Access to Information Act—Privacy Act
Bill to Amend--Third Reading--Debate
May 2, 2019
Moved third reading 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, as amended.
She said: Honourable senators, I want to first express my gratitude to all who helped in the development of this bill. In particular, the amended legislation before us today has benefited from the thoughtful consideration of our colleagues on the Standing Senate Committee on Legal and Constitutional Affairs. The work that committees do is meaningful and valuable. They are places where, together, senators can contribute to good public policy and really make a difference in the lives of Canadians. Conversations with Canadians form an important part of public policy, and our committees provide an important avenue through which those conversations can happen.
The committee heard from, among others, the Information Commissioner and the Privacy Commissioner, who are to be commended for their efforts to improve this bill. I would also applaud the government for continuing to engage the commissioners on a regular basis after introducing this legislation. The committee heard from representatives of Indigenous organizations, who provided important insights into their need to access records of important historical and archival value. Legal experts and journalists also lent their voices to this conversation, sharing their unique experiences and explaining the importance to their work of this legislation.
The bill before us today reflects the hard work of so many, and it’s important to remember that Bill C-58 is just the first phase of the government’s reforms to access to information.
Bill C-58 would ensure that the Access to Information Act would never become outdated again. It would make five-year reviews mandatory. The first full review would begin within one year of the bill’s Royal Assent.
Further, the government has committed to engaging Indigenous organizations and representatives about how the Access to Information Act needs to evolve to reflect Canada’s relationship with Indigenous peoples, including how information and knowledge of Indigenous communities is both protected and made accessible. The government recognizes the importance of working closely with Indigenous organizations to ensure that access-to-information processes are responsive to their needs. This has been identified as one area of focus for the upcoming full review.
It is important to note, in regard to the issue of land claims and access to documents, that in the letter sent to the committee from the President of the Treasury Board, the government has committed to working with stakeholders. From the letter:
. . . the Treasury Board of Canada Secretariat, in partnership with Crown-Indigenous Relations and Northern Affairs Canada, will consult with all stakeholders about the feasibility of transferring additional Crown-Indigenous Relations and Northern Affairs Canada records that are of historical and archival value to archival institutions. The findings will be reported to Parliament in the context of the first full review of the Act that will follow coming-into-force of Bill C-58.
Honourable senators, I would now like to speak to the government’s position on the amendments adopted by the committee as they relate to balancing access rights and the protection of personal information; the coming into force of the Information Commissioner’s order-making power; and the proposed new requirements to indicate specific subject matter, type of report, date or date range in a request.
I would also like to speak to the proposed new Part 2 of the Access to Information Act, new proactive publication requirements that put into practice the idea that the government is open by default.
First of all, we heard the Information Commissioner’s and Privacy Commissioner’s recommendations regarding changing some aspects of Bill C-58 to ensure that the privacy of personal information would continue to be protected in the context of the Information Commissioner’s important new power to order the release of government information. The commissioners recommended that it be mandatory for the Information Commissioner to consult with the Privacy Commissioner before the Information Commissioner makes an order for the release of personal information. The commissioners also recommended that the Information Commissioner be provided with the discretion to consult the Privacy Commissioner when investigating a complaint regarding the application of the personal information exemption.
The committee made these changes, as well as a series of related changes sought by the commissioners, and I thank them.
The effect of these amendments would serve to strengthen the protection of personal information and would further safeguard Canadians’ privacy rights. For these reasons, the government supports these amendments, and thanks the commissioners and the committee for their contributions to strengthening these provisions.
The committee also amended the bill so that the Information Commissioner’s order-making power would come into force upon Royal Assent of Bill C-58. Originally, coming into force would have occurred one year after Royal Assent. This delay was intended to allow time for the Information Commissioner to make any necessary structural or other changes to her office to prepare for her new oversight powers. However, the Information Commissioner asked that her order-making power come into force at Royal Assent rather than one year later. In a letter to the government and in her testimony before the Standing Senate Committee on Legal and Constitutional Affairs, she said that this would be a less complicated transition to the new regime.
The government greatly values her perspective on this and supports the amendment made by the Senate committee.
I would like to say a few words about the importance of the order-making power for the Information Commissioner. The proposed order-making power would transform the commissioner’s role from that of an ombudsperson who makes recommendations to that of an authority with the legislated ability to make binding orders regarding the processing of requests, including the release of records. The Information Commissioner would also be able to publish her orders, establishing a body of precedents to guide institutions as well as users of the system. These are major steps forward.
In the letter from the President of the Treasury Board to the committee, the President backs up the government’s commitment to access to information by pledging increased funding and address the backlog on requests with $3.6 million in Budget 2018 to support the Information Commissioner and made available funding of up to $5.1 million from 2019-20 to 2021-22, and $1.7 million ongoing.
Let me now turn to the proposal that requesters would need to indicate a specific subject matter, type of record and time period. The intent of these provisions was to ensure that requests provided enough information to generate quick responses.
Indigenous groups and the Information Commissioner raised concerns about the potential misuse of these requirements, and the committee amended the bill to delete the requirements to provide these details. The government has heard concerns about these provisions and supports the amendment made by the committee.
An issue that sparked a lot of interest among senators on the committee and beyond was that of the role of the Speaker in the Senate. Under the bill, the Speaker would determine if information to be published under proactive disclosure could constitute a breach of privilege and stop its disclosure. There were concerns that this implied — and I reiterate “implied” — that the Speaker had the power to determine the privilege of all senators and that it was not the Speaker’s role to do so.
I believe the original language did not infringe upon this right. The Speakers of both Houses of Parliament are the guardians of our privilege. That is within the Parliament of Canada Act. However, I proposed an amendment to make it clear that the Speaker only determines if it may breach privilege, not that it does.
The reason the Speaker has this authority in the bill is that, at times, the Senate is not sitting but disclosure will continue to happen. So there needs to be a safeguard in place to ensure that it does not disclose privileged information while the Senate is not sitting.
In addition, my amendment added that the Speaker’s decision is final only in relation to proactive disclosure. It was further amended to include that it respects the rules of both chambers. At the committee level, all senators were very happy with the end scenario.
I believe the amended bill is clear in the roles the Speaker plays and that the rights of the Senate are maintained. Should the Speaker decide that information may breach privilege, it is only for the proactive disclosure period.
Should the Senate, a committee or an individual wish to release that information through other means, such as in a motion, that right remains.
I want to quickly address one aspect of the bill that was amended in committee with my support, but not necessarily the support of the government, although I hope they take a good look at supporting it.
Senator Dalphond proposed an amendment to provide some aggregation in the publishing of judicial expenses. I think Senator Dalphond’s amendment strikes a good balance that will mitigate some of the concerns in regards to judicial independence and the safety and security of judges. I hope the government gives it proper consideration.
Senator Pratte amended the bill to limit fees to only the application fee. The government has vowed to only charge the $5 application fee, but the bill originally left open the possibility for additional fees in the future.
I opposed this amendment because I believe that in the future there may be a need to apply fees in certain situations.
As I pointed out in committee, businesses often use access requests to gain information beneficial to their business, potentially even information on competitors. While I believe that limiting fees for Canadians is the right thing to do, I don’t believe that Canadians should be paying the costs for business to profit from. I could see a future where there may be fees to recover some of these costs. I believe having that option is prudent.
There was also discussion as to who reviews the system. I’m talking about the access to information system. The bill provides for a five-year review, starting after a one-year review by the Treasury Board president. This review would be tabled in both houses, and therefore, the committee would be able to study its findings.
There were concerns that this did not allow for a full review by both house committees. I disagree. Proposed amendments would have removed the minister’s review and ordered committees to do the reviews. I disagree with doing that as well. Why would we not want the minister to review it first in addition to the committees afterwards?
I do not agree with Senator Pratte’s amendment, which is contrary to other statutes that contain five-year review articles, like in the Bank Act.
It should also be noted that committees can instigate their own reviews anytime they want. I believe the provisions in this bill meet the needs.
Honourable senators, I’d like to now turn to the important proactive publication provisions of Bill C-58. This would create a new part of the Access to Information Act for proactive publication to put into practice the idea of government being open by default.
The proactive publication requirements would apply to about 265 departments, agencies and Crown corporations, as well as the Prime Minister’s Office, ministers’ offices, senators, members of Parliament, institutions that support Parliament and administrative institutions that support the courts. It would also enshrine in law the proactive publication of information of importance to Canadians, information that provides greater transparency and accountability in the use of public funds. Currently, there is no legislative requirement for any of this to be made public.
Proactive publication provides greater transparency and accountability in the use of public funds, such as travel and hospitality expenses; contracts over $10,000 and all contracts for MPs and senators; grants and contributions over $25,000; mandate letters and revised mandate letters; briefing packages for new ministers and deputy ministers; lists of briefing notes for ministers or deputy ministers; and briefing binders used for Question Period and parliamentary committee appearances.
Making such information automatically available to Canadians without someone having to make a request ensures that the government — and indeed, future governments — will be more open and transparent.
Honourable senators, in closing, allow me to once again thank the committee for its thoughtful and thorough review of the issues involved in improving Canada’s access to information system.
The changes I have spoken to today further enhance efforts to reform our Access to Information Act, a law that has not been significantly updated in over three decades. I believe that, thanks to the hard work of the committee and many other stakeholders, we have the opportunity today to move ahead with an access to information law that will meet Canadians’ needs for government information in the digital age.
I urge all of my colleagues to vote in favour of this transformative legislation. It is game-changing and a significant step forward for freedom of information in this country.
Thank you.
Honourable senators, I rise to speak at third reading 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. I would first like to thank Senator Joyal for presiding over the work of the committee throughout its study of Bill C-58. As deputy chair of the committee, I also want to acknowledge the efforts of my colleague and the other deputy chair, Senator Dupuis. I would be remiss if I did not acknowledge the full participation and active and sustained work of all senators who remained admirably composed before the very complex task at hand.
The testimony we heard as we studied Bill C-58 was extremely critical. Allow me to mention a few of the many comments we heard about how many parts and clauses of Bill C-58 are a complete failure from the standpoint of reforming access to information rights in Canada.
Stéphane Giroux, President of the Quebec Federation of Professional Journalists, appeared before us on behalf of his organization’s 1,800 members. The federation is the largest journalists’ association in Canada. In his testimony on Wednesday, October 31, 2018, he said:
In a word, this bill is very disappointing. The Quebec Federation of Professional Journalists recommends that the bill be rejected in its entirely, that the Treasury Board Secretariat do its homework again and come up with a new bill for Canadians, a bill that is better aligned with its commitments.
The federation’s brief is equally critical, stating:
The FPJQ is very disappointed with this weak bill . . .
The brief goes on to say that Bill C-58 “in no way reflects the spirit of the commitments,” or as I would call them, promises, “made by the Liberal Party of Canada and its leader, Justin Trudeau, Prime Minister of Canada.”
I remind senators that before we received Bill C-58 from the other place, the former Information Commissioner, Suzanne Legault, was just as critical in her comments on Bill C-58. On November 1, 2017, she said the following:
. . . if Bill C-58 is not amended in a significant manner, I would much prefer to keep the status quo.
The former Information Commissioner also said the following on September 28, 2017:
After studying the Bill, I have concluded that the proposed amendments to the Access to Information Act will not advance government transparency. The proposed Bill fails to deliver on the government’s promises. If passed, it would result in a regression of existing rights.
If the federal government truly wanted to modernize the access to information regime, this bill is clearly a failure, based on what we heard from witnesses.
Honourable senators, access to information is vital to the functioning of our democracy. Without access to information, the official opposition cannot carry out its role of holding the government to account. Without a proper access to information regime, the various departments and governmental agencies have no real accountability. Without access to information, journalists cannot do their job. Without access to information, Canadians are kept in the dark about the actions and decisions of the federal government in Ottawa. That is why some senators, including myself, tabled certain amendments in committee. All my amendments were rejected except for the one concerning the use of codes that would thwart the application of the Access to Information Act. However, I would like to come back to the two proposals I tabled in committee. At the end of my speech, I would like to table a motion containing an amendment that concerns proactive disclosure.
Under Bill C-58, some hospitality and travel expenses will be made public, but Canadians want more transparency. In 2015, the Liberals promised truly transparent government, so I’m giving the government a chance to prove it. The Liberals’ 2015 promise went much further. They promised that the prime minister’s and ministers’ offices would be subject to the Access to Information Act. This amendment amends the bill to make two things public. The first is employees’ severance pay. Take the case of Gerald Butts, Prime Minister Trudeau’s former principal secretary, who left his job amid the SNC-Lavalin affair and pocketed undisclosed severance pay in the process. We still don’t know if he received severance pay. If he did, we don’t know how much. Canadians have the right to know how much that cost them, because it’s their money.
The amendment would see that information published within 30 days of the end of the first month in which a PMO adviser, a member of the political staff, receives severance pay. Proactive publication would include the name of the person receiving the payment, the date as of which the person was no longer an adviser or member of the political staff, such as a chief of staff, and the amount received.
As part of the study of the bill, Stéphane Giroux, president of the Fédération professionnelle des journalistes du Québec, quoted the Right Honourable Beverley McLachlin when she said, and I quote:
The argument that access to information is essential to democracy is simply put.
Informed voting depends on informed debate. Parliament and the executive branch derive their power from the people, who exercise that power by voting for or against particular people at the ballot box. For the people to effectively participate and vote, they must know and understand what the government is doing.
In his testimony before the Standing Committee on Access to Information, Privacy and Ethics, on October 25, 2017, Nick Taylor-Vaisey, president of the Canadian Association of Journalists, stated the following, and I quote:
You’d be hard pressed to find a journalist who doesn’t celebrate increased proactive disclosure.
In the brief he submitted to the committee, Ken Rubin, an investigative researcher, indicated the following on page 5, and I quote:
Bill C-58 also does not seek to cover those receiving significant government funding costs (or public officials . . . . Nor does it want public officials expenses that include perks, some of a lifetime nature, fully disclosed, sometimes they are hidden behind remuneration ranges and aggregate anonymous figures.
That is why I think it is reasonable for those amounts to be published.
The second part of my amendment adds another type of information to the government’s proactive disclosure obligations. It would require the disclosure of any reimbursement of expenses related to relocation for a ministerial adviser or member of ministerial staff, including policy advisers, ministers, and chiefs of staff of ministers’ offices and the Prime Minister’s Office. The disclosure would therefore occur when the person leaves their job and receives a payment. The disclosure would be done electronically, with the following information being made public: the name of the ministerial adviser or member of staff, such as a chief of staff; the date of the payment; the amount reimbursed and the moving allowance; and lastly, the reason for the payment or reimbursement that serves as the severance pay, or relocation expenses in this case. The Liberals promised that the act would apply to the Prime Minister’s and ministers’ offices, and that is what this amendment does. To quote from the report of the Information Commissioner of Canada:
After studying the Bill, I have concluded that the proposed amendments to the Access to Information Act will not advance government transparency. The proposed Bill fails to deliver on the government’s promises. If passed, it would result in . . . .
In its 2017 recommendations to improve Bill C-58, the access to information commission stated, and I quote:
The government promised the bill would ensure the Act applies to the Prime Minister’s and Ministers’ Offices appropriately. It does not.
This amendment gives the government an opportunity to do the right thing and deliver on at least one small part of its promise to Canadians. Without an access to information regime, the official opposition and all the opposition parties have no way of ensuring that power is being wielded with care and with respect for minorities and dissenting views.
