Information & Ethics Committee on Oct. 18th, 2017

[Scott Brison, Liberal, Kings—Hants, NS]

First of all, it’s very important to avoid abusing that. We agree with the Committee and the Commissioner that we must avoid doing it.

We must put in place adequate oversight to guarantee that we will note use this measure abusively. It’s very important, and we’re open to using the Committee’s advice and its study to define this concept.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

If we implemented this measure, it has to be because we've determined that a percentage of access to information requests were frivolous. Are we talking 10%, 15%, 20% or even more?

[Scott Brison, Liberal, Kings—Hants, NS]

I must say that this was in response to a recommendation that this committee made in the past, as well as a recommendation made by the commissioner. Eight provinces and three territories have the same provisions; consequently, we're not the first government to do so. There are important reasons to include such provisions.

Once again, in our opinion, it’s very important to implement an oversight mechanism to guarantee that this measure will not be used abusively. We agree on this principle and we’re open to committee suggestions to reinforce it.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

I understand your answer, Minister, but I would like to know something. To come up with such a measure, did we determine how many access to information requests were deemed to be frivolous or inadmissible? Was that 10, 20 requests out of 100?

[Scott Brison, Liberal, Kings—Hants, NS]

I’m not sure how many were deemed frivolous or inadmissible. Ms. Dawson might have this information.

[Jennifer Dawson]

We looked at statistics from provinces and territories which, for the most part, have information concerning frivolous requests. We found that less than 1% of requests were deemed to be frivolous.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

So it was deemed necessary to include that provision in the bill even though only 1% of requests are considered frivolous. Was this whole process really necessary?

[Karina Gould, Liberal, Burlington, ON]

It might only be 1% of the total requests, however it can exert tremendous pressure on the system. So it’s not necessarily the percentage of total requests that matters, but the fact that those vexatious requests can result in a lot of work. It’s possible that a lot of information be requested and this weighs heavily on the system. Since this oversight is not conducted at the moment, we’re not able to put a number on its impact. If this bill were passed, it would provide us with a new tool. We would have statistics that are more concrete.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

How much time do I have left?

[The Chair, Conservative, Bob Zimmer]

That was timed perfectly, Mr. Gourde, five minutes and six seconds.

The next five-minute round is for Ms. Fortier.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you, Chair.

Good afternoon, everyone, and thank you for coming to testify before us.

I’m really happy that we're taking action. I see that you have worked really hard on this new bill so we can examine it as a committee.

I’d also like to remind you, as was mentioned earlier, that this was a promise made during the campaign. In my riding, during the by-election six months ago, questions were asked about it. The people with whom I spoke wanted us to take action. So, I’m happy to see that we’re making headway. Thank you for your work.

I’d like to understand the reasons why we had to wait this long to present the new statutory review mechanism of this legislation. Could you explain why?

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you very much, Ms. Fortier.

It’s not an easy file for a government; that’s why it took more than 30 years to modernize the Access to Information Act.

Our government is the first to give order-making powers to the Information Commissioner. This is significant progress. We’re the first to add ministerial offices and the Prime Minister’s Office to the act. Once again, this is progress. For the first time, the act applies to more than 240 federal agencies. That’s another positive development.

We’ll continue to raise the bar as far as openness and transparency are concerned. I hope that, in the future — especially with mandatory reviews every five years — we’ll continue to see progress, under this government and future ones.

In fact, it’s unacceptable that an act should not have been modernized in 34 years. That’s the reason why it was so important for us, as an opposition party and, later, as the government, to continue to make progress in order to better serve the population and to increase government’s openness and transparency.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you.

Mr. Chair, my time is probably is running out, but I still have another quick question.

There has been a lot of conversation in the media and the public about two very specific parts of this legislation: first, the order-making powers given to the Information Commissioner; and second, the ability for departments to rule a request as frivolous and vexatious. We've been talking about this.

Can you explain why these two sections are important to the access to information legislation and system?

[Scott Brison, Liberal, Kings—Hants, NS]

First, on the frivolous and vexatious part of this legislation, this was called for by this committee, in fact, by the commissioner. It does reflect a reality that we do have bad faith requests that come up the system and don't serve Canadians well. We want to make sure this does not get abused. It's important to realize that eight provinces and three territories have similar clauses in their legislation.

There is a provision in the legislation where the commissioner has a role through an appeal process. If there are ways we can strengthen her role, we are open to that. I know she has, in her report, sought a strengthening of her role. This is something to which we are open as a government. I look forward to the committee's looking at that as one of the areas.

In terms of order-making power, if somebody seeking information is refused that information, they can appeal to the commissioner, and she can order that department to provide the information. The department has 30 days to either provide the information or to challenge her order, and ultimately, the decision is made by a judge.

Again, I would assert that a department or agency is not going to challenge an order of the Information Commissioner in a court unless they have some level of certainty as to their arguments and the legitimacy of their arguments. That would be something which I expect will not be done frivolously.

[The Chair, Conservative, Bob Zimmer]

Thank you.

The next and last questions go to MP Kent.

[Peter Kent, Conservative, Thornhill, ON]

Thank you, Chair.

Ministers, I began my questions referring to what the Information Commissioner has characterized in her response to Bill C-58 as failing to strike the right balance for transparency.

Chair, I'd just like to table for the record in both French and English the Information Commissioner's report. In that report, it's interesting that she concludes by doing a very basic grade of Bill C-58 with passes and fails. She found that five elements of Bill C-58 are positive. She found that 15 elements of Bill C-58 are, in fact, regressive. Could you respond to that?

[Scott Brison, Liberal, Kings—Hants, NS]

I guess there's a reason why no government has ever fulfilled its promise to modernize the Access to Information Act until we came along, because it's not easy, and it's hard to please everybody. What I would say to the commissioner is that this does provide her with order-making power for the first time ever and, in fact, 30 years after a parliamentary committee first recommended order-making power. This does apply the act to ministers' offices for the first time ever. This does apply, in fact, to 240 governmental organizations, including the courts. This is significant progress.

There may be individuals and organizations that are not totally satisfied with what we've proposed. By having a mandatory five-year review, we can consider further improvements in the future.

Again, I want to remind the committee that we are open to amendments from the committee that can strengthen the legislation. This is really important legislation, and your work at this committee at this critical point of modernizing the Access to Information Act is historic and important. We can't please everybody all the time, but we are acting to strengthen the Access to Information Act.

[Peter Kent, Conservative, Thornhill, ON]

Time is short, and I know that you're about to make your departure, but you spoke earlier to respect for this committee's recommendations, most of which you've ignored from a year ago and which are before us again. I suspect they will be in our response after committee study.

You also spoke positively of your commitment to open government. This committee recommended a year ago that, in the first phase of the reform of the Access to Information Act, the act be amended to include a general public interest override applicable to all non-mandatory exemptions with a requirement to consider the following non-exhaustive list of factors: open government objectives with environmental, health, or public safety implications, and information that reveals human rights abuses or would safeguard the right of life, liberty, or the security of the person. That recommendation, like so many others, was ignored.

What are your comments?

[Scott Brison, Liberal, Kings—Hants, NS]

Again, Peter, giving the commissioner order-making power is a significant step forward. That has not been done before. Applying it to ministers' offices and to Parliament and to the administrative branches supporting the courts is a significant step. This legislation strengthens the act.

We are open to amendments and will consider them as a government.

Beyond that, in a year from this bill receiving royal assent, there will be the first mandatory review. That will lead to this coming back to this committee and we will have an understanding of what difference these changes have made, and that can inform this committee and our government. Every five years, as we make successive changes in an evergreening process, this will lead to learning from them and we will be able to strengthen this. We're proceeding in good faith, Peter.

[Peter Kent, Conservative, Thornhill, ON]

Okay.

[Scott Brison, Liberal, Kings—Hants, NS]

And we are committed to strengthening this act.

It may not go as far as some people want it to go now, but some other groups may be concerned that it goes too far in certain areas.

I believe you're going to be meeting with the Privacy Commissioner at some point here, and there is a balance between privacy, for instance, and access to information. In most provinces, I believe the privacy and access to information act offices are in the same branch.

As a government we seek a balance between those factors and we will defend both.

[Karina Gould, Liberal, Burlington, ON]

The Information Commissioner's report does acknowledge that there are steps forward, and particularly with regard to ministers' offices and the Prime Minister's Office with regard to proactive disclosure. We did try to find a balance here and it's an act that's being updated for the first time in 34 years, and as Minister Brison mentioned, with a review within a year, we're going to be able to see how this has changed.

One thing which I think is important to note and to look for is how it enables citizens to access information in a more timely, efficient manner, and in a way they wouldn't have had before, because right now, the burden is on them to specifically request information, whereas they will have a more holistic view.

[Peter Kent, Conservative, Thornhill, ON]

I thank you both for your appearance before us today, and we'll continue with the officials.

A great deal of time could be saved in the review process if the government would accept the recommendations not only of this committee, but of the commissioner herself.

Thank you.

[The Chair, Conservative, Bob Zimmer]

We're at time, and I'd like to thank Minister Brison and Minister Gould for appearing at committee today.

We'll suspend until the new witnesses are seated.

Thank you.

[The Chair, Conservative, Bob Zimmer]

We'll bring the meeting back to order. We still have a quorum, so we'll keep going.

From the Treasury Board Secretariat, I'd like to welcome Jennifer Dawson, deputy chief information officer, and Ruth Naylor, executive director at the information and privacy policy division of the chief information officer branch.

From the Privy Council Office, we have Allen Sutherland and Stéphanie Vig.

From the Department of Justice, we have Adair Crosby and Sarah Geh.

I would like to say to our members that there are no opening statements by the officials. We're going to go straight to questions.

The first question, for seven minutes, goes to Mr. Erskine-Smith.