Information & Ethics Committee on Oct. 23rd, 2017

[The Chair, Conservative, Bob Zimmer]

Good afternoon, everybody. I call this meeting to order.

This is the Standing Committee on Access to Information, Privacy and Ethics, meeting number 72. We're dealing with Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.

I'd like to welcome via teleconference, from the Canadian Civil Liberties Association, Cara Zwibel; from Democracy Watch, Duff Conacher; and from the Canadian Journalists for Free Expression, Gordon McIntosh.

We'll start with the Canadian Civil Liberties Association.

Go ahead.

[Cara Zwibel, Acting General Counsel, Fundamental Freedoms Program, Canadian Civil Liberties Association]

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—

[The Chair, Conservative, Bob Zimmer]

Can you close up your testimony? You're at 10 minutes, so could you just finish off?

[Cara Zwibel]

Yes. This is the last point.

On the proactive disclosure piece, this is not a substitute for a strong access regime. The proactive publication regime established by the act lets the government decide what Canadians can see and applies primarily to financial information. Canadians have many other concerns that are not covered by this proactive publication. The Information Commissioner plays no role in overseeing the proactive publication regime. There appear to be no consequences for an entity that simply ignores the requirements. These appear, actually, to be proactive publication suggestions.

This is not the open and transparent government that Canadians want and deserve, and it's not the overhaul of the access act that is clearly needed.

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you.

We go next to Duff Conacher for 10 minutes.

[Duff Conacher, Co-Founder, Democracy Watch]

Thank you very much for this opportunity.

Thank you for giving me the opportunity to make a presentation to the committee.

My presentation will be entirely in English, because there are many technical terms in this political issue. I should practise my French a lot more so that I could use those terms.

I will not go into some of the details that Cara Zwibel has already provided on behalf of the Canadian Civil Liberties Association, because Democracy Watch is in full agreement with the points made during her presentation. I'll focus instead on a few other areas of concern.

First of all, with regard to the bill overall, the bill breaks the promise that the Liberals made in the open government section of their 2015 election platform, and it also takes steps backwards—big steps backwards—in access rights. The Liberals have also failed to keep their international open government partnership commitments, as weak as those commitments were.

Tens of thousands of voters have sent messages through Democracy Watch's open government campaign page calling on federal parties to make key changes to the act. The public has been consulted numerous times. I have here the report of the task force from 2002, and also my submissions made in 2009, which resulted in a unanimous committee report, and that can only lead me to question what has happened to the Liberals since 2009, because in 2009 they agreed to several of the changes that are not included in Bill C-58.

In 2011 and 2013, twice through the international open government partnership process, the public was consulted and interest groups were consulted. The Information Commissioner consulted and issued a report in late March of 2015, recommending many key changes. The Liberals consulted on their 2016-2018 open government partnership plan.

The result of every single consultation has been a broad, strong call from the public and citizens' groups to make several key changes that are not included in Bill C-58.

To be credible, the Liberals on this committee must agree to the key open government changes to Bill C-58 that many groups and past committees and reports have called for over the past 15 years. The act and the open government system have been reviewed several times, and there is a consensus on key changes that must be made. There is simply no justifiable reason for any further delay in making the changes. If these changes are finally made, the current federal law, which really should be called “The Guide to Keeping Secrets Act”, will finally become a real access to information act.

I will talk about just a few of the changes that Democracy Watch believes are key and about the Open Government Coalition as well.

First of all, any type of record created by any entity that receives significant funding from or is connected to the government or was created by the government and fulfills a public interest function should be automatically covered by the law, as in the United Kingdom.

As well, all exemptions under the law must be discretionary and limited by a proof-of-harm test and a public interest override, as in B.C. and Alberta.

Also, every entity covered should be required to create detailed records for all decisions and actions, to routinely disclose records that are required to be disclosed, to assign responsibility to individuals for the creation and maintenance of each record, and to maintain each record so that it remains easily accessible, as in the United Kingdom, the U.S., Australia, and New Zealand.

Fourth, the access to information law and system should allow anyone who does factual or policy research for the government to speak to the media publicly about any topic they are researching and the findings and conclusions of their research without being required to first seek approval from anyone.

Then, to go to the overall system and enforcement, severe penalties should be created for not creating records, for not maintaining records properly, and for unjustifiable delays in responses to requests.

The order-making power of the Information Commissioner is rather meaningless without any consequence or penalty for violating the law. Like any law, the Access to Information Act is just nice words on paper. Enforcement is key, and penalties are key in terms of effective enforcement. It always seems that when politicians write rules that apply to themselves, they leave out penalties, while imposing huge penalties on others for similar activities.

The Information Commissioner should be given explicit powers to order the release of a record—as in the United Kingdom, Ontario, B.C., and Quebec—and to penalize violators of the law with high fines, jail terms, loss of any severance payments, and partial clawback of any pension payments if the person resigns to try to escape a penalty.

As well, the Information Commissioner should be given the power to require systemic changes in government departments to improve compliance, as the commissioner in the United Kingdom has.

The funding should be increased to solve backlog problems instead of increasing administrative barriers such as set out in proposed sections 6 and 6.1—and Ms. Zwibel summarized very well the problems with those sections—and/or limiting requests in any other way, including fees.

Parliament must be required to review the act, as set out in this bill—one of the few key measures made—every five years.

Another key, and I'll end on this, is that the commissioner's appointment process must be changed before the new commissioner is appointed. The rules have not set up a merit-based, open, transparent, independent appointment system for cabinet appointees. The ministers still control the appointment process entirely.

I am disclosing today that I've applied to be Information Commissioner, I have 30 years' experience working with provincial and federal laws, and I have not even been contacted in response to my application. I am sure there are many others the government does not want to be commissioner—because they will be a watchdog—who are also well qualified and have not been contacted.

Ministers control this entire process still. That's not an independent or merit-based system. It's political and it's partisan. It has to stop. This government is going to select an Ethics Commissioner, Commissioner of Lobbying, Information Commissioner, RCMP commissioner, Chief Electoral Officer, and Commissioner of Official Languages through a process that's political and partisan. You don't end up with watchdogs with that kind of process, as we saw with the fiasco over the attempt to appoint a former Ontario Liberal cabinet minister as official languages commissioner in the spring.

The process must change to be actually independent and merit-based, and that means having a commission made up of people who are non-governmental, who will do a merit-based search publicly and come up with a short list. The cabinet should then be required to choose from among that short list.

There have just been recommendations made by such a committee for Supreme Court judge positions that are coming open. If it's good for Supreme Court judges, it's good for the judges of ethics, transparency, whistle-blower protection, official languages, the RCMP, and elections law in Canada. The same process should be used as for Supreme Court judges, and if the Liberals try to appoint these lapdogs that they want to these key democratic, good governance, watchdog positions, you better believe that Democracy Watch and many people in the public will resist every step of the way. Change the system before the new commissioner is appointed and give it over to an independent commission that will recommend a short list, as you're doing with Supreme Court justices. That was a good move. Do it with all judges of whether the government is following the law, please.

I welcome your questions. Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Conacher.

Next up is Canadian Journalists for Free Expression, with representative Gordon McIntosh.

[Gordon McIntosh, Director, Canadian Committee for World Press Freedom, Canadian Journalists for Free Expression]

Hi. I'm a director of the Canadian Committee for World Press Freedom. I was asked by the Canadian Journalists for Free Expression to fill in for them this afternoon. We frequently partner with them. The CCWPF is a UNESCO-sponsored organization.

We were gratified that the legislation gives the commissioner the authority to order release of the information instead of having to go to court every time there is a disagreement. That is a step forward.

However, beyond that, we're concerned about a section of the act dealing with nuisance and vexatious requests, and we hope that is amended—if it is necessary at all—so that at least it's up to the commissioner, not a particular department, to release the information.

Overall we regard Bill C-58, as it stands, as a lost opportunity. We agree with the Centre for Law and Democracy that the bill is far more conspicuous for what it fails to do. In fact, we agree with the commissioner that much of this amending legislation is regressive. That was their exact word.

As you know, the government had promised to make itself open by default. Indeed, a promise was made that the ATI law would be amended to include the Prime Minister's Office and ministers' offices. In Bill C-58, the Prime Minister's Office and the offices of ministers and others remain off limits to information requests made under the act. In what the BC Civil Liberties Association calls a “bizarre sleight of hand”, the PMO and ministers' offices will be required to release such things as travel expenses or contracts and other documents designated for proactive disclosure, but it's strictly at their discretion.

Some might claim this fulfills a promise. We find that curious. It's a situation in which Canadians would be entitled to certain types of information, but they just couldn't ask for the information. That may make sense to somebody, but I don't think it makes common sense. It's logic worthy of a script from Yes, Minister and Sir Humphrey Appleby, or more worthy of Mackenzie King: transparency if necessary, but not necessarily transparency.

We are, however, glad to see that the ministerial mandate letters are under the proactive disclosure section in the legislation. That's a step forward for Canadian transparency in government. We're glad it's being codified for the sake of permanence.

Let me conclude by saying that updating federal legislation to the information law in Canada remains very much a work in progress. We urge this committee to make improvements. Bill C-58 is a big step toward finishing the job. We realize this is going to be a long haul.

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. McIntosh.

Our first round of questions will be seven minutes, starting with MP Erskine-Smith.

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

Thanks very much, all.

Mr. McIntosh, you raised concerns about the vexatious and nuisance aspects and you said it should be up to the commissioner. I think when Minister Brison was before us, he indicated that the idea was that the department would make the original determination that could then be referred to the commissioner, and the commissioner would then make an order as to whether that was an appropriate determination. It would be subject to the commissioner's order-making power in the end. Would that satisfy your concern?

[Gordon McIntosh]

It sounds as if it would. I'd have to see the language, but yes, probably.

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

Okay. That sounds good.

[Gordon McIntosh]

Then again, that's if that section is really necessary. I'm not sure it is.

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

Mr. Conacher, you mentioned our report. We made a number of recommendations in studying the Access to Information Act, and that had been a recommendation based on the evidence we heard. You indicated that you agree with many of the commissioner's recommendations, and that too was a recommendation of the commissioner in her report.

Cara, it's good to see you again. In this special report the commissioner indicates that she'd like some power to certify the order more easily. We've done some research and found that this does exist in other pieces of legislation. I know it exists in B.C. It might exist in others. Do you think this would solve the problem you have identified with order-making?

We had the department officials before us last week. They indicated that mandamus is sufficient and that the commissioner doesn't need this additional power. I wonder what you have to say to that.

[Cara Zwibel]

I'm not sure how it would work if the provision regarding judicial review to the court maintains that same language around de novo review. I don't know if having the commissioner's order certified by the court would do anything to that, if it would bring it into an ordinary appeal procedure where you'd be looking at and reviewing the commissioner's decision, rather than reviewing the whole process as a new hearing—

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

You're saying that your main concern is that it's de novo.

The way I understand it is that in the Federal Court this happens quite a lot. There are certain instances with judicial review where there's a reasonableness standard, but there are also instances where de novo reviews happen. We had Newfoundland before us, and their commissioner has middle-ground power. The Privacy Commissioner actually recommended this middle-ground power. We ultimately didn't recommend that, but the Canadian Bar Association was before us and recommended it, and certainly said that as a first step it might make sense to adopt what Newfoundland has adopted, and then, if need be down the road, go further. There are some concerns that we haven't applied this to ministers' offices, which I understand and I accept, but the order-making power doesn't strike me as a great concern.

Do you think what the CBA and what Newfoundland recommended to us seems reasonable?

[Cara Zwibel]

The problem is that I think it really guts the order-making power significantly, because it provides no incentive for government institutions to put forward their best case. If the decision is to refuse access, they can put forward.... You have to remember there are journalists who are well versed in how to navigate the access system, but there are others who are not.

A government institution can refuse based on one exemption. That can be reviewed by the Information Commissioner. She or he may disagree and make an order, and then once it gets to court, the government institution can pull out a bunch of other exemptions that they think apply, a bunch of other reasons.

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

But there's an important step in between there, which is that the government has to take the commissioner to court. I think that's an important consideration to keep in mind. I doubt that many departments are going to want to expend the resources or take on the public scrutiny to do so. Perhaps it remains to be seen. We could sit here five years from now, or whenever we're forced to review this again by the new legislation, and find that you may well be right.

You hit upon something when you said that maybe reporters are knowledgeable about it but that maybe others aren't so knowledgeable. On proposed section 6 you identified some concerns. I just want to drill down. Proposed section 6 indicates that one would have to identify the specific subject matter of the request, the type of record being requested, and the period for which the record is being requested or the date of the record.

I'd open this to Mr. Conacher, and also you, Cara. What specifically do you have concerns about in relation to that language?

[Duff Conacher]

Well, they are similar to what you were just talking about in terms of the government giving reasons and then being able to change the reason. Access delayed is access denied, and this is simply going to cause another back-and-forth between a government and a requester that is going to delay access. So does the order-making power, in allowing this kind of review back and forth and for the court to be able to consider it de novo. It just means that another step could be taken in the whole process, and that means more delay, and access delayed is access denied.

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

But it's not unique to the Federal Court. Focusing on the de novo, I think, is a misguided focus. This is not a unique review mechanism for the Federal Court to undertake.

With respect to proposed section 6—the specific subject matter of the request, the type of record being requested, and the period for which the record is being requested or the date of the record—what specifically is problematic about those three items?

[Duff Conacher]

It's the specific information being requested.

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

Then “all of it”, I guess, is the answer.

[Duff Conacher]

It's especially the specific information being requested, because a member of the public may not know exactly how to be specific, so then the person in the government says, “Not specific enough”.

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

Well, it says the specific subject matter.

[Duff Conacher]

Not specific enough.