Evidence of meeting #52 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was system.
A recording is available from Parliament.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Thank you, Mr. Tromp.
To note, I had my team go through an overview of many systems around the world and, certainly, Canada does not rank highly in the ratings or when looking at some of the access requests.
I have only about two and a half minutes.
Mr. Jolly, I know you were lost, but you have been found. It's good to have you back. I wonder if you have anything to add about the trust related to ATIPs and, specifically, how that affects the media.
President, Canadian Association of Journalists
Absolutely.
This has not been a very good ad for Bell Internet, I'll have to add.
To the point about openness and transparency, I think we've definitely moved far away from the default being openness. That's a mistake that needs to be corrected right away.
I think we're increasingly turning the citizen's right to know into the government's right to say “no” to legitimate requests for government information. That has a trickle-down effect all the way down the information and societal food chain, right from journalists and news organizations being able to use these requests to report on information, to citizens and researchers being able to access relevant materials that they need for their own work.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Right. Thanks for that.
As was mentioned, Parliament saw first-hand some of this when the government took the Speaker to court over the release of some information in the previous Parliament. That issue was disposed of because of an election call, so there's certainly a host of challenges.
Changing gears here, Mr. Beeby, you mentioned proactive disclosure. When I look at what I think will be a recommendation to bring forward, proactive disclosure has a place on something like the immigration backlog, where having the ability for somebody who has been denied, for example.... We need something related to immigration to ensure that they don't have to go through the system.
I'm wondering, in the last 30 seconds or so, if you could talk a bit about proactive disclosure, not so much in the sense of briefing notes from a high-level departmental perspective, but more the specific instances.
As an Individual
The problem with proactive disclosure—as it sits in the law and Bill C-58, which changed the access act—is that it defines a very small number of documents, so-called ministerial documents, that are going to be released on the government's timetable, with no watchdog.
To me, proactive disclosure is a red herring. It's a way to divert our attention from fixing the main problem, which is the Access to Information Act's dysfunctionality.
On the issue of the immigration files, there's a big privacy issue, and I don't think proactive disclosure in that sense is possible. It has to be a client-to-client kind of disclosure.
I don't accept proactive disclosure as some kind of panacea for the system. It's not. It diverts our energies and attention from the big problem, which is a dysfunctional act.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Beeby.
Thank you, Mr. Kurek.
Perhaps now is the time for the disclaimer that the opinion expressed on Internet connectivity by Mr. Jolly does not necessarily reflect that of the committee. Any publication—
Conservative
The Chair Conservative John Brassard
Anyway, thank you, sir.
I have Ms. Saks, now, for five minutes.
December 7th, 2022 / 6:05 p.m.
Liberal
Ya'ara Saks Liberal York Centre, ON
Thank you, Mr. Chair.
Through you, I'd like to direct my attention to Mr. Tromp, if I may.
Mr. Tromp, I had an opportunity to skim through some of your book, and I'd like to note your comments about how the Harper government in 2006 had pledged to “provide a general public interest override for all exemptions”. It did not fulfill that promise. In a subsequent paragraph, you talk about the contemplation by the Conservative Party to look at ATI exemptions and put them to a “harms test", which also wasn't fulfilled.
You then go on, in chapter 8 of your book, to state that the Liberal Party kept its 2015 pledge to grant the Information Commissioner the power to order the release of government information under Bill C-58.
We see that in the Harper years, the media actually complained that they really didn't have a lot of contact with the Harper government in disclosures and discussions, and in 2015, the government came in with a promise to move forward in an open and transparent way, and you cite Bill C-58.
Where are we in the consideration of exemptions now? Have we moved ahead? We've heard the comments from Mr. Beeby about proactive disclosure and where it's not meeting this mark.
I'd like to have your thoughts on that, if I may.
As an Individual
Well, there certainly has been some progress made, but the fact that the Office of the Prime Minister and ministers are no longer covered, as the Prime Minister promised to do in the 2015 election campaign, is a failing.
The commissioner's power to order the release of government records is most welcome here. However, the commissioner, Suzanne Legault, in her report found five serious shortcomings in that power—which are mostly absent in the rest of the world that I've studied—such as the de novo review, the lack of enforcement, etc.
It was a start, but of course we still need the cabinet records to be subject to the commissioner's review, and also, no longer a complete exclusion from the act—as is the case in only one other country in the world, South Africa—but rather a mandatory exemption, which it was in the first version of the ATIP law in 1979.
Yes, of the Harper government's eight pledges in 2006 for ATI reform, seven and a half were not fulfilled. There was some coverage of some foundations and Crown corporations—
Liberal
Ya'ara Saks Liberal York Centre, ON
Thank you for that.
I'm sorry to interrupt, but I really want to go into the cabinet confidence. You mentioned that South Africa and Canada are the only ones with complete exemptions on cabinet confidence—
Liberal
Ya'ara Saks Liberal York Centre, ON
Sorry, yes, thank you for correcting me on that.
It's quite common throughout the Commonwealth, I understand, to have exclusions of cabinet confidence. Where else in the world is there an open access to cabinet confidence? Can you cite one example?
As an Individual
Well, it's not a complete openness to deliberations, obviously. New Zealand has a somewhat more open system, where background records are released very soon after decisions are made.
The 20-year time limit is excessive by far. Cabinet records can only be withheld for 10 years in Nova Scotia. The latest Commonwealth FOI law in the world, that of Ghana in 2019, has a fine harms test for cabinet records, which can only be withheld if they would “undermine the deliberative process”. Well, not all cabinet records released would undermine the deliberative process. It needs to be more precise and nuanced.
Liberal
Ya'ara Saks Liberal York Centre, ON
Thank you for that.
In your opinion, who should be the czar to determine if there could be an override?
Liberal
Ya'ara Saks Liberal York Centre, ON
Mr. Beeby, you say that much of what's on Open Government is irrelevant, which includes contracts, ministerial briefings, and any funding over $10,000, so what would be relevant if that's not relevant?
As an Individual
You were just talking about cabinet confidences. I think cabinet could proactively release the data and background information upon which it made its decision. They could do that soon after making the decision, rather than letting us wait 20 years. That's an example of a deliberative document that is unnecessarily withheld, and it helps us understand why government made its decision. I don't see the problem if it's not touching on the actual discussion around the table, and it's merely data and background.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Beeby.
Mr. Villemure, you have the floor for two and a half minutes.
Bloc
René Villemure Bloc Trois-Rivières, QC
Thank you very much, Mr. Chair.
Mr. Conte, you spoke earlier about the differences between the American system and the Canadian system. You said that, in the American system, if a request is considered important, it goes to the front of the line. Is that correct?
Bloc
René Villemure Bloc Trois-Rivières, QC
Are the classified documents obtained in the United States in response to an access request more redacted or less redacted than those we obtain here, on average?
As an Individual
In the U.S., there is a 25-year declassification system. After that time, they are uncensored and declassified to the greatest extent possible.
In Canada, the only way to declassify documents is through access to information requests, one at a time, depending on who is requesting.
Bloc
René Villemure Bloc Trois-Rivières, QC
A scientific journal reported recently that documents in the United States are often classified at a higher level than necessary, and that this is because of officials wanting to protect themselves rather than any real need.
Do you agree with that?