Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 56 - Evidence - February 28, 2019
OTTAWA, Thursday, February 28, 2019
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 10:35 a.m. to give clause-by-clause consideration to the bill; and, in camera, for the consideration of a draft report.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the committee this morning.
Do I understand that the officers from the Department of Justice are in the room in case there is any question in relation to an amendment? I understand also that there are officials from the Privy Council Office.
[Translation]
Good morning. I think there are also representatives from the Treasury Board Secretariat, aren’t there? Yes.
[English]
Honourable senators, if there are any questions in relation to the interpretation of an amendment, of course, as usual we have the officers of those three departments in attendance for the benefit of senators.
Honourable senators, before I move directly to the clause-by-clause consideration of Bill C-58, I will make the usual announcement.
We will try to go in sequence. I will call the amendments by group, unless I have an amendment to a specific clause; then, of course, I will not put that clause to a vote until the amendments have been properly introduced and debated.
[Translation]
Senator Carignan: I was looking at our amendments, and I saw that there are sometimes related issues that will affect the amendments that might be proposed. There are a lot of amendments. Do I understand correctly that we are going to start with one group’s amendments and then move on to the other group, or are we going to proceed clause by clause? Because it can be complicated to proceed clause by clause, given the subsequent amendments that may be made.
What I suggest is, for instance, I have seen that Senator Pratte, Senator Dalphond, Senator Ringuette and Senator McCoy.... I suggest we take these amendments and then look at how it affects our own amendments.
The Chair: As you know, the procedure is instead to follow the order of the clauses as they appear in the bill. My proposal to you is to proceed in sequential order of the clauses. So when I have a clause in front of me to which there is an amendment, then, of course, I won’t put the clause to the vote until the amendment has been introduced, debated, accepted or rejected, and then return to the main clause.
We must ensure that we make progress on what I call the rationality of the bill and avoid going through all the subjects from one to the other without having completed the debate on a theme or section of the bill. However, I can understand the difficulty you are raising. I suggest that we proceed in this way. If there are significant amendments, that is, changes in number, for example, if, for example, a clause is withdrawn from the bill, obviously, this implies that, if this clause has been mentioned in subsequent clauses, the adjustments will have to be made accordingly.
At the end of our clause-by-clause study, I will seek the committee’s consent to ensure that adjustments have been made to the numbers and references to the subsections that would have been removed to ensure that, when I report on the committee’s proceedings, the bill as amended is absolutely, if I may say so, rational and fully adapted to the decisions that the committee has made.
That’s how I suggested we proceed. The decision is in the hands of the committee. If the senators believe it would be easier to dispose of the amendments of either senator or the amendments proposed by Senator Ringuette... These are the amendments that the President of the Treasury Board raised when he appeared and in the letter we received earlier this week that is part of the minutes of the committee.
I want to make sure that we move forward in the study of the bill, which is very complex. I am also open to your suggestions.
Senator Gold: I agree with your approach, Mr. Chair. However, are we going to proceed immediately with the amendments without the text of the draft report?
The Chair: Yes, absolutely. Our goal isn’t to start the discussion on the draft report. We would have done it yesterday because we had free time. This morning, we are going ahead with the clause-by-clause study of the bill, as agreed by the steering committee. Second, we will come back to this if we don’t finish this morning. We will continue our work at the next meeting, with the adoption of the report and any comments that may result from it. This is how the steering committee suggests we proceed.
Senator Ringuette: I fully agree with you, given the significant number of amendments. I noticed that some pertain to the same clause. So I think that proceeding clause by clause is entirely appropriate for our committee’s work.
The Chair: Very well. I’d like to share some information with you. In our assessment with the clerk and staff of the Library of Parliament, we identified subsequent amendments to the proposed amendments. I can tell you that there is a subsequent amendment in Senator Pratte’s amendment to clause 5. Since I have the report in front of me, I will help you to situate yourself in the evolution of the debate. Obviously, when I don’t have the amendments, I won’t be able to do this. We will adapt to the circumstances so that, at the very end, the bill remains fully rational. We will submit it at the end before I table it. Once I have your permission, we will do the final touch-ups of the bill so that we are sure that everything is in compliance. Obviously, that will be the latest version of the bill as we will be tabling it in the Senate. We will see if we make any changes at third reading but, when the bill leaves here, the text will be complete and definitive, and all the amendments will have been made.
Honourable senators, do we agree to proceed with a clause-by-clause consideration 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]
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed with leave that the committee be allowed to group clauses by 10 when appropriate?
Hon. Senators: Agreed.
The Chair: Agreed.
Then shall clauses 1 to 4 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clause 5 carry? Before I call the vote, I understand that Senator Pratte has an amendment.
[Translation]
Can I ask the question? Does everyone have Senator Pratte’s amendments and, in particular of course, the one on clause 5? I believe so.
Senator Pratte: In this case, it would simply be a matter of deleting clause 5. I don’t know exactly how it’s done, but it is a matter of deleting clause 5 of the bill. The purpose of the clause is to eliminate Info Source. Info Source is considered to still be a very important source of information to help requesters find the information they are looking for. It is proposed that clause 5 be deleted and restore what is currently in the act with respect to the publication of Info Source.
The Chair: I will reinterpret Senator Pratte’s proposal. It can’t hurt.
Senator Pratte: It wasn’t clear?
The Chair: Senator Pratte is proposing that clause 5, which is on pages 2 and 3 of the bill, be deleted. To delete a clause, you simply need to vote against it. That’s basically Senator Pratte’s amendment. You have given the reasons for your decision to introduce this amendment. Are there any questions?
Senator Ringuette: Thank you. I would like to point out that Info Source is an old information model that was put in place in 1983, so basically when we didn’t have all the technology and websites of the various government entities.
[English]
Senator McCoy, do you have a problem? No?
[Translation]
The various government entities actively publish the documents on the list within Info Source. This contributes to the efforts of departments in the dissemination of documents. This allows resources to be sought from each of these departments, which helps to provide information on sites and entities that may be required to provide documents to requesters under the Access to Information Act. I don’t agree that clause 5 should be deleted and that a system I think is outdated should be maintained.
Clause 5 also specifies that each department should indicate the name of the person and how to contact the person who is to provide the information to the requester. What will happen if clause 5 is deleted? How will requesters be able to find information? Who will be the contact person for each entity? The current system, which dates back to 1983, is outdated. We should move to the proactive model, which is being promoted. In short, I would like to keep clause 5.
The Chair: Senator Pratte, take notes so that you can share your observations once the senators have expressed their perspectives.
[English]
Senator McCoy: Thank you very much. I support the amendment in part because, as with all technology, there is a certain level of proficiency that many Canadians have mastered and many others have not. So before we completely eliminate means of navigating through what is a pretty complex collection of instruments in any government department or agency or institution, before we eliminate the old-fashioned way and just go with what the millennials are comfortable with, if I may say, I think we need to keep a system that is going to answer the needs of many people.
This isn’t beyond just whether you are on the Internet or not. It really is a skill as to how to find information and ultimately, no doubt, we will get to the digital system which is being touted by open government. It will be helpful with portals and so forth, but I think we are a long way from that in the population of Canada and the skills necessary to navigate.
I have to say myself, being of the older generation, although I think I’m fairly computer literate, I find it very difficult to navigate on current government websites, for example, to find information. On the other hand, I’m quite familiar with waiting on a phone for up to an hour with my cellphone provider or other consumer services when they say, “Here is the name of the person to call,” and then I end up being in a lineup. Ninety-ninth was the last one I was; it took hours. I don’t think that is particularly helpful advance.
For all of those pragmatic reasons I think it’s premature to eliminate Info Source at this stage. For a government that is dedicated to being open and transparent, I don’t think it’s an excuse to say it takes time and resources from people. I think the answer is to dedicate resources to delivering openness and transparency. Thank you.
Senator Batters: I have now heard from a couple of senators indicating why they disagreed with this particular amendment but I would like to hear a brief explanation from Senator Pratte, if he wouldn’t mind, to explain why he is bringing forward this amendment.
I’m sorry, I heard you saying that you thought it was a bit premature for the amendment.
Senator McCoy: No, I thought it was premature to get rid of Info Source. The amendment would keep Info Source. I’m sorry if I was unclear on that. I’m glad you said that otherwise other people might have had that misapprehension. Thank you very much.
Senator Pratte: The current act already requires the applicant for access to information to make the request in writing and provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record. And we know how much information there is in government and how difficult it is to find where the information is. Info Source, although I understand it is some burden for government institutions to publish all this information, it’s extremely useful for people who are requesting the information because at least they have an idea where to find the information.
Now to Senator Ringuette’s point that if we delete clause 5 of the bill then we delete the requirement of publishing the title and address of the appropriate official. Actually, it’s already in the present act — the requirement to publish the name and the coordinates of the person to whom you should address your access to information request.
I think it’s still necessary to keep Info Source to help applicants and therefore we should simply delete this part of the bill.
Senator Gold: I also lean toward supporting the amendment. I wanted a better sense, though, of what the actual burden would be on the government or ministry where we would retain Info Source, especially in an electronic age when cut and paste information is readily done.
The Chair: Is somebody from Treasury Board available to answer that question?
Ruth Naylor, Executive Director, Information and Privacy Policy Division, Treasury Board Secretariat: Thank you for the opportunity to speak to this. I should clarify that Info Source is a purely electronic resource right now. It requires each institution to describe its information holdings. The challenge is that the days in which it was established, in those information holdings an institution would describe what is held in a filing room. That was how it was begun and it was bigger than a phone book. The document was available on paper only at that time and it was in a library. People went to libraries because there was nowhere to go to the Internet to find out what an institution does and who does what. What does Public Safety Canada do, for example?
Sorry, your question was what was the burden on an institution?
Senator Gold: What would be the burden now, in the 21st century? Information started out in paper and libraries, but presumably it’s in some electronic form now. Were we to accept the amendment and maintain the provisions in the current act, what would the actual burden be, going forward, on a particular minister or department to have to comply with the current provisions?
Ms. Naylor: I’ll describe what departments do in order to update that description over and over. What an access to information office would do is to send out usually the old description, and that will be many pages. That’s because it doesn’t quite fit with how we work anymore. It’s not like there is a file room where we save these kinds of documents. Instead, institutions have to figure out how to translate that in the modern era, where we’re saving our information on giant information management repositories. Institutions try to do that translation and they have small descriptions they keep updating of “we save this kind of information” or “we retain that kind of information” or “we create this kind of information.”
The other piece in Info Source now is the description of the organization of an institution, as well as its responsibilities. And that really duplicates all the information that’s available on any of the websites for a federal institution. It has to be done in the Info Source requirements as a separate exercise.
It actually is quite arduous for a bigger institution that’s going to take institutional resources in the ATIP office each year to do that work, plus the institutional resources in each of the responsibility centres where anyone is working and retaining information. That’s the burden that’s associated with it.
Senator McCoy: My question really piggybacks on your description of the process. It sounds like what a department would have to undergo is reasonable to me, but surely a department has to undergo that for itself. There must be a directory of information that the department uses itself. I find it difficult to believe this would take an enormous additional effort; incremental perhaps, but not onerous.
Ms. Naylor: In practice now, because we use what we call GCdocs in our own department, it’s an information management system that’s entirely electronic and subdivided into various categories and re-subdivided again. So all the documents, for example, that my own group produces are all categorized within that electronic repository. That’s real life how we work and, in a way, institutions now because of these old provisions ask to also describe it in a very different way.
So the theory, the intent behind the changed approach would be that institutions would make sure their description of their responsibilities and so on on the Internet must be up to date, and then an access to information office would be able to help in a request or through the duty to assist to know what’s being held by an institution, help guide them either to that institution or tell them which institution would properly hold those records. There are two conflicting approaches.
Senator McCoy: So wouldn’t it be easy, since the work is already done, to simply modernize Info Source?
Ms. Naylor: That’s the intent of the amendment that’s proposed in Bill C-58, to move away from this way of doing Info Source. Instead, it would be the work of providing that information to Canadians which is, in one sense, already being done by the information that’s posted online, that is very copious information posted online by institutions about the nature of their work, in another sense taken up by the duty to assist which didn’t exist in 1983. It was a letter somebody had to send in, in 1983, so they needed to have some kind of specification there of what they would like to see. So the ATIP office now has the responsibility to assist a requester to know what is being held.
[Translation]
Senator Ringuette: Currently, the people who respond to requests for information are working with the new electronic system to be more efficient, and, as Ms. Naylor just mentioned, in Bill C-58, the person who must provide the information has a responsibility to be in contact with the requester to ensure that the document provided is indeed the one indicated in the request. The person providing this information is working with the new system, which is much more efficient, on the Internet. Even if the person does not have access to the Internet or can’t work with the Internet, this obligation remains for the person who will provide the information to help people making a request to find the document they are looking for.
It must be understood that maintaining the old system in place is becoming a little problematic, because of this obligation we have to the person who provides the information and who must help identify the document. This is now done electronically by the departmental employee.
[English]
The Chair: I will invite Senator Pratte to conclude before I call the vote on the amendment.
[Translation]
Senator Pratte: It’s important to ensure that the people requesting information have all the necessary tools to be on equal footing with the government institution from which they are requesting information, and not in a situation of dependency.
Of course, there are people who will ask for information and won’t bother to do even minimal research. They will simply call and say they are looking for a document. However, most people who are going to make an access to information request like to have an idea of where the information is and not be completely at the mercy of the government institution from which they are requesting the information. They don’t like having to call to ask where the document they are looking for is located. At that point, they become independent of an institution that is almost in a conflict of interest. I think Info Source, which is on the Internet, is an excellent tool. I use it and find very useful information that is not easily found on a department’s website if you don’t know Info Source and don’t know where to look.
Senator Carignan: I agree with Senator Pratte. The more sources of information we have, the more they are fed, and the more we promote access to information. The purpose of the bill is to open up information, to communicate it. We have a tool that works, so we have no reason to eliminate a source that is appreciated and used. I’m in favour of the amendment.
[English]
The Chair: Seeing no other senators, I will now put the motion in amendment to a vote.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Agreed. On division?
Senator Ringuette: On division.
The Chair: I will play my role in identifying the consequential amendments that will be in clause 13 and clause 41 of the bill later on in the procedure, but I want to signal that I keep track of the adjustments of the bill to ensure that the officers of the various departments that are in attendance this morning also do their homework so that we can, at the end, have a bill that is in sync with the decision of the committee.
We now move to clause 6 of the bill. I understand that we have an amendment from Senator Carignan.
[Translation]
Senator Carignan: The purpose of my amendment is to delete clause 6 completely and return to the original legislation. Perhaps we should proceed with mine first.
The Chair: I agree with you, Senator Carignan, but perhaps it would be helpful for the honourable senators—
Senator Carignan: Hear them both at the same time.
The Chair: —to see what Senator Pratte’s objective was, because there might be an adjustment to be made that could answer the questions of some people.
Senator Carignan: That’s fine with me.
Senator Gold: I have a procedural question. I have the documents we received. Does that also include the proposed amendments, which will be proposed by Senator Carignan or other senators?
Senator Carignan: They are included, but as soon as they are presented, the clerk will be able to distribute them.
[English]
The Chair: Before Senator Carignan formally moves his amendment, he has explained the objective, which is to delete, which is easy to understand. But before he formally moves the substance of his amendments, it would be appropriate also to hear what Senator Pratte has in mind. Maybe there are answers to the preoccupation of Senator Carignan.
[Translation]
Senator Pratte, can you explain the substance of your amendment?
Senator Pratte: Actually, what the amendment will do is... Wait a moment while I find it.
The Chair: It’s on page 3. We’re still on page 3 and, if I understand correctly, you would replace lines 23 and 24 with a specific text.
Senator Pratte: Yes, but I want to make sure I’m fully understood. I am opposed to clause 6 of the bill, but I was assuming that the government would propose an amendment that would eliminate clause 6 or that you would do so. My amendment only concerns clause 6.1, but I am assuming that clause 6 will be eliminated.
Senator Carignan: I should table my amendment first.
Senator Pratte: Yes, I think so.
The Chair: I understand that the government has an amendment, since the Treasury Board President at the time, Mr. Brison, mentioned that there were aspects of clause 6.1 that he was prepared to withdraw, and this was confirmed in the letter from the current Treasury Board President that was circulated.
Senator Carignan: Can my amendment be distributed?
Shaila Anwar, Clerk of the Committee: Could you please give me the number?
Senator Carignan: It’s C2.
Ms. Anwar: I’m going to ask you to read it.
Senator Carignan: It is fairly simple, in fact. It is written succinctly; the purpose is to completely delete clause 6 to return to section 6 in its original wording. It reads:
A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record.
So clause 6 of the current bill would be deleted to return to the original wording. I think that was also Minister Brison’s intention. The Information Commissioner, Ms. Maynard, also testified to that effect. The proposal speaks for itself.
The Chair: So, for the amendment proposal, if I may, Senator Carignan, I will offer the same service as I offered Senator Pratte. I will explain what your text does in the text of the act.
So, honourable senators, if you take page 3 of the bill, in clause 6, the amendment is to delete lines 5 to 16 of the bill.
This allows you to understand exactly what Senator Carignan’s proposal is about. Is that correct, Senator Carignan?
Senator Carignan: Clearly, this does not leave a vacuum. The existing clause 6 states that requests shall be made in writing. It’s the status quo for requests; you are not required to justify requests.
We don’t want people to start being forced to justify a request. We don’t want to send a message that, if you are interested in a certain topic, requests may well be handled differently, depending on who makes the request.
As we have seen, it is complicated, depending on who is requesting the information. We heard testimony from people in the media saying that they had someone else request records because, if they were the ones making the request, they may well have been treated differently. Imagine if you had to start justifying an access to information request. There is a significant risk. We want to eliminate that limitation.
[English]
Senator McCoy: Your explanation was extremely clear, but you talked about replacing lines 5 to 16 on page 3, and the amendment that I have here, C-2, is talking about replacing lines 6 to 17. When I look at 6 to 17 — is it a difference between the French version and the English version?
The Chair: Yes.
Senator McCoy: Thank you very much.
Senator Carignan: That’s the reason why.
The Chair: It’s essentially an adjustment.
Senator McCoy: That’s good. Thank you. Sorry for the interruption.
The Chair: That’s fine. It’s a legitimate question.
[Translation]
Senator Ringuette: As I said earlier, given that some amendments have a very similar purpose, is it possible to table the amendment to clause 6 so that we can discuss it as well?
The Chair: Yes, that’s what I pointed out earlier. As there are three overlapping amendments to clause 6, I will call the question on the amendments in order.
So there is a proposed amendment from Senator Carignan to delete clause 6, there is a proposal from Senator Pratte to amend part of clause 6, and the government also wants to amend it, I believe. Since it has not yet been submitted to the committee, I will let you express the government’s objective with your amendment.
Senator Ringuette: The objective is the same, but it also includes specific requirements. So, Senator Carignan, you have the amendment I have, it’s PR1.
The Chair: Clause 6, page 3.
Senator Carignan: Okay, I have it.
Senator Ringuette: Essentially, the amendment is, as the minister indicated in the letter we received this week from the Treasury Board, that all specific requirements with respect to records be removed. I will continue in English.
The Chair: Lines 5 to 16, on page 3. I have them.
[English]
Senator Ringuette: And we would be adding, after line 17, the following:
6 The Act is amended by adding the following after section 6:
1.1 Time limit suspended; Notice — suspension, in 1.3; and Notice — end of suspension.
[Translation]
It is much clearer and I would even say much more necessary than notices. If suspension is necessary to meet the needs, let it be included in clause 6.
Senator Carignan: I understand that the government’s amendment is to maintain the current clause 6 by adding—
Senator Ringuette: No.
Senator Dalphond: Except in the English version.
Senator Carignan: It keeps it in the English version, that’s right.
Senator Ringuette: Yes.
Senator Carignan: It is not changing it in the English version. When I read the first part of the English version, it seems to correspond to the current clause.
Senator Dalphond: It corresponds exactly to the current French version of the clause, the proposed version.
Senator Carignan: The English version was not consistent with the French version?
Senator Dalphond: It had a few extra words.
[English]
The Chair: Maybe we could ask the representative of Treasury Board, since it’s a government amendment. If you allow me, honourable senators, I will invite Ms. Naylor to come and explain why there’s a change only in the English version and what it does, so that we understand everything that is pertaining to that section.
[Translation]
Ms. Naylor is also accompanied by Hélène Aubé, who is an analyst/advisor in the Information and Privacy Policy Division.
[English]
Ms. Naylor: The change in the English version that is introduced by this alternate wording — first it eliminates the new requirements. Second, it follows through on a change that is needed to speak to this part. It says: “A request for access to a record under this Part shall be made in writing to the government institution . . . .”
That’s fairly technical, but Bill C-58 affects the Access to Information Act by dividing it into Parts 1 and 2 now. In a way, it’s to make that necessary amendment to reflect a new structure of the Access to Information Act following Bill C-58. But it does eliminate, of course, the new requirements, as the minister had indicated.
The Chair: So it will eliminate paragraphs (a), (b) and (c)?
Ms. Naylor: That’s correct.
The Chair: Those were the paragraphs that were the object of criticism by the Information Commissioner, if I remember.
Ms. Naylor: Yes, and the minister had indicated, when he spoke that —
Senator Dalphond: I think the old section 6 that you’re replacing in the English part, but not in the French part. You’re missing a few words.
[Translation]
Hélène Aubé, Analyst/Advisor, Information and Privacy Policy, Treasury Board of Canada Secretariat: We are doing exactly what the senators proposed. We are coming back to the current version of section 6. However, the current wording is different in the French and English versions. When you read the English version of the current Access to Information Act, it begins as follows:
[English]
6. A request for access to a record under this Part shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.
[Translation]
So that passage is not in the French version. Given the new way the legislation will be designed with the new Part 2, we must change “this act” to “this part”. That’s the only proposed change.
Senator Carignan: I agree with that. Senator Ringuette, I understand that your amendment is PR1 on the page. There are also amendments that affect clause 6.1. I also have some comments to make on clause 6.1.
I had separated my amendments, one on clause 6 and one on clause 6.1. I agree with the first part of the amendment because I understand that those parts must be considered in our wording.
The Chair: Senator Carignan, we will separate Senator Ringuette’s amendment, on the substance of the amendment and the objective.
I’m looking at Senator Pratte’s amendment, dealing with lines 23 and 24. It is further on, it is in section 6.1. I’ll put it aside and ask that we proceed with the vote on the amendment, if that’s okay with you.
Let me read the text:
That Bill C-58 be amended in clause 6:
(a) by replacing lines 5 to 16, page 3 with the following:
Section 6 of the English version of the Act is replaced by the following:
[English]
The Chair: Thus:
6. A request for access to a record under this Part shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.
[Translation]
In paragraph (b), by adding the following after line 16 on page 3:
Senator Carignan: I don’t think paragraph (b) should be there. Because paragraph (b) will create clause 6.1.
The Chair: Paragraph (b) introduces clause 6.1.
Senator Carignan: So you would have to remove (b), if you want to divide the two—
The Chair: If you want. I will come back to the second part of the motion.
[English]
Senator McCoy: I’m totally confused now, I’m sorry. Why are we not removing the equivalent French on lines 5 to 16 on page 3 of the bill?
The Chair: Because, as I am told by an officer of the department — but I don’t want to put an answer in their mouth.
Ms. Aubé, if we are doing those changes in the English version, why are we not doing similar changes to the French version?
Ms. Aubé: The French version?
[Translation]
The Chair: Why is there no change to the French version when the English version is being changed?
Ms. Aubé: The motion is proposed in French. So we replace the lines—
Senator Ringuette: We have not received the French version.
Ms. Aubé: We are asking for the same change. The lines for clause 6 are deleted from the bill.
Senator Carignan: Are you suggesting that the French version be amended to be equivalent to the English version?
Ms. Aubé: Exactly.
Senator Dalphond: To add to the confusion, the amendment proposed by Senator Ringuette on behalf of the government is to replace clause 6 of the bill. The only difference, if I understand correctly, is that it removes the words—
[English]
. . . and shall set out the following information and provide sufficient detail . . . .
Suspender or the belt. You remove one of them. I don’t know.
The Chair: Keeping the braces, also, might be helpful.
Senator McCoy: I prefer Senator Carignan’s amendment, which is more thorough.
Ms. Naylor: The explanation is exactly correct. Essentially, the French language does not need to be adapted. The English language does because of the differences in the way the provisions are prepared.
[Translation]
The Chair: Is everyone comfortable with that explanation?
[English]
We know what we’re doing.
Senator McCoy: I disagree that it does, because on page 3 of the bill, very clearly in French — and I have a rudimentary understanding of French — clause 6 says in English:
6 Section 6 of the Act is replaced by the following:
Request for access to record
6 . . . in writing . . . .
(a) the specific subject matter of the request;
(b) the type of record being requested;
(c) the period for which the record is being requested or the date of the record.
That, in French, is a mirror image of what it says in English on page 3 in clause 6 of the bill.
So I don’t understand why it wouldn’t be removed. I think Senator Carignan has very clearly understood that, because his amendment is doing for the English what it does for the French, other than the line numbers.
The Chair: Any comments, Ms. Naylor, to the comments made by Senator McCoy?
Ms. Naylor: The explanation I will provide is just that, in effect, what this accomplishes — although it does, I understand, look a little disconcerting because it doesn’t reference the French in the same way — it does accomplish the objective of eliminating the specific requirements in the French and English, and restores the language close to what’s in the English in the French now.
There’s also an adaptation, just for style, to the English. That’s what this reflects. Paragraphs (a), (b) and (c) would be gone.
The Chair: That’s what I understand. We do two things, in fact: We remove (a), (b) and (c), and we adjust the wording in English to fine-tune it to the substance of what there is in French.
Ms. Naylor: To the removal.
The Chair: That’s essentially what I understand we’re doing.
[Translation]
Senator Carignan: The French version will not be amended like the English version, which says “under this part”.
The Chair: Exactly.
Senator Carignan: Do we have to add it in French?
Senator Dalphond: It is a serious problem. Period.
Senator Pratte: In the current legislation, the English section says “under this act,” but the French version does not mention it, because I assume it is taken for granted.
Senator Carignan: The French version is clearer.
Senator Pratte: Perhaps.
[English]
Senator McCoy: That’s true, but the current act which does say “request for access,” et cetera, shall provide sufficient detail. The current act does not have the (a), (b), (c) in French but the current act will be changed if that is not removed.
Senator Pratte: It says “removed.”
Senator McCoy: Where?
Senator Pratte: In French, it says here: “. . . par substitution des partie 5 à 16.”
In the French version, you take out lines five to 16 and then you take this out totally.
Senator McCoy: That’s where it is. That’s what I am looking for.
The Chair: It’s the same paragraph from the old act that remains in the new act. That’s essentially what we are doing.
Senator Dalphond: The semicolon would become a period.
[Translation]
The Chair: Exactly, since paragraphs (a), (b) and (c) are being removed. Senator Dalphond, as I said at the outset, when we “groom” the bill, at the end of the process, we will remove the wrong commas, colons or semicolons that are no longer relevant in normal reading for the literal purposes of the bill.
Senator Carignan: I have never heard that expression, “grooming” a bill, but I understand what you mean.
The Chair: Thank you for your understanding, senator.
[English]
I will put the question to a vote for the first section of paragraph 6.
Is it agreed, honourable senators, that clause 6 of the English version of the bill is replaced by the following:
6. A request for access to a record under this Part shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.
Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator McCoy: In English, would you not add lines 5 to 16 on page 3?
The Chair: Well, as I said, Bill C-56 in clause 6(b) amended by replacing lines 6 to 17 on page 3 with the following.
This is essentially as it should be understood in the context of the vote that I have called. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Shall clause 6 as amended carry?
Hon. Senators: Agreed.
The Chair: Carried.
Then we will move on to the second part of clause 6.
[Translation]
In terms of clause 6, let me come back to you, Senator Carignan, for the second part. I will ask Senator Pratte, who has an amendment, to move it.
[English]
Does everybody have a copy of the amendments of Senator Pratte? It’s AP2.
[Translation]
Senator Pratte, go ahead.
Senator Pratte: The idea is to remove a small part of the subsection, or paragraph (a) of subsection 6.1(1), which reads as follows in French:
a) un document identique a été communiqué à la personne qui fait la demande
Those are grounds for refusal by the institution, and the idea is to remove an identical record that has already been given to the person. The English version reads as follows:
(a) the person has already been given access to an identical record
In the digital world we live in, when you make a request, you get a digital record. However, digital records are very easily lost. It would not make sense to tell a person who has made a request and has obtained a record but, for some reason, the document has disappeared, that they can no longer resubmit the request. As a result, the person would no longer have access to the record because of a computer glitch.
Senator Carignan: I have an amendment to propose, C3, which is a little more extensive. It might be a good idea to circulate it.
The Chair: Do you want to circulate amendment C3?
Senator Carignan: I am completely eliminating section 6.1.
Senator Pratte: You are removing section 6.1 entirely, with paragraphs (a), (b) and (c)?
Senator Dalphond: I thought we were keeping paragraph (c), weren’t we?
The Chair: I’ll ask that Senator Carignan’s amendment be circulated and then explained. Does everyone have a copy?
[English]
Do you have a copy, Ms. Naylor?
Ms. Naylor: We don’t have copies of this proposed amendment. We would be happy to help on any technical questions.
The Chair: Yes, that’s why I want you to have the copy — to be of help, if needed.
[Translation]
Senator Carignan, would you like to introduce it, please?
Senator Carignan: Yes. The amendment is simple. It completely eliminates section 6.1. The Information Commissioner, Caroline Maynard, had also mentioned it. In fact, she was surprised that section 6.1 was put in. We want the institution to respond yes or no to the request for information and not start justifying, requesting extensions, giving reasons that would allow it to say no. The idea is to completely remove section 6.1.
The Chair: Okay. Do you have any questions or comments?
Senator Ringuette: Let me just say that I am really against the idea of Senator Carignan’s amendment. Essentially, section 6.1, up to page 4, which the senator wants to remove from the bill, contains reasonable parameters for a request. We have heard a lot about this and we have heard testimony before this committee about what a vexatious or bad faith request might mean. Let me remind you that most provinces, in their access to information legislation, have that concept. The case law is already available. In fact, in the letter from the President of the Treasury Board, you also saw the examples from the provinces with regard to the vexatious concept. If all those items are removed, from a practical point of view, on what basis could a requester file a complaint?
Subsequent provisions of section 6 allow the commissioner to confirm that a request, in her opinion, is vexatious and to say that the institution is right, or to say whether she considers that the request is not vexatious and that the institution must provide the required information.
So, if those sections are removed, there are many repercussions in terms of the powers we want to delegate, which we absolutely want to delegate to the commissioner. I therefore completely disagree with Senator Carignan’s proposal.
Senator Dalphond: I agree with the proposal by my colleague Senator Carignan, except for paragraph (c), which deals with when a request is vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access. This corresponds to section 137 of Quebec’s access to information act. The experts who testified before us said that paragraphs (a) and (b) are quite vague and difficult to put into effect, but that paragraph (c) was something known, about what is or is not abusive, and the commissioner had the power to give approval. The organization has to say that the request is abusive and the commissioner has to agree. That is what I gathered, but I may be mistaken.
Senator Carignan: Yes, but there is still…I am trying to recall, but, according to the statistics, fewer than 1 per cent of the requests were considered…
Senator Dalphond: That is what I have here. One per cent of the requests fall under paragraphs (a), (b) and (c) combined.
Senator Carignan: That is not a lot. So why include that type of evaluation, which makes it possible to limit access to information, if there are so few?
Senator Gold: The other side of the coin is that it is fewer than 1 per cent.
Senator Carignan: It is fewer than 1 per cent for the three paragraphs. Imagine if we just had the criterion of vexatious.
Senator Gold: The others too.
Senator Carignan: Because each request is important. It may be the one that is actually going to be embarrassing and uncover evidence… We want to make sure that people have access to information, that there is more transparency, greater accountability. So each request is important.
[English]
The Chair: If I may, on the same lines as Senator Dalphond, there have been decisions of the Federal Court on the definition of vexatious, and a decision that is rather recent, if I remember well. I cannot give the precise date, but it’s within the last 10 years and I’m sure Senator Carignan will remember it also generally. It confirms the point of Senator Dalphond that there is jurisprudence in relation to how to interpret the word “vexatious,” how the court will determine it.
And that serves as a parameter for the public administration to determine in which circumstances they can allege that a request is vexatious. I just want to add this. I don’t want to take a stand on it, but it is part of the knowledge we got around the table when we had the witnesses in relation to questions on that section.
Senator McCoy: I have a very clear recollection of the former Information Commissioners and Ms. Legault giving us that number of 1 per cent on frivolous and vexatious requests. So I think your recollection is correct.
My preference initially was to take this clause 6.1 out completely as well. Here you are trying to modernize an Access to Information Act and cherry-picking what needs to be done from the modern framework precedents that we all know exist. And so before even moving into a thorough review and starting to build the act from the ground up, a green field approach so to speak, you take this but you don’t insert the duty to record, et cetera. There are just a number of things. It becomes very difficult and for that reason, I was thinking that we should eliminate this one because it doesn’t actually fit too easily into the overall.
On the other hand, I agree 100 per cent that there is precedent, there is jurisprudence on the word “vexatious” and the words “bad faith.” I don’t know if there is jurisprudence on the words “an abuse of the right to request access to records,” but I don’t know what the Quebec act says precisely. I can’t remember. That might be a compromise and it would preserve the necessity for the Information Commissioner’s prior approval, which I think is critical. I think that’s critical.
The Chair: That’s what the paragraph says, “with the Information Commissioner’s written approval.”
[Translation]
In French, “avec l’autorisation écrite du commissaire à l’information”. So, if I am interpreting the provision correctly, the administration can decline to act on a request for information, with the Information Commissioner’s approval.
[English]
It is not a wide open door for the administration to invoke on any request vexatious, bad faith or abuse of the right. The commissioner has the responsibility to pronounce on that very argument that the administration invokes to refuse. There is a balance, in my opinion, of protection of right of access so that the administration does not use that when they don’t want to give information, so it’s vexatious or an abuse of right. The commissioner has the authority to pronounce on this. I want to understand this.
Senator McCoy: I would remove (a) and (b).
The Chair: That is another issue. We got testimony to remove (a) and (b) and keep (c). I remember that because I have my bill here and I make notes when you intervene and when witnesses come and ask something specific. And here on my notes I see I have the inscription “pas necessaire,” so a witness has provided that as an argument but it’s your decision. I want to ensure you understand that.
[Translation]
Senator Carignan: Do I gather that there might be consensus?
Senator Ringuette: No, there is no consensus.
Senator Carignan: There are other amendments and I am trying to see which one could have the effect of keeping paragraph (c) only and take out paragraphs (a) and (b). We are trying to move on, Senator Gold.
The Chair: I have Senators Pratte, Ringuette and Gold.
Senator Pratte: I would agree with that compromise: we keep paragraph (c) and remove all the rest.
The Chair: Take out paragraphs (a) and (b)?
Senator Pratte: Yes, and subclause 6(1.1).
The Chair: That’s the one called Limitation.
Senator Pratte: Or are we keeping subclause 6(1.1)?
Senator Dalphond: Yes, because that takes out…
Senator Pratte: Yes, great. So I agree with that: we keep paragraph (c) and remove (a) and (b).
The Chair: I am going to proceed in order, because we have different amendments as a result of this discussion. Before following up on Senator Pratte’s point, I am going to continue with the list of senators who want to speak.
Senator Ringuette: I also want the extent to be clarified and understood. The 1 per cent we are talking about is not just one request, it is 1 per cent of all requests. For example, in 2016-2017, there were 92,000 requests.
The Chair: One per cent is still a significant number.
Senator Ringuette: It is a considerable number. We also have to consider that, if we take out paragraphs (a) and (b), we are also removing powers from the commissioner. It is very important that the commissioner should be able to make sure that neither requests nor refusals to provide information are made in an abusive manner. Let’s not forget that some sections provide for an automatic review after one year. So, in a year, we will have other data that will tell us if this is necessary for our review process. At the moment, I prefer to give the current commissioner the possibility to say no to a department. The request must continue and the information must follow.
Senator Carignan: I feel that we have to pay attention to the matter of the number of requests. If I recall correctly, a member of an administrative tribunal came to say that there was an extraordinary number of access requests. Basically, these were applicants asking for a copy of their files so that they could handle them. I think they were immigration files. That increased the number of requests.
We have to pay attention to the number of requests. No one wants vexatious requests. It would be appropriate to amend and perhaps keep that part, but the objective is to avoid as many obstacles as possible, or criteria that are going to reduce public access to information. Keeping paragraph (c) only, and removing paragraphs (a) and (b) is a good compromise.
The Chair: So, are you amending your amendment?
Senator Carignan: Yes. I am trying to find a version in my various amendments that can be signed, sealed and delivered. But I am not sure I have a version that keeps paragraph (c) only.
Senator Dalphond: I quite agree with my colleague Senator Carignan. Even the courts have the power to refuse vexatious procedures. Access to justice is a fundamental right. This is the only exception that should be tolerated in the system. Requests are still always subject to the phrase “with the information commissioner’s written approval”. Not only does the organization have to conclude that the information request is frivolous, a waste of time and abusive, with the bar set high. But I also noted at the time that lawyers and experts were of the opinion that a request should meet a high threshold in case law and that the commissioner would have to agree. That approach is still possible. It is good that the system has ways to deal with dilatory or abusive situations. Vexatious litigants are everywhere these days.
Senator Gold: I completely agree with keeping paragraph (c), but I am not convinced that there is no sense in keeping —or amending, as Senator Pratte suggested —paragraphs (a) and (b). Let me explain why.
[English]
The whole bill is about finding the right balance between access to information and making sure that that access is efficient and fast — one hopes faster than it has been in many situations — but also with legitimate needs of and burdens on government, and the bill is full of examples that attempt to find the right balance. Here we have all of these grounds for refusal requiring the written consent of the Information Commissioner, who, after all, is seized with the mandate of ensuring access to information and being the force within our system of pushing, as against others, whether it’s privacy commissioners and certainly governments.
Though it’s true the Canadian Bar Association recommended taking out (a) and (b), and I respect their opinion enormously, I think a case can be made that there will be circumstances where, in fact, the cause of access to information is well served by giving the Information Commissioner an oversight role in those admittedly rare, one hopes, circumstances where the request would so gum up the works, if I can use that colloquial expression, in a department or an agency that it will actually get in the way of other legitimate requests being processed. We have heard time and time again — it is deplorable — that there are not enough resources — human, maybe, financial, no comment. It’s hard to get and to retain people to do the work. Some of the backlogs are unacceptable in a democratic society that aspires to be as open as we do.
I would be cautious of pulling this out, given that the Information Commissioner can always intervene and say: Sorry, folks this is a legitimate request and it will take you some time to get, but it’s absolutely important. If you have to work overtime to do it, work overtime to do it within the delays that are contemplated in this.
So I’m not in support of pulling it all out. I just don’t know enough to think it is prudent to do.
Senator Ringuette: For the record, I would like to say that I would support Senator Pratte’s proposed amendment for the reason that he said. You might have electronically received the information, and you have a search problem or whatever, and the information you got is gone. I agree with the amendment that Senator Pratte is proposing to make sure if that happens that it’s not a reason to deny having the document another time.
The Chair: Does that conclude the opinion that has been voiced around the table?
[Translation]
Senator Carignan: I feel that paragraphs (a) and (b) have to be taken out, but I am comfortable with leaving paragraph (c). How can we draft that? I will leave it to you.
The Chair: Dropping lines 23 to 31 on page 3. It matches in English too, paragraphs (a) and (b) and subclause 6.1.
Senator Carignan: Do you understand what I want to do and what that accomplishes?
The Chair: I understand, but everyone has to understand too. We must all have the same understanding. I have a question for you, Senator Carignan. In your proposal, at subparagraph (c)(iii), you also removed subclause (1.1), entitled “Limitation”.
[English]
Limitation, in English, which is line 35 of page 3.
Do you still keep this paragraph?
[Translation]
Senator Carignan: Yes, it stays. I did take it out because I was withdrawing the clause, but if we are keeping paragraph (c), it becomes appropriate again.
Senator Dalphond: Are you also keeping subclause (2), entitled “Notice”?
The Chair: Yes.
Senator Carignan: Exactly. That is what we were talking about. That is what I understood from the question.
[English]
Senator McCoy: I would leave 1.1 and 2 in so maybe we can separate.
The Chair: I put the question because I have in front of me a motion that dealt with line 35 to 39. That’s why I had to put it very clearly to understand when I call the vote on what we are voting.
It is proposed by the Honourable Senator Carignan that Bill C-58 be amended in clause 6, page 3, by deleting lines 23 to 31.
[Translation]
In French, Senator Carignan is proposing “que le projet de loi C-58 soit modifié à l’article 6, à la page 3, par suppression des lignes 23 à 31”. That means paragraphs (a) and (b).
Senator Carignan: I assume that the drafters will make the consequential changes to paragraph 6.1(1)(a). That will be amended as a consequence?
The Chair: Of course. Yes, I have already asked honourable senators for their approval to make the changes. Mr. Bédard, our law clerk, has told me about a comment on the paragraph at the bottom of page 3, lines 35 to 39.
[English]
I think it should be on the record because it implies a decision of this committee.
[Translation]
Michel Bédard, Deputy Law Clerk and Parliamentary Council (interim), Senate of Canada: If, for proposed subclause 6.1, paragraphs (b) and (c) are removed, a corresponding amendment would be necessary to new subclause (1.1). It would just be to remove lines 35 to 39.
The Chair: So subclause 1.1, the one entitled “Limitation”, would be removed completely?
Senator Carignan: He was saying that, since paragraph 6.1(1)(a) no longer exists, it has to be removed.
Mr. Bédard: It is the corresponding amendment, that’s all.
The Chair: It is the consequential amendment.
Mr. Bédard: If you keep it, the bill will not be consistent.
Senator Carignan: So, I gather that it cuts it out more completely.
[English]
Senator McCoy: Are you saying the only reason they’ve put that for clarity’s sake, 1.1, is because the proactive disclosure would come in under — you have access somewhere else? That’s the only reason that 1.1 is there?
Mr. Bédard: Clause 1.1 clarifies the application of paragraph (a), and now you’re removing paragraph (a) so you no longer need 1.1.
Senator McCoy: You don’t think an institution would decline to act because it’s vexatious, made in bad faith or an abuse of the right to make a request for access records?
In other words, just take out paragraph 1(a): The head of a government institution is not authorized, under subsection 1, to decline to act on a person’s request for a record for the sole reason that the information contained in it has been published under Part 2. That’s the other consequential amendment you could make.
The Chair: The question has not been completely understood. Could you speak into the mike to be sure everyone understands?
Senator McCoy: One consequential amendment would be just to eliminate 1.1. Another consequential amendment would be simply to remove, in line 36, the words “under paragraph 1(a).” In fact, I think we would keep (1).
In fact, you would remove this (a) so that you’re referring to paragraph subjection (1). That would be another consequential amendment. I’m trying to support 1.1, with an alternative consequential amendment.
The Chair: You put the question to the Law Clerk, and I want to have the Law Clerk on the record in answer to your question. Did you understand the question?
Mr. Bédard: Yes, I did. Currently, as drafted, if you’re to remove paragraphs (a) and (b), there has to be an amendment to 1.1. The options you have is you either remove 1.1, so you delete the lines or — and this is what Senator McCoy suggested — instead of referring to paragraph 1(a), you could refer to “under subsection (1),” for example. The fact that information has been published under Part 2, and there’s a request, will not entail that the request is frivolous. That’s another option for the committee.
Senator McCoy: Which is broader, and I like it better. I would support that amendment. Would you?
The Chair: Senator Ringuette — who is the sponsor of the bill.
Senator Ringuette: Yes.
The Chair: Could you be on the record on this?
Senator Ringuette: Yes, of course. It’s a more logical approach to 1.1.
The Chair: In other words, we would delete, on line 36, the words “paragraphs 1(a)” and substitute the word “subsection”?
[Translation]
The Chair: Do you agree, Senator Ringuette?
Senator Ringuette: Yes.
[English]
The Chair: Ms. Naylor, are you following what we are doing? You’re supposed to be the expert. You’re saying yes, you are the expert, or yes to the words in the subsection?
Ms. Naylor: I follow the options that are being considered by the committee with respect to 1.1 and the changes that would need to be considered if (a) and (b) are to be deleted. That would come together as a package.
I think that either of those options work. 1.1 is an amendment made in the House of Commons, and the specific concern was a potential misuse of 1(a) at that time. That was the concern that underlay that amendment being brought into play in order to limit how 1(a) could be used.
Senator Carignan: If you remove (a)?
[Translation]
Senator Pratte: I do not agree with Senator McCoy for the following reason. If we take out paragraphs (a) and (b), if we do not mention Part 2 on proactive disclosure, it is not impossible for an institution to say: “look, this is a vexatious request, because the information has already been published under the proactive disclosure scheme.” So, even if you take out paragraphs (a) and (b), that possibility still exists.
Senator Carignan: It encourages access.
Senator Pratte: Exactly. Except that we are leaving subclause (1.1), but we are amending it slightly to take out the reference to paragraph (1)(a).
Senator Carignan: I would agree with that.
[English]
Senator McCoy: Then you are agreeing with me.
Senator Pratte: I always agree with you, nearly.
Senator McCoy: That’s on the record, chair.
[Translation]
The Chair: Mr. Bédard, what is the legal term you are suggesting as a replacement for “under paragraph 1(a)”?
Senator Carignan: You are the Senate’s law clerk.
Mr. Bédard: Understood. In the French version, you would replace line 36, or “s’autoriser” in subclause 1.1, by “ne pas donner suite à”.
In the English version
[English]
We will replace line 36 by the following: “ized under subsection (1) to decline to act on a per.”
The Chair: Everyone has been able to take la dictée.
Senator Carignan: I so move.
The Chair: What I will do, honourable senators, is I will put the two changes in different votes if you want to be sure that our records remain very clear for all the discussion we have had around the table.
The first vote is that Bill C-58 be amended in clause 6, on page 3, by deleting lines 23 to 31. Is it agreed, honourable senators?
Some Hon. Senators: Agreed.
Senator Ringuette: On division.
The Chair: On division. Thank you.
And then that Bill C-58 be amended in clause 6, on page 3, at line 36, by substituting, in the English version, paragraph 1(a) by subsection (1), and in line 36 in the French version by substituting the words “l’alinéa (1)a)” with “du paragraphe 1.”
Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Thank you.
Senator McCoy: What happens to line 32?
The Chair: It remains in the bill. We have just removed lines 23 to 31. I have not put —
Senator McCoy: This is really picky, but there’s a subsection (c) there that ought to be removed.
The Chair: No, but in the — as I said, and I will repeat it, honourable senators: You have authorized me — with, of course, the contribution and concurrence of the Law Clerk, the Library of Parliament and the Clerk — to do the toileting, which means to do the readjustments of the commode de dots, or the numeration, so that it is in sync with what we have been doing. Because when I table the report in the chamber, I want to be sure the bill remains consequential. Thank you, honourable senators.
We come back to the vote on section 6, as amended. Shall clause 6, as amended, be carried?
Hon. Senators: Agreed.
The Chair: Agreed.
[Translation]
Senator Pratte’s amendment is withdrawn. Agreed? Thank you.
So we now move to clause 7.
[English]
Senator Ringuette: Chair, there’s the second part of 6 that we have to deal with before we move to 7. The second part of my PR1, we are adding, after line 17 on page 3, the following:
6.1 The Act is amended by adding the following after section 6:
Time limit suspended.
(1.2) If the head of a government institution communicates with the Information Commissioner to obtain his or her approval to decline to act, the 30-day period set out in section 7 — and any extension to it under section 9 — is suspended during the period beginning on the day on which the head of the institution communicates with the Information Commissioner and ending on the day on which he or she receives the Information Commissioner’s decision in writing.
I think that is in order to allow the commissioner to truly make an assessment, and that the 30-day time limit during that period that is under advisement at the commissioner’s office is suspended. I think that should be a normal practice, not to include the time the commissioner is reviewing a request to be counted in the period allowed to provide the information.
[Translation]
Senator Pratte: I have a concern that I cannot separate completely from another amendment that will come later, about reducing the waiting period. My concern is not so much about the impact on section 7, the 30-day timeframe, but rather about the fact that it also applies to section 9, which, at the moment, can extend deadlines ad vitam æternam .
For the first 30-day period, perhaps it might be reasonable to wait for the commissioner to conduct his or her study. Thirty days is not very long. However, when it is applied to section 9, where the extension is probably infinite, the timeframe is already quite long. If the commissioner’s decision takes any time, the institution already has the option of extending the timeframe.
So I would be prepared to accept it for section 7, but, in section 9, I think it would further extend the timeframes that are already significantly long. I would propose a subamendment to the French version, to provision (1.2) in the government amendment. It would take out the second line, after clause, “et, le cas échéant, prorogé en vertu de l’article 9... ”.
Senator Carignan: Where is your amendment? Which number is it?
The Chair: It is the second part of PR1, because we divided the amendments.
Is that okay, Senator Carignan?
Senator Carignan: Yes, but I am not comfortable with the idea of extending the timeframes. I have reservations about the possibility of suspending a deadline.
Senator Ringuette: Could we ask our experts what the result of Senator Pratte’s proposal would be?
[English]
The Chair: With the permission of Senator Pratte, I would ask Ms. Naylor or Ms. Aubé to comment on the proposal of Senator Pratte to delete, in (1.2), second line, the words that appear on the second line: “and any extension to it under section 9.” Did you hear the argument of Senator Pratte? We’re listening to you.
Ms. Naylor: Thank you very much. The concern would be that it would become challenging, because of the way the act itself is structured, to then administer these requests. These provisions are intended to give the Information Commissioner an ability to hear from the requester and undertake her process before an institution would run out of time to respond. The Information Commissioner otherwise would be making the response late.
The reason section 9 is included is that, in fact, an institution is required, under the Access to Information Act as it’s now written, to take any extension it intends to take within that first 30 days. So it’s included because if the institution can see that the request will be quite substantial and it will need an extension, it would need to work ahead of the game, not simply waiting for the Information Commissioner’s response, and take that extension and inform the requester of the extension.
So those pieces work together as a code. I don’t think there’s any intention for this provision to be used to delay requests. I understand that the Information Commissioner’s office is considering what kinds of procedures need to be in place to ensure there aren’t delays. But if an institution doesn’t have that ability to use the authorities under section 9 during that period, we will have requests that will inadvertently be treated as being out of time. An institution can’t take a delay after the 30 days.
Senator Pratte: Another question so that I understand better: Isn’t it true that if we keep the act as it is, don’t change anything as far as — we don’t add these subsections that you propose, these paragraphs that you propose, isn’t it true that if the Information Commissioner, let’s say, warns the institution that it’s going to take much longer than a few days — in this case, it’s going to take a month — then the institution can simply use its authority to extend the delay period? I’m just not sure this adds anything to the current situation.
Ms. Naylor: The intent is to provide certainty for everyone involved in this. There are also provisions here that mean that an institution would then notify the person that this has happened, and also notify them of what the outcome is, and the timeline. It adds clarity.
I would say that we have done some work on this. The provision for the requirement for the Information Commissioner to give her approval, that change was made in the House of Commons. But there was no package of changes as part of it; it was a simple change.
In all of the provincial-territorial legislation where this is contemplated, this is codified so that there’s an understanding of what happens to the time period so institutions can establish the right processes, and so can the Information Commissioner, to administer this new authority that the Information Commissioner will hold. So it reflects what the practice is when this authority for the Information Commissioner has been brought into play in legislation.
Senator Gold: For clarification: Do I then understand that this language that is being proposed does not, in fact, provide authority that otherwise wouldn’t exist to extend periods for response, either?
Ms. Naylor: It focuses simply on that period when the Information Commissioner has been asked when a request is made to her by an institution to review a request that it may fit into the frivolous and vexatious provisions, and then that suspension ends as soon as she responds. It’s very narrow. It doesn’t change the other authorities of an institution.
The Chair: But did you answer the arguments of Senator Pratte to the effect that what is provided as a delay on section 9 is, in fact, an open-ended delay with no terms on it?
Ms. Naylor: Section 9 has some controls over it, but it isn’t affected. The current wording of section 9 is not affected by these provisions and these proposed amendments. You’re asking about the effect of section 9 itself?
The Chair: Yes.
[Translation]
Senator Carignan: This clause must be interpreted in that sense in cases of vexatious procedure or requests. So there is already a limitation.
[English]
Ms. Naylor: With respect to section 9, we’re now looking at the act itself. It doesn’t create a clear time limit, but it does say that it can only be for a reasonable period and in certain specific circumstances. In fact, we provide institutions with considerable guidance around this about what they need to do to justify the taking of an extension and what the circumstances are in which that can be considered. We actually have a little formula that they are supposed to be using to try to determine that. But there is no sort of end cap on that.
I would point out we’ve just finished our work in gathering statistics from institutions from the last year, for example, and there was one institution that responded to a request last year that involved 10 million pages. The reason there’s no end cap is institutions have all kinds of requests, some very easy to respond to. When you’re dealing with and processing 10 million pages, it’s difficult to consider what kind of framework would be put around that. That’s why the kind of language of “reasonable period” is there.
The Information Commissioner would be able to look at this and pronounce in the future. She would have an order-making power and that would actually enable her in the future to give an order to an institution about how long that period could be if she was investigating a complaint and found the institution’s behaviour to not be within what she would consider would be a reasonable period.
The Chair: So the dynamics of this article are, in fact, helping the administration?
Ms. Naylor: That is always our intent.
Senator McCoy: That’s what we’re afraid of.
The Chair: Do I still have some senators before we move to the vote on this amendment to section 6, introduced by Senator Ringuette?
[Translation]
Senator Carignan: We agree that the application of those new paragraphs will therefore be limited to cases where the administration asks the commissioner to suspend, because of the commissioner’s opinion that a request needs to be checked for a legal abuse or a vexatious nature. In principle, therefore, if there is legal abuse or a vexatious request, the commissioner should be able to reply quite quickly.
[English]
The Chair: May I ask a question that might sound odd? Did you have the input of the commissioner for the drafting of these amendments? In other words, was it done with the knowledge of the commissioner or not?
Ms. Naylor: Yes, I discussed this personally with the Office of the Information Commissioner on a number of occasions. In fact, I mentioned that the provinces and territories have these kinds of provisions where the Information Commissioner’s approval is required. There are a number of models of how the provinces and territories accomplish this. There are different ways to draft it.
We opted for the approach that was preferred by the Office of the Information Commissioner following my discussions with them.
The Chair: I think it was helpful to ask that question.
Senator McCoy: I’m sympathetic to the practicalities of the situation, and I’m less uneasy because it’s actually the Information Commissioner herself who is in control of this situation. I think it’s fair to say that, certainly, in the years we’ve had this, information commissioners are pretty fierce in maintaining a good flow.
I’m also somewhat reassured by the letter from the current head of the Treasury Board, who indicated that there are more resources flowing to the Information Commissioner’s office. So I’m inclined to accept the government’s request for 1.2, 1.3, and 1.4 as presented.
[Translation]
Senator Pratte: I agree with the changes. Anyway, I think that we will be getting to the matter of the timeframes in a few minutes.
[English]
The Chair: I understand honourable senators are satisfied with the information we got from Ms. Naylor that this has been discussed with the Information Commissioner and there is concurrence on that proposal.
So I will put the question, then, to honourable senators. Do honourable senators agree that Bill C-58, in clause 6, be amended by adding clause 6.1, after line 39 on page 3:
Time limit suspended
(1.2) If the head of a government institution communicates with the Information Commissioner to obtain his or her approval to decline to act, the 30-day period set out in section 7 — and any extension to it under section 9 — is suspended during the period beginning on the day on which the head of the institution communicates with the Information Commissioner and ending on the day on which he or she receives the Information Commissioner’s decision in writing.
Notice — suspension
(1.3) The head of the institution shall give written notice to the person who made the request for access to a record under this Part of the suspension of the period, and of the reasons for the suspension, at the same time as they communicate with the Information Commissioner to obtain his or her approval to decline to act.
Notice — end of suspension
(1.4) If the Information Commissioner refuses to give his or her approval, the head of the institution shall, on receiving the Information Commissioner’s decision in writing, give written notice to the person who made the request for access to a record under this Part of the refusal and of the date on which the running of the period resumes in accordance with subsection (1.2).
Do honourable senators agree with the proposal introduced by Senator Ringuette?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 6, as amended, carry? I will first call the vote on clause 6. We could come back to clause 6 if there are any questions on it.
[Translation]
Senator Carignan: I have a quick question for the officials.
When a request to the commission is accepted, or when the commissioner agrees to suspend, for example, or decides to allow or deny the access, how much time does the commission have in which to advise the person accordingly?
[English]
Ms. Naylor: This provision doesn’t provide a specific time period for the Information Commissioner to respond.
In discussions with the Office of the Information Commissioner, they advised me that they wish to have flexibility, they wished to keep that suspension as short as possible, but they may have complex situations that they need to investigate. They don’t want to become responsible for having a request run over the 30-day time period. This is definitely something that could be looked at in the future as we see how this provision works and how the Information Commissioner’s office brings procedures into place.
[Translation]
Senator Carignan: Once the commissioner has made his or her decision, is there a timeframe for communicating it?
[English]
Ms. Naylor: Then the 30-day time period begins counting again. It starts from the time the request is received and it continues until the institution submits a request to the Information Commissioner to consider this issue. When the Information Commissioner communicates their response to the institution, the 30 days begin again.
[Translation]
Senator Carignan: So it’s 30 days.
[English]
Ms. Naylor: That could vary the period during which the Information Commissioner considers this issue —
[Translation]
Senator Carignan: No, but after the decision is made?
Ms. Naylor: It is 30 days.
Senator Carignan: I just wanted to make sure that there was a time in which to respond and that we were not in limbo there.
The Chair: Of course. It is a perfectly valid question.
[English]
The Chair: Is it agreed, honourable senators, that the amendment carry?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you.
Honourable senators, before I call clause 7, I have amendments on clause 7 proposed by Senator Pratte, but I see Senator Boisvenu calling the attention of the chair.
[Translation]
Senator Boisvenu: It is 12:30 p.m., and we are not allowed to sit longer than scheduled. In addition, I have to leave the meeting because I have an engagement outside the Senate at 1:00 p.m.
[English]
The Chair: I was to seek the concurrence of the other senators to continue.
[Translation]
Senator Ringuette: Given the difficult work we still have to do, in the light of the number of amendments that have already been proposed, and since the committee will not meet for the next two weeks, would it be possible for the committee members to sit at the same time as the Senate at some specified times, so that we can continue our work?
The Chair: Thank you for the question.
[English]
I will have to consult with the steering committee on this and I will have to introduce a motion in the chamber at the proper time to get the authorization, but that has to be discussed by the steering committee and advise on what the consensus might be. Thank you for your suggestion, and I will bring it to the steering committee and come back to the honourable members of the committee at that time.
Senator Ringuette: I thank you for doing so. Is it possible to have a discussion on how the honourable members of this committee feel about that before there is a formal discussion at steering?
The Chair: I can ask the opinion of the senators. There is no doubt about that. What is the view of the senators? We will take that into consideration.
Senator Gold: I would support that. I do believe it’s important for us to be in the chamber so I don’t want to be misunderstood, and ordinarily I believe it’s appropriate to have some restraint to ensure the Senate isn’t emptied out.
But this is an important bill, we’ve worked hard at it, the amendments are substantial, so I would support us having some extra time to make sure that we get this done in time for whatever else is coming our way.
Senator McCoy: It’s a question of juggling time. As you are aware, I’m fairly heavily involved in monitoring and participating in discussions around Bill C-69 and Bill C-48 and the aftermath of Bill C-68. And some part of that will come into the chamber, so we have seven weeks. We have seven sitting weeks between now and the end of May. Presumably we will be —
Senator Carignan: Unless we have an election before.
Senator McCoy: Unless we have an election before. I don’t know, why doesn’t the steering committee discuss this and come back with your considered response? And considering that we all have a lot of commitments in different ways.
The Chair: Thank you, honourable senators.
[Translation]
Senator Carignan: I hear what Senator Ringuette is asking. I will pass her requests on to our management team and, specifically, to our whip, who, I am sure, will lend a sympathetic ear and give special attention to those wishes.
[English]
The Chair: Thank you for your views. I will take them to the steering committee and as you will probably be informed, I understand that we might sit on the evening of March 18, when we come back. So I will be in a position at that time, if it is the wish of the steering committee, to seek the authorization of the Senate chamber to sit extra hours to deal with this bill.
But on the other hand, honourable senators, you will understand that I prefer to proceed — I will not say slowly because there was no gap in our discussion this morning — so that we understand the implications because it is a bill that is complex. Honourable senators have invested themselves into the study of this bill. They understand the implications, and I think it is better to do it right than in the rush and then I have to go back to the chamber to seek authorization to amend the report and whatnot.
(The committee adjourned.)