions we've created.

It is wrong to say we are moving backwards away from ATI. You might argue we've not gone far enough, and you probably have some persuasive arguments to convince us we should go further, but to argue we are going backwards on those particular organizations is incorrect.

I'd invite your comments.

[John Reid]

Mr. Chairman, I want to say that I agree with the parliamentary secretary to the extent that he's right, these are new organizations that are being brought into the system. My problem has been that they all have new exemptions--to make sure that if you look at what is going to come out of the new system, not much more is going to come out than what you can get on the websites and what not.

For example, you mention the National Arts Centre. The National Arts Centre has specific exemptions in this act. But there's a whole range of federal arts councils around, the National Gallery and what not, who have exactly the same situation that the National Arts Centre has. So the question that I find difficult to understand is why have we given these people specific exemptions that are not discretionary and not time-limited? Why didn't we just put them into the act in the same way as you have done with the foundations so they were subject to the general ones? And if there were things that were not covered, why not add, as I suggested in the open government act, specific exclusions that meet the requirements like the CBC? But that's not the way in which the government has decided to treat the issue.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I understand that Commissioner Reid might have some very intelligent arguments as to why those exemptions should not be there. What I'm merely pointing out here is that we are not restricting access that was previously available. If we're giving 70% access to information to CBC, that's 70% more than we had under the status quo. There was no access to information for CBC whatsoever prior to Bill C-2. There was no access to information available for the National Arts Centre under the status quo, period. There was no access to information available for the Privacy Commissioner or the officers of Parliament. You might say there should be no exemptions for those organizations, but in fact prior to Bill C-2 there was no ATI ability whatsoever.

I just don't understand your comments that we've gone away from ATI, when in fact we've made major steps forward to expanding and broadening access.

On the other areas that are in fact new exemptions, because some of them are, let's review them.

First of all, on clause 152, discretionary exemptions for internal audit working papers, you made some intelligent arguments as to why you don't believe they should be in there. But, respectfully, these are exemptions that the Auditor General asked for. These aren't efforts by the government to undermine the transparency of government. It's merely a response to another agent of Parliament.

Clauses 172 to 179 are exemptions for Export Development Canada on information related to customers. How could an organization like that operate if you're going to tell customers that deal with the organization their information could become public under ATI?

[John Reid]

I'd like Mr. Leadbeater to respond to those questions.

[The Chair, Conservative, David Tilson]

No, we have a problem. Unless the committee consents, we're out of time and you'll have to continue on in the next round. You can't talk for seven minutes and then expect an answer.

There's unanimous consent. Thank you.

[J. Leadbeater]

I'd like to speak first to the issue of audit reports. For 23 years internal audit reports have been subject to the right of access and to an injury test. Internal audit reports are not released unless and until final audits are completed so they can be put in context. They are also subject to all the other exemptions to protect personal information, commercial secrets, national security, and so forth.

The Auditor General and others went before Justice Gomery, who, remember, had the longest public inquiry in Canadian history into part of its mandate, the Access to Information Act. They said that they needed more secrecy with respect to audit reports. Justice Gomery, looking at what happened in sponsorship, said what you need is the way the government has decided to approach this, which is more external members on audit committees, more involvement of the Comptroller General, and so forth. There was no recommendation by Justice Gomery for increased secrecy for draft audit reports or working papers.

There has never been—and I don't think the Auditor General has ever brought forward—one case where audit working papers or draft audit reports have been released before the final audit was out. Once the final audit is out, they can be put in context and the public can ask, why was that changed from the initial draft; who asked for that to be changed--the precise questions that Justice Gomery was asking about why those early audit reports got changed in the sponsorship inquiry.

The theory behind this act is that secrecy should be hard. You should have a burden of justification. Every one of the new exemptions that have been included in this bill say secrecy should be easy--blankets forever, with no injury test.

[The Chair, Conservative, David Tilson]

I know you're busting over there, but you'll have to wait until the next round.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Welcome, Mr. Reid, Mr. Leadbeater, and colleagues.

As Mr. Martin alluded to earlier, we seem to have been banging at this door for a long time in this country, and I thought all of us had come to the conclusion that it was really time to move forward. We've had over 25 years of experience with this legislation, with this concept; we've learned some things, and it's time to move on.

If I can just state where I think we were--and Mr. Leadbeater and I were discussing this twenty years ago, it seems--public information should be public. That's the principle.

There are going to be some exceptions, but they should be limited, focused, related to injury, and subject even then to a public interest override, and the decisions of the bureaucracy, the administration, should be reviewable by an independent office. That's the principle.

And the last one, I think, is that a parliamentary officer should not have order powers, because a parliamentary officer is an agent of the members of Parliament. It's Parliament that can make its own decisions. It has full powers. It can even put people in jail if it likes. But that's the general principle.

The practical experience we've had is that the original notion that this would simply, initially, have the public bureaucracy make everything open, without having to go through our commissioner, except for a few trigger points that would give pause to consider, has been frustrated by--without putting fault on any individual or even any conspiracy of individuals--bureaucracy being large and slow, and there are political issues and fears. So it just slows it down and it hasn't worked the way it was meant to.

So over the years, and as recently as just over a year ago, your office was asked to make some specific recommendations, based on the history of the office, as to how to improve this, how to break the logjams, how to open things up, how to reach Mr. Leadbeater's transparency. You did that. You created the open government act. You brought it forward as an example to the ethics and information and privacy committee. It endorsed it. The Conservative Party put it in black and white in its election platform, as it spoke about it being a key part of the Accountability Act, which would be the first legislation the government brought forward if it was elected. It was elected, it brought forward an accountability act, and it didn't have the open government act in it. That's what I think we're going to have some real discussion on when we talk about amendments and how to improve the Accountability Act, which we think has many positive things to it.

But I must take just slight issue, respectfully, with Mr. Poilievre, with respect to this actually giving more powers. The issue isn't that more authorities are brought into the ambit of the act. It's the type of exemption that's created that causes the problem, rather than the number of further authorities, and it's this principle of forever, without an injury test, without potential for a public interest override and without a review by the independent--remember, independent of government, not independent of Parliament--parliamentary officer, on behalf of all members of Parliament, having a confidential look to ensure that there is injury and there isn't some overriding public interest.

That's the beauty and the magic of the act that should operate, as one of Commissioner Reid's predecessors said, “as a Maytag repairman”. Once everybody got into the swing of it, it would just happen naturally. And in fact, having greater access, getting into the habit of making information readily available, and organizing it in a record system so it could do that would make government decisions much better, because government would act with itself on full information because it would be in the practice and habit of organizing it in a proper way.

So, Commissioner Reid, I would just put to you that I think what you've done is given us recommendations that could de-fang or disarm the bill as it is now with respect to access to information, but if I take your comments--and certainly I look at the history of the last year--I take it that your main recommendation would be to incorporate the open government act into the Accountability Act.

[John Reid]

That's correct. That's what I anticipated was going to happen.

[The Chair, Conservative, David Tilson]

There's a problem, Mr. Owen, and we're going to need unanimous consent again, because the bell has just gone.

Do we all agree that this answer can be given?

Mr. Reid, I'm only trying to follow the rules, and you have the floor.

[John Reid]

Thank you.

The answer is yes. I think you put your finger right on the point. What we want is that new organizations being brought into the Access to Information Act live by the same rules everybody else lives by. There should not be exemptions that are mandatory. There should not be exemptions where the Information Commissioner cannot examine the material to make sure that what is being released is proper. The Information Commissioner should have the ability to examine all the material that's required to ensure that what's going out should come out.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you for that.

[The Chair, Conservative, David Tilson]

We'll have Monsieur Petit and then Mr. Poilievre if there's time.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Reid, yesterday, we met with aboriginal witnesses who wanted to share with us their wishes regarding Bill C-2. They are asking to be completely excluded from the definitions contained in Bill C-2. Thus, even the Access to Information Act would short-circuit and remove federal authority with regard to verifying accountability with regard to monies granted to aboriginal groups. They are asking to be completely excluded.

According to the amendment to clause 146 of the bill, or proposed section 16.1, contained in your document, there is no obligation to make such a mention there, in other words that the aboriginal groups have placed themselves within the definition so as to ensure that they will not be listed under the exclusions.

Are you in agreement that all aboriginal tribes, be they in a territory or in a province, be excluded from Bill C-2?

[John Reid]

The existing law works in this way. Requests for documents that are under the control and in the hands of a government department are subject to the act. That includes an enormous amount of material, including a lot of material on aboriginals. If they are in the control of the government department, they are subject to the act.

Indian and Northern Affairs Canada is subject to the act, so all the documentation that it produces and generates is subject to the act. What is not subject to the act, however, are the documents that are generated by the first nations themselves, which are properly under their own control. They are subject to a mandatory exemption. So if a document comes up that is in the hands of a band council, it is not subject to the Access to Information Act. It is excluded, so we do not see it, and we cannot see it. However, if there are representations that the band council or an Indian group has made to the Government of Canada, and it is properly within the control of the Government of Canada in some way, then that does become subject to the act, just as all other information does.

From the point of view of the Access to Information Act, aboriginals already have the status of being outside the act.

[The Chair, Conservative, David Tilson]

Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Once again, the members across the way talked about new exemptions that they believe are too categorical. I just want to go back to the simple fact here that prior to the Accountability Act's introduction, groups like officers of Parliament, crown corporations, which have been added, and groups like the National Arts Centre had a total, complete, one hundred percent, permanent, mandatory exclusion from ATI. That will be reversed under the new Accountability Act proposals. So they are not new exclusions. These are additions to the access to information components of this bill.

I want to ask, specifically, about the sources for CBC journalists. Do you believe that CBC journalists are comfortable with the notion of turning over their sources to you and then allowing you to decide whether they should be made public?

[John Reid]

Mr. Chairman, I don't think the CBC journalists would have any problems with the Information Commissioner examining it under the proposals I've made as to whether there's a harm test. After all, we do this with the most sensitive national security material. We deal with all of the CSIS and the RCMP material--all the sensitive national security material.

So I think it's clear from the proposal I've made that indeed the integrity and independence of the CBC news-gathering and programming activities should receive protection. I don't believe, however, that decisions by the CBC to refuse disclosure, as proposed in Bill C-2, should escape independent review or the rigours of an injury test. My position in this case was endorsed by Judge Gomery, and I think it's a very sensible approach.

I do not believe there should be any mandatory exemption from review by the Information Commissioner as set out in the opening part of the act. The Information Commissioner is given that duty to examine all the most sensitive information in the Government of Canada. I don't think this is a difficult duty for us.

[J. Leadbeater]

Mr. Chair, could I add a comment?

[The Chair, Conservative, David Tilson]

I don't see why not.

[J. Leadbeater]

You know, we'd really like to urge the members of the committee, and especially the government members, to realize that new institutions that come under this act are scared, and they're worried. I can remember 23 years ago when the police and the security services wanted exemptions and exclusions. They wanted to be out of this because it was new. Three years later, Parliament conducted a review of this act and the police never showed up. The police agreed that they could meet injury tests. If the information is that sensitive, it's very easy to meet an injury test. If it's so sensitive that it needs an exclusion, surely to God it can meet an injury test.

The most sensitive information that the Government of Canada holds, which is the information of the military, national security, counter-subversion, and counter-terrorism, is all subject to section 15 of the act. This is a discretionary injury test exemption; it is not a mandatory class test exemption. We have had study after study after study, and it has never been recommended that section 15 be made into a mandatory class exemption.

This bill says that the Information Commissioner, for example, has a mandatory obligation to maintain the secrecy, forever, of his investigative records, and the same goes for all other officers of Parliament. No investigative body currently covered by the act has that right. I can tell you, if this passes, CSIS, the RCMP, the military, police, and the immigation investigators will all be in tomorrow, and they'll all be saying if the Information Commissioner needs that much secrecy, boy, we really need it too. So be careful.

[John Reid]

I should say, Mr. Speaker, in terms of the Information Commissioner, we operate as if we were under the act. We have had no problem dealing with the act as it is and dealing with our investigations.