Evidence of meeting #73 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 c-58.
A recording is available from Parliament.
3:40 p.m.
Conservative
The Chair Conservative Bob Zimmer
We have to have unanimous consent that he withdraw his motion. Do we have it?
3:40 p.m.
Some hon. members
Agreed.
3:40 p.m.
Conservative
The Chair Conservative Bob Zimmer
Thank you.
Thank you, witnesses, for allowing us to do some business. Officially, we'll get going.
We have Drew McArthur, from the Office of the Information and Privacy Commissioner for British Columbia, and Nick Taylor-Vaisey, from the Canadian Association of Journalists. Is that correct?
3:45 p.m.
Conservative
The Chair Conservative Bob Zimmer
From Evidence for Democracy, we have Katie Gibbs, executive director, and Kathleen Walsh, director of policy.
We have a bit of a time issue. We are starting at 3:45, and we were supposed to start at 3:30.
Witnesses, are you okay to stay a little longer than we originally asked you to, until 4:30?
3:45 p.m.
Conservative
The Chair Conservative Bob Zimmer
Okay. We'll try to extend it by 10 minutes. That should cover us. It depends on where the debate goes.
3:45 p.m.
Conservative
The Chair Conservative Bob Zimmer
Yes, and we do have a second panel, so that complicates it a bit.
We should be good. We are going to allow an extra five minutes, if that works for everybody, just because we do have witnesses.
Drew McArthur, I have you as speaking first. Go ahead, Drew.
3:45 p.m.
Drew McArthur Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
Thank you very much.
I want to talk about the proposed reforms to the Access to Information Act from the B.C. perspective. I think I will start by characterizing the scope of the act, which is the ideal of openness and transparent access to information, so the public can be involved in the debate. However, we find most of the act is focused on exceptions to access, so I find it a bit ironic that the bulk of the act is about exceptions, as opposed to access, and openness, and transparency.
With that opening perspective, the same thing exists in British Columbia, but in terms of right of access and making requests for information, proposed Bill C-58 suggests to require the requester to specify the subject matter, the type of the record, and the period for which they are requesting.
The federal commissioner's position has been that she feels the current requirements in the act are sufficient. B.C.'s law requires an individual to request records in writing, to provide sufficient detail for an experienced employee to identify them, and to submit their requests to the public body the applicant believes has the information. In other words, there is a duty to assist in B.C. and that is enshrined in our legislation, so you can't just turn away an applicant. You must assist them in getting the records that they are looking for. In some cases, if a request goes to the wrong ministry, it can be transferred to the correct ministry, rather than saying there are no responsive records.
In order to refuse an access request, Bill C-58 will allow institutions to decline to act on a request if it does not include enough detail, if the person has already been given access or can access by other means, or in circumstances where the volume of pages could interfere with operations. The federal commissioner is also concerned about that because she believes it's overly broad.
In B.C., public bodies must apply to my office for an authorization to disregard a request and we will then review that. Public bodies have a duty to assist applicants and as part of that duty, they may ask the applicant for more information about what records they are requesting for the purpose of assisting that individual. However, they cannot ask why they are requesting it.
Public bodies can charge an applicant fees to respond to a request, except when that request is the applicant's own personal information. This increases the public body's duty to assist, as the fees assist in some level of cost recovery, but typically not entirely, for some requests that would otherwise appear disruptive to operations, but just because it might be disruptive to operations does not mean that the public body must not respond to the request. Quite often, our office does receive complaints around the fee structure that a public body proposes to charge and often those are at issue in terms of gaining access to the records.
As it relates to the coverage of the Prime Minister's Office, Parliament, and courts, the issue is that the Prime Minister's Office, Parliament, and the courts are not covered under Bill C-58. It does provide for mandate of proactive disclosure of certain records for those entities, but with timelines longer than the regular access requests. The commissioner has no oversight over the information that those entities would disclose proactively and an institution can decline to respond to someone, if they are requesting information that the institution has already disclosed.
In B.C., our law applies to the office of the premier, to the ministers, and to cabinet records, but not to court records. The access to records held by these government departments is not unfettered. Exceptions do exist and they are clearly in our act.
For example, our act prohibits a public body from disclosing information that would reveal the substance of deliberations of the executive council or any of its committees, including advice, recommendations, policy considerations, draft legislation, or regulations submitted or prepared for submission to the executive council or any of its committees.
The government receives many access requests for records held by those government departments each year and the records are fundamental to the accountability and to the object of access to information.
Bill C-58 proposes to insert the words “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions”. That's proposed to be put in the purpose clause. If that's the purpose, then access should be extended to those offices where those decisions are made.
On order-making power, the proposal is that the courts would review the Information Commissioner's order de novo, allowing for submission of other information and other facts after the investigation by the Information Commissioner. In B.C. we have full order-making power and orders can be registered with a supreme court. These orders are produced by adjudicators after an investigation and mediation process. It's a separate process. The two do not overlap.
In most cases, parties do not apply for a judicial review of our orders or a decision of my office, although they can. In B.C., with limited exceptions, such as in cases where a public body is claiming solicitor-client privilege over records, the courts have determined that the appropriate standard of review of my decisions is reasonableness. They review all our decisions and our orders on that basis.
If Bill C-58 were to be implemented in B.C., it would not provide incentive for public bodies to be meaningfully engaged with our office in the investigation or mediation phase. We resolve probably 95% to 99% of our investigations at the investigation mediation phase and rarely have to go to orders. That's a much better process for the applicant and the public body.
In other areas of concern, there is the transition period. Parts of the bill that relate to complaints to the Office of the Information Commissioner and the commissioner's power to investigate would not take effect for a year. It would only be applicable to those complaints received after that effective date. In British Columbia, our act was amended in 2011, and it came into force immediately upon royal assent. That just removed any uncertainty between applicants and government about their requirement to respond under those new conditions.
I will make a little note on information management. The government is now telling my office that they get requests for access to information that may involve hundreds of thousands of pages. They're not allowed to ignore those requests because of the size. In fact, we've encouraged them to start to disclose on a staged basis. But I note that if the information systems designed by government ministries to manage their operations also included thoughtful consideration of the requirement for access to information and transparency of their work, the work taken to respond to requests would be much easier and simpler as the information systems would already be anticipating that the information might be having to be disclosed.
It doesn't help in today's world but as we're designing our information systems going forward it's as if we say privacy by design to protect personal information, but it's access by design to enable the transparency and the delivery of those records to people who have a valid reason to know them.
I'll end there.
Thank you.
3:50 p.m.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. McArthur.
We'll go next to Nick Taylor-Vaisey, again for 10 minutes.
3:50 p.m.
President, Canadian Association of Journalists
Thank you, Chair.
Thank you to the committee for inviting the CAJ today.
I'm Nick Taylor-Vaisey. I'm the president of the Canadian Association of Journalists. I'm here today in that capacity and do not speak on behalf of my employer, which is Rogers Communications and Maclean's magazine.
Today I'm speaking to you from Toronto, but our national board represents almost every corner of Canada. The CAJ is a truly national association of working journalists with members all over the country and across all forms of media.
Before I offer you our thoughts on how this committee could proactively improve the access to information reform on the table in the form of Bill C-58, I'd like to spend just a few seconds telling you about the CAJ.
The CAJ was founded in 1978 as the Centre for Investigative Journalism, a non-profit organization that encouraged and supported investigative journalism. Over the years we broadened our mandate and now offer high-quality professional development, primarily at our annual national conference, and also outspoken advocacy on behalf of journalists.
Our members include some of the most dogged investigative reporters in the country, journalists who have read freedom of information laws back and forth and have actively used them to inform their stories. They serve the public interest by digging up information their readers require to be informed citizens.
As you know, because you see it every day, excellent journalism reshapes public policy and improves people's lives. An effective access to information law allows journalists, and by extension the broader public, to be better informed, and at an even more basic level a good law serves the public's right to know.
This committee is well aware of the need for access to information reform. You've studied this issue exhaustively and have made important and necessary recommendations to the government. You now have before you a bill that the government has called “the most comprehensive reform of access to information in a generation”.
Of course, the Information Commissioner's opinion is different. She has said that Bill C-58 “would result in a regression of existing rights”. Heather Scoffield from the Canadian Press told you earlier this week that her Ottawa bureau, one of the most active in Canada when it comes to using the law—journalists like me are usually pretty jealous of the CP bureau's work—is “alarmed” to “see more ways for the government to turn us down and deny us information”.
The CAJ hopes the committee will work to change several damaging aspects of Bill C-58.
The first is that the government promised to expand the number of offices, including ministers' offices, that were subject to the act. Instead, Bill C-58 subjects ministers' offices to increased proactive disclosure. You'd be hard pressed to find a journalist who doesn't celebrate increased proactive disclosure. The problem is that governments control what is proactively disclosed, and a strong access to information law actually shifts that balance of power to the public. The CAJ urges the government to keep its election promise and subject ministers' officers to the right of access.
The second point is that Bill C-58 would allow departments to decline to act on requests deemed “vexatious” or “made in bad faith”. Both the Information Commissioner and this committee recommended that the government add a “bad faith” clause to the law. The proposed clause, however, could kill requests that don't include narrowly defined criteria, including the specific subject matter of the request, the type of record being requested, or the period for which the record is being requested.
Now, as journalists go about their work—our work—they will not always have all that information at their disposal. To dismiss those requests that lack only certain details as vexatious or in bad faith is an unnecessary overreach. The CAJ, like the Information Commissioner, urges the committee to remove these amendments in clause 6 from Bill C-58.
The third point is that Bill C-58 doesn't give the Information Commissioner effective order-making powers. The bill does technically enshrine order-making power, but the Information Commissioner has criticized the toothlessness of that element of Bill C-58. She's also suggested a different approach that would enact real enforceability, and the CAJ supports those recommendations. Of course, Mr. McArthur just spoke in some detail about that particular element of the bill.
The last recommendation is that Bill C-58 is a step backwards on fees for access. Early on in its mandate this government made a decision to waive all fees except for the mandatory $5 application fee. Bill C-58 reintroduces those fees and only says that they “may be prescribed by regulation”. Fees act as a barrier to access, and the CAJ believes the government should follow its interim directive of 2016.
Ultimately, journalists are hoping for an access to information law that shifts the culture within government, including that of both political actors and the broader public service. Bill C-58 will not get there. It adds new restrictions to the right of access and, outside of more government-managed proactive disclosure, won't instill a culture of openness by default. Journalists will spend more time clarifying or appealing requests, often with no clear path to a resolution, and sometimes at a significant financial cost.
Access to information coordinators, who are often caught between journalists and citizens who want information and government officials who don't want to give it up, will continue to have one of the most unenviable jobs in the public service.
Thanks for your time. Once the witnesses have finished their statements, I'm of course happy to answer your questions.
4 p.m.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. Taylor-Vaisey.
Next up is Evidence for Democracy and witness Katie Gibbs, I believe—or is it Kathleen Walsh?
Kathleen, go ahead, for 10 minutes.
4 p.m.
Director of Policy, Evidence for Democracy
Thank you, Mr. Chair and members of the committee, for having Evidence for Democracy here today.
We're very pleased to be here to discuss Bill C-58 and we're happy to see that the Access to Information Act is being revitalized for the first time in a long time—and actually for the first time within my lifetime.
Evidence for Democracy is a non-partisan, not-for-profit organization promoting the transparent use of evidence in government decision-making. E for D works with parliamentarians, public servants, scientists, and the public to ensure that the best available evidence and science make it into policy, and in a method that is transparent and open.
Robust evidence and facts underpin our democratic process. When Canadians do not have access to the science and evidence created and used by government, we cannot effectively hold our governments to account and our democracy suffers. As many of you are aware, access to scientific information in government has not always been available. When scientists are muzzled, cannot speak to the media, or fear for their employment if they speak about their research, our democracy is greatly impacted.
This government and many other members have worked hard over the last two years to ensure that government science can be openly communicated to the media and to the public. We're pleased to see these positive steps forward; however, this is only one part of being able to access government information. The ambitious undertaking of revitalizing the Access to Information Act is certainly another part of it. The revitalization of this act was long overdue and is an opportunity to truly modernize it, improving accountability and trust between the government and the Canadian public.
It is our opinion that there are serious flaws with Bill C-58 as it stands now; however, we recognize the opportunity to change and strengthen it. Our recommendations are similar to those of the other witnesses today: to focus on proactive disclosure, the denial of requests, and the ability for the Information Commissioner to order records.
On proactive disclosure, the decision to make ministerial mandate letters open by default was a commendable step by this government. We're pleased to see it enshrined in Bill C-58 and look forward to the normalization of this practice. These mandate letters have helped us as advocates and researchers to understand government priorities and desired changes. This is a positive step; however, it does not go quite far enough.
Evidence for Democracy, like many, interpreted the access to information reform presented by the Liberal Party in its election platform as including the ability to ATIP ministers' offices and the PMO. We are disappointed that this is not part of Bill C-58 and are concerned that proactive disclosure, while laudable, in its current configuration does not reach far enough.
We're deeply concerned that proactive disclosure of information is not overseen by the Information Commissioner. We see the information commissioner role as an incredibly important one and do not want to see parts of access to information legislation removed from that office's oversight. It is imperative that proactive disclosure be under the purview of the Information Commissioner.
Additionally, there must be shorter timelines for disclosure specified in the act, and it should allow for individuals to still request access to information.
We agree with this committee's recommendations, particularly recommendation number 23, that purely factual or background information, information on, and a record of decision made by cabinet or by any of its committees on an appeal under the act also be disclosed.
Furthermore, the ministers' offices and Prime Minister's Office must be required to respond to access to information requests. Proactive disclosure on its own is not sufficient; right to access should be extended to these offices.
With that, I will hand it over to Katie Gibbs, my colleague.
4 p.m.
Katie Gibbs Executive Director, Evidence for Democracy
Thank you, Kathleen.
When it comes to the bill's amendments to section 6, as it stands now we are concerned about requests that may be deemed vexatious and turned down. We do not believe that government departments or agencies should be able to determine that a request is vexatious and deny it. We think that only the Information Commissioner should be able to make those calls.
We believe there should be some means for the Information Commissioner to say that something is vexatious, but we think there need to be very clear specifications added into the act around what exactly “vexatious” means. It's a very subjective term as it stands now.
Additionally, the bill requires requesters to specify very specific information, such as the topic, the type of record, and the time period. While this may sound simple, it can be very challenging for civil society groups. NGOs like ours, but certainly members of the public, often do not have that very specific information prior to submitting a request. These changes really make it harder and not easier for the public to access information. We feel that this provision dramatically weakens our access to information legislation and really provides governments with a mechanism to subvert the intent of the acts, if they choose to.
The last issue we're concerned about is around the authority of the Information Commissioner in section 36, which allows the Information Commissioner to order a government institution to either reconsider denying access or order that a record become available. In theory, we absolutely think this is a positive change, but we have concerns about the timeliness of this process as well as the resources required within the Information Commissioner's office to fulfill this mandate.
We would remind the committee here that the scientific community is still waiting on a report from the Information Commission on the muzzling of federal scientists. This investigation began in March 2013, and we are still waiting for the report. It has been four and a half years, and we still don't have answers. Obviously, I think, we can all agree that this is unacceptable.
In the scenario that we see with these changes, someone would submit a request to the relevant departments. It would consequentially be denied, which we assume would take a few weeks, if not the full 30 days. They would then have to take it to the Information Commissioner. We assume they would then need some time to review it. Say that they do compel the government to produce the record; it then has 30 days again to actually produce the records.
Really, then, we're looking, even under a best case scenario, at its taking potentially months to actually get the documents. Again, this is assuming that the Information Commissioner would actually be able to review the case immediately, but given that the office is under-resourced as it is, it seems likely that there could be a significant delay in the process and in their ability to review the case. We want to make the case that in order to fulfill any new mandate given to the Information Commissioner, the office will need a significant addition of resources to match any new mandate being put on them.
Additionally, again we support this new mandate for the Information Commissioner to order records, but we are concerned that the bill does not really provide any teeth for the office to do that job effectively. It's not currently clear what kind of recourse there would be if the institution just refused that order from the Information Commissioner.
It is thus our opinion that the bill needs some serious work and amendments, but we are very pleased to see that the act will be reviewed in one year and then again in five years. We think that regular renewal and revitalization of an act so vital to our democracy is imperative. As data practices and government evolve, so too should our access to information laws.
We look forward to seeing what the committee does with this bill, and the reviews.
Thank you for your time.
4:05 p.m.
Conservative
The Chair Conservative Bob Zimmer
Thank you.
I just want to bring this to committee that if we go to seven minutes, we're likely only going to get to three questioners before time. I'm suggesting that we go to five minutes each to get the first round in.
Is that fair? Are we in agreement on that?
4:05 p.m.
Some hon. members
Agreed.
4:05 p.m.
Conservative
4:05 p.m.
Liberal
Mona Fortier Liberal Ottawa—Vanier, ON
Thank you. I will ask my questions faster.
Good afternoon, everyone, and thank you so much for being here today. It's very important for this committee to hear you. There have been a variety of views over the last few meetings, and yours have all contributed to a fulsome discussion. Thank you.
I would like to start by getting a good idea of how out of date this legislation is. I think by understanding the lack of movement on this file over the past decade, especially with the digitization of records and the sheer amount of information, it will give us a better understanding of the legislation.
I would like to start with you, Mr. McArthur. As I have limited time, I'm going to ask a few short questions.
When was your legislation enacted in B.C.?
4:10 p.m.
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
It was in 1996, I believe.
4:10 p.m.
Liberal
4:10 p.m.
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
I believe the last time was in 2011.
