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.

On the agenda

MPs speaking

Also speaking

Allen Sutherland  Assistant Secretary to the Cabinet, Machinery of Government, Privy Council Office
Jennifer Dawson  Deputy Chief Information Officer, Treasury Board Secretariat
Adair Crosby  Senior Counsel and Deputy Director, Judicial Affairs, Courts and Tribunal Policy, Public Law Sector, Department of Justice
Ruth Naylor  Executive Director, Information and Privacy Policy Division, Chief Information Officer Branch, Treasury Board Secretariat

3:35 p.m.

Conservative

The Chair Conservative Bob Zimmer

I call to order this meeting of the Standing Committee on Access to Information, Privacy and Ethics. This is meeting number 71, on Wednesday, October 18, at 3:38 p.m.

I'd like to welcome to the committee the Honourable Scott Brison and the Honourable Karina Gould.

From the Treasury Board Secretariat we have Jennifer Dawson, and from the Privy Council Office the representative is Allen Sutherland.

Go ahead, whoever would like to start.

3:35 p.m.

Kings—Hants Nova Scotia

Liberal

Scott Brison LiberalPresident of the Treasury Board

Thank you, Mr. Chair. I am delighted to be here with you today and with your committee.

I am joined by Parliamentary Secretary Joyce Murray as well as my colleague Minister Gould, and as you mentioned, Jennifer Dawson from TBS.

I want to thank members of the committee for your work and your consideration of issues around Canada's access to information system.

As we developed these reforms, we were guided by the principle that government information belongs to the people we serve.

We remain committed to this principle, which the Access to Information Act first enshrined in law in 1983.

Now, 34 years later, our proposed reforms advance the original intent of that act in a way that better reflects today's technologies, policies, and legislation.

This is not a one-off exercise. Rather, we've kicked off a progressive, ongoing renewal of the ATI system, one that will protect Canada's right of access to government information well into the future.

Our efforts began over a year ago. In May 2016, I issued an Interim Directive that enshrined the idea of government being "open by default".

Open by default means having a culture across government in which data and information are increasingly released as a matter of course, unless there are specific reasons not to do so.

It's about allowing Canadians to better understand how government functions and to give them the information they need to contribute to a healthier democracy.

The Canadian government is being recognized by global partners for our efforts in this area. In March we were elected to the steering committee of the Open Government Partnership for the first time, and on September 21 Canada agreed to take on the role of lead government chair of the OGP in 2018-19.

The OGP is a multi-stakeholder organization that brings together 75 governments and hundreds of civil society organizations. I can tell you that as a government we are excited to take on this leadership role for Canada over the coming two years as co-chair.

The CEO of the Open Government Partnership, Sanjay Pradhan, called our country “a beacon of openness” last month in New York. Additionally, earlier this year, Canada was ranked number two in the Open Data Barometer survey, which is a global assessment of how governments are using open data for accountability, innovation, and social impact. The report commented on how political will in Canada has translated into strong policy foundations on openness and transparency.

A year ago we eliminated all fees for access to information requests, apart from the $5 filing fee, and directed the release of information in user-friendly formats whenever possible.

Now, with the amendments proposed in Bill C-58, we're taking the next step.

These amendments would create a new part of the act relating to proactive disclosure, one that puts clearly into practice the idea of open by default.

Of course this does not absolve us of our responsibility to strengthen the request-based system. We know that the access to information system has been the subject of widespread and warranted criticism. That's why we're developing a guide to provide requesters with clear explanations for exemptions and exclusions; investing in tools and technology to make processing information requests more efficient; allowing federal institutions with the same minister to share request processing services for greater efficiency; and increasing uniform government training to get common and consistent interpretation and application of ATI rules.

Mr. Chair, we are also following the guidance of this committee.

We are moving to help government institutions weed out "bad faith" requests that put significant strain on the system.

By tying up government resources, vexatious requests can interfere with an institution's ability to do its work and to respond to other requests.

Let me be clear: we have heard the concerns expressed about how we must safeguard against abuse of this proposed measure. We need to get this right and recognize that, while this new tool is needed to significantly improve the system, everything, from sound policy to training and proper oversight, must be done to prevent its abuse.

Our proposed amendments also give the Information Commissioner new powers, including, for the first time, the power to order the release of government records. This is an important advancement, which was first recommended by a parliamentary committee studying the Access to Information Act in 1987. Our government is acting on it, and Bill C-58 would change the commissioner's role from an ombudsperson to an authority with the order-making power to order the release of government records.

We are also giving the Information Commissioner's office more financial resources to do its job.

And that's just the first phase of our access to information modernization.

Bill C-58 includes a mandatory review of the act every five years. The first review will begin no later than one year after the bill receives royal assent. What's more, we require that departments regularly review the information being requested under the act.

Mr. Chair, after 34 years, Canada's access to information system needs updating. This is going to be an ongoing work in progress.

I'd now like to pass it over to my colleague, the Minister of Democratic Institutions. Merci.

3:40 p.m.

Burlington Ontario

Liberal

Karina Gould LiberalMinister of Democratic Institutions

Thank you very much, Minister Brison.

Mr. Chair, colleagues, committee members, thank you for inviting me to appear alongside my colleague, Minister Brison, to address Bill C-58. I'd like to acknowledge that Allen Sutherland from Democratic Institutions is here.

I want to acknowledge the important work of the public service in putting this bill together.

The Government is taking measures to maintain the openness, the transparency and the accountability of our democracy. To this end, we have introduced Bill C-33 in order to increase voter turnout and to enhance the integrity of our electoral system.

We've also put forward Bill C-50, which would make political fundraising more transparent.

As Minister of Democratic Institutions, I have also acted to help protect our electoral system from cyber-threats.

Earlier this year, I asked the Communications Security Establishment, or CSE, to undertake the very first assessment of threats to our democratic process. Since the release of the report, in June, the CSE has communicated with political parties and with provincial and territorial chief electoral officers to provide them with advice against cyberthreats.

Today, I am here with you to discuss Bill C-58. This legislation includes long-overdue amendments to an access to information law that has not been updated since it passed almost 34 years ago. The amendments to the act being brought forward by my colleague, Minister Brison, would help to significantly update and improve how Canada's access to information laws function.

Right now, I would like to focus in particular on how Bill C-58 would impact three areas: the offices of the Prime Minister and his ministers, members of Parliament and senators, and the administrative institutions that support Parliament and parliamentarians.

The bill would require the Prime Minister’s Office and ministerial offices to proactively disclose a variety of documents, including mandate letters, transition handbooks, information packages for ministers and their deputies, as well as information regarding travel and accommodation costs for ministers and their exempt staff.

It would also require disclosure of contracts over $10,000.

Information prepared by departments for question period and parliamentary committee appearances would also be subject to the act.

As you know, some of this information is already proactively disclosed by ministerial cabinets. However, this practice is not consistent and is not set out in the law. The aim of this bill is to obtain uniform disclosure from all cabinets. It would require the public release of those documents for the first time.

Of course, exemptions and exclusions under the law would still apply in the case of requests concerning certain issues, such as personal and national security issues.

Bill C-58 also extends the act to senators and members of Parliament. For the first time, this disclosure will be formalized in law. Bill C-58 also applies to institutions that support Parliament. I am referring to organizations like the Library of Parliament, the parliamentary budget officer, and the Senate and Commons administrations.

We’re improving the openness of these offices while ensuring security laws and parliamentary privilege.

Bill C-58 will make it possible to achieve the necessary balance while implementing measures that will contribute to modernize the Access to Information Act. Canada’s democratic institutions will thus increase their transparency and accountability.

To conclude, Bill C-58 will significantly advance the availability and efficiency of the Access to Information Act as it is related to the Prime Minister's office and ministers' offices, parliamentarians, as well as the institutions that support Parliament.

The reforms proposed in Bill C-58 are an important step in the ongoing review and modernization of the Access to Information Act, and I look forward to working with all members to enhance accountability.

With that, I welcome your questions. Merci.

3:45 p.m.

Conservative

The Chair Conservative Bob Zimmer

Thank you.

The first question goes to Mr. Erskine-Smith.

3:45 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Thank you very much, Ministers.

Our committee, as you know, issued a report to recommend that the act apply to ministers' offices, and it was a platform commitment as well. It's great that we have proactive disclosure, and I think that's an important step.

However, perhaps you could explain to this committee why we don't see other provisions of the act applying to ministers' offices. What considerations were you looking to in making that decision?

3:45 p.m.

Liberal

Karina Gould Liberal Burlington, ON

Thank you very much for the question.

It should be stated that ministers' offices and the Prime Minister's office will fall under the act with this legislation. For the first time, we are legislating the proactive disclosure. Even though this was a practice that began under Prime Minister Martin and continued, we're expanding what will be considered to be documents that will be required to be proactively disclosed.

One of the key things that will be disclosed are mandate letters, for example, and that's required by legislation. Prior to this government coming into power, mandate letters were never disclosed. In fact, they were extraordinarily secretive. Only the minister, and maybe the deputy minister and very few officials, had access to the contents of them.

This is an important step that enables parliamentarians and Canadians to hold governments to account. Furthermore, we're talking about briefing notes, transition binders, QP binders, and committee binders that Canadians will have access to. All of these things are some of the most requested items by Canadians. We took a look to see what the items are that Canadians are most interested in, how we can provide a more efficient system so it's more usable for the user and the person who is interested, and doing it in a way that's cost-effective as well.

3:45 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

It's good that there are a number of requests that will be met with the proactive disclosure. Is there a sense of what percentage of the volume that represents?

3:45 p.m.

Liberal

Karina Gould Liberal Burlington, ON

Well, the majority of access to information requests go to Immigration, Refugees and Citizenship Canada. With regard to the specific numbers, I don't have that.

Do you have that, Allen?

3:45 p.m.

Allen Sutherland Assistant Secretary to the Cabinet, Machinery of Government, Privy Council Office

When it comes to departmental requests, Immigration, Refugees and Citizenship Canada takes about 55% of the total volume.

3:50 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

I meant more the extent to which proactive disclosure will lessen the current burden. Is there a sense of how much it will lessen the burden?

3:50 p.m.

Liberal

Scott Brison Liberal Kings—Hants, NS

Nathaniel, one of the things we're looking at—and something we'll be guided by as a government in the future—is that as we see the volumes grow for request-based areas of information, that will be a signal to our government, and we'd hope to future governments as well, to move those areas into proactive disclosure, and as such reduce the burden on the request-based system. That's one of the reasons that the review is every five years, with the first one beginning within a year after this legislation receives royal assent. It will enable us to observe the impact of the changes that are part of Bill C-58. It will also enable us to look at future expansion of proactive disclosure in other areas.

3:50 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Since we're on the topic of proactive disclosure, the Information Commissioner has asked for authority or jurisdiction to police proactive disclosure. I would imagine that if there are redactions in relation to the material that is proactively disclosed, the Information Commissioner would look to make sure those redactions are accurate and in accordance with the law. She says that she doesn't currently have that authority as Bill C-58 is drafted, and wants it. I wonder what would you say to her?

3:50 p.m.

Liberal

Scott Brison Liberal Kings—Hants, NS

One of the things Bill C-58 does provide to the Information Commissioner is order-making power for the first time. In terms of the application of her authority over the proactive disclosure part of this legislation, that's something on which I would look forward to receiving—we would look forward to receiving—a recommendation from this committee. We're open to recommendations from the committee on some parts of this, and that could be one of the recommendations you could consider.

3:50 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

To that end, there were a few smaller items that the commissioner had noted as well. She had a few different concerns, but the real concern, I think, was requiring that the type of record be specified and rather than create more openness and transparency, that would actually be a drawback and more limitations for requesters. I wonder if there's an openness to addressing that concern of the Information Commissioner.

3:50 p.m.

Liberal

Scott Brison Liberal Kings—Hants, NS

She made a number of recommendations. In some cases they require a clarification.

In terms of areas where the committee sees we could strengthen the legislation, we do have an interest, and we look forward to hearing from the committee. We do not want requests rejected by departments or agencies if in fact they're legitimate requests. If a request is too general, we would hope that we could help narrow the request with the requester and that we could in fact work to fulfill that request.

3:50 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

I have a minute left, so I think I'll return to my first question in relation to the rationale for not expanding access as broadly as it could be.

We heard testimony on both sides in the course of our committee's study. I think the majority of the testimony that we heard suggested it should be extended further, but there were countervailing considerations. I recognize proactive disclosure is important, and it's certainly an important step forward given decades of inaction from a number of different governments, but I still wonder what the rationale would be for not extending the act, as it was understood before we had a proactive disclosure to ministers' officers.

3:50 p.m.

Liberal

Karina Gould Liberal Burlington, ON

Thank you for recognizing that this is an important step forward, and it is something new that's happening and that will be in legislation.

As the Supreme Court has decided previously, there is importance to having space for cabinet confidence as well. That's one area that is really important to ensure that there is opportunity for frank policy advice that is given to ministers to make those decisions. It was the case of Babcock v. Canada in 2002, and the court said:

The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.

We do think it's important for Canadians to have more access to information. With the items that are being proactively disclosed, it will provide much greater access to the information that ministers are using to make decisions, but there is that important space for decision-making that we think should continue.

3:55 p.m.

Conservative

The Chair Conservative Bob Zimmer

Thank you, Nathaniel

Next up is MP Kent for seven minutes.

3:55 p.m.

Conservative

Peter Kent Conservative Thornhill, ON

Thank you, Chair, and thank you, Ministers, for appearing with us today.

The same week that we began debate on Bill C-58, the commissioner issued an extraordinary document entitled “Failing to Strike the Right Balance for Transparency“. I'll just very briefly read into the record a couple of paragraphs from her opening statement. She goes into great detail in the rest of the report.

The Commissioner said:

In short, Bill C-58 fails to deliver. The government promised the bill would ensure the Act applies to the Prime Minister’s and Ministers’ Offices appropriately. It does not. The government promised the bill would apply appropriately to administrative institutions that support Parliament and the courts. It does not. The government promised the bill would empower the Information Commissioner to order the release of government information. It does not.

The final line that I'll quote, Ministers, is the most telling. The Information Commissioner of Canada writes:

Rather than advancing access to information rights, Bill C-58 would instead result in a regression of existing rights.

Minister Brison, could you respond?

3:55 p.m.

Liberal

Karina Gould Liberal Burlington, ON

If you don't mind, Mr. Kent, I'll start, and then I'll pass it over to Mr. Brison.

3:55 p.m.

Conservative

Peter Kent Conservative Thornhill, ON

Okay.

3:55 p.m.

Liberal

Karina Gould Liberal Burlington, ON

I want to point out that in her 2015 report “Striking the Right Balance for Transparency”, when it comes to ministers' offices and the Prime Minister's Office, she also notes there should be a dividing line between a minister's departmental and non-departmental functions. With regard to the application to administrative bodies, in that same report she also notes that there has to be room and space for parliamentary privilege.

Really what we tried to do with this legislation, this update to the Access to Information Act, is to strike that balance to ensure we are providing for parliamentary privilege. As all of you know as members of Parliament, it is extraordinarily important so that you can exercise your functions in an independent manner. The same applies with regard to ministers' offices and the Prime Minister's Office.

3:55 p.m.

Liberal

Scott Brison Liberal Kings—Hants, NS

Thank you, Karina.

Mr. Kent, Bill C-58 for the first time provides the commissioner with order-making power. The first time that was called for by a parliamentary committee was in 1987. We're the first ones to actually provide that. It was in 1987 that a parliamentary committee called for the application of the Access to Information Act to ministers' offices. We do, through proactive disclosure, and for the first time ever, we're even applying it beyond that, to the administrative offices supporting the courts and to Parliament.

Peter, we've known each other quite a while. Your party, the Conservatives, actually committed in its platform in 2006 to modernize the Access to Information Act. You had 10 years to do it, and when asked in the final days of your government why it wasn't done, Tony Clement said, “Well, we didn't get around to it.” We're doing this in the first two years of our government.

Beyond that, Peter, your government was the first government to be found in contempt of Parliament for not providing information to Parliament, the first government in the history of the Commonwealth—

3:55 p.m.

Conservative

Peter Kent Conservative Thornhill, ON

Minister, the time is short for my questions.

3:55 p.m.

Liberal

Scott Brison Liberal Kings—Hants, NS

—in fact, and I'm saying that we're actually acting on this, and this is a significant advancement.