Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 49 - Evidence - October 3, 2018
OTTAWA, Wednesday, October 3, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 4:18 p.m. to continue the study of the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, it’s my pleasure to welcome this afternoon the Honourable Scott Brison, P.C., M.P., President of the Treasury Board and Minister of Digital Government. We’re continuing our study of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
[English]
Mr. Minister, it is our pleasure to welcome you. We have had the opportunity to have an internal briefing on the functioning of the Access to Information Act. We didn’t focus essentially on the amendments that Bill C-58 contains, though, so you’re the first person to officially inform us about these amendments. We will be listening to you very carefully.
The floor is yours.
Hon. Scott Brison, P.C., M.P., President of the Treasury Board and Minister of Digital Government: Thank you very much, Mr. Chair. I want to start with apologies for being late to this appearance. We had votes in the House of Commons that delayed my arrival.
I’m delighted to be here today and look forward to the discussion. I’m joined by Francis Bilodeau and Ruth Naylor from Treasury Board Secretariat who will be available to you as well in providing further information. It’s great to be here and have an opportunity to discuss with you Bill C-58.
I want to begin by thanking this committee for its careful consideration of the issues involved in amending Canada’s access to information system.
As you’re aware, in early 2017, our government’s work on openness and transparency was recognized internationally when we were ranked number two on the Open Data Barometer. I’m happy to report that our continued work on open government has earned us the number one ranking in this year’s Open Data Barometer report, saying that our efforts are “raising the bar” and noting that “consistent political backing has been one of the keys to Canada’s success.”
Mr. Chair, we’re not the first government to commit to reforming the Access to Information Act in the 35 years since it was introduced, but we are the first government to actually follow through and pursue legislation that will improve and update the act.
I want to start by addressing some of the points that were raised in the Senate during second reading.
In his speech, Senator Carignan said:
In 2018, technology allows, or rather should allow, anyone with a computer and an Internet connection to quickly and easily access reams of public information. On this file, however, Canada and in particular the federal government are having a hard time joining the 21st century.
Honourable senators, bringing Canada’s access to information system into the 21st century is what this bill is all about.
First, we are putting in place a new, legislated proactive disclosure system. The bill would apply proactive publication requirements to more than 240 departments, agencies and Crown corporations, as well as to new institutions, including the Prime Minister’s Office and ministers’ offices, senators and members of parliament, institutions that support Parliament and administrative institutions that support the courts.
It would also put into law the proactive publication of information of importance to Canadians, information which provides greater transparency and accountability in the use of public funds such as travel and hospitality expenses for ministers and their staff and senior officials across government; contracts over $10,000 and all contracts of MPs and senators; travel, conference, incidental and representational allowances of Superior Court judges; grants and contributions over $25,000; ministerial mandate letters and revised mandate letters, and more.
Further rigour has been brought to these requirements following an amendment from the House of Commons Standing Committee on Access to Information, Privacy and Ethics.
[Translation]
Specifically, in the future, mandate letters and revised mandate letters must be published within 30 days of being issued. Mr. Chair, currently, there’s no legislative requirement for any of this information to be made public. The existing requirements are simply set out in policy.
[English]
Making such information automatically available to Canadians without someone actually having to make a request ensures our government, and indeed future governments, will be more open and transparent.
The government would also regularly assess the types of information most frequently requested under the act through the demand-based system to look for opportunities to expand what could be proactively disclosed and published in the future.
Of course, proactive publication does not absolve the government of its responsibility to strengthen the request-based side of the ATI system. That’s one of the reasons why we are introducing as part of this legislation measures to weed out bad faith requests. Both the Information Commissioner and the House of Commons Standing Committee on Access to Information, Privacy and Ethics have recognized that requests made in bad faith can actually gum up the system. Although the number of these types of vexatious requests is estimated to be quite small, the effort and costs involved in responding to them put a significant strain on the system.
We have also accepted changes to the bill that would require the approval of the commissioner at the beginning of the process for a department not to provide information based on it being vexatious. The commissioner would have to provide approval at the outset. There’s a fundamental issue at stake here. Many of these requests defeat the underlying purpose of the act, and that is to give Canadians access to the information they need to participate in and be aware of public policy decision-making and to ensure the government is accountable. Again, we have changed the legislation to ensure that the commissioner would, in fact, have to provide prior approval before an institution would decline to act on a bad faith request. That, Mr. Chair and senators, will provide assurance to Canadians that legitimate requests will not be declined.
While discussing new powers for the Information Commissioner, I’d like to discuss specifically the new order-making power. This is perhaps the most impactful change we are making in this legislation.
Senator Carignan called this regression and said that this regression is unacceptable. I’m puzzled by the use of the word regression, when in fact currently the Information Commissioner has only been a kind of ombudsperson, an advocate, on behalf of Canadians’ right to government information and reviewing complaints. This change would actually provide real teeth to the Office of the Information Commissioner. That is a fundamental change. For the first time, this bill actually gives the Information Commissioner the power to order the release of government documents. The Information Commissioner is also getting the ability to publish those orders and publish the results of the investigations.
For the past three decades, Canadians have had in the Information Commissioner an advocate for access to information. Now they will have an agent of Parliament with real, meaningful enforcement power, one that can order the government to release documents, a power that I would like to note no other agent of Parliament has.
To support the changes in Bill C-58, we will be providing the Information Commissioner’s office with more financial resources to do their job.
Mr. Chair, in our continued conversations with the Information Commissioner, as late as this week, she has requested an amendment to the coming into force section of Bill C-58. She has asked that her order-making power come into force at Royal Assent rather than at the one-year anniversary of Royal Assent. It is her belief that this will result in a less complicated transition to the new regime. I greatly value her perspective on this, so I hope that this committee would consider bringing forward such an amendment.
Mr. Chair, I have also received a joint letter by the Information and Privacy Commissioners in which they highlight some aspects of Bill C-58 where they want to see some changes in order to ensure that the values of personal privacy and openness are properly balanced. Again, Mr. Chair, I would hope this committee will consider bringing forward an amendment to address the point that the commissioners raised in their joint letter.
I believe the letter from the Information Commissioner as well as the joint letter from the Privacy and Information Commissioners have been provided to this committee.
I’d like to turn to the concerns raised about Bill C-58 by Indigenous peoples. I have said throughout this process that we take their input and concerns seriously. Following continued discussion with Indigenous leaders, it has become my opinion that the new requirements laid out in proposed section 6 of the bill are not necessary. We have heard Indigenous groups and the Information Commissioner’s concern about the potential for this clause to be misused, particularly when it comes to First Nations land claims.
This clause was intended simply to ensure that the requests provide enough information to be quickly responded to. However, we have listened to concerns raised, and I hope, again, that this committee would consider proposing an amendment that would eliminate the requirement that every request provide the subject matter, time period and the type of record being sought.
Mr. Chair, this is the first phase of our access to information modernization. The reforms call for a review of the act every five years, with the first review beginning no later than one year after the bill receives Royal Assent, as I mentioned. Parliament will be engaged in these reviews because a report must be tabled in Parliament and referred to the relevant committees. The House of Commons and Senate committees will then be able to undertake their studies and make recommendations to the government.
Mr. Chair, again, I’m happy to be here and look forward to working with you and this committee to build an access to information system that will meet the needs of Canadians for government information in a digital age. Thank you, and I look forward to answering any questions that you may have.
[Translation]
The Chair: Thank you, minister.
I invite Senator Dupuis, the deputy chair of the committee, to open the question period.
Senator Dupuis: Hello, minister, and thank you for being here this afternoon.
You just spoke about clause 6, which concerns requests for access to a record, and paragraphs (a), (b) and (c) introduced by Bill C-58. You said that you heard from representatives of different Indigenous peoples regarding their concerns with this aspect of the bill.
If the three requirements of clause 6 are removed, are the reasons for declining to act on a request in clause 6.1 also removed? Because we’re not resolving the issue.
In other words, if I apply clause 6.1, I may not have a more specific requirement than the start of clause 6. However, I can decline the request because it necessitates a search through too many records. My point is that clause 6 and clause 6.1 are related. Clause 6 is related to the reason for declining to act on the request in clause 6.1.
When you say that you’re ready to consider a possible amendment, do you mean that you’re ready to consider an amendment that would address this whole issue?
[English]
Mr. Brison: Thank you very much, senator.
Again, at the House of Commons committee, we accepted changes to section 6 that we felt addressed the concerns being raised. I have engaged with Indigenous leaders but also with the Information Commissioner, and her letter has sought the deletion of section 6 even after that change, and I accept that, if this committee wants to.
The Information Commissioner has not sought the removal of section 6.1, and my understanding is that she actually supports keeping section 6.1 and that the concerns raised particularly by Indigenous leaders involved in treaty settlements were on section 6, not section 6.1.
[Translation]
Senator Dupuis: In the new Part 2, the bill proposes to add proactive publication, which you mentioned earlier, to section 35 of the Access to Information Act. I would like to understand the public policy objective underlying the proposal in clause 71.12 to give the Speaker of the Senate the authority to determine that a publication would constitute a breach of parliamentary privilege.
[English]
Mr. Brison: Again, nothing in this bill would affect the established procedures in the two chambers for determining questions of privilege. The chambers may determine that the Speaker should only assert a claim of privilege at their direction. It will be up to each chamber to determine the conditions under which the Speaker should exercise the power under the bill.
I would say that the proactive publication of the expenses of senators or members of the House of Commons is something that has, in fact, been done for some time. In fact, ministers’ expenses go back to Paul Martin’s government, of which I was a member at that time.
Neither parliamentary privilege nor the principles of judicial independence obviate the responsibility we have to be open and transparent about spending of public funds. It’s very important that when we delineate, for instance, judicial independence that is clearly in terms of judicial decision-making or parliamentary privilege, that does not, in my opinion, obviate the responsibility to be open and transparent about the spending of public funds and tax dollars.
Again, there is a process for both the house and Senate in terms of procedures to determine questions of privilege.
[Translation]
Senator Boisvenu: Thank you for being here, Mr. Minister.
I’d first like to make some comments on behalf of the steering committee. Three important ministers are involved in this bill, including your colleague the Minister of Justice. We’re having a great deal of difficulty scheduling the minister’s appearance before our committee. It’s a habit of hers. I’m therefore asking you to convey to her the importance of her presence before our committee.
That said, I’ve reviewed the reading material that presents the positions of a number of stakeholders outside our committee, who come from both the judiciary and the media, for example. I’m trying to understand why this bill is before us, since it’s generating some fairly serious criticism.
I’ll provide two examples. On April 22, 2018, Stéphane Giroux, President of the Fédération professionnelle des journalistes du Québec, stated the following:
Departments will continue to refer to exceptions to the act in order to not provide information, and nothing is resolved in terms of the time frames. It’s a failure across the board.
On February 23, 2018, Suzanne Legault, the former Information Commissioner of Canada, told Le Devoir the following:
We had hoped that access to information reform would be [progressive], but the reform is [regressive], and it’s extremely worrying.
I could name dozens of people who are directly affected by this bill, which addresses access to information within the government. Most of them have told us that the reform of the bill is practically a failure.
My question is very general, Minister Brison. Why aren’t you setting the bill aside and getting back to work on drafting legislation that could result in social, legal and other stakeholders giving feedback that’s more more positive than the feedback being provided at this time?
[English]
Mr. Brison: Thank you very much, senator, for your question.
I like quotes as much as the next person, but I’d prefer to be guided by facts instead of quotes. The fact is that for the first time ever, this legislation actually provides order-making power to the Information Commissioner. It provides the Information Commissioner with the ability to order that a department or agency provide information. The department or agency has 30 days in which to respond either with the information or to challenge the Information Commissioner’s order in court. I would assert that no department or agency is going to frivolously challenge an enforceable order by the Information Commissioner. This is a game changer in terms of the nature and the regime of access to information in Canada.
Beyond that, we are putting into law proactive disclosure, which will cover more than 240 organizations from the courts to the ports. Again, this is a step forward.
Beyond that, senator, there will be a mandatory review of the act after one year and every five years after that.
I believe we will learn, over the first year, quite a bit from the implementation of these changes, which will inform more changes. I never want to be in a situation again where we go more than three decades with a piece of legislation as important as this without it being modernized.
[Translation]
Senator Boisvenu: We know that this bill extends beyond orders. It’s much broader than that. The bill must make life easier for the public. However, many people don’t have Internet access, particularly in Quebec. If the requests under the act can be made through the Internet, these people won’t be able to make the requests by mail. There’s a certain incongruity in the bill. We’ve completely forgotten that it must above all serve the public. People in northern Quebec, Abitibi and Lac-Saint-Jean will not be able to make their requests by mail. Therefore, people who don’t have Internet access will be excluded from the act.
[English]
Mr. Brison: Senator, I share with you a deep interest in ensuring greater digital connectivity for rural and small-town communities. I represent a rural and small town riding and there are places in my riding that are terrible, so I would urge you to invite the Minister of Innovation, Science and Economic Development to have a discussion on that, but it is something our government believes in. That is why we have a Connect to Innovate program that is ensuring the digital backbone to connect more Canadians to digital information, which is absolutely essential in the 21st century. I agree with Senator Carignan’s statement earlier about the importance of digital modernization.
Senator Boisvenu, I have been informed that, in fact, there is nothing in this legislation that will remove the analog system, if you will, so the analog system will continue to operate in parallel with the digital systems, just to address your concern.
[Translation]
Senator Carignan: Before we establish certain facts — Since you’re more concerned about facts than quotes, we must nonetheless re-establish a fact regarding the word “regression.” On September 28, 2017, Suzanne Legault stated the following:
[English]
The proposed bill fails to deliver on the government’s promises. If passed, it would result in a regression of existing rights.
[Translation]
Ms. Legault said this. I understand when you say that we must go digital and that information must be available on the Internet. However, I don’t understand why clause 5 is being amended to remove Info Source, which provided a wealth of information and which could be useful to requesters, in particular when they use the Internet to make their access to information requests. By removing the obligation to provide information in Info Source, the new clause 5 requires that the name of the person responsible for records be indicated rather than much more important information on the department. Why limit this information on the web?
[English]
Mr. Brison: Senator, thank you for the question.
Unfortunately, I disagree with Ms. Legault, the former Information Commissioner, and I do not understand her argument that somehow providing order-making power to the Information Commissioner is regression. I don’t understand that, and I respectfully disagree with her. I agree with the current Information Commissioner, who recognized that order-making power is an important step forward.
In terms of your question, my understanding is that this Info Source information about the roles and activities of institutions is readily available on Canada.ca or individual departmental websites. If a requester is not certain how to direct the request, institutions now have a responsibility and a duty to assist requesters to determine what records would be most relevant. This legislation retains the requirement to publish the contact information of appropriate government officials so that Canadians can easily find out who to contact about a request. If there is any confusion on that, I would like to clear that up, but it is my understanding that it’s simply a change in the format where that information would be available, but the information will continue to be available.
[Translation]
Senator Carignan: At first glance, a number of pieces of information will no longer be available. We’ll continue to explore the issue with the technical support staff.
My other question concerns the amendment of the purpose. The current act has a much clearer purpose:
The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public. . . .
The purpose establishes the public’s right of access to information in records, which is the necessary counterpart to freedom of expression. As a result, the courts have interpreted the purpose of the act to make it a quasi-constitutional right. Now, we’re amending the purpose of the act by adopting an approach based on transparency or accountability, without necessarily taking into account directly or as a priority the purpose that establishes the principle of the public’s right of access to information in records.
Don’t you find that we’re diminishing the importance of the act, and that, given the principle of interpretation that may be used by the courts, we may be worse off with the new act?
[English]
Mr. Brison: Senator, my understanding is that the principles remain unchanged but there is the addition of the verbiage, “openness, accountability and transparency.” Are you suggesting that the addition of terms like openness, accountability and transparency would dilute the purpose of the act? I think that’s what you said. If you wish to propose an amendment to remove the words “openness, accountability and transparency,” senators are certainly able to debate that. I’m not certain that it is constructive —
[Translation]
Senator Carignan: According to certain experts, by amending the purpose in clause 2 and by emphasizing transparency or accountability instead of the principle of the public’s right of access to information in records, we may dilute the importance of the purpose of the act and its interpretative effects. A number have experts have written that they see this issue as a possible step backward.
[English]
Mr. Brison: I’ve been informed that the proposed language is consistent with Supreme Court guidance, and we can provide more clarification on that. Thank you.
Senator Frum: Minister, the biggest challenge in our system of Access to Information is the delays. Can you tell us how Bill C-58 will reduce delays? Did your department do any assessment on this and, if so, can you table it here?
Mr. Brison: Thank you very much, senator.
There are a couple of things. One is that the volume of Access to Information requests has grown very significantly in recent years. This bill, for instance, through proactive disclosure of some of the categories of information most frequently requested, will help in terms of simply putting the information out there with an open-by-default approach and will help unclog the system.
There are some other changes we’re making as part of our digital agenda as a government. I will give you one example. Of the nearly 100,000 Access to Information requests the Government of Canada receives every year, over half of those are to Immigration, Refugees and Citizenship Canada, IRCC, and a big chunk of those is people checking to see if their application has been received. IRCC has done a pilot, putting a bar code on the application. When the application is received, the individual gets a text or an email letting them know. We will have a better idea in the coming months as to the efficacy and impact of that measure, but good digital can help provide people with the information they need in a timely manner and help unclog the system. It’s absurd that people have to use the Access to Information Act to check on their immigration application. I know Minister Hussen, someone who came to Canada as a refugee at the age of 16, shares that view with me. We are working with IRCC, with the Canadian Digital Service branch of Treasury Board and our CIO to help address that.
There are measures in this bill that will help improve service. We’ll have a better idea in a year when we start the review. There are changes we’re making in terms of how we do digital government that I think will move the needle in terms of taking some of the requests that ought not be part of an Access to Information system in the first place and simply improving the way we serve Canadians.
Senator Frum: No formal departmental assessment?
Mr. Brison: There is analysis throughout in terms of the expected impact of some of these changes, but we will have a better idea a year after Royal Assent when we’ve seen the measures in place. I’ve seen all kinds of analysis over the years of the expectation of public servants and ministers as to the impact of changes being made, and a lot of them proved to be wrong. One of the reasons I want to do a review a year from Royal Assent is that we will find some things we’ve done have worked really well, and we want to do more in that direction, including proactive disclosure. Perhaps some things will not work as well as we expected, but I want to have the opportunity to make the changes and learn from the changes.
On proactive disclosure, it is our intention that as we see volumes grow and trends around certain types of requests in the demand-based system, that ought to signal to our government and future governments that this is an area that should be proactively disclosed. That in and of itself reduces the volume.
We’re also increasing the resources for the commissioner and her office in the coming years to deal with demands, and we expect that that will help. We view the demands and the delays as unacceptable. One of the reasons we’re introducing this legislation is to help improve the operations of the Access to Information system.
Senator Pratte: Thank you, minister, for being here.
I appreciate the change of views on clause 6. That’s a welcome modification.
I would like to ask a couple of questions about the order-making power of the Information Commissioner. You spoke earlier of enforceable orders. You have all the experts around you — so maybe I’m mistaken — but the impression I had from reading the bill is that if a department decides to simply ignore an order, the Information Commissioner cannot do anything except go to Federal Court and ask for a mandamus. It’s not contrary to what is the case in Ontario, for instance. It is not an offence to ignore an order in this act. They become binding orders if the Federal Court decides that they are binding. That’s my impression, which is, in my view, very different. Although the intention might be good and what is in the act might be progress rather than regression, it is far from being a binding order. That’s the impression I have.
Mr. Brison: In terms of the Ontario system, that regime differs quite a bit from the federal regime. In Ontario, a requester files an appeal rather than a complaint to the Information and Privacy Commissioner of Ontario if he or she is unsatisfied with records obtained from a provincial or municipal institution. Under the federal regime, investigations are conducted, and private and written representations of each party are generally shared with the other parties to the appeal. If a party is not satisfied with an IPC decision, they can go to court with a judicial review of the decision.
What Bill C-58 does is place the burden of proof on the government to demonstrate to the court that its decisions and actions are in accordance to the legislation. The Information Commissioner doesn’t have to defend her decision. Instead, government departments must demonstrate that they are acting within the law. The Federal Court will issue direction to institutions as the court deems appropriate in accordance with the reviews of the matter.
This is new. This is the first time we’ve had order-making power for the Information Commissioner. I believe it’s a real game changer in terms of giving her the power to order information. We will certainly have a better idea in terms of the application of these new powers in 12 months. I expect we will see examples of this in the next 12 months, and that will inform the next revision or study of the act.
The other thing to remember in terms of this order-making power is that a department or agency will want to think very carefully before challenging an order in court. I do not believe departments and agencies will be frivolous in terms of challenging an order from the Information Commissioner and ultimately a decision being made by a judge. We will have a better idea in terms of the impact of this in the coming months and years, but I believe this will significantly change and strengthen the role of the Information Commissioner and her powers.
Senator Pratte: I want to ask you about the relationship between the Information Commissioner and proactive disclosure. Again, if my understanding of the bill is correct, the Information Commissioner has no authority at all over proactive disclosure. I understand in part why this is the case, but at the same time there are many people who think that proactive disclosure is positive, but then the government decides what it’s putting out in public. It’s very different from access to information. Wouldn’t there be a way to give the Information Commissioner some power to at least verify whether proactive disclosure is working correctly? It would be interesting after a year or two or three years if the Information Commissioner can look at proactive disclosure and say that this is going right or this is not going right. As I understand it, presently that would be prohibited. The Information Commissioner cannot look into proactive disclosure.
Mr. Brison: Senator Pratte, Canadians will be able to make a request for the original versions of the records that are proactively disclosed. This was raised at the House of Commons committee, and we accepted amendments to address that. There was an amendment added to clarify that the Information Commissioner’s oversight powers remain for information requested under Part 1 even if that information has been or will be proactively disclosed under Part 2. That amendment ought to address your legitimate concern on the legislation.
Senator Pratte: I was thinking more in terms of a systemic review of proactive disclosure by the Information Commissioner rather than case-by-case where the commissioner could order the original document that was proactively disclosed.
Mr. Brison: I’m interested in that idea and, at first blush, having not discussed this with anybody else, it sounds to me like a reasonable idea because it would effectively aggregate information that we would be providing in any case in a package that would be more accessible and understandable. That sounds to me to be reasonable, but I’m just the minister.
Senator Pratte: Thank you.
Senator Batters: Minister, I took note of your sunny outlook in your opening statement, but things might be just a bit cloudier because last week we saw that Canada’s ranking has declined to fifty-fifth place in global freedom of information law rankings. We’re now tied with Bulgaria and Uruguay, so that is something else we have in common with Uruguay.
Minister, please explain to the committee what, in your view, constitutes an access to information request that is “vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access to records.” That is in new section 6.1(1)(c) of this act.
Mr. Brison: Thank you, Senator Batters.
I’d like to begin by addressing the report you cite. That report reflects the access to information system we have right now, the one we inherited from the previous government, the one that we are in the process of reforming through this legislation. The international rankings reflect decades of inaction in modernizing this. Again, our new law will give the commissioner order-making power, put the Prime Minister’s Office and ministers’ offices inside the act for proactive disclosure and make significant changes to the strengthening of access to information. Again, the report you cite reflects the access to information system we inherited —
Senator Batters: And then we have all the quotes of the people criticizing the new act.
Mr. Brison: As the number one country in terms of access to information, it cites Mexico. It also ranks Slovenia, Sri Lanka, Albania and Liberia. I don’t necessarily know the methodology of the report, but I would posit the changes we are making, particularly with this access to information, are going to make a significant difference.
I would also remind you that in terms of the Open Government Partnership, we were ranked number one in the world in terms of open data as a government.
Senator Batters: Because I have minimal time here, if you could get to my question about the vexatious, bad faith —
Mr. Brison: On the vexatious claim, there were concerns raised by some that it could, as the legislation was originally written, lead to departments inappropriately using that. That is not the intention, which is why we have amended it to put in the requirement that before a department or agency refuses to provide information based on calling it a vexatious claim, it would require the approval of the Information Commissioner up front. That should address any concerns about a department or agency using that inappropriately.
I’ll give you a couple examples of bad faith requests. They could include hundreds of requests in a year to the same area within a government institution, or requesting a copy of all Access to Information packages previously released by an institution, as an example; or an employee who has been disciplined for misconduct in the workplace requests all emails for two years of, let’s say, 50 employees of an HR group in a department; or a spouse of a federal employee going through a divorce requesting workplace agendas of their spouse for the past five years. Those would be examples of potentially vexatious requests, but again, it would not be up to a department. The department would not have the authority to use the vexatious clause without the approval of the Information Commissioner at the beginning of the process, which ought to address that.
Senator Batters: Those are kind of the extreme examples of it. But still, as you will appreciate, minister, the intention is important, and hopefully there is significant evidence of intention that’s being offered. Maybe you can give us some more information about that, because I want to get to the less extreme examples. What I don’t want to have happen, and I’m sure you don’t either, is to have an overly restrictive definition being used that would result in Canadians having very limited access to information that they’re already receiving. Maybe you can go into more detail, not with the extreme examples but actually the definition of how you intend that that be used.
Mr. Brison: Again, I have great faith in the ability of the Information Commissioner, as an officer of Parliament with order-making powers, to make the individual decision based on a case-by-case approach. Again, I don’t understand. Are you not satisfied with giving the Information Commissioner, with order-making powers as an officer of Parliament with an independent office, the ability to decide whether a department can use that reason for not providing information or not?
Senator Batters: The Information Commissioner is going to look to the definition in the act, and they will also look to what definition you are using as the minister who brings this act forward, so I’m asking you how you define that.
Mr. Brison: For a vexatious or frivolous request, I believe all provinces and territories have had, for some time, a similar provision, and also the U.K. and Australia, I believe. There are several other countries. There is a body of experience within Canada and outside of Canada in terms of governments with their access to information regimes having provisions for vexatious requests.
Senator Batters: Do you have any detailed information on that?
Mr. Brison: I don’t want to pre-judge the decision making of the commissioner, which will be on a case-by-case basis. I’ve given you some of those examples.
Senator Batters: True, but you are the minister defining the bill. That’s why it would be helpful if we had a bit more information. If there’s something further you can provide, perhaps from other jurisdictions, as you mentioned, it would be helpful for our committee to understand exactly what that definition means.
Mr. Brison: Sure. Thank you very much, Senator Batters.
Senator McIntyre: Minister, I’m pleased to hear that you’re calling for amendments to two issues, first on the Access to Information requests pertaining to First Nations, and second, on the coming into force provisions of the bill and the transition period.
That said, the bill provides for some exceptions to the new obligation to proactively publish certain information. For example, the obligation would not apply if it compromises parliamentary privilege or judicial independence. Who would be responsible for determining whether information must or must not be disclosed proactively under these exceptions?
Mr. Brison: Senator, there are established procedures for both chambers to determine questions of privilege, and the chambers can determine that the Speaker should only assert a claim of privilege at their direction. It will be for each chamber to determine the conditions under which the Speaker should exercise the power under this bill, and I don’t want to pre-judge that.
As I mentioned earlier, I do not believe the proactive disclosure of either judges’ or parliamentarians’ expenses violates either parliamentary privilege or judicial independence because neither parliamentary privilege nor judicial independence ought to obviate the need and responsibility to be open and transparent about the expenditure of public funds.
But again, each chamber has processes to determine questions of privilege. After being around this place for almost 22 years, I have great respect for the institutions and would not prejudge the determination of these conditions.
Senator McIntyre: Minister, how much latitude do federal entities have under Part 2 to manage what information they disclose? In other words, is it possible that a federal entity could use its discretion when meeting its proactive disclosure requirements to provide certain information in a manner that would help it avoid disclosing other sensitive information that it does not wish to be made public and available to the Information Commissioner?
Mr. Brison: Senator, as I mentioned earlier, if information is proactively disclosed, the commissioner will still have a line of sight into that information in terms of the demand-based system. Just because something has been proactively disclosed does not mean it is unavailable through the demand-based system. I’m interested, for instance, in the idea of aggregating, and perhaps reporting, so that people can see if there’s any delta between the two.
As I mentioned earlier, we accepted an amendment to clarify this in terms of the Information Commissioner’s oversight powers, which would remain for information requested under Part 1, even though it has already been disclosed or will be disclosed through Part 2. I hope that clears it up.
Senator McCoy: Thank you, minister, for coming. I too appreciate very much your willingness to receive some amendments from us. I’m particularly pleased that you’ve taken that position based on consultation with some of the users of the system.
There are so many questions to ask. Many have been asked. I’m spoiled for choice here. What I would like to do — because I think you have to leave soon — is press a little bit more on the enforcement of the Information Commissioner’s orders. As I read the bill, she can’t enforce her own orders. I believe she actually has the power to initiate a court session in the name of a complainant at the moment. In this bill, the only people who can initiate a review by the Federal Court are the persons who make the complaint and a department or, as it’s called here, a government institution. If neither one of them go for review, then a third party and/or the Privacy Commissioner can go. It goes even further, though, in the restriction because it talks about these sections, which is clause 19 of the bill but will be section 41 in the act. It restricts what they can actually get a review of.
Later on, you come in with a de novo, following current practice, of course. I’ve been told in my consultations that the de novo aspect focuses on the government department that has said whatever it says, and often they have changed their case by the time they get to the courthouse steps.
All of that says to me that we are leaving the Information Commissioner with no real authority. We’re building a rather intricate carapace, if I can put it that way, but she herself does not have any clout, and there’s no place in this bill that I can see that will encourage the departments or agencies to do anything other than what they’re doing now, which is more or less ignoring some of the basic desires to get timely information.
Mr. Brison: Thank you very much, senator, for your question.
Under this legislation, the commissioner’s order will be legally binding, without the need for certification. Institutions that disagree with an Information Commissioner’s order would be required to seek a review of the matter by the Federal Court.
Now, in the unlikely event that a government institution neither challenged nor complied with an order, the commissioner could enforce the order through mandamus proceedings in Federal Court. This is a simpler, single-step process than requiring certification and contempt-of-court proceedings. Again, I’ve spoken to the Information Commissioner — in fact, this week — about this, and what I said to her is that if this proves to be less effective in terms of strengthening her powers in the coming years, for instance, we can look at changes in the review process. But I believe very strongly that, first of all, having these commissioner’s orders legally binding from the outset and not require a certification from the Federal Court will make a real difference.
Again, senator, I don’t think departments or agencies will be likely to challenge in court unless they have a good case or are confident that they can defend themselves in court against an order. I do believe that it will make a big difference in terms of providing her with real authority for the first time. The office has been in the past an advocate, broadly, for access to information. This takes it from being, in a sense, an ombudsperson’s office to being an authority that can make these orders and get the information.
I think the system that we are proposing will provide her with the appropriate authority. But again, if we find in the application of this that we can do more, then that’s something we can consider in terms of future revisions.
Senator McCoy: I’ll speak to your staff so that I can have the benefit of their pointing to the exact, precise section of the act that says that they are legally binding. I don’t want to take your time on this.
Mr. Brison: That would be section 76: “This Act is binding on Her Majesty in right of Canada.”
Senator McCoy: Section 76? Let me think some more. You have a good argument. I don’t know whether I agree with you, but I’m keen to make sure.
Mr. Brison: If you’re disagreeing with me, you’re doing so in a very civil way. It’s nice to be able to disagree without being disagreeable, so I appreciate that. I just came from the other place in Question Period, which was not nearly as civil as this place.
The Chair: But you are in the Senate.
Mr. Brison: Yes, I know. Invite me; I wouldn’t mind staying.
Senator McCoy: For all my courtesy, I don’t get a second question, so we’ll have to ask it of your officials.
The Chair: You will understand my position, senator. The minister has to leave at 5:20. I still have Senator Dalphond on my list, and I would like to put a question to the minister. We will have a second round with the attendance of the department, so we can continue questions in relation to the understanding of the provisions of the bill.
[Translation]
Senator Dalphond: Minister Brison, I have two questions related to my reading of the bill. I’ll be transparent.
[English]
I was a judge before. I read the bill with great interest, and then I ended up at clause 38, which is the section that deals with the courts and the court administration. When I read clause 38, I was a bit surprised. Although I’m no longer a judge, I hadn’t heard of it and I was thinking it was not in the commissioner’s view that this should be subject to this type of disclosure. Even before the House of Commons committee in November 2017, the commissioner said that she thought that in order to strike the right balance, it was not necessary to subject the judges themselves to the disclosure provisions, but rather the court administration.
Was there any consultation with the judges or the Chief Justices before introducing that new section? That’s my first question.
Mr. Brison: Thank you very much.
Again, the bill will impose new requirements on the administrative institutions that support the courts. Again, it strikes a balance between enhancing transparency and accountability for the expenditure of public funds and, at the same time, protecting judicial independence.
My colleague Minister Wilson-Raybould, I believe, has had some consultations with judges on this. Of course, Minister Wilson-Raybould has a role in this as well.
But again, I go back to the principle that judicial independence in terms of decision-making doesn’t obviate the responsibility that Parliament has to be accountable and transparent for the expenditure of public funds. It’s the same for parliamentarians as well, but I appreciate the question.
Senator Dalphond: I understand the principle of transparency, and I believe everybody agrees with that. Further to my interest on the topic, I read the CBA submissions to the House of Commons committee that were proposing the removal of individual judges from the application of the provisions. I also read that the Canadian Superior Courts Judges Association has proposed a midway solution to have reports by courts instead of individual judges.
I’ve listened to you carefully, and you said you were open to welcoming some changes. Would these changes you might be considering include the reporting by the courts as a whole instead of individual judges reporting on a quarterly basis in order to achieve a sufficient amount of transparency? At the same time, it would maybe not be exposing judges who travel frequently — tax court judges, for example, who travel across Canada to some remote locations, not like the Federal Court judges who go to the bigger cities — and need to incur a substantial amount of expenses. I always wonder how this disclosure on an individual basis might be perceived by somebody who is uninformed and does not understand how the system works, who might say, “Judge Dalphond is spending $5,000 per year in travelling expenses, but Judge Ouellette is spending $30,000 in expenses,” but we’re not going to the same cities and I’m doing short circuits and he’s doing longer circuits. Could transparency be achieved through global reports instead of individual reports?
Mr. Brison: The Office of the Registrar of the Supreme Court of Canada can work with the Information Commissioner. I think they’re best placed to assess whether information can be disclosed. These offices are arm’s length from other departments and are established by Parliament to ensure the protection of judicial independence. Both the commissioner and the registrar have the mandate, expertise, relationships and context to work with judges to ensure that the exemption to protect judicial independence is applied appropriately. I think they’ll strike the appropriate balance.
I can remember, senator, the whole discussion and debate about the proactive disclosure of parliamentarians’ expenses. At that point, I heard some of the arguments of parliamentary privilege and the rest of it, and I do not believe the sky has fallen since we proactively disclosed expenses.
For Canadians, the transparency bus has left the station. There is a basic level of transparency around the expenditure of public funds that people expect today. I do believe the commissioner and the registrar will be able to strike the appropriate balance. I take very seriously some of the specific concerns you have. Perhaps the granularity of the reportage can take into account some of those potential concerns. I take it very seriously.
The Chair: Before thanking you, minister, I would like to emphasize that because I wanted to ask about your understanding of judicial independence. In my humble opinion, judicial independence is not only the independence of the court to do an impartial and independent job when they listen to parties and they have to adjudicate. The independence also protects the institution and credibility of the court.
I will give you my own understanding of it. When you establish a judicial system that has a constitutional right in Canada and is part of our constitutional structure, you have to make sure that the people maintain trust in the system of the judiciary in Canada. If you allow a system to produce results whereby you’re going to be able to compare Judge A to Judge C in terms of his name, expenses incurred, where and how much, at the end of the year you will bring the wrath of the people over a list of those who are most expensive and those who are less expensive on the presumption that those who are less expensive are more mindful of taxpayer’s money.
As a Parliament, the responsibility we have is that an audit system is in place within the judiciary to make sure that the criteria for a judge to incur an expense to be reimbursed are checked by a source that is totally autonomous and can certify at the end of the year that the expenses have been properly incurred in the discharge of the responsibility. But if you start to put the judges on par with a parliamentarian, like me or any other member in the other chamber, you are doing something very risky to the system. As I say, we are dealing here with a constitutional principle that is fundamental to our system of rule of law.
When I read that, I can tell you, Mr. Minister, I paused. As much as I understand your definition of judicial independence, which is independence in the arbitration process, I think there is also the trust of the whole institution that we have to keep in mind. That’s the way I understand judicial independence. Of course, we will have witnesses, as you properly suggested, around this table, and we will listen to them. As I say, I personally have a concern when we challenge the fundamentals of this principle that so far has served Canada well. We will certainly have an opportunity to discuss that. That’s not an admonition. I have known you for many years, but you understand the concern around this table on this.
Mr. Brison: Thank you, Mr. Chair.
We will work closely with Justice, but I also believe the commissioner and the registrar can strike the appropriate balance. We have great respect for our judiciary, and I agree with you that we have been well served. I do believe that a system designed properly for proactive disclosure of expenses can achieve the transparency and accountability that is important in terms of expenditure of public funds without compromising judicial independence or the reputation and integrity of our judiciary. I think it can be accomplished, but I share with you the priority of getting it right and I appreciate your wise advice.
The Chair: Thank you very much, Minister Brison, for making yourself available. We hope we will be able to continue this discussion with the Minister of Justice.
[Translation]
We now have the pleasure of welcoming Francis Bilodeau, Assistant Deputy Minister, for the second part of the sitting. Welcome, Mr. Bilodeau.
[English]
We are also joined by Ruth Naylor, Executive Director, Information and Privacy Policy Division, Office of the Chief Information Officer. It is a pleasure to welcome you, Ms. Naylor.
[Translation]
Mr. Bilodeau, would you like to make any comments or bring any additional information to our attention before I invite the honourable senators to ask you questions?
Francis Bilodeau, Assistant Deputy Minister, Digital Policy and Services, Office of the Chief Information Officer, Treasury Board of Canada Secretariat: No. Thank you for inviting us. We’ll do our best to answer your questions.
[English]
Thank you for your work on this important review of the bill.
[Translation]
Senator Dupuis: Thank you for being here today, Ms. Naylor and Mr. Bilodeau. I have three specific questions.
In light of Senator Carignan’s question regarding the purpose of the act, was the old wording of clause 2, as it appears in the current act, moved to subsection 2 of clause 2? In other words, specific purposes were added. I don’t see why Parts 1 and 2 are specified.
My question is the following: Was the first subsection of clause 2 reworded by adding subsection 2, which reflects the current wording of the act, meaning that the purpose of the current act was moved in order to add subsection 2 to Bill C-58?
Mr. Bilodeau: That’s right, and I’ll ask Ms. Naylor to elaborate. The wording already existed, and the subsections that are now in the bill were added to it.
[English]
Ruth, could you clarify that, please?
Ruth Naylor, Executive Director, Information and Privacy Policy Division, Office of the Chief Information Officer, Treasury Board of Canada Secretariat: Thank you for the question.
The reason for the changes was that we were adding that new Part 2, which deals with proactive publication. It was an effort to ensure that we captured both the request-based system and the proactive publication aspects of the law as it would be after the bill.
We also took that opportunity to bring in some language consistent with the guidance of the Supreme Court of Canada in the John Doe case of 2014. The Supreme Court in that case said that Access to Information legislation serves an important public interest of holding the government to account to the citizenry, and an open and democratic society requires public access to government information to enable public debate on the conduct of government institutions. We saw that as significant guidance from the Supreme Court in terms of what the goal of the Access to Information Act should be understood to be, and we have incorporated that into the chapeau, comme on peut dire, and then there are the two more specific pieces underneath. That was the intent of the amendments.
[Translation]
Senator Dupuis: My second question deals with clause 6. The minister told us that he was open to the idea of amending the current clause 6, if it is desirable to withdraw the requirements for any requests made by First Nations. The three additions specify the subject matter of the request, the type of document being requested, and the period covered by the request.
Since he referred specifically to land claims, have you considered — I understand that the previous Information Commissioner did not ask for this, but we do not need to limit ourselves simply to what the commissioner asked for. So, in clause 6.1, paragraph (b) is particularly problematic, because the minister brought up land claims. In other words, it will not be a requirement to specify what is being requested.
Let me take a real example, the Pessamit First Nation in Quebec. We are not going to ask you to specify the subject of your particular claim, but it will be refused under paragraph 6.1(1)(b). Don’t we have the same problem? In other words, the complete file for that claim is in the hands of the Crown. The case is against the Crown, but you cannot have access to your file because it is too big. What problems for indigenous people will be solved if we remove paragraphs 6(a), (b) and (c)?
Mr. Bilodeau: I really do not think that the intent of paragraph 6.1(b) is to refuse that kind of request. One way of protecting oneself from that consequence would be the requirement to ask permission from the Information Commissioner before refusing to provide information. So, with the large files requested in land claims, the Information Commissioner would not accept a refusal.
I would add that this is not the best way for indigenous people to access the information they need for their claims. That is why we have been working with our colleagues from Indigenous Affairs for the last few months to make sure that the process for making an informal request for documentation will be strengthened.
As for the first part of the question, I do not believe that this would lead an information commissioner to allow a service to refuse a reasonable request for information. I believe that we have to improve the requesting process, and there should be informal work with First Nations to make sure that they can have access to their documents.
Senator Dupuis: Does the amendment that the minister says he is ready to look at mean that requests dealing with First Nations land claims would be completely excluded from the effect of this act?
Mr. Bilodeau: I do not think that is the nature of the amendment to the act, but it is the case that, for us at the Treasury Board, institutions would receive the clear directive to continue processing requests that comply with the spirit of the law. For example, there might be requests for historical documents to back up indigenous land claims.
The changes that the minister proposed would eliminate paragraphs (a), (b) and (c), not just for indigenous people, but for everyone, because it was one of the requirements that the Information Commissioner had.
We feel that, with the Treasury Board taking a clear position that reasonable requests will continue to be accepted and supported by the Information Commissioner, who, I assume, shares the same opinion, there is little risk of a situation whereby reasonable requests for that type of information would be refused.
Senator Dupuis: My final question is about clause 15 of Bill C-58, which describes documents that could involve professional secrecy for advocates and notaries and litigation privilege. It would amend subsection 36(2) of the act. Subsection 2 ends like this: “. . . no such record may be withheld from the Commissioner on any grounds.”
Some law societies have provided comments on the matter of professional secrecy for advocates and notaries and litigation privilege. Can you explain the intent of this subsection for me?
Mr. Bilodeau: The amendments made to the Access to Information Act and the Privacy Act are designed so that the commissioners’ access to documents protected by professional secrecy can be accepted for two purposes.
First, the amendments describe more clearly the legal ability of the commissioners to obtain and examine documents protected by professional secrecy. When the act went into effect in 1983, it was anticipated that the commissioners would oversee federal institutions in applying exemptions related to the refusal to release information. This is the current practice. It includes the role of ensuring that the exemption for a lawyer’s professional secrecy be appropriately invoked. The previous Information Commissioner wrote to the minister asking for a clarification of this situation following a recent Supreme Court ruling.
Second, the new wording would harmonize the French and English versions and accommodate the traditions of common law and civil law. Essentially, the provisions are intended to continue the current practice, as was the intention of the act in 1983.
Senator Boisvenu: I set the record straight with the minister about the question I asked on Internet services. I had been provided with a version of the text that had been prepared prior to the amendments passed by the House of Commons. So I apologized to the minister for my question, which was inappropriate.
My question is about how the bill applies to the Prime Minister and the minister. Basically, are we to understand that those positions would be included, except for parliamentary activities? Is that correct?
Mr. Bilodeau: Exactly. Proactive disclosure will apply to the offices of the minister and the Prime Minister, except for —
Senator Boisvenu: Parliamentary functions are exempted.
Mr. Bilodeau: They would be part —
[English]
Ms. Naylor: The provisions that apply to the Prime Minister’s office and the ministers’ offices include proactive publication requirements. First, for the Prime Minister’s Office, mandate letters. For ministers, it would be briefing packages for new ministers, titles and tracking numbers of briefing notes, Question Period notes, briefing materials for parliamentary appearances, travel and hospitality expenses, contracts over $10,000 and an annual report of all expenses incurred by the minister’s office.
The same thinking applies here as was discussed before. If there is content that should be redacted, if there was a request under the Access to Information Act and there is information that should be withheld for security reasons, for example, or confidentiality or personal information, then there would be some information withheld as appropriate, as if it was an Access to Information request. So those same principles would apply.
[Translation]
Senator Boisvenu: My other question is about the concerns I have for ordinary people. From now on, they will have to be very precise in their requests as to the date when a document was produced and the names of officials. It was a CBC reporter, I believe, who said that it makes things almost impossible for an ordinary Canadian with no knowledge of federal bureaucracy. Even worse, if that information is not provided, it will become a ground for refusal. Don’t you think that you’re making the lives of ordinary Canadians difficult by being so darned bureaucratic? Isn’t there a way of making things easier for people?
Mr. Bilodeau: We have heard that concern on a number of occasions. The minister has dealt with the matter in clause 6. We have heard the concerns from indigenous communities and the information commissioners. The issue could cause difficulties. The minister has indicated that he would be open to considering amendments on the issue. I believe that, once the bill is passed, more work will be needed to make the request process easier. We have created an online portal to simplify the system of requesting information, by directing people to the proper institution and making the request process easier.
Senator Boisvenu: Was that concern raised? Did you participate in the meetings in the other place? Was that issue raised? Has an amendment been proposed?
Mr. Bilodeau: Yes, actually, there was an amendment. I was not in this position at the time, but there was an amendment to the effect that the government could not refuse a request on the simple grounds that the requester had not provided those three pieces of information. Concerns about the wording had been raised by the Information Commissioner.
Senator Boisvenu: Was that amendment accepted or rejected?
Mr. Bilodeau: It was accepted.
Senator Boisvenu: So that means, according to our current version, people do not have to submit those pieces of information?
Mr. Bilodeau: The intent of the amendments introduced in the House of Commons was that a request from a citizen should not be refused. The Information Commissioner expressed some concerns that the wording accepted by the House of Commons did not go far enough, because still including those three requirements was not sufficient and the language was perhaps not sufficiently strong, possibly giving some departments or agencies the impression that they could refuse requests. The minister is asking for an examination of amendments that would go further, by eliminating paragraphs (a), (b) and (c).
The Chair: Thank you for your answer, Mr. Bilodeau.
Senator Carignan: I have a more technical question, given that we have officials here as witnesses. In clause 74 on ministers’ publications, it says that ministers shall publish their documents in electronic form. They include the notes prepared for them by a government institution, notes for question period, and notes prepared for their appearances before parliamentary committees. By using the expression “government institution,” in your opinion, are we including notes prepared by a minister’s political staff for responses in question period?
Mr. Bilodeau: I will ask Ms. Naylor to correct me if I am mistaken, but it includes notes prepared for a minister by that minister’s department.
Senator Carignan: So not the notes prepared by a minister’s staff in order to answer questions.
Mr. Bilodeau: That is what I understand.
Senator Carignan: In paragraph (c), it says that the package of question period notes prepared by a government institution for a minister must be published within 120 days and paragraph (d) says within 120 days following the minister’s appearance before a committee of Parliament. So, for example, if the act were in effect, given that the minister testified in the House of Commons in October 2017, could I, 120 days later, have access to the notes of everything prepared for him before the file was referred to the Senate and before I could ask him questions?
Mr. Bilodeau: You mean for an appearance that happened before it came into effect.
Senator Carignan: The minister appeared before the House of Commons parliamentary committee in October 2017.
Mr. Bilodeau: Yes, but the requirement to provide documents applies once the act has come into effect. You could not go back to 2017.
Senator Carignan: But that is not what it says:
. . . within 120 days after the minister’s appearance before a committee of Parliament, the package of briefing materials that is prepared by a government institution for the minister for the purposes of that appearance.
On October 17, 2017, Minister Brison testified before a parliamentary committee in the House of Commons on Bill C-58. That is more than 120 days. So his notes would be published electronically before he could be questioned here.
Mr. Bilodeau: That is possible. The only distinction I make is that the appearance would not be retroactive.
Senator Carignan: No, I understand.
Mr. Bilodeau: Yes, that would be possible.
Senator Carignan: So that is how you interpret the legislation.
Mr. Bilodeau: Yes.
Senator Carignan: My other question is about the requirement to document. Why was the obligation to document not added to the legislation? It seems that a certain directive may have been communicated to officials, but there is also a practice, when exchanging information, that involves a tendency to put pens down from time to time when the subjects are more delicate.
Mr. Bilodeau: My answer has two parts. First, the bill as drafted focuses on certain commitments made by the government in terms of modernizing access to information. In the second phase, there could be a broader examination.
Second, the government’s administrative policies already require it; they establish an obligation to document decisions. In terms of policies, the Treasury Board’s Policy on Information Management already creates that obligation. It is a policy.
Senator Carignan: You mention the second phase. When the bill was introduced in 2017, we were told that the second phase would happen in 2018. It is now 2018. Have amendments to the bill already been suggested? We are now in 2018.
Mr. Bilodeau: As indicated in the bill, the second phase and the review will begin one year after royal assent.
The Chair: Do you have another question, Senator Carignan?
Senator Carignan: No.
Senator Pratte: I have a question about the fees. The bill provides for the same initial fee as currently, that is, up to $25. At the moment, it is $5, but it can go up to $25. The current act potentially provides for other fees for copying or for alternative formats, or if the request takes more than five hours. That is in the current act.
In the bill, that matter is summarized in the following paragraph:
The head of the government institution to which the request is made may require, in addition to the fee payable under subsection (1), payment of an amount prescribed by regulation or calculated in the manner prescribed by regulation…
I have a hard time seeing that as progress, because previously, the fees at least had to be for something: copying, alternative formatting, or work taking more than five hours. Here, it says that fees can be prescribed by regulation and charged for almost anything. Clearly we have to pass the regulation, but this is something else. The provision is even broader than the current act, in terms of possibly charging fees, is it not?
Mr. Bilodeau: I can tell you that the bill as currently presented would maintain the application fee, which can be between $5 and $25. The fee was $5 in 1983, when the act went into effect. The possibility of charging other fees is still there if needed, as is the possibility of keeping the flexibility into the future in order to adapt to situations as required. That type of issue could be reviewed in the second phase, but, at the moment, it was considered good to keep the flexibility.
[English]
Ms. Naylor: The only thing I would add is that Bill C-58 proposes to eliminate some of the very dated provisions that are there now in the law that set out certain fees, for example, converting to alternative formats and photocopying and so on. There is a section there now about where a record is produced from a machine-readable record, so we were not even using the wording of “digital.” This is 1983. The intention of these changes is not to bring in new fees, to just maintain the $5 fee as it is, but to eliminate some of that very dated language and then bring the authority forward, at some future date, if circumstances change or demand, that in a review there might be consideration in other circumstances to appropriate fees.
Senator Pratte: Thank you. That’s precisely my concern, that 11(1) already says it can go up to $25, which is five times the current amount, which is, as far as I’m concerned, quite a lot of flexibility right there. I’m just concerned that 11(2) then opens it up. I know that’s not the intention of this government, but we’re not writing this bill for this government; we’re thinking a little bit ahead. My concern is that it opens up the possibility of fees about anything and of any amount, over the possibility of increasing it five times to $25.
Mr. Bilodeau: Through regulation, there is flexibility there to set fees that are maintained in the bill.
The Chair: But the act doesn’t establish a ceiling or a principle of multiplication that would be objective.
Mr. Bilodeau: I think that’s correct.
Senator McCoy: In your midterm self-appraisal, you say the commitment that you make is eliminating all fees except for the initial $5 filing fee.
[Translation]
Senator Pratte: I would like clarification about clause 6. If I understand correctly what the minister is saying, we could very well get back to the current wording of the act.
Mr. Bilodeau: Essentially, for clause 6, not clause 6.1.
Senator Pratte: I understand. For clause 6, we would revert to the current wording.
Mr. Bilodeau: Exactly.
[English]
Senator McCoy: I still have so many questions, but let me start with congratulating you on your efforts under the Open Government initiative. I read the press release that I think you put it out on Monday. You are now the global leader for the 80 countries or something that are in this alliance for bringing open government. I think you are probably doing some wonderful things in digitalizing the documentation and digitalizing the possibility for citizens to interact with civil servants on a service level, so all of that is good.
This, of course, is not that at all. This is the request-based side of that equation. I think it’s becoming clearer and clearer that it’s being overrun by the newer, more fashionable dialogue. I’m not going to take any more time proselytizing here.
I want to come back to two things. Number one is the delays experienced by every user of the system that we talked to. Indeed, it has been experienced by senators who have used this before they became senators. One told us that she’s still waiting for a reply after 10 years, and her client has now died. I think other senators have had refusals or, at least, difficulties made for them on an institutional level in their previous incarnations. As I’m subbing in for Senator Sinclair, I think you can understand where some of that information comes from. There’s nothing in this bill that I can see that increases the likelihood of the departments and agencies and the government institutions increasing the speed with which they respond. What are you pointing to in the bill that you say is going to eliminate this deleterious response time?
Mr. Bilodeau: I think that’s a good point. We’ve all seen volumes of Access to Information increasing dramatically. They’re actually increasing at an exponential rate, and there’s no doubt that is creating strains on the system.
Specifically, with regard to the bill, one of the key things we do is allow federal institutions with the same minister to share their request processing services for greater efficiency. For example, Health Canada and the Public Health Agency could now share resources and work together to address Access to Information.
Another element of the bill that may impact delays is the capacity to decline to act on vexatious or frivolous requests, which, although they’re very infrequent, can cause significant delays or pressures on departments and preclude departments from meeting other demands that are not themselves frivolous or vexatious.
Beyond the act, though, we are right now making investments to hopefully make the process more efficient. We are in the process right now of developing an online request service tool. We are in the process of user testing it at this point, and it should accelerate and facilitate the capacity for requesters to make requests of government institutions. We’re also starting to look at the rest of the system to improve its efficiency. A lot of this is about proper information management so that we’re able to do it in a more effective way.
The bill itself does have a key component that I think will help departments in meeting that, and that is really the ability to share request processing services across institutions.
Senator McCoy: Let me just reply quickly to the vexatious comment. I asked the former Information Commissioner, who had much more experience than others on the job, and nobody has ever actually quantified it, but her best guess was that it was 1 per cent and no more. I don’t think curing 1 per cent is going to shorten the response time, frankly.
But I agree with you. I’m just looking at the numbers, and the number of requests closed within a reporting period have escalated by 300 per cent, so they’ve tripled. What’s also interesting to me is that the number of dollars spent per request has decreased, so that says to me that that may be contributing to the delay. Most of the costs are people costs. You have salaries or consultations, but mostly it’s salaries. So we’re very pleased to hear that you’re going to give the Information Commissioner more money, but that’s not going to make a difference on the delays.
Have you any plans to make the government institutions, as they’re called in the bill, more able to respond by giving them the resources they need?
Mr. Bilodeau: As I said, right now in terms of the Treasury Board Secretariat, we have some investments where we’re working centrally to facilitate and improve processes, and decisions with regard to increased resources for departments will be made in the context of the budget process.
Senator McCoy: Thank you for that non-answer.
I have one further question I want to press you on, if I may, and that is section 5, which talks about Info Source. I think in some ways it was a predecessor to your current attempts to put in an Internet portal. I’m sure your current one will be better than Info Source.
Substituting one department person and address, as you say, in the bill, just strikes me as not being effective. When you look at the Canada Border Services Agency, they get 6,265 responses, or they did in the last year for which your statistics are complete. There are only 240 working days, basically, in a year. One person is not going to do it. I think citizens and businesspeople, and two thirds of the requests are from corporations or ordinary people, are going to need these guide posts.
What’s your rush to get rid of the Info Source and put what appears to me to be, in practical terms, a choke point in Access to Information?
Ms. Naylor: Senator, I understand the question and concern about Info Source. What we find, in reality, is this information is very opaque to users in terms of what Info Source actually represents. It’s lists and lists of the kinds of information collected by institutions. In fact, it comes from a time, in 1983 and 1984, when the act was first put into place and, at that point, there was nowhere to turn for information about what an institution, department or agency did and what its responsibilities were.
Info Source, at that time, was about a phonebook-sized document, and there were at least four volumes of it every year. It was like telephone books, and they would be in the public library. It was where you would go to find out what a department of the day did and what its responsibilities were.
Things are very different now. At this point, the best information about the responsibilities of a department and the kind of work it does is available on the Internet. People don’t go to the library to find that and to sort that out. We think that information is now easily available, and there is quite a bit more, in fact, than what Info Source provides. There’s a tonne of information made available to Canadians on the Internet.
We have a duty to assist. You can reach the coordinator through the phone number we give to people, but it really is a number into the office of each institution. Many people might be responding to those questions. What happens is the questions are filtered in through that one intake system and then moved through the office, so often there will be four of five people who have the responsibility of ensuring those requests for information are responded to.
I hope that helps.
Senator McCoy: I appreciate that. I think there is an evolution, and I’m very pleased to hear that you’re working on a new portal. We tried finding some things on our own in the departments we weren’t familiar with, and those that are maintaining their Info Source documents online — several of them are — we found to be much more helpful than not. I think it is foolhardy to eliminate that because it will actually increase the number of people who are phoning or contacting. There’s no email address. If you try to search GEDS, you’re out of luck. Anyway, I thank you for your answer. I think other people have questions.
The Chair: After Senator McIntyre, I will have an opportunity to ask a question and then thank our guests this afternoon.
[Translation]
Senator McIntyre: My question is a clarification as to the difference between the terms “government entity” and “government institution.” The new clause 81 defines a “government entity,” while section 3 of the Access to Information Act defines “government institution.”
I ask the question because, in her special report, the Information Commissioner wrote, and I quote:
Inconsistent and confusing disclosure obligations persist under these provisions as a result of the differences between the definition of a “government institution” and a “government entity.”
Do you have any comments on that?
Mr. Bilodeau: Once again, I will ask Ms. Naylor to flesh out my answer if need be. But, basically, there is a distinction in the responsibility for proactive disclosure under the legislation.
Institutions, as described in the legislation, are all those subject to access to information, which includes Crown corporations and their subsidiaries. In their case, they are required to proactively disclose their travel and hospitality expenses, and to provide reports to Parliament.
Entities include departments, agencies and other organizations as specified in Schedule 1 of the Access to Information Act. In their case, they are required to provide briefing materials for ministers and files for committees. This a longer list, so there is a difference in the requirements.
Ms. Naylor may be able to provide additional clarification.
[English]
Ms. Naylor: That is essentially the idea. It creates a mechanism in the law. The reason there is a distinction is to create a mechanism between the hierarchy of proactive publication requirements. Some requirements don’t apply, for example, to a Crown corporation or a port authority because they do not do briefing notes for a minister. It was an attempt to be able to distinguish between the role of the different kinds of entities that are part of the Access to Information Act. Those that we defined as entities have obligations around travel and hospitality expenses and to proactively publish reports tabled in Parliament. All government institutions have those requirements, and then there are additional requirements for those defined as government entities, which is what we think of as departments and agencies and some of the other bodies that are closer in to the responsibilities of a minister within a ministerial portfolio.
Senator McIntyre: So there’s no way to correct this situation? In other words, it’s not possible to have one single unique expression in order to avoid possible confusion and incoherence in the legislation? I understand what you are both saying.
Ms. Naylor: All of them don’t apply to all of them, so we needed to create two categories. That is why we did that.
The Chair: At present, the commissioner may initiate a court review, with the complainant’s consent, when an institution refuses to follow a recommendation, but under Bill C-58, the commissioner would not be able to apply for a court review. In other words, you send the citizens back to its own in the court system, whereby at present the commissioner more or less takes it upon himself, with the consent of the complainant, to go to court. What is the rationale in the bill to make access easier in the context that you deprive the complainant from the support of the commissioner to go to court?
Ms. Naylor: The bill actually changes things quite a bit so that now the Information Commissioner herself doesn’t have to take an institution to court to force the institution to pay attention to her recommendations and ask a court to look at it. Instead, the institution must do what the Information Commissioner orders, unless the institution takes action within 30 days to ask a court to review that matter. It’s a very different dynamic in the future. It’s not a matter of trying to make an institution comply. If the commissioner makes an order, then the institution must follow it, unless the institution has serious concerns to the point that they would go to the court and ask the court to review the situation.
The Chair: Yes, but the way I understand the bill, if the institution refuses the order of the commissioner, where do we go from then on?
Mr. Bilodeau: The commissioner would then seek a mandamus to have the order enforced. The commissioner’s order would actually be legally binding. We have a strong opinion from Justice on this. Then the institution could seek to go to Federal Court if they didn’t agree. If they didn’t follow the order, then the commissioner, through mandamus proceedings, could require the institution to proceed. I will ask Ms. Naylor to confirm, but in the event an institution actually failed to comply with mandamus, you could actually subsequently trigger contempt of court. But a mandamus request is legally binding and would be a legal obligation on the institution to comply.
Ms. Naylor: That’s correct.
The Chair: But originally, when you changed the system, what was the benefit you thought improved the overall access to information by changing the way the system operated since 1983?
Mr. Bilodeau: The intent was, following requests from commissioners and others, to make sure that the commissioner would be able to provide a legally binding order to a department to produce records, but I think those orders also extend to timelines, et cetera.
We’ve discussed extensively with Justice about the most appropriate way to do that. The position of the government would be that the orders, as they are, are legally enforceable and are mandatory and enforceable in the most appropriate way, as opposed to a contempt of court type of proceeding, and the most appropriate way to proceed in this context.
The Chair: Did you discuss that with the commissioner in the context of redefining the system, or is it what I call a “bureaucracy in-house new concept,” if I can be polite?
Mr. Bilodeau: We have had the benefits of the commissioner’s view. The current Information Commissioner is of the view that she would prefer to have her order certified. Our discussions with the Department of Justice and our advice on this is that the most appropriate is a legally binding order, as per what’s being proposed in the bill.
The Chair: We will discuss that with the Minister of Justice, then.
Thank you very much for your contribution this afternoon. I think it was helpful for senators. We might see you again along the way in the life of this bill in future weeks when we complete our study of it. Thank you very much.
(The committee adjourned.)