Thank you.
Good afternoon, members of the committee.
My name is Cara Zwibel. I'm the acting general counsel at the Canadian Civil Liberties Association.
I'd like to thank the committee on behalf of the CCLA for the opportunity to appear before you in relation to your study of Bill C-58. While time will not permit me to comment on all aspects of the bill, I hope to highlight a few of the most significant concerns that the CCLA has about the proposed changes to the Access to Information Act.
In brief, I'm going to speak about new barriers to making requests for information, the absence of a public interest override, the order-making power that's been given to the Information Commissioner, and the new proactive publication requirements.
Before I get into the bill's substance, I want to emphasize how important a strong access regime is to a vibrant democracy. Without information about how our government functions, we simply cannot participate meaningfully in our democracy on a daily basis nor can we make informed choices at the ballot box. The transparency that can be facilitated by way of a strong access regime is also a vital means of ensuring that those in government remain accountable.
The Supreme Court of Canada has recognized that access to information is a right that derives from the charter's protection of freedom of expression, and arises where it's “a necessary precondition of meaningful expression on the functioning of government”. CCLA submissions on this bill are grounded in those principles.
I think we're all aware that the Access to Information Act has been in need of a major overhaul for many years. I would remiss if I failed to tell the committee that CCLA is deeply disappointed with Bill C-58. It is not the comprehensive reform that's needed, and frankly, it's no answer to say more is coming down the road. We have been studying the need for a new regime for many years and have benefited from this committee's own study and comprehensive recommendations as well as those of the Information Commissioner. Now is the time for action.
The proposed amendments in Bill C-58 do not address a number of the long-standing concerns related to the act. In particular, the long list of exceptions and exemptions have not been narrowed or addressed in any way. There is no right of access in relation to ministers' offices, even though this was one of the promises made by the government prior to the election, and the bill does not create a duty on government offices to appropriately document decisions, a tool that would help to ensure that the kind of information Canadians may want and are entitled to will exist.
Although the act includes a new articulation of purpose and even a new long title that suggests greater openness, in our view the changes in the act may impose new barriers to individuals seeking information about their government. There are a few ways in which it would be harder for individuals seeking access if the changes proposed in Bill C-58 are adopted.
First, while the government initially promised to get rid of all fees except for the initial $5 filing fee, the bill does not do this. Instead, it eliminates some of the existing limitations on fees that are articulated in the act and moves the fee-setting function to be done via regulations. Fees are barriers to access. While we believe they should be eliminated, if they are going to be retained, they should at least be clearly limited in the act itself. For example, the act could specify what categories of items would be subject to fees or which categories an institution could not charge fees for. While we can appreciate the reluctance to specify dollar amounts in legislation itself, deferring the entire question of fees to be dealt with by regulation is of serious concern and a strange way to proceed in a bill about openness and transparency.
Another way in which Bill C-58 can make access harder for individuals seeking information is set out in proposed section 6, which delineates the items that must be included in a request for access, and proposed section 6.1, which grants heads of government institutions the right to refuse requests that are non-compliant.
Very often, requesters know the kind of information that they want, but not necessarily the types of records or where that information will be found. They may not know the dates that they should be searching for or what form the records may take, and since the bill also eliminates the need, the obligation on institutions to publish Info Source, to publish the types of records that they create, even less information will be available to help a requester figure out how to appropriately frame more requests.
If you have ever made an access to information request, you know that if you're dealing with a professional access person in a government institution, very often they will work with the requester to figure out how to frame the request. The amendments in the bill suggest that a request that is not framed properly can simply be refused. I know the committee will be hearing in the next session from the National Claims Research Directors about how these requirements may frustrate the resolution of historic claims of many first nations communities. CCLA shares these concerns.
There appears to be no clear benefit to be gained from these amendments, but very real risks to the right of access. We urge the committee to remove those new requirements.
In addition to the right to refuse access to records if the criteria in section 6 are not met, there are other new grounds for refusing a request articulated in proposed subsection 6.1(1), including where the request is too large or complex, such that it will unreasonably interfere with the operations of the government institution, or where the institution's head finds the request to be frivolous, vexatious, or made in bad faith.
It isn't clear from the bill what would guide a government head in applying these criteria or how clearly the reasons for refusal will be communicated to the requester. There may be very valid and important requests that could be turned away based on their complexity or size, such as requests relating to how our prisons function or to operations at our borders. The fact that these requests may require a lot of work does not mean that there is no right of access.
The overall tenor of these amendments is that providing information to the public about a government institution is a chore or an afterthought and reinforces the notion that the information belongs to the government rather than the public. Providing access to the public should be seen as a core function of government institutions. The new rights of refusal send the wrong message to requesters and to access officers.
In addition to the new barriers that the bill creates for requesters, I also want to discuss the exemptions and exclusions under the act, and here I want to focus on the absence of a public interest override.
In our view, a public interest override is an important safeguard that should be included in the act.
The application of exemptions and exclusions, which is largely untouched by this bill, is complex and will be rendered more so by some of the changes proposed in the bill. However, beyond the technical and legal interpretation of all of the provisions in the act, the fundamental question at issue in an access request is whether the public has a right to know. A public interest override is a mechanism to ensure that this question gets answered and that it gets answered correctly. There are some provinces that have such an override in their legislation. We encourage the committee to look at those models and to consider an amendment to the bill to insert a public interest override.
Next, I want to address the order-making power that has been given to the Information Commissioner. That the commissioner be given the power to make orders is something that CCLA and many other organizations were in favour of and have been requesting for a long time. We believe strongly that the commissioner needs this power, but the scheme in the bill grants it and at the same time undercuts it. In particular, where judicial review of the commissioner's order is sought, proposed section 44.1 of the bill specifies that the review will be de novo, that no deference will be given to the commissioner's decision, and that the government department can rely on new reasons for refusing the access.
Frankly, I simply can't understand the rationale for framing the order-making power in this way. This approach places a greater burden on our courts, it ignores the significant expertise that resides in the Information Commissioner's office, and it doesn't provide government departments with any incentive to put their best arguments or information forward initially, either to the requester or to the Information Commissioner.
It will allow for a more drawn-out process, and thus may frustrate a requester's intent by ultimately producing stale information, if information is ever produced.
The commissioner needs robust order-making powers, and review should be of the commissioner's order. We recommend amending this aspect of the bill.
Finally, I want to comment on the new proactive publication provisions that apply to—