Evidence of meeting #71 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commissioner.
A video is available from Parliament.
Conservative
Peter Kent Conservative Thornhill, ON
Minister, with respect, you promised to be different. You offered transparency, and with regard to proactive disclosure—
Conservative
Peter Kent Conservative Thornhill, ON
Well, you certainly disappointed the Information Commissioner of Canada.
With regard to the proactive disclosure provisions in Bill C-58, which is something of a bait and switch, I think, in terms of what it qualifies, it is actually a false promise to the opening of ministerial offices. Remember, the Liberal campaign promise was to ensure that access to information applies to the Prime Minister's Office and ministers' offices, as well as to the administrative institutions that support Parliament and the courts. The proactive disclosure provisions don't come anywhere close to that, and compounding that broken promise are the conditions involving requests for information that your government may determine to be frivolous or vexatious.
The experts are unanimous in these criticisms. It's not only the Information Commissioner.
Liberal
Scott Brison Liberal Kings—Hants, NS
In terms of the frivolous and vexatious clause, that's important because it was called for by this committee, and in fact by the Information Commissioner. I understand in her report she has suggestions as to ways we can strengthen that, and I'm open to those suggestions.
Let's be very clear. There are bad faith requests. Within the system there are some cases where people are requesting information on their ex-spouses who are public servants with regard to their work schedules, and that sort of thing. Those are bad faith requests.
This committee and the Information Commissioner have called for a frivolous and vexatious clause to help address those issues and to help take some of the gum out of the system for truly bad faith requests. Our government wants to ensure that this clause is not abused by departments and agencies, and we would be interested in the guidance of this committee, as well as that of the Information Commissioner, on how we can do that, including having her role strengthened in terms of the determination of what is or is not a bad faith request.
Conservative
Peter Kent Conservative Thornhill, ON
The aspect of Bill C-58 that gives the commissioner the authority to order disclosure from government departments also prevents the commissioner from doing it if cabinet confidence can be invoked. All of the access to information experts in Canada, in different provincial situations, say that represents the biggest black hole of access to information in Bill C-58.
Liberal
Scott Brison Liberal Kings—Hants, NS
Mr. Kent, as regards cabinet confidence, my colleague Minister Gould has referred to the Babcock v. Canada case in the Supreme Court in 2002. The court was clear that the process of democratic governance works best when cabinet ministers charged with government policy and decision-making are free to express themselves around the cabinet table unreservedly.
You've been a minister and understand the importance of that.
Liberal
Scott Brison Liberal Kings—Hants, NS
That is a principle that we will adhere to. By the same token, however, we are taking steps to strengthen the Access to Information Act to give real order-making power to the commissioner.
The way it would work is this. If her office issues an order demanding that a government department provide information, the department has 30 days to challenge her order. If they do so, the decision will be made by a court. They either provide the information or they would challenge the order, and a judge would make the ultimate decision. You've been a minister and know that a department or an agency is going to be reticent about challenging her order and ultimately seeing the decision be made by a judge, unless there is some good reason.
This is a significant advancement in terms of her authority.
Conservative
The Chair Conservative Bob Zimmer
We're out of time.
For the next questions, seven minutes go to MP Cullen.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Welcome, Ministers.
Minister Brison, let me start the questioning this way. Do you think there have ever been times when that advice to a minister has been abused? If someone doesn't want something, a piece of information, ever to get out, all you have to do is present it to a minister as advice and it's not ever disclosed. Is that right, just under the current rules?
Liberal
Scott Brison Liberal Kings—Hants, NS
There are provisions for cabinet confidences and advice to ministers. In part they are based on having and wanting to preserve the ability of public servants to speak freely to ministers.
Nathan Cullen NDP Skeena—Bulkley Valley, BC
As you just said to Mr. Kent, when you provide advice to a minister, it's no longer captured by access to information. The Canadian public will never see it. You and I have talked about this.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I'm asking Mr. Brison a question because he and I have spoken about this.
If government is feeling a little under pressure or they know there is some information that, if it were ever to get out, would be bad for them politically, let's say, one way to shield it is to give it as advice to cabinet.
Jennifer Dawson Deputy Chief Information Officer, Treasury Board Secretariat
May I add to this?
The matter of advice to cabinet is an exclusion, so that is something that is not subject to the act. The advice to a minister is an exemption, so there is discretion that can be applied by the institution concerning the release of that information. Advice to a minister, then, is not universally precluded from disclosure.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
You heard my question, though. Has it ever been misused? I think Minister Brison would be more comfortable answering it than perhaps you would be.
My suggestion is that, using, as Mr. Kent suggested and all the experts coming before us say, when a reporter is going after a question on something that's sensitive, one way governments in the past.... There are two ways. You can Post-it note it, as some previous Liberal governments did at a certain sponsorship time—you put a Post-it note on it and don't write it down, and you can take it off later. Another way is to provide advice to ministers whereby they are no longer subject to this.
I guess this becomes a question of whom to believe. We have the Information Commissioner who says that previous committees that sat around this table and looked at the act made recommendations, as did the commissioner. You ignored those recommendations in this new Bill C-58.
I'm not sure it's really time to pop the champagne corks when the commissioner says that this bill would instead result in a regression of existing rights.
Liberal
Karina Gould Liberal Burlington, ON
If you don't mind, I'll jump in here.
Advice that's provided by the public service to ministers is subject to the act. It could be redacted, if there are issues of cabinet confidence within it, but this is already part of the act, and I think it's an important thing. Of course it's redacted for personal information, and it's redacted for anything that may be considered a cabinet confidence or international defence policy—
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Sure.
You made the argument earlier that already captured in this disclosure is a vast.... You couldn't put a number to it, but you said that in the case of many of the requests already, we're going to just disclose.
What government discloses is what they want to disclose, the things concerning which they're comfortable with their being out. The whole point of access to information is that there are times, as you both well know now, when there are things that are uncomfortable for the government to release.
Why not apply this act as you promised to do? I'm looking at your website: “We will make government information more accessible.” This is from the Liberal platform. You both promised this one. It's in your mandate letter, too, I believe, Scott.
Liberal
Scott Brison Liberal Kings—Hants, NS
There's a reason you could quote my mandate letter, because we proactively—
NDP
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It may be funny, but why is quoting your mandate letter so helpful if you're asking following your mandate letter?
Liberal
Scott Brison Liberal Kings—Hants, NS
We were the first federal government to actually publish our mandate letters, which is why you're able to quote from it.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Are you congratulating yourself for publishing a mandate letter that you're not actually following?