Information & Ethics Committee on June 19th, 2006

[Jim Peterson, Liberal, Willowdale, ON]

Good. Speaking as a minister, how committed are you and your government to ATI reform?

[Vic Toews, Conservative, Provencher, MB]

Given what we did in terms of Bill C-2, bringing that forward, bringing access to information reforms in Bill C-2, because Bill C-2 also does address that particular issue.... The other concerns we had were some of the outstanding issues that needed to be resolved, and therefore we proceeded in the way we did.

[Jim Peterson, Liberal, Willowdale, ON]

I put this to you. You cannot be very committed to ATI reform, because my experience has always been that if you want to stall something you study it to death. These issues have been studied to death. If you really were sincere about ATI reform, you would bring in a bill, imperfect as it may be, because text-based discussions are the best way that I have ever found to deal with complicated issues.

So I put it to you, Minister, that what you're doing, asking us to again study this to death, with no commitment as to what this government will do when it comes out of this committee, with no power in this committee to bring in a bill, means that your commitment to ATI reform is, at best, very, very weak.

[Vic Toews, Conservative, Provencher, MB]

Let me make this observation, Mr. Peterson, because I think it tells us more about the Liberal Party than it tells us about anything. You said it was in your experience that whenever you wanted to stall something you studied it to death, and yes, I think that's very true of the Liberal Party. We saw that over and over again.

[Jim Peterson, Liberal, Willowdale, ON]

With all due respect--

[Vic Toews, Conservative, Provencher, MB]

Excuse me. Just let me finish here.

[The Chair, Liberal, Tom Wappel]

You can have a supplementary question, Mr. Peterson.

[Jim Peterson, Liberal, Willowdale, ON]

Thank you.

[Vic Toews, Conservative, Provencher, MB]

No one is suggesting here that we study this to death. You have the Information Commissioner's report before you, you have the concerns, and you have my comments today. If you feel you're in a position to make the recommendations tomorrow, do so. I'm not asking you to study it to death.

[Jim Peterson, Liberal, Willowdale, ON]

I'm saying it has been studied to death. If you were sincere in wanting to see ATI reform, you would bring in a bill and give us a bill to work with.

[The Chair, Liberal, Tom Wappel]

He hasn't, and I guess we have to agree to disagree on that.

Minister, if I might, I'm going to take five minutes.

Section 75 of the act—and I'm new to this subject—requires the House of Commons to study this act, or at least it's supposed to. I have found that this has not been the case except in 1987, when the Standing Committee on Justice and the Solicitor General conducted a comprehensive review and made over 100 recommendations. That was 1987.

Very few of those recommendations have been implemented. Now, we've had five majority governments of Conservatives and Liberals since 1987. None of those governments has brought forward a proposed Access to Information Act. What are your comments on that?

[Vic Toews, Conservative, Provencher, MB]

I can't speak for past governments. I know that my government is committed to bringing in not only Bill C-2 but an act to deal with access to information. That's part of this process.

I think in fairness, Mr. Chair, if you look at our track record in proceeding on this matter, we didn't sit on the matter. We moved on it very quickly.

[The Chair, Liberal, Tom Wappel]

I'm not asking, Minister, from a political point of view. My observation would be that if there have been five majority governments of various political stripes that haven't moved on this, I would be looking to ask the bureaucracy why not.

I think the phraseology of Mr. Martin was that there had to be some pushback. It seems to me that with five majority governments and no change to this bill in 23 years, prima facie, that indicates pushback from the bureaucracy.

Have you had any experience of pushback from the bureaucracy on the Access to Information Act?

[Vic Toews, Conservative, Provencher, MB]

I can tell you I've had nothing but full and complete cooperation from the public service. They have raised issues with me, and the issues they have raised I found legitimate, and those concerns are reflected in the comments I've made publicly here today.

[The Chair, Liberal, Tom Wappel]

All right. We have the Information Commissioner coming before us after you. The briefing notes, and I just want to put the question to you so you have an opportunity to answer it, say:

It is the contention of the Information Commissioner in his recent report to Parliament(4) that the government’s discussion paper on reform of the Access to Information Act repudiates the bulk of the proposals in the open government act, as well as the recommendations made by Justice Gomery.(5)

Could you comment on that? That's on page 23 of his response.

[Vic Toews, Conservative, Provencher, MB]

Yes. As I recall, and I don't have those briefing notes in front of me, he somewhat limited that statement in a subsequent discussion. I could be wrong on that, but quite frankly, I'm not going to get into an argument on that point. You can examine what we in fact have put into our comments. I think you will see that we have not repudiated the vast majority. We've raised certain issues.

We don't deny, for example, that the issue of cabinet confidences should be redone. We're simply suggesting, is there a better way? Is the injury-based test appropriate for solicitor-client privilege? Is it appropriate for cabinet confidences? We're not suggesting that there doesn't need to be reform. The question is, how do we do it most effectively?

I think the comments I've made here today give you a pretty good indication of what my concerns are. I think we're prepared to move on this bill, but I don't want to move ahead blindly. Political statements that are made have to be analyzed, and I have to give proper advice to any government that comes into power. I simply cannot say that if it was a political statement made, we now have to do it regardless of what the implications are.

We know, for example, in the context of constitutional law, that a bill cannot come forward in some respects unless there is an undertaking or a comment by the Attorney General in respect of constitutionality, or at least some analysis of that. So political statements, when implemented, have to be implemented into the appropriate constitutional context in order to make it law.

[The Chair, Liberal, Tom Wappel]

Finally, does the Department of Justice currently conduct compliance reviews of the Access to Information Act?

[Vic Toews, Conservative, Provencher, MB]

No, we do not audit other departments.

[The Chair, Liberal, Tom Wappel]

You have no way of knowing, from the department's point of view, about the performance of other departments in terms of the Access to Information Act?

[Vic Toews, Conservative, Provencher, MB]

Not that I am aware of, no.

[The Chair, Liberal, Tom Wappel]

Minister, thank you very much for coming to answer the questions and listen to the comments. We look forward to having you back, once the committee decides how it's going to proceed. I'm sure you will be asked back.

Thank you very much.

[Vic Toews, Conservative, Provencher, MB]

I appreciate the opportunity to be here, Mr. Chair.

[The Chair, Liberal, Tom Wappel]

Committee members, we're going to take a short health break. We are working through until 7:30 p.m. This is a working meeting, and I invite members of the committee and staff only to get some refreshment at the back.

I'll bang the gavel in approximately 10 minutes, and we'll start with Commissioner Reid then.

[The Chair, Liberal, Tom Wappel]

I call the meeting to order.

We have with us the gentleman about whom we've been talking for the last two hours, the Information Commissioner of Canada, the Honourable John M. Reid. I would invite him to introduce those he has with him and to make opening remarks to the committee.

Welcome, Commissioner Reid.

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

Thank you very much, Mr. Chairman.

With me are Alan Leadbeater, who is the deputy commissioner, and Daniel Brunet, general counsel.

Mr. Chairman, mesdames et messieurs, thank you very much for inviting me here today. Many of you are new to this committee, and I want to congratulate you and wish you well as you take up your important responsibilities. You should understand that one of the things you will learn as a result of the work you will do in this committee is a profound understanding of how government works and how government comes to making its decisions.

This committee has a profoundly important role to play in supporting the values of ethical and accountable governance. This responsibility will become immediately apparent to you as you consider how to respond to, one, the government's discussion paper on strengthening the Access to Information Act; two, my special report to Parliament in response to Bill C-2 and the discussion paper; and three, the proposed open government act my office drafted as a model for access reform, which was done at the request of the committee a year ago.

The core purpose of the Access to Information Act is to make governments accountable and to ensure the health of our democracy by enabling citizens to know the facts—the real story of what governments are up to and not just the spin—and to deter and expose corruption and mismanagement. The Supreme Court of Canada has on several occasions spoken of the vital importance of the Access to Information Act in our society.

It is precisely because so much is at stake when we seek to change the Access to Information Act that I am deeply disappointed by the government's failure to deliver on its election promise to introduce the proposed open government act as a component part of the Federal Accountability Act. I've expressed elsewhere my disappointment that the amendments to the Access to Information Act that have been proposed in Bill C-2 do not reflect the principles the opposition promised would guide access to information reform. Finally, I'm disappointed that the content of the government's discussion paper has very little to do with the strengthening of the right of access. Instead, it urges more talk—not action—and its proposals would increase secrecy and weaken independent oversight of government decisions to keep records secret.

My comments are not a partisan attack on the government. They are in fact almost identical to the criticisms I was making one year ago of the Liberal government. Both governments urged this committee to keep studying access reform without the benefit of a government bill. Both provided the committee with a discussion paper that would weaken, not strengthen, access reform.

My plea today is the same one I made last year: it's time to stop talking about access reform; it's time to do access reform.

Last year, at the request of the standing committee, I offered the open government act as a blueprint for reform. That proposed act reflects the current design and content of modern access to information laws and is informed by the recommendations of previous parliamentary studies, government task forces, and information commissioners. It is not radical; it ensures that secrecy can be maintained when it is justifiable.

This year, I'm even more convinced of the wisdom of the open government act proposals because we now have the results of the Gomery commission of inquiry's study of needed reform into access to information. You may recall that part of Justice Gomery's mandate was to study and make recommendations concerning changes to the Access to Information Act that would improve the accountability of government and assist in deterring and identifying wrongdoing and mismanagement in government. Justice Gomery heard from many witnesses and experts across Canada and reported his conclusions in his second report, issued on February 1, 2006. You will find his recommendations for access reforms set out in appendix A of the special report to Parliament that I tabled last month. On virtually all of the issues raised in the government's discussion paper, Justice Gomery endorses the approach taken in the proposed open government act.

For example, Justice Gomery recommends that:

1. Records held in the offices of ministers be subject to the right of access;

2. The scope of cabinet secrecy be reduced;

3. Exemptions should contain an injury test and be restructured, as proposed in the open government act;

4. The class exemption contained in section 24 of the Access to Information Act, which gives mandatory effect to secrecy clauses and certain other statutes, be abolished.

5. There be an overriding obligation on governments to disclose records whenever the public interest and disclosure clearly outweighs the need for secrecy.

6. There be, in the Access to Information Act, a positive legal duty on public officials to create records and that it be an offence to fail to do so with intent to deny access rights.

7. All federal government institutions should be subject to the right of access according to defined criteria and subject to complaint to the Information Commissioner should governments fail to add institutions to the act's coverage.

8. The procedural incentives for timely responses to access requests recommended in the open government act be adopted.

9. The proposals in the open government act for increasing the commissioner's powers to take matters to Federal Court and to make the investigatory process more transparent be adopted.

None of these recommendations made by Justice Gomery is endorsed in the government's discussion paper. My special report sets out my critique of the government's action plan for access reform in Bill C-2.

As well, I have provided a document containing a copy of the proposed open government act in a side-by-side version with the existing Access to Information Act, explanatory notes for each proposed change, and the transcript of a technical briefing on the open government act given to this committee by Deputy Commissioner Alan Leadbeater on September 29, 2005.

Today, and in the days ahead, my office stands ready to assist this committee in its task of ensuring that the public's right to know remains vibrant and that there is meaningful government accountability through transparency in the Government of Canada.

Thank you very much for giving me time to make this brief statement. I'd be delighted to receive any questions.