Access to Information Act—Privacy Act
Bill to Amend--Message from Commons--Motion for Concurrence in Commons Amendments and Non-Insistence Upon Senate Amendments--Debate
June 19, 2019
Moved:
That, in relation to Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, the Senate:
(a)agree to the amendments made by the House of Commons to Senate amendments, including amendments made in consequence of Senate amendments; and
(b)do not insist on its amendments to which the House of Commons has disagreed; and
That a message be sent to the House of Commons to acquaint that house accordingly.
He said: Honourable senators, I rise to speak to the message concerning Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
First, I want to thank the Standing Senate Committee on Legal and Constitutional Affairs for their very thorough and careful study of this legislation, and to Senator Ringuette, the bill’s sponsor, who played such an important role in the Senate’s consideration of this matter.
When the Access to Information Act came into force in 1985, it marked a significant advance in the openness and transparency citizens expect of their government in modern democracy and the belief that, ultimately, information held by federal institutions belongs to the people it serves. However, the Access to Information Act has not been amended in any substantial way in over 30 years.
Through Bill C-58, the government has sought to strengthen the administration of the Access to Information Act by giving additional powers to the Information Commissioner, providing proactive disclosure and ensuring the act is more regularly reviewed.
A new Part 2 of the act would make government open by default, enshrining in law the proactive publication of a wide range of information. The bill would provide the Information Commissioner with the long-sought authority to order a federal institution to disclose records in response to an access request. It would enable and, in some cases, compel communication between the Information Commissioner and the Privacy Commissioner, helping to maintain an appropriate balance between Canadians’ right to access and the right to protection of their personal information.
However, as honourable senators are aware, a range of stakeholder perspectives, including academics, legal professionals, Indigenous organizations and concerned citizens, expressed their views that Bill C-58 as it was originally drafted would not fulfill its intended objectives. The Honourable Scott Brison, the former President of the Treasury Board, appeared before our Standing Senate Committee on Legal and Constitutional Affairs on October 3, last year, expressing openness to Senate amendments that would improve upon certain areas of the bill. That commitment was reaffirmed in correspondence sent to the committee by the then Treasury Board President on February 25 of this year.
The committee undertook an extensive and wide-ranging study, proposing a total of 20 amendments while providing detailed observations on various elements of the bill and the Access to Information system as a whole. The government will be carefully reviewing the committee’s observations, particularly as it undertakes future reviews of the act as intended in the act itself.
I am pleased to report that the government has agreed to accept the vast majority of amendments, 16 in total, while respectfully declining 4.
Of great importance to many here, the government accepted Senate amendments concerning the determination of questions of privilege in the Senate. The government acknowledged that their intention was not to alter the procedure by which the Houses of Parliament determine questions of privilege, nor was it to affect the privileges enjoyed by both houses and their respective members.
In accordance with precedents established in the Senate and with relevant provisions of the Rules of the Senate being applied, the Speaker will be required to hear debates on questions of privilege and senators retain their ability to appeal a Speaker’s ruling in accordance with our Rules.
The government has also accepted Senate amendments that would eliminate the government’s authority to set and collect fees apart from the application fee, which the government has committed to maintain at a nominal $5.
Our committee held that providing the Information Commissioner with the authority to order the release of government information needed to include strengthened provisions for privacy. The committee adopted an amendment that the Information Commissioner must consult the Privacy Commissioner before ordering the release of personal information that was withheld by an institution under the personal information exemption. The government accepts this important Senate amendment.
The government also accepted other Senate amendments that would enhance communication between the Information and Privacy Commissioners, further strengthening the protection of personal information. Those amendments were suggested by both the Information and Privacy Commissioners as part of a joint submission.
The government also accepted a Senate amendment requiring government institutions to continue to publish information about their organization, records and manuals through Info Source. Info Source is an important tool for Canadians seeking to understand what information is being collected by government and where within government that information resides.
Another Senate amendment involved access requests that are vexatious, made in bad faith or are an abuse of the right of access. In 2017-18, for the first time, the government received over 100,000 access to information requests. Unfortunately, a small but not insignificant proportion of those were made for reasons inconsistent with the purpose of the act.
The government agrees with the committee’s contention that the authority given to heads of institutions to seek the Information Commissioner’s approval to decline to act on a request should be a very narrow one. The government has accepted Senate amendments to limit this authority to requests that are vexatious, made in bad faith or are an abuse of the right of access. That new authority will help to ensure institutions are able to focus their efforts on legitimate requests.
A key element of Bill C-58 is the order-making power it would bestow on the Information Commissioner — the authority to make binding orders regarding the processing of requests, including the release of records. The commissioner would be able to publish those orders, establishing a body of precedents to guide institutions as well as users of the system.
Further, the government accepts the Senate amendment that would grant order-making power to the Information Commissioner immediately upon Royal Assent to Bill C-58.
The bill, as originally tabled, would have delayed the introduction of this order-making power for a year after Royal Assent. That was intended to provide the commissioner time to prepare to assume this power. The commissioner has said that she is ready to go and asked that this power be made available immediately upon Royal Assent.
Whereas the Information Commissioner must now go to court if an institution does not follow her recommendations, Bill C-58 puts the onus on institutions — should they disagree with an order by the Information Commissioner, institutions will have 30 days to challenge the order in Federal Court.
Bill C-58 would also require proactive publication of expenses reimbursed to individual judges of the superior courts. The objective of the regime was to carefully balance public expectation of enhanced transparency in the administration of judicial expenses, while also respecting the fundamentally important principle of judicial independence. To that end, a broad exemption for judicial independence was included to act as a safeguard against any possible infringement of judicial independence.
That being said, it was clear from testimony before the Standing Senate Committee on Legal and Constitutional Affairs — including representatives of the judiciary, legal profession, as well as legal scholars — that the publication of individual judicial expenses gives rise to serious concerns in relationship to judicial independence.
Despite the broad exemption included in the bill as originally drafted, many felt that focusing on individual judicial expenses left judges too exposed to unfair criticism and posed too great a risk. The amendment adopted in committee, through the leadership of our colleague Senator Dalphond, replaces the requirement for the proactive publication of individual judicial expenses with an aggregate model of publication.
The government accepts this Senate amendment, agreeing that it will serve to remove concerns about judicial independence in all but the most exceptional circumstances.
As Senator Dalphond noted in a press release on this matter on June 12 of this year:
This amendment eliminates a black hole that existed in the original draft of Bill C-58 . . .
Furthermore, he stated the amended bill will provide:
. . . a good balance between the objective of transparency and respect for judicial independence.
The government also accepts a Senate amendment that would address serious concerns raised by witnesses from Indigenous organizations as well as the Information Commissioner and other stakeholders.
As originally tabled, Bill C-58 contains provisions designed to speed up the system by requiring those requesting information to identify the precise subject matter, type of record and period for the record being sought.
That is an example of a well-meaning principle having unintended consequences.
Indigenous organizations advised the committee that these provisions could create barriers to their access rights where records often go back decades, sometimes centuries.
It is unreasonable to request a specific subject, type of information and time period under such circumstances. The government agrees and has accepted the Senate amendment that would eliminate this requirement. The government wants to ensure that Indigenous peoples are able to access the information they will need to support land claims, for example, or seek redress for past wrongs.
Witnesses representing Indigenous organizations who appeared before the committee also expressed concern that they had not been appropriately consulted in the development of Bill C-58. Correspondence from Treasury Board President to the Senate Legal and Constitutional Affairs Committee, which I referenced earlier, made specific commitments to engage Indigenous organizations and representatives in exploring how the Access to Information Act could be amended in the future to better address Indigenous concerns. As with all engagement with First Nations, Inuit and Metis nations, the minister committed to work in consultation and collaboration with them going forward. That such concerns are heard and addressed underscores the importance of reviewing legislation on a regular basis, a commitment that is now legislated in this legislation. Bill C-58 would require the minister to undertake a review of the operation of the act every five years, with the first review to begin within one year of Royal Assent.
To bolster the effectiveness of these reviews and eliminate any perception of the conflict of interest, the committee amended Bill C-58 to require that the reviews also be undertaken by committees of both Houses of Parliament. This would enable a full and wide-ranging discussion on the broad issues that, as we have seen, arise when dealing with access to information. The government agrees with this Senate amendment, as this will provide an additional layer of review that will benefit from the expertise of our respective parliamentary committees.
The government has respectfully declined to accept some Senate amendments for technical reasons or on the grounds that they require further study to ensure any potential for unintended consequences is identified and addressed. For example, the government has declined a Senate amendment that would create a new criminal offence for the use of any code, moniker or contrived word or phrase in a record in place of the name of any person, corporation, entity or third-party organization.
The government advises that the criminal offence provisions of the Access to Information Act were not the subject of consultation or study in the development of this bill. As a consequence, consideration of changes to those provisions should more properly take place in the context of the full review, especially considering the heavy penalty if one is found to be guilty.
Another Senate amendment would have limited the extension of time to respond to requests. Under the current act, in certain circumstances, the head of an institution can notify a requester that additional time is needed to fulfill their request. If an extension of more than 30 days is taken, the head of the institution must notify the commissioner that this is happening. The Senate amendment states that the approval of the commissioner would be required for extensions longer than 30 days. This could mean over 11,000 new requests being sent to Office of the Information Commissioner every year.
The government believes that a change of this magnitude requires further study and consultation with the Office of the Information Commissioner to consider the implication for her office, and therefore respectfully declines the Senate amendment. Given that the bill has been amended to require that reviews of this act be conducted by committees here and in the other place, the Senate will have an opportunity to study this and other issues in the very near future.
Since the rejection of this amendment has the effect of leaving the existing regime for time limits in place, the commissioner’s authority to receive and investigate complaints regarding time limits needs to be retained. Thus, the Senate amendment to eliminate this authority is also declined.
The government has also declined a related Senate amendment that would have removed the commissioner’s authority to accept and investigate complaints related to waiving of fees. The government has indicated that the commissioner could continue to have oversight over the way institutions exercise the authority to waive fees.
A Senate amendment that would require the Information Commissioner to review the operation of the proposed Part 2 of the act and report the results to Parliament on an annual basis has also been declined. The government holds that such a provision would create the potential to infringe on both parliamentary privilege and judicial independence. In any case, the government notes that concerns in this regard are largely addressed by the fact that individuals can continue to access documents published under Part 2 by making a request under Part 1. They can also request any supporting documents related or published under Part 2. The commissioner will have oversight over the records released in response to those requests.
Finally, the government has respectfully declined the Senate amendment to provide the Information Commissioner with the capacity to file orders in the Federal Court and have them enforced as Federal Court orders. The government feels that enabling the commissioner to file an order with the Federal Court is not needed in the scheme set out in Bill C-58. The Information Commissioner’s orders are already binding and the bill already sets out an avenue of recourse to the Federal Court if an institution has serious concerns with an order.
In closing, I would reiterate that the government has listened carefully to the work of this chamber, has accepted the vast majority of the Senate amendments, including those which I would characterize as the most important in addressing shortcomings that were identified by the committee. In the end, we have a bill that has undergone sober reflection. Our Legal and Constitutional Affairs Committee has done incredible work in this regard over a long period of time. I would urge honourable senators to agree with the message from the other place, as this legislation reflects the next step in making the access to information regime more effective for and responsive to Canadians’ interests.
Honourable senators, I rise to speak to the message from the House of Commons concerning Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
I must admit that I am extremely disappointed and surprised that the Liberal government rejected the amendment on obstructing the right of access to information that I had proposed to the Standing Senate Committee on Legal and Constitutional Affairs. This amendment had been adopted by the Senate and sent to the House of Commons.
By moving forward with this amendment, the Senate was correcting a defect in relation to the offence of obstructing the right of access to information, which has been part of the act since 2009. This is a defect that could interfere with the Information Commissioner’s work. The amendment not only improved the Access to Information Act to prohibit the use of codes and other ruses to interfere with the application of the act, but it also protected the access to information mechanism from techniques used to evade information requests.
The only reason provided in the government’s response is based on the strategic objective of the bill. What was the strategic objective of this bill? As the President of the Treasury Board testified when he appeared before the committee, Bill C-58 was meant to fulfill the Liberal government’s election promise to make the access to information regime more transparent and to widen the scope of government information Canadians are entitled to have access to.
We were also told that Bill C-58 would make access to information more efficient. During the 2015 election campaign, Justin Trudeau said, “We will make government information more accessible.”
The mandate letter for the President of the Treasury Board called on the office holder to, and I quote:
. . . enhance the openness of government . . . and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices . . . .
Furthermore, the President of the Treasury board testified that this bill would give the Information Commissioner greater powers.
However, I would remind you, honourable senators, that during the study of the bill, Canada’s major media outlets brought to light some disturbing and troubling facts. In the midst of the Norman scandal, the National Post and all of the other major media outlets revealed that military staff at the Department of National Defence had used code names to refer to Vice-Admiral Norman in email and other communications.
Hiding behind the Norman scandal was another equally worrisome scandal, the use, for sinister purposes, of code names, nicknames or other aliases instead of Vice-Admiral Norman’s actual name in order to make it harder to search for documents about him when access to information requests were submitted.
The strategy involved using nicknames or code names, so that communications about the Vice-Admiral could not be found.
More specifically, according to a January 29, 2019, Global News report, Marie Henein, Vice-Admiral Norman’s defence lawyer, presented to Justice Heather Perkins-McVey of the Ontario Superior Court a list of code names that her team of lawyers had managed to obtain through access to information requests. They included “The Kracken,” “The Boss,” “C34” and others.
The objective of these dubious tactics could only be to block or hinder access to documents and communications dealing with Vice-Admiral Norman and to undermine the effectiveness of the system.
As stated during the preliminary inquiry by a military member whose name is protected by a publication ban, officials at the Department of National Defence use code words in order to make documents untraceable to the public servants responsible for research when responding to access to information requests. If this action meant to undermine the research of relevant information doesn’t amount to obstructing the right of access, how else could it be described? The media have called it a manipulation of the access to information request system at the Department of National Defence. The techniques may not have been designed to hide certain documents, but they can certainly complicate the process of finding them.
They were basically getting around the law by intentionally muddying the waters. The use of code words is directly at odds with the purpose of the Access to Information Act. The use of code words goes against the purpose of Bill C-58, which is to modernize the Access to Information Act and offer Canadians greater transparency.
I was very surprised to hear Senator Harder say that this amendment went against the purpose of this legislation, when the minister talked about modernization. I believe that the coming into force of subsection 67(1), adopted in 2009, dissuaded people from circumventing the law because there have been no suits filed for destruction of documents since. However, with the growing phenomenon of distributing digital documents and sending email, this dubious practice of using code words in particular has to be prohibited under the Access to Information Act.
On February 1, the National Post ran an article entitled “How to avoid a paper trail: The reliable — sometimes illegal — tricks used by bureaucrats and political staff.” This practice exists. The article in question made reference to the use of code words as a way to avoid leaving a paper trail.
If we refuse to make that practice illegal, we’re repudiating the very principles of the Access to Information Act. In the name of transparency, which is Bill C-58’s raison d’être, we must ban all practices designed to impede access to information by using codes to block access to documents. We have an opportunity to put an end to this practice by rejecting that part of the government’s message.
If we succeed in eliminating that loophole with respect to terms likely to be used to avoid disclosing documents, we’ll be protecting the core purpose of Bill C-58. Considering that Canada has slipped to 55th place in the annual global freedom of information rankings and is now tied with Bulgaria and Uruguay, it’s clear that the gaps identified in the wake of the infamous Norman scandal must be closed if the goal is to improve Canada’s credibility.
I thank you, dear colleagues, for adopting the amendment, regarding the use of any code, at committee stage and in this chamber. I invite you to support the amendment to insist on amendment number 12, which we agreed to, and to strengthen in particular the wording of subsection 67(1) of the Access to Information Act by adding “use any code, moniker or contrived word or phrase in a record in place of the name of any person, corporation, entity, or organization.”
This issue is at the heart of Prime Minister Trudeau’s commitment to make the Access to Information Act more transparent and credible. In addition to maintaining the Canadian public’s confidence in the access to information system, we must safeguard the transparency and efficiency of this system.
