Bill C-2 (39th Parliament, 1st Session) Committee on May 30th, 2006

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen.

This is the Legislative Committee on Bill C-2, meeting number 14. Orders of the day, pursuant to the order of reference of Thursday, April 27, 2006, are Bill C-2, an act providing for conflict-of-interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.

Our first witnesses today are the Canadian Newspaper Association and the B.C. Freedom of Information and Privacy Association.

I hope my voice will stay long enough to introduce you; we'll do our best.

Anne Kothawala is president and chief executive officer; David Gollob is vice-president of public affairs. It's good to see you both again. Of the second group, the president is Richard Rosenberg; Stanley Tromp is research director. Good afternoon to all of you.

As you know, our witnesses normally say a few words at the outset, followed by questions by members of the committee. I don't know who is going to go first.

Ms. Kothawala...ladies first.

[Anne Kothawala, President and Chief Executive Officer, Canadian Newspaper Association]

Thank you, Mr. Chairman, for having given us this opportunity to share our ideas with the committee. I am here today with David Gollob, our Vice-President, Public Affairs. I will limit my remarks to those sections of the Accountability Act that concern the public's right to know.

The CNA speaks for Canada's daily newspapers on matters affecting the industry. We share the interest of this committee in greater transparency and accountability in government. The public looks to newspapers for insight and context, not just the facts but the story behind the facts. When access to that story is blocked, we cannot do our job. If we cannot to our job, our system of democracy is in trouble. It really is that simple.

Freedom of information has been recognized by the Supreme Court of Canada as a quasi-constitutional right. From the tainted blood scandal where records were shredded, to the Somalia affair where records were hidden, to sponsorship where records were deliberately not created, Canadians have learned that we need better access law, not more exceptions to it.

Evidence provided at the Gomery Commission showed just how easily the right to know can be thwarted. Although many revelations concerning the sponsorship scandal were made following access to information requests filed by journalists working for the major dailies, witnesses also criticized the fact that there was political pressure on them to hide the truth.

We should all be concerned about that. Those efforts to hide the truth failed. Next time we may not be so lucky.

During the election campaign, we applauded the Conservative Party's promise to prevent next-times by introducing a federal accountability act. A core component was the commitment to enact Commissioner Reid's open government act, a reform package that would bring Canada's Access to Information Act into the 21st century, on a par with other modern democracies. But when Bill C-2 was introduced, the open government act was missing in action.

We believe the new government had been persuaded to defer the one promise that had power to expose and thus pre-emptively deter wrongdoing. It was also the one promise that inspired loathing among a powerful group within the federal bureaucracy. We were disappointed with that decision, as we were with the broad sweep of changes to access to information under Bill C-2. Thus my theme today: first, do no harm.

As in medicine, public policy must avoid remedies that unintentionally make the patient sicker. Prescriptions that pretend to cure, but don't, are just as bad. The patient gets worse and the false belief that a cure has been found puts an end to the quest. The patient today is the public interest, and the patient is feeling very poorly indeed.

Broadening access to information to include more crown corporations, officers of Parliament, and federal government agencies is a remedy whose promise is defeated by the mandatory exemptions that apply. We are talking about mandatory exemptions with no time period, no injury test, in excess of protections already in the act that government departments and even our security services have learned to live with.

For example, Health Canada receives proprietary information from pharmaceutical companies, which is protected under section 20 of the existing act. There is no reason why the Export Development Corporation or the AECL could not live with this type of protection. Health Canada and the companies it deals with find these conditions livable, despite the fact that the exemption is subject to a public interest override and reviewed by the Information Commissioner.

Another example: The Auditor General's office will come under the act, but the mandatory exemption renders its exclusion meaningless. A draft internal audit report, like the one that sounded the first alarm bells of the sponsorship scandal, would be sealed forever without a public interest override. Information about the Auditor General's office would be limited to travel and expense claims, which are already posted on the Internet.

The CBC requires a journalistic carve-out and we support that. But don't make it an exclusion immune to independent review. Commissioner Reid's open government act has language that will protect CBC journalism without endangering the principles of freedom of information.

Fixing this should be easy; you have the tools. If the open government act is not on a legislative track for now, let's at least ensure that Bill C-2 is consonant with it and with the spirit of the original Access to Information Act.

You have before you a series of eight amendments proposed by Commissioner Reid that will enable Bill C-2 to proceed without violating the central tenet of Canada's Access to Information Act: that government information should be available to the public, that necessary exemptions should be limited and specific, and that decisions on disclosure should be reviewed independently of government. We support these amendments and ask you to adopt them.

You could go even further. We urge you to enhance Bill C-2 with as much of the open government act as you can with regard to establishing a duty to create and maintain records; adopting the definition of the purpose of the Access to Information Act as defined in the open government act; bringing cabinet confidences under the act; providing a mandatory public interest override.

Finally, we ask that provisions of Bill C-2 with respect to Access to Information be submitted to parliamentary review after a period of three years.

I thank you very much.

[The Chair, Conservative, David Tilson]

Thank you.

We now have Mr. Rosenberg and Mr. Tromp.

[Richard Rosenberg, President, B.C. Freedom of Information and Privacy Association (FIPA)]

Thank you. I'll speak.

[The Chair, Conservative, David Tilson]

Okay, you're on the air.

[Richard Rosenberg]

Thank you.

My name is Richard Rosenberg and I'm the president of FIPA, the B.C. Freedom of Information and Privacy Association. It's a non-profit society that was established in 1991 for the purpose of advancing freedom of information, open and accountable government, and privacy rights in Canada. We serve a wide variety of individuals and organizations through programs of public education, legal aid, research, public interest advocacy, and law reform.

FIPA's an enthusiastic supporter of the reforms to the Access to Information Act proposed by Justice John Gomery, Information Commissioner John Reid, and the federal Conservative Party during the recent federal election. Genuine opportunities for reform of this vital act are rare, and we're concerned, because we perceive, along with many other interested parties, that this opportunity may be slipping away. Significant reforms of the ATI Act have been deferred, and the minor measures included in the Accountability Act afford us little comfort.

Many Access to Information Act reforms were urged by Justice John Gomery in his final report on the advertising sponsorship problems as one key way of restoring public faith in the federal government. We continue to hope that the new administration and all the opposition parties endorse that goal. Our group, along with a large segment of the Canadian public, is anxiously awaiting the fulfillment of promises of a new era of transparency and access to information.

FIPA urges the federal government to fulfill all seven promises of ATI reform made in the Conservative election platform of 2005, and we urge that the Accountability Act be amended to include these reforms.

In its platform to strengthen access to information legislation, the Conservative Party pledged to implement the Information Commissioner's recommendations for reform of the ATI Act, and FIPA is disappointed that the government has chosen to defer most of these reforms and have them dealt with by the Standing Committee on Access to Information, Privacy and Ethics. The tone of the government's discussion paper on ATI reform is regressive, and there's no firm timeline set for achieving these reforms. We disagree, in fact, with comments made by the Information Commissioner that more study of ATI reform may be needed.

The ATI Act has been studied to death, in our opinion, by many committees over two decades, without producing reform, and we're concerned that reference to the standing committee....

Excuse me.

[The Chair, Conservative, David Tilson]

Mr. Rosenberg, as you know, we have two languages going here. I wonder if I could trouble you to just go a little slower. And then towards the end I'll tell you to pick up so you can finish.

[Richard Rosenberg]

Thank you. That sounds right.

We disagree with comments by the Information Commissioner that more study of ATI reform may be needed. The ATI Act has been studied to death by many committees over two decades without producing reform, and we're concerned that reference to the standing committee could once again prove to be a graveyard for positive action.

Second, on order-making power: give the Information Commissioner the power to order the release of information. Order-making power is essential to ensure the proper functioning of the ATI Act. The information commissioners in four provinces have this power, and those systems work far better than the current federal regime. In a report to the last federal government, Justice La Forest strongly recommended this reform be considered, and the Access to Information Review Task Force of 2002 concluded that order-making power is “...the model most conducive to achieving consistent compliance and a robust culture of access.”

Third, expand the coverage of the act to all crown corporations, officers of Parliament, foundations, and organizations that spend taxpayers' money or perform public functions.

The need for this measure is obvious and has been restated for more than two decades. Some quasi-governmental bodies object to coverage with the argument that their financial and competitive interests may be put at risk, but such arguments are spurious, because the ATI Act already contains strong sections to prevent disclosures that could cause such harms.

On September 29, 1997, Conservative--then Reform--MP Myron Thompson introduced a private member's bill, Bill C-216, to include all crowns under the ATI, presumably with the approval of the then-Reform leader. It was defeated by the Liberal majority. If this action was right for the Reform Party then, and could have been made law, why not now?

Fourth, subject the exclusion of cabinet confidences to a review by the Information Commissioner. As Commissioner Reid noted of the government's proposal on this topic in the Treasury Board discussion paper, “This proposal is the status quo. That is what happens now. The government's proposal will not, in any sense, ensure that cabinet secrecy is not abused.” We agree.

Fifth, oblige public officials to create the records necessary to document their actions and decisions. It is difficult to foresee how one cannot recognize the clear benefit to the public interest and government efficiency in this long-overdue proposal. True public access to information cannot exist without an accurate record of government action and decision-making.

Just in a slight aside, I take this to be crucial. What does open government mean if you can't access the variety of information that government produces, and their discussions? In fact, what we've noticed more recently is that there's less to get. Stuff is not being written down. Minutes are not available from meetings. This is a real concern after two decades of attempting to get good open government through access to information.

Sixth, provide a general public-interest override for all exemptions, so that the public interest is put before the secrecy of government. The cornerstone and ethical yardstick of effective access legislation is a workable public-interest-paramount override, such as those found in the freedom of information and privacy acts of Ontario, British Columbia, Alberta, and others. The purpose of such a provision is to ensure that regardless of other interests that may tend to influence the decision of a public body, the final decision regarding disclosure of records is taken in the public interest.

Seventh, ensure that all exemptions from the disclosure of government information are justified, not only on the basis of the harm or injury that would result from disclosure--not blanket exemption rules.

Eighth, ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts. Justice Gomery proposed deleting section 24 of the ATI Act--which allows such circumvention--and we agree.

Finally, on whistle-blower protection: Justice Gomery proposed six ways of improving Bill C-11, the whistle-blower protection act, and FIPA endorses these amendments.

Finally, we wish the committee to know FIPA disagrees strongly with the addition of a blanket of secrecy over draft internal reports and working papers for 15 years, the proposal to keep secret predominantly all records related to investigations of wrongdoing in government, and the government's opposition to extending the reach of the ATI Act into the Prime Minister's Office and other ministers' offices.

We thank you for your attention. I and my colleague Stanley Tromp, research director of FIPA, would be pleased to answer all your questions.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Fast and slow, they were both good presentations. Thank you very much.

Mr. Owen has a question.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Welcome all, and thank you for cooperating with us, with some very useful advice from your various expertises.

As a partisan British Columbian, I would like to, if I may, just throw a rose to FIPA, which has done for almost 15 years now extraordinary work in British Columbia to ensure that we have in that province one of the finest information and privacy regimes in the country.

Gentlemen, perhaps first to FIPA, we do have a combined office in British Columbia, and we don't federally, although administration has been shared at some points in time. We've heard from both John Reid and Commissioner Stoddart over the last few days, and we're facing a regime and a new set of independent offices. They can be seen, from one perspective, as a proliferation that, while they're set up to assist members of Parliament to better keep a check on the executive, become so numerous that it becomes very difficult for them sometimes not to be drawing power away from legislators, rather than as an adjunct to it. So some of the concern is that there is just too much confusion in Parliament, in the public, in the media, and certainly in the public administration, as to who they're dealing with and who they're accountable to.

I'm wondering whether you have formed an opinion, given your experience in British Columbia, on whether it would be wise to start consolidating some of these offices, in particular with respect to information and privacy offices.

[Richard Rosenberg]

This is my opinion, of course. I think they should be combined. The issues overlap, and they are issues they have to consult with each other about. There are obviously occasions on which there's a conflict between freedom of information and privacy rights, and it seems to me that a single office, under jurisdiction providing for a single office, allows those decisions to be made more easily and for the benefit of the general public.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Maybe I'd just ask another question, then, and that—

[The Chair, Conservative, David Tilson]

I wonder if you two want to have anything to say.

[Anne Kothawala]

Sure. We actually, respectfully, disagree, and I think that the former government did actually ask Justice La Forest to look into this issue. I think that precisely because the issues of privacy and access to information need to be so delicately balanced that having them under the same office can create more problems. We've seen that in other jurisdictions, where, for example, due to privacy provisions, police forces across the country are now not routinely giving the media access to certain pieces of information that they used to routinely have access to, and the reason they're using is that they're basically misapplying the Privacy Act. So it does create problems, we think, to house them under the same office.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Okay. Thank you.

Perhaps just one further—

[Richard Rosenberg]

That's not necessarily the case. It may be the case now, but it shouldn't be the case. The Privacy Commissioner should be much more active in saying “You can't use that for this reason”. But if they're not doing it, they're not doing it--

[The Chair, Conservative, David Tilson]

We're up here.

[Richard Rosenberg]

I'm sorry.

[The Chair, Conservative, David Tilson]

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

One further point is the recommendation, as you've mentioned, that Justice La Forest made, but also Commissioner Reid has made, that there be powers to order disclosure in the Information Commissioner's office. One of the underlying principles of ombudsmanship has always been that this is a moral suasion with the powers to investigate, to be independent from those you're investigating, and with the power of speaking directly to the public through the legislative branch with your reports.

Do you see any difficulty? Is this something that's clear-cut to you, that this power is necessary because of past abuse or just ineffective application, or is this something that has some strong things in favour of it--obviously some eloquent people, important people--but are there dangers, as well, that might be foreseen?

[The Chair, Conservative, David Tilson]

Mr. Gollob.

[David Gollob, Vice-President, Public Affairs, Canadian Newspaper Association]

Perhaps I could attempt an answer.

I think it's an interesting question, and Commissioner Reid, if I understood his position correctly, in fact does not believe that the power to compel is a requirement. If I have understood this, he feels satisfied that he's able to appeal to the Federal Court in order to move the matter forward, where required.

With all respect, we believe that in fact there are much more fundamental reforms that are at issue here that are required, and if we could see some of the really good things that were in the open government act adopted, in the context of Bill C-2, now that this matter is before you, we would be so encouraged by that and we would look at that as being very, very progressive. Without having to go beyond that, I think it will be taken up by the access to information, ethics, and privacy committee—

[Stephen Owen, Liberal, Vancouver Quadra, BC]

And the injury test, the public interest override, the requirement to keep records are right at the front of your concerns.

[The Chair, Conservative, David Tilson]

Mr. Rosenberg, did you have a comment?

[Richard Rosenberg]

A quick one.

I think that order-making power is quite appropriate. I think one of the problems with PIPEDA and the administration of it by the Privacy Commissioner's office is that we don't know who the decisions are being made about. One of the powers of the office is the persuasion that comes about by the public knowing that certain companies are behaving inappropriately, or certain operations are not being done right. I think it's important that those be made public, and that would be done. And when you're considering the reforms in PIPEDA this year, I hope that would be something you would consider.

Did you want to say something, Stanley?