Information & Ethics Committee on Nov. 1st, 2017

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Therefore, if they apply exemptions to that briefing book—they redact it, or they just don't disclose it in the first place—under Bill C-58 you wouldn't be able to go in and say, “What did you exempt, and why? What is the information contained in there?” and then make a call for whether the public should have access to that information.

[Suzanne Legault]

Absolutely.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

The minister's office says, “We publicly disclosed. They exempted these important pieces that might be damaging or unhappy for the government”, and that's the end of the story if Bill C-58 becomes law as it is.

[Suzanne Legault]

Absolutely.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I'm sure the example of the sponsorship mess isn't the most happy one for my Liberal colleagues to use. We are trying to make this real for Canadians. Why does this matter? Many Canadians don't deal with the Access to Information Act; they don't file complaints.

There are other examples in which the information would not have come to the light of day if Bill C-58 had been law. We've had testimony at this committee about Afghan detainees, the F-35, or costs for the war in Afghanistan. Those types of things were garnered only because journalists, or other Canadians, used the Access to Information Act to get information from the government that, in those cases at least, it didn't want out, but because the law required it, it had to be revealed.

I would appreciate it if, either now or later, you could cast backwards and say, if access to information had been under this provision, this, this, and these stories could not have come to the light of day. Would you be able to do that for the committee?

[Suzanne Legault]

There are already a few examples provided in the special report. One only has to glean through the published access to information requests that exist, which are publicly available.

Any request that does not provide subject matter, type of record, and timeline would be denied under the Access to Information Act under the new provision in Bill C-58. The government has stated that it won't happen this way, that somehow there will be some good measure applied to the interpretation of these sections—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

They're saying they will give out the bad stuff with the good, the damaging stuff with the good.

[Suzanne Legault]

In any event, regardless of whether it is provided in good faith by some government institutions, in some instances what one really has to worry about is when it is not provided because the new provisions are being applied. As a regulator, I cannot recommend or order an institution to process an access request if the law allows them to deny that request.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

With the little bit of time I have—

[Suzanne Legault]

I cannot make up the law.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Do you get requests from first nations organizations for access to information, things about settling treaties or residential schools? Are these typical?

We had some testimony from Peter Di Gangi in terms of his concerns about Bill C-58. They're opposed to the bill. You should find yourself in good company. We're still trying to find witnesses who like the bill, outside of the government.

[Suzanne Legault]

I've read Peter's submission.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It will introduce, I'm quoting, “significant new barriers for First Nations and organizations trying to access information” about their claims, disputes, and grievances.

Would you agree with that testimony?

[Suzanne Legault]

I absolutely agree with the submission of Mr. Di Gangi and all of the supporters of that submission.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

In order to have reconciliation, in order to settle claims, in order to figure out things like residential schools and grievances, it all relies on information. Some information the government just doesn't want to let out, or has not for 100 years.

[Suzanne Legault]

As I said in my special report, I strongly recommend that these provisions be removed from section 6 of the act as provided in Bill C-58.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, MP Cullen.

Next up for seven minutes is MP Erskine-Smith,

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

Thanks very much.

Thank you, Commissioner, for coming today and for your work on this.

To pick up on something my colleague said, and just for clarification on section 6, on the idea that the government will be providing additional guidance through TBS and that it would resolve some of the concerns, you're simply saying that your interpretation of section 6 doesn't even give you the opportunity, through your order-making powers, to better this section at all.

[Suzanne Legault]

If the law as provided in Bill C-58 allows government institutions to refuse to process a request because it doesn't contain all of those requirements—not just one of them, all of them: subject matter, type of record, and timeline—then they have the legal ability to deny the request, and I can't do anything about it.

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

We should just walk through section 6 in detail, because obviously we as a committee, as you know, recommended a wide variety of things in our report. The government considered that and opted not to proceed with any number of things. I think my overriding concern here is certainly to make sure that the legislation is not regressing, to use that word.

Maybe we can't apply the act to ministers' offices and be effective in doing so, but certainly we ought to be effective in making sure that we remove some of these additional hurdles that we didn't suggest and you didn't suggest.

Going through section 6, we could remove proposed paragraph 6.1(1)(a), which is “the request does not meet the requirements set out in section 6”. I think that would resolve to a large degree the concerns you've raised.

What about if the person has already been given access to the record or may access the record by other means? You previously recommended a discretionary exemption that would allow institutions to refuse to disclose information that is reasonably available to the requester. If we use that language, is there a concern just in the difference in language here, and one is more restrictive?

[Suzanne Legault]

The reason I'm really not a proponent of having an ability to decline to process a request if the information is already available is based on experience at our office. There is a similar provision now. It's in section 68.1. Basically, if something is already published or is about to be published, the government can decline to process the request. It's an inclusion to the application of the act.

What we found in our investigations is that sometimes information is published on the Internet, or sometimes the information is published but is extremely difficult to find. We've had to urge institutions to disclose the information anyway. That's why, in that particular recommendation, I said that it should be at the discretion, because at least they can consider if the information is public but the actual requester cannot access it easily, it's just a question of assisting the requester.

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

Okay.

[Suzanne Legault]

That could probably work.

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

That would make it more consistent, presumably, with your previous recommendation.

On proposed paragraph 6.1(1)(c), you've indicated concerns about the large number of records. Do you think this would get resolved by your order-making powers? Is there a way? Ultimately, you would have the determination through publishing orders and the jurisprudence you would create to determine what a large number of records means.