Debates of June 2nd, 2000

Access To Information Act

[John Maloney, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Mr. Speaker, I rise at this time to comment on Bill C-206 which makes extensive amendments to the Access to Information Act.

First, I would like to take a moment to comment on the remarkable effort my colleague the member for Wentworth—Burlington has put into producing his Bill C-206. Many of us consider it to be an accomplishment to produce a private member's bill that contains one or two clauses. The member for Wentworth—Burlington has met many administrative hurdles. He has tenaciously persevered, which perseverance has brought us to this debate today. Bill C-206 contains almost 35 clauses. Overall it proposes a major overhaul to the Access to Information Act.

Second, I would like to speak about the importance of the Access to Information Act and its role in promoting government openness and transparency. Without a right of access enshrined in a piece of legislation, all talk about government transparency is, in the final analysis, somewhat hollow.

I wish to make some general remarks on the bill itself. My position is that there are certain concepts expressed in the Access to Information Act that we should be extremely careful about revising. That is, whatever reform of the act is carried out, it must, I believe, respect certain ideas.

One idea relates to personal information. First, the residents of Canada are obliged to give the government all kinds of personal information about themselves. This is referred to as the collection of personal information. Next, the government is obliged to use in specific and limited ways the personal information of Canadians that it has collected. The Access to Information Act also permits and governs disclosure of that information. Right now I wish to focus on disclosure.

Disclosure is probably the most potentially controversial aspect of dealing with personal information. Government must be careful when it changes the rules in a way which increases the government disclosure of personal information. What is at stake is Canadians' confidence in their government and their willingness to provide the government their personal information. For this reason I encourage the members of the House and the committee that will be examining Bill C-206 to pay great heed to the question of when, under the Access to Information Act, personal information gets released.

Bill C-206 would require the disclosure of information held by the government after 30 years. The Government of Canada is concerned that automatic disclosure of personal information the government has held for 30 years could lead to an infringement of an individual's right to privacy under the charter.

Individuals expect their confidentiality to be maintained when they provide government with their personal information. Canadians may fear that Bill C-206 would lead to an erosion of their right to expect privacy and confidentiality from their government. Let me give an example. Income tax returns contain a lot of private and personal information that should be continued to be protected. No one would want his or her income tax information to be accessible at any time.

The privacy commissioner has also expressed his concerns about the impact the bill would have on the privacy of individuals and on the confidentiality of personal information.

Another issue of great importance is what approach to take to confidential commercial information. As I mentioned in relation to personal information, businesses in Canada are obliged in a number of circumstances to give the government various types of highly confidential commercial information. It has been pointed out that if we reduce the level of protection on valuable confidential commercial information, then I am afraid that businesses may begin to think that the risk involved and the cost of doing business in Canada is too high.

Let me give you a concrete example. If I had a business and thought that, in order to get the government to approve a new product, I would have to let my competitors have access to confidential business information, I would certainly be reluctant to give that information to the government.

There is a theme running through my comments and it is this. I am entirely in favour of trying to increase government openness. Indeed, I hope that this issue will be properly addressed by whatever reform of the Access to Information Act goes forward. At the same time we should remember that letting the sun shine in on government operations, which is good, is not the same thing as letting out people's personal information or businesses' confidential information. The question of disclosure is extremely sensitive and should not be undertaken without careful consideration and consultation.

Finally, we should bear in mind that there is more than one solution for dealing with a piece of legislation that may no longer be working quite as well as it should be. We tend to think automatically that a statute must be fixed by making amendments to it. In fact, the way a statute works can be fixed by improving how it is applied and administered.

I am not suggesting that improvements in the application and administration of the access act would be the whole answer. However, I wish to suggest to the House that we not rush into amending the act before we are certain that this fairly drastic course of action is what is truly needed.

If we are going to reform the act, surely it should not be undertaken without first conducting broad public consultations to allow all those who have an interest and a stake in this legislation to express their views.

Parliament's information watchdog, the information commissioner, made this very suggestion when he appeared before the Standing Committee on Justice and Human Rights last November. He stated that proposals for access reform should be formed by a variety of perspectives and that it would be preferable for consultations to be conducted on a broad scale, allowing all stakeholders to have a say. I certainly agree with this view.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I rise on behalf of the hon. member for Wentworth—Burlington, the author and sponsor of Bill C-206, an act to amend the Access to Information Act. Normally the member would be speaking himself at this time, but as it is the third hour of debate on this bill, and as the member spoke during the first hour of debate, he is not allowed under our standing orders to speak today. Therefore, I will reflect the thoughts of the member.

Much has happened between the first hour of debate and this final one, a mere two days before Bill C-206 comes before the House for its second reading vote. During the first hour when the member for Wentworth—Burlington described his bill there was optimism and excitement. After 13 years of failed attempts, at last a bill was going forward that would substantially reform the Access to Information Act, the legislation that was intended to guarantee the right of Canadians to those government documents they should be entitled to see, but that over the years has become more an instrument of secrecy than of disclosure.

For over a decade the public, the media, members of parliament, parliamentary committees and the former information commissioner himself have clamoured for the overhaul of the act, but never has any government come near to presenting legislation that answered the urgent calls for reform.

An impasse arose from the fact that it has been impossible to get consensus on how to amend the Access to Information Act from all the ministries of government that would be affected. Added to this was the problem that the justice department writes all government legislation and, being comprised principally of lawyers, naturally tends to think in terms of increasing confidentiality and secrecy rather than of increasing openness.

After three years of trying to get the justice minister to undertake reform to the Access to Information Act, the member for Wentworth—Burlington undertook to write appropriate legislation himself. As a former journalist, author and now politician, he was uniquely qualified to undertake this task and, with the help of expert legislative counsel, Bill C-264, now Bill C-206, was presented to the House in October 1997.

The reforms proposed in Bill C-206 were sweeping, but almost all of them were taken from the recommendations of the parliamentary committee that proposed improvements to the access law, or from the 1993-94 report of the Access to Information Commissioner—almost all of them, save for the very first amendment, which proposed that the name of the Access to Information Act be changed to the open government act.

From the very beginning the member for Wentworth—Burlington tried to make it clear to opposition parties and the government alike that he would listen and act on all concerns and criticisms expressed about Bill C-206. He has never pretended it to be a perfect bill and has asked only that it go through second reading to committee where witnesses can identify its flaws, propose improvements, answer concerns and amend it wherever necessary. In other words, the member for Wentworth—Burlington only asked that Bill C-206 go through the same legislative process as any other bill.

Opposition MPs in their speeches to Bill C-206 have raised legitimate concerns, one of the more important being that they are afraid to give government institutions the power to consider multiple requests frivolous.

This particular amendment was an attempt to address a problem identified by the information commissioner in one of his reports, but if Bill C-206 deals poorly with this issue or, worse yet, if the amendment gives power to the government that is not intended, then it should be changed or struck from the bill at report stage. The member for Wentworth—Burlington would support any such change.

The member has said repeatedly the same thing to government, and for two years received favourable comment from officials in various ministries and active help from justice department officials, leading to a revised and more polished version of Bill C-206, and even encouragement from cabinet ministers, notably the justice minister and the foreign affairs minister.

Thus, it was with surprise and some dismay that the member for Wentworth—Burlington was called to a meeting this past Monday before the Deputy Prime Minister, the justice minister, the treasury board president and the government House leader to be confronted with accusations that Bill C-206 contains major flaws. Even though he was given no advance notice of criticisms, the member gave full answer then and in writing by noon the next day. Meanwhile, the justice minister undertook to provide a full analysis of all that was supposedly wrong with Bill C-206.

On Wednesday the government announced to Liberal members of parliament that it would not support Bill C-206. On Thursday, that is, yesterday afternoon, the member for Wentworth—Burlington received the justice department critique of Bill C-206 and a formal letter rejecting Bill C-206 from the Deputy Prime Minister.

It is too bad that the justice minister has to rely on staff who could produce a document so inept as that which attempted to demolish Bill C-206. They could not even get the clauses under discussion correct, or cover them all, or find merit in any that increased openness, no matter how minor. Their criticism of clause 26 in Bill C-206 is completely wrong. This clause would extend protection of memoranda to cabinet, not diminish it.

The arguments in the Deputy Prime Minister's letter had more substance, but none were sufficiently compelling to warrant killing the bill.

What is a vote at second reading all about anyway? It seeks agreement in principle, that is all. All legislation is regarded as requiring close examination, correction and improvement after second reading. If this process is not successful, then a bill is killed at third reading, but not at second reading before it has had public airing before committee, not at second reading when all that is being sought is agreement in principle.

What is the principle? The first amendment of Bill C-206 would rename the legislation to the open government act. The second amendment would establish that it is the government's duty to release as much information as it reasonably can to the public.

Will the Prime Minister vote in principle against such a bill? Will the Minister of Justice or the Deputy Prime Minister? Cabinet always has the option of killing the bill at third reading or in the Senate, but to oppose such a bill at birth?

Perhaps the member for Wentworth—Burlington has indeed failed to be sufficiently accommodating. The one single area of Bill C-206 that he has said he will not budge on is the amendment that would bring crown corporations like the CBC, Canada Post and the National Capital Commission under the legislation. Crown corporations spend billions of taxpayer dollars. They should and must be subject to better public scrutiny.

Surely that is not cabinet's reason for opposing Bill C-206. Surely cabinet should want debate on how to make all government more open.

Many of us first came to this place in 1993. The hon. member for Wentworth—Burlington has certainly been a man of parliament, a man of this House.

What is being proposed in Bill C-206 would help every member of parliament to do their job. It would also help make transparent the workings of government to all Canadians.

I commend the member for Wentworth—Burlington for his efforts, his initiative and his perseverance in attempting to give all members of parliament the equipment to do a better job and to have more open and transparent government.

[The Acting Speaker (Mr. McClelland)]

I have received notice from the hon. member for Pickering—Ajax—Uxbridge that he is unable to move his motion during private members' hour on Monday, June 5, 2000.

It has not been possible to arrange an exchange of positions in the order of precedence. Accordingly, I am directing the table officers to drop that item of business to the bottom of the order of precedence. Private members' hour will thus be cancelled and Government Orders will begin at 11 a.m.

[Monique Guay, Bloc, Laurentides, QC]

Mr. Speaker, I am pleased to address Bill C-206, an act to amend the Access to Information Act and to make amendments to other acts.

That bill faced many obstacles before reaching second reading stage. I will show you how this bumpy ride finally made the Bloc Quebecois withdraw its support for this legislation.

First, I want to reaffirm the importance of access to information in a democratic society. It can be said without exaggeration that the rules governing access to information are a pillar of our democratic system.

Indeed, without these rules, there can be no transparency in the public administration. If unable to count on concrete standards that would provide them with access to the documents being held by the government, the public would in fact be deprived of its power of review, which is essential to the democratic health of any society. This power of review arises out of a fundamental right that belongs to each of us: the right to know.

The scandal around HRDC funding is a clear example of just how important that right to know is. This scandalous episode reminds us that it is essential to have a clear picture of what government is doing, so that public funds do not serve any private interests.

Given the total absence of government co-operation in this area, the public has had to rely on the Access to Information Act to try to discover where the Transitional Jobs Fund money has gone.

Recently, the Bloc Quebecois was able to use access to information to discover some major flaws in the Canada Information Office tendering process. We discovered, in fact, that the CIO had awarded hundreds of thousands of dollars in contracts without any call for tenders since June 4, 1998.

It is, for example, questionable to say the least that this body, the principal mandate of which is to promote federal propaganda, has awarded a $25,000 contract to a former Liberal candidate without calling for tenders. Thanks to access to information, we were able to obtain, and provide to our fellow citizens, the disconcerting details on the Liberal government's administration.

It must, however, be recognized that the effectiveness of the Access to Information Act is not absolute. A formidable bureaucratic culture continues to thwart the desire of the public to discover more about the practices of their government.

The Information Commissioner of Canada, John Reid, spoke on this matter the last time he appeared before the Standing Committee on Human Resources Development and the Status of Persons with Disabilities. He said:

The right of access, which I and many others view as one of the cornerstones of our democratic process and one of the best tools available to ensure responsible government, only has meaning in a regime where information is professionally managed. All too often, and in a growing percentage of cases, it is proving virtually impossible for departments to locate all records responsive to a specific subject matter.

In short, it is not enough to hope that passing the Access to Information Act will lead to transparency, properly implementing it is necessary as well. For this to happen, the public service must promptly and efficiently respond to requests for access to information.

In a special report tabled in this House on Tuesday, the information commissioner evaluated the performance of eight departments in terms of their response time to requests for access to information. Once again, the commissioner's examination revealed that a number of departments fall far short in terms of speed.

No fewer than six departments, in fact, got an “F” on their response time. These dubious results illustrate just how far our institutions are away from developing the effectiveness required in properly applying the Access to Information Act.

That being said, by tabling Bill C-206, the hon. member for Wentworth—Burlington seemingly tried to correct certain flaws in the Access to Information Act. As we know, the hon. member had already alerted the members of this House to the need for substantially reviewing the content of that act.

On December 23, 1997, the hon. member had introduced another bill, Bill C-264, which received the support of a fair number of members. However, later on, the hon. member drastically changed the content of his bill.

On June 11, 1998, resorting to the politics of stealth, the original text of Bill C-264 was replaced with a different one. The bill was then reintroduced during the second session, on October 14, 1999, as it stood when the House prorogued.

The bill originally called C-264 and amended on June 11, 1998, thus became Bill C-206 when the House resumed sitting.

As I indicated in my introduction, that unusual process, to say the least, resulted in the Bloc Quebecois withdrawing its support. It must be understood that, while several Bloc Quebecois members initially supported the original version of Bill C-264, the situation is totally different in the case of the version now called Bill C-206.

There is a serious gap between these two versions. As evidence of that, one simply has to look at some of the new provisions that were quietly included in the June 11, 1998 version of the bill. The masterpiece of that sham is now found in clause 9 of Bill C-206.

First, these amendments have to do with the terminology used in clause 14 of the bill. Under this first amendment, the head of a government institution could refuse to disclose records containing information having to do with federal-provincial relations.

So it was that on a fine day in June, 1998, the expression “federal-provincial negotiations” used until then in Bill C-264 became “federal-provincial relations”. This change in terminology is not insignificant.

In fact, clause 14 of the bill provides for an important exception to the right of access to information. By substituting a term as generic as “relations” for a more specific term such as “negotiations”, the scope of the exception is broadened considerably. According to the Bloc Quebecois, this is a fundamental change, because it would have the effect of excluding an entire range of records to which the public is entitled to have access.

In addition, the new exception in clause 14.1, an exception not contained in the original version of Bill C-264, is quite simply unacceptable. For the benefit of members of the House, I will read this exception:

The head of a government institution may refuse to disclose any record requested under this Act that contains information on plans, strategies or tactics relating to the possible secession of a part of Canada, including information held or collected for the purpose of developing those plans, strategies or tactics.

Whatever the member for Wentworth—Burlington may say, this proposal is just plain antidemocratic. How can we keep citizens in the dark about information dealing with the possible exercise of democracy by a people? The supreme court has recognized that accession to sovereignty is a completely legitimate and highly democratic project.

Canadians have a right to know how the federal government intends to proceed regarding such a fundamental right.

On June 11, 1998, Bill C-206 lost all credibility. Access to information, which is the core element of democracy for citizens, cannot be used as a tool to stop the democratic will of a people. The hon. member should know that it is ill-advised to follow the Privy Council's recommendations when it comes to democracy. History tells us that this bastion of federal arrogance is not very inclined to promote the development of democratic values.

For these reasons, members will understand that the Bloc Quebecois does not support Bill C-206 and will strongly oppose its passing.

[Marlene Catterall, Liberal, Ottawa West—Nepean, ON]

Mr. Speaker, I rise on a point of order. There was some misunderstanding earlier and I would like to report to the House that discussions have taken place between all parties and the member for Wentworth—Burlington concerning the taking of the division on Bill C-206, scheduled at the conclusion of Private Members' Business today. I believe you would find consent for the following:

That, at the conclusion of today's debate on Bill C-206, all questions necessary to dispose of the motion be deemed put and if a recorded division is requested it be deferred until Tuesday, June 6, at the expiry of the time provided for Government Orders.

[The Acting Speaker (Mr. McClelland)]

The House will accept a request for unanimous consent at any time. Just to be certain, we now have a request for unanimous consent to reverse an earlier unanimous consent.

[Ken Epp, Reform, Elk Island, AB]

Mr. Speaker, I rise on a point of order. I need clarification. Perhaps I did not hear right again because I am getting old and deaf. Can we say the question is deemed put if in fact a division is requested? It seems to me that is contradictory.

[The Acting Speaker (Mr. McClelland)]

We are doing it in two steps. We would put the question on the motion to the House. If it is accepted or rejected on division, that would be the end of it. If a recorded division is demanded, the recorded division would be deferred until the end of Government Orders next week.

[Ken Epp, Reform, Elk Island, AB]

Mr. Speaker, in that case I believe it is redundant since that is done automatically on a Friday, is it not, or am I wrong?

[The Acting Speaker (Mr. McClelland)]

We will put the question. If the member for Elk Island chooses to say no, that is his prerogative. Whether or not it is redundant, this is the suggestion being put by the deputy government whip.

We will do it in two phases. Does the House give its unanimous consent for the deputy government whip to move the motion?

[Some hon. members]

Agreed.

[The Acting Speaker (Mr. McClelland)]

Is it the pleasure of the House to adopt the motion as presented by the deputy government whip?

[Some hon. members]

Agreed.

(Motion agreed to)

[The Acting Speaker (Mr. McClelland)]

The next question is on second reading of Bill C-206. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Acting Speaker (Mr. McClelland)]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker (Mr. McClelland)]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker (Mr. McClelland)]

In my opinion the nays have it.

And more than five members having risen:

[The Acting Speaker (Mr. McClelland)]

Pursuant to order made earlier today the recorded division is deferred until Tuesday, June 6, at the expiry of the time provided for Government Orders.

It being 1.55 p.m. the House stands adjourned until Monday next at 11 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 1.55 p.m.)