Thank you, Mr. Chair.
I want to start by thanking you for inviting me. I'm pleased to have this opportunity to address your committee.
As you know, since the introduction last April of the Federal Accountability Act and action plan, a lot of progress has been achieved with regard to our commitments to make government more accessible and accountable. We have brought forward specific measures to increase accountability, transparency, and oversight in government operations. Through this act and action plan, the government is reforming the financing of political parties, strengthening the role of the Ethics Commissioner, and toughening the Lobbyists Registration Act. We are also ensuring truth in budgeting, with a parliamentary budget authority; cleaning up the procurement of government contracts in polling; providing real protection to whistle-blowers; strengthening the power of the Auditor General; creating a director of public prosecutions; and finally, strengthening access to information legislation.
Today I am here to discuss with you what I believe should be the next step with regard to our common objective of strengthening the Access to Information Act, ATIA. Since that act became law in 1983, much has changed in the federal government, in Canada, and around the world. Accordingly, there have been numerous calls for reform of the Access to Information Act. Our government believes that it must enhance the public trust and respect the public interest by encouraging the greatest degree of openness and transparency. At the same time we must take legitimate concerns into account, like personal privacy, commercial confidentiality, the protection of national security, and the government's relationship with its international allies.
To that end, the Federal Accountability Act already includes a number of reforms to the ATIA. The Accountability Act will expand the coverage of both the Access to Information Act and the Privacy Act to include seven agents and officers of Parliament; all parent crown corporations and their wholly or majority-owned subsidiaries; and five foundations. In addition, the FAA will provide a duty that institutions assist all requesters, regardless of their identity, and will clarify the time limit for making a complaint under the Access to Information Act. It will also increase the number of investigators the Information Commissioner may use for investigations concerning information related to defence or national security.
Mr. Chair, as you are well aware, for the last two months a legislative committee has been studying Bill C-2. Many amendments were brought forward at the committee, and several were considered to have enough of a consensus to be adopted by the committee. I'm glad we were able to make that type of progress, but I'm here today to say that I don't believe we should stop there; we can continue to achieve our common goal of strengthening the Access to Information Act, and it's my hope that this committee will agree to hold consultations on Access to Information Act reform.
You will remember that on April 11, I tabled in the House of Commons a discussion paper offering comments on various approaches for dealing with potential reform to the Access to Information Act and on several of the Information Commissioner's key proposals for reform. Since then the Information Commissioner has presented a special report to Parliament, addressing the government's action plan for reform of the Access to Information Act.
I'd like to point out that as justice minister I disagree with several of the commissioner's observations. In particular, I should mention that last fall, when he presented his proposals for reform, the Information Commissioner was very clear about the fact that his proposals had not had the benefit of public consultation and that he would be open to considering adjustments. I must say, I find it surprising that the commissioner stated the opposite in his special report and at committee. In fact, the reason we proceeded as we did was based on the commissioner's very clear admission that his office had not had the benefit of public consultation.
That being said, the members of this committee know that the ATIA is a complex piece of legislation, with a broad constituency across many sectors of society. There are widely divergent views on its application and administration. With that in mind, and in order to achieve a comprehensive reform, I regard it as essential that the committee continue the work required.
It is my hope that your committee will engage in a complete and inclusive consultation with a broad range of stakeholders. This would allow for diverse views to be heard and balance the value of transparency with the legitimate interest of individuals, other governments, and third parties. After a comprehensive analysis and full debate, it would ultimately allow for the resulting reform to find broad support.
The government believes the act must be reformed, and we agree in principle with the Information Commissioner's desire to strengthen the act. We think we are off to an excellent start with the amendments made to the ATIA by means of the FAA.
This brings me to the role I hope the committee will consider playing. As the Minister of Justice, I have confidence that the government would benefit from the committee's views on access reform. It is your work as parliamentarians that will be important in shaping this reform. Therefore, it is my hope that your committee will study the discussion paper and consider, among other issues, what follows.
First, what institutions should be covered by the Access to Information Act? By adding agents of Parliament, all parent crown corporations and their wholly or majority owned subsidiaries, and five foundations to the ATIA through the FAA, the government is broadening the coverage of the ATIA. In addition, the legislative committee amended the ATIA last week to provide for authority to make regulations that would establish the criteria for covering other entities. The government is now seeking the advice of the committee on what those criteria should be.
Where should we draw the line in terms of coverage, and why? Your determination of which institutions should be covered by the ATIA could be guided by the perceived objective of the act. For example, if the committee considers that the principal purpose of the ATIA is to foster public participation in public policy decisions by allowing access to unfiltered information, then the focus of coverage might be those institutions that develop and apply public policy. On the other hand, if the committee believes that the main purpose of the act is accountability for actions, then the focus of coverage would be those institutions considered to be operational. Or if the committee considers the principal purpose of the ATIA is accountability for spending money, then the focus would be financial.
Once the determination is made as to which institutions, or parts of institutions, should be covered by the ATIA, another determination should be made: whether the existing protections are sufficient, and if not, what new or additional protections should be added?
The second issue concerns offices of ministers, members of Parliament, the House of Commons, the Senate, and the Library of Parliament. As you know, previous prime ministers have consistently taken the position that the ATIA does not apply to records held within ministers' offices. The ATIA was interpreted to treat a minister's office as being separate and distinct from the government institution or department for which the minister is responsible.
However, the Information Commissioner does not agree with this position and argues that some records in a minister's office should be subject to the ATIA. He has proposed that records held in a minister's office relating to departmental matters should be covered, while the personal and political records of ministers should not. Another issue that may be addressed by the committee is whether to extend coverage of the ATIA to the House of Commons, the Senate, and the Library of Parliament, in terms of their administration.
The third issue is cabinet confidences. You are all aware that the question of the access to cabinet confidences is an issue that has received a lot of attention over the last decade, but so far no consensus has been reached on how to deal with this issue. Under the current law, the Information Commissioner has no legislative right to review the decisions of the Clerk of the Privy Council, as to what information constitutes a cabinet confidence. An information practice exists, however, by which the Information Commissioner can investigate the decisions to withhold cabinet confidences from disclosure.
The government believes it would be appropriate to legislate a certification process in the ATIA that would closely parallel the Canada Evidence Act. This process would grant the commissioner a right of review of the issuance of certificates by the Clerk of the Privy Council, thereby ensuring his right to review the cabinet confidence exclusion. We would be interested in the committee's views with regard to this proposal.
The fourth issue is the exemption scheme. Members of the committee will remember that in his legislative package, the Information Commissioner proposed three broad significant changes to the current exemptions scheme: transforming most mandatory exemptions into discretionary ones, adding more injury tests, and adding a broad public interest override test to all exemptions. Several concerns have been raised about the potential impact that such changes would have on relationships between government and its stakeholders, on government's core operations, and on third-party stakeholders themselves. Given that the main objective is to strengthen the Access to Information Act, we believe it would be useful for the committee to focus on each exemption to determine whether any changes are necessary, rather than reforming the entire scheme in the broad manner proposed by the Information Commissioner.
For example, the committee might want to consider section 13, which is a mandatory exemption that currently requires the head of a government institution to refuse to disclose a record containing information obtained in confidence from the government of a foreign state. Subsection 13(2) permits disclosure of information if the government from which it was obtained makes the information public or if it consents to disclosure. The Information Commissioner proposes to change this exemption from mandatory to discretionary, and he also proposes to add an injury test to section 13. Specifically, he recommends adding the following:
13.(1)(b) disclosure of the information would be injurious to relations with the government, institution or organization.
I submit to you that converting section 13 to a discretionary, injury-based exemption would set Canada apart from its key partners and would likely have a negative effect on other governments' willingness to share information with Canada. If they cannot be assured that the information they provide in confidence remains confidential, they will be very reluctant to provide us with any information.
Another item that I would like to bring to the committee's attention is the Information Commissioner's proposal to add an injury test to section 23, which deals with solicitor-client privilege. Currently, section 23 permits the head of a government institution to refuse to disclose records containing information that is subject to solicitor-client privilege. Solicitor-client privilege is based on a presumption that disclosure of the communications between a client and his or her lawyer would erode the candour that is necessary to a relationship between solicitor and client. The Supreme Court of Canada has described the privilege as “nearly absolute”.
It is important to note that solicitor-client privilege does not merely cover the opinions provided by counsel. It also applies to all communications made to counsel by the client to obtain that advice, as well as advice given in the course of drafting of legislation, the preparation of litigation, advising on individual rights, the functioning of government departments' investigations, and government transactions. The exemption in section 23 ensures that the government has the same protection for its legal documents as persons in the private sector. The exemption was made discretionary to parallel the common law rule that the privilege belongs to the client, who is free to waive it.
Under the commissioner's proposal, information subject to solicitor-client privilege would only be protected if the “disclosure of the information could reasonably be expected to be injurious to the interests of the Crown”. I would therefore encourage the committee to consider whether the introduction of an injury test would result in the stifling of communication between government lawyers and the ministers, officers, and public servants who are the clients of those lawyers. If government ministers cannot be assured of complete and full discussion of the issues, how can those ministers in fact be given the best possible information and indeed make the best possible decisions?
I would suggest that the addition of an injury test to section 23 could lead to a greater risk of disclosure given the difficulty of proving injury that could arise by releasing a particular document. This would also have some impact on the ability of government to confide in its legal agents.
I should also bring to the committee's attention the fact that no provincial freedom of information act in Canada applies an injury test to the solicitor-client privilege exemption. The same can be said for the federal freedom of information acts found in the United Kingdom, Australia, Ireland, and New Zealand.
I'm convinced that the committee will also want to look at the use of section 24, which provides a link to confidentiality clauses in other federal statutes. This section has been debated almost since its inception. Some believe that section 24 in schedule II is necessary to protect valid confidentiality regimes, while others believe that this type of provision detracts from the principles and goals of open and accountable governance that underlie access to information regimes.
The Information Commissioner proposes to repeal section 24 and schedule II. He states that there is adequate protection elsewhere in the act for the documents protected under the mandatory section 24 and that the secrecy provision undermines the efficiency of the act.
This exemption safeguards information requiring a very high degree of protection not afforded by the other exemptions, such as income tax information and census data. We should not lose sight of the fact that Canadians provide such information to the government on the understanding that it will be treated as absolutely confidential.
The committee should consider the government's commitments to national security, public safety, and law enforcement. It should also consider whether the repeal of this mandatory protection for certain information collected pursuant to the Canadian Security Intelligence Service Act and the Criminal Code of Canada, as well as for sensitive aeronautic, marine, and other transport information could cause Canadians and international allies to lose confidence in the ability of the government to protect sensitive information.
Instead of repealing section 24, the committee may wish to consider adding criteria and a review process to section 24 to govern the addition and/or removal of provisions to schedule II. This approach would ensure that only specified classes of sensitive information would benefit from the clear protection provided by section 24.
These criteria could capture only those confidentiality provisions that prohibit disclosure to the public in absolute terms or set out clearly defined limits on any discretion to disclose.
Fifth, concerning administrative reform, I will point your attention to the Information Commissioner's recommendations for changes to the administrative process under the ATIA. His proposals include fees, time limits, the right of access, and general procedures.
The government would benefit from the committee's view on these aspects of the reform. Before taking on this study, this committee should note that the cost implications of the Information Commissioner's proposals have not been fully assessed. In this regard we thought it would be useful to your efforts to provide you in the discussion paper with a preliminary estimate of the potential magnitude of the costs.
As your committee takes on the task of recommending additional measures to strengthen the Access to Information Act, you will be assisting the government in modernizing the framework that forms the basis of our system of access.
It's my hope that a crucial aspect of your review will be an open and wide-ranging discussion with stakeholders representing all aspects of the system--requesters, access officials, outside organizations and institutions being considered for coverage, and officials from institutions that may be most affected by proposed changes.
In conclusion, I would just like to say that as Minister of Justice, I appreciate the important work that you are being asked to do. It is a difficult task to balance competing public interests, so it must be done carefully, and it must be done thoroughly. I look forward to receiving your considered views when your work is complete.
Thank you very much.
