Evidence of meeting #76 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 section.
A video is available from Parliament.
NDP
Murray Rankin NDP Victoria, BC
Mr. Chair, in every access to information act, there is a statement of the public's right to know. Then there are exceptions to that rule that should be narrow, and then there is an independent umpire who decides whether the records should be disclosed if the government doesn't want to disclose them. This next set of amendments, in particular, NDP-8 to start, is about that exemption. The commissioner has said over and over again, as have other witnesses...and in many statutes across the land, they have what are called harms tests. Rather than simply a category of information that can be withheld whether there's a harm or not, the objective in my amendment is to add a phrase that would say the “disclosure of the information would be injurious to” a particular interest.
Now I realize that the threshold question for you, Mr. Chair, is whether or not these amendments, as the others I've proposed, are within scope. I, of course, will respect your ruling on this, but I will point out that this is consistent with what for 20-some years has been suggested by committees like this, that there be changes to these exemptions. This is how you swallow the rule of openness: you just have to make the exemptions broad enough that everything gets withheld. This is an effort to do what many commissioners have sought and what most legislation across the land does, which is provide a harms test, rather than simply a black hole into which the government can pour whatever it doesn't want disclosed.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. Rankin.
Again, I have a ruling. The amendment seeks to amend a section of the Access to Information Act that is not amended by Bill C-58. As House of Commons Procedure and Practice, Second Edition, states on pages 766 and 767, “...an amendment is inadmissible if it proposes to amend a statute that is not before the committee or a section of the parent Act, unless the latter is specifically amended by a clause of the bill.” It is therefore the opinion of the chair that the amendment and consequential amendments NDP-32, 34, and 37 are inadmissible.
November 6th, 2017 / 5:05 p.m.
Conservative
The Chair Conservative Bob Zimmer
I like you, Mr. Rankin, but I have a job to do, so we'll move on to NDP-9.
NDP
Murray Rankin NDP Victoria, BC
It's a very narrow one. I'm not sure if it's going to be ruled in order in light of what you've just said. Where currently the act says that you can withhold information “on strategy or tactics adopted...by the Government of Canada relating to the conduct of federal-provincial affairs”, this would simply narrow it to say “federal-provincial negotiations”. In a federation, to give you an example of what I just said before, there are certainly a lot of things that have to do with federal-provincial affairs, so you see why this can be abused. That's why so many commissioners have asked for it to be narrowed. This would merely affect those things where there are negotiations. Fair enough, there should be an exemption, I would submit, for that, but this is an example of where the exception can swallow the rule. I was hoping that this committee would be consistent with its predecessors and try to improve it for Canadians.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. Rankin.
Once again, for the same reason.... Do you want me to repeat the reason why not every time? Anyway, I'll say it again.
As House of Commons Procedure and Practice, Second Edition, states on pages 766 and 767, “...an amendment is inadmissible if it proposes to amend a statute that is not before the committee or a section of the parent Act, unless the latter is specifically amended by a clause of the bill.” It is therefore the opinion of the chair that the amendment is inadmissible.
Liberal
NDP
Murray Rankin NDP Victoria, BC
Yes, I'm seeing a pattern develop here, Mr. Chair. I don't know if it's just me, but maybe it's an echo in the room.
Conservative
NDP
Murray Rankin NDP Victoria, BC
NDP-10 is another attempt to add an exception to provide for a requirement:
The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested...that contains information the disclosure of which could reasonably be expected to be injurious to the integrity or independence of the institution's news gathering or programming activities.
That would be the reason for it. I assume that you're going to rule it out of order, as with the others.
Conservative
The Chair Conservative Bob Zimmer
That is a correct assumption, Mr. Rankin.
Do you want me to read out the reason? It's the same reason as we had before. I'm assuming that we want to keep moving, so it is ruled inadmissible, Mr. Rankin.
NDP-11 is next.
NDP
Murray Rankin NDP Victoria, BC
I'm feeling this may not go over very well either, Mr. Chair, but this is an exception, and I would ask that section 17 of the Access to Information Act be replaced by the following. The first part is the same:
The head of a government institution may refuse to disclose any record requested under this Part that contains information the disclosure of which could reasonably be expected
Now here's what we would add:
to threaten the safety or mental or physical health of individuals, or that could reasonably be expected to increase the risk of extinction of an endangered species or increase the risk of damage to a sensitive ecological or historic site.
I will point out that there's a section to that effect in the B.C. Freedom of Information and Protection of Privacy Act. It gives great comfort to indigenous Canadians that such a section is there. This act is silent. It's something that's been called for for a long time.
Conservative
The Chair Conservative Bob Zimmer
Mr. Rankin, again, it's inadmissible based on the parent act principle, as mentioned before.
We will go to amendment NDP-12.
NDP
Murray Rankin NDP Victoria, BC
I assume it will suffer the same cruel fate, Mr. Chair, that the others have felt.
This is simply an effort to use the common law definition of trade secrets and take out paragraph 18(a), which has a lot of other reasons to withhold information that we think are unnecessary in light of the common law understanding of what a trade secret is. In other words, this is another way and an effort to provide more information to narrow the category of what can be withheld.
Conservative
The Chair Conservative Bob Zimmer
Once again, it's ruled inadmissible based on the parent act principle, as mentioned before.
We'll move on.
(Clause 9 agreed to)
NDP-13 has new clause 9.1.
Mr. Rankin.
NDP
Murray Rankin NDP Victoria, BC
This is another effort to narrow the material that can be withheld. It says the head “shall not...refuse to disclose a record if that record contains”, and we would add:
details of a contract or bid for a contract with a government institution.
There has been a lot of case law suggesting this part of the bill has been abused over the years. This is an effort to provide an ability to get the public's hands on the details of contracts or bids on contracts to make it clear that they're available, notwithstanding the general exception to the rule.
Conservative
The Chair Conservative Bob Zimmer
Again, for the same reasons as mentioned before, it's ruled inadmissible based on the parent act principle.
Mr. Rankin.
NDP
Murray Rankin NDP Victoria, BC
I suspect NDP-14 will be likewise ruled inadmissible. It would deal with one of the most contentious and abused sections of every access to information act across the land, which is the policy advice exception. Records that are less than five years old can be withheld if they are “advice” to government. You can imagine how many records would fall into that category.
What we've tried to do here is add a harms test to each of the categories to ensure it's not abused. Only when the government can show a harm would they be able to hide behind policy advice. Then we add a long list of material that still would be available—factual reports, statistical surveys, environmental impact statements—that nevertheless would be disclosable even if they might be deemed policy advice. This again is something that this committee has long sought.
Conservative
The Chair Conservative Bob Zimmer
Once again, that particular amendment is deemed inadmissible with regard to the parent act principle.
(On clause 10)
We'll move on to NDP-15.
NDP
Murray Rankin NDP Victoria, BC
This may be another example. There are only a couple left, Chair, where we've tried to narrow the categories.
The legislation, Bill C-58, adds reference to disclosure where “solicitor-client privilege” is involved. This would be confirming that the commissioner has the ability to deal with matters of solicitor-client privilege, but also would add that the disclosure is withheld only if the:
disclosure of the information could reasonably be expected to be injurious to the interests of the Crown.
There's a phrase lawyers use called “lawyer-washing”, whereby you simply bring a lawyer into a meeting, call it solicitor-client, and that's the end of access.
This amendment is to say, yes, it's solicitor-client perhaps on its face, but only if it's injurious to a demonstrated interest of the crown would the information be withheld. I realize it's another effort to narrow the exemptions, and you consider that in your judgment to be contrary to the scope and principles of the act.
Conservative
