Information & Ethics Committee on Oct. 18th, 2017

[Peter Kent, Conservative, Thornhill, ON]

Would the Information Commissioner's message to the department that rejection was inappropriate be privileged or public?

[Jennifer Dawson]

It's something that we are aware the Information Commissioner is keen to have the ability to report. As the bill is proposed, this would be done through her annual report. She would be able to provide transparency concerning the orders she has issued and her reasons, and their resolution.

[Peter Kent, Conservative, Thornhill, ON]

Thank you very much, Chair. I think I've taken my time.

[The Chair, Conservative, Bob Zimmer]

I'd like to welcome to committee MP Blaikie.

You're up next, for seven minutes,

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much, Mr. Chair. It's good to be back. I'm sure they're all happy to see me.

One question I have had around the act, and one of the big conversations we had when we did a study of the act, was around the difference between exclusions and mandatory exemptions.

Can you explain for us whether this changes in any way the regime around exclusions in the Access to Information Act?

[Jennifer Dawson]

You are correct; it doesn't. This bill does not propose to change exclusions or exemptions.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

In terms of the discussion we had, which said that one of the main problems with having exclusions as opposed to mandatory exemptions is that there's then no oversight at all by the Information Commissioner, if the government says that something is a cabinet confidence or that it falls in any category that is subject to an exclusion, there's no way to check that those matters are appropriately excluded or that the government has made the right call on whether or not this is something that ought to be excluded.

[Jennifer Dawson]

I'll be repeating myself a little bit, but this set of amendments doesn't address that issue. Without judgment concerning that view of the committee, there's a focused set of amendments in this bill, and that issue remains as something that could be addressed in the first full review of the act, which would be within one year of its receiving royal assent.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

One other issue that jumped out for me, given some of what we heard during our study, was the failure of this particular bill to expand the access to information regime to the Prime Minister's Office and to ministers' offices. What we've heard is that because there's going to be a new kind of proactive disclosure regime ushered in, we ought to be happy with the changes, because this is a new era in—I think the phrase might even have been used—openness and transparency.

Can you just explain for the benefit of the committee in what ways having proactive disclosure requirements allows Canadians to get access to information that the government doesn't want to release?

[Jennifer Dawson]

I think we found, in looking at the types of proactive disclosure that are included in this bill and that do apply to ministers' offices and the Prime Minister's Office, that there is an alignment between the types of proactive disclosure that have been identified and information that we know is of interest. For example, the publication of briefing binders for deputy ministers and for ministers provides a level of information proactively that hasn't previously been available, and not only to requesters who are willing to pay their $5 and follow that process but to Canadians in general. We're hoping, through the proactive disclosure of these materials online in both official languages and accessible, that actually does offer much greater transparency than there is today.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

How will ministers' offices establish what they want to proactively disclose? Is there any kind of threshold? If the same kinds of requests or requests for the same kind of information are made by a certain number of Canadians, is there any requirement on the minister's office to disclose that information, or is it really up to the minister's office to interpret according to its own criteria, whatever the criteria may be, what kinds of information would be subject to proactive disclosure?

[Jennifer Dawson]

I'd say two things. Currently, there's a specific list of proactive disclosure that's proposed in this bill and against a regular reporting timeline so it'll be a predictable schedule for certain kinds of information. There's something else that we're looking at doing as well, which is asking institutions to do a regular review of the requests that they get so they can use that analysis to increase proactive disclosure over time. We want to have a continuous improvement cycle. We're beginning something new, so it's a starting point, but the intention over time is to track the kinds of things that are being requested. As you were suggesting, if many Canadians ask for certain kinds of information, then use that information in terms of enhancing and expanding what is proactively disclosed.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

But there's no way, through the legislation, that Canadians, by either the aggregate of their actions or by organizing collectively, could drive certain kinds of proactive disclosure, except as they could now by applying political pressure. There's no legal mechanism in the act that would make it the case that Canadians could push governments to reveal certain kinds of information that they don't want to.

[Jennifer Dawson]

You're correct. The bill wouldn't legislate a responsive proactive disclosure. But, I guess, the other opportunity, as well, is if there is an ongoing review of the bill, that also provides parliamentarians with an opportunity to revisit what is in there to ensure that it is reflective.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Is there anything the government would be forbidden from proactively disclosing now that it would be able to proactively disclose after this bill passes?

[Jennifer Dawson]

Forbidden?

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Part of what I'm saying is do they need to change the law to proactively disclose anything? Would the law enable some kind of proactive disclosure that's not permitted now?

[Jennifer Dawson]

I think what it would do is entrench in legislation a requirement to proactively disclose. So you're right. Maybe you don't need a law to compel that from all governments at all times, but if parliamentarians support the bill, what it would do is create a legislative requirement for this and future governments.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Does it include any penalties for ministers' offices that aren't compliant with the proactive disclosure provisions in the legislation?

[Jennifer Dawson]

In terms of legislation, it's as with other legislation. If you're not complying with what the law requires, then you're outside of....

[Allen Sutherland]

That's one of the benefits of putting it in statute, that it's clear to everyone whether a minister is fulfilling the requirement that's set out for him or her.

[The Chair, Conservative, Bob Zimmer]

That's time, MP Blaikie.

We'll go to another seven-minute round to minister—not minister—

[An hon. member]

Not yet.

[The Chair, Conservative, Bob Zimmer]

—but Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Probably not ever.