Remarks by the Information Commissioner of Canada

Senate Standing Committee on Legal and Constitutional Affairs

Bill C-58

An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

Wednesday, October 17, 2018

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Introduction

Honourable Senators,

Thank you for the opportunity to appear before you today during your study of Bill C-58.

I am joined by two officials from my office: Allison Knight, Senior Director of Investigations, and Jacqueline Strandberg, Manager of Policy and Parliamentary Affairs.

Let me start by saying that I am pleased that the government is taking concrete steps to modernize the Access to Information Act. While we may have different opinions as to what this modernisation should look like, we should all agree that 35 years is too long to wait for a legislative update and recognize that the Act has failed to keep pace with the times. The Access to Information Act is not reflective of our reality in 2018, which is the world of digital government. 

I see Bill C-58 as the start of a continuous process to update the Access to Information Act, not the end. The version of the Bill we have before us today is already an important improvement on the version of the Bill that was initially tabled in the House of Commons and that some, including the former Information Commissioner, appropriately characterized as regressive.

14 amendments that were recommended by stakeholders were made by the House of Commons. An amendment that will allow my office to publish orders, and another that requires institutions to seek written approval from the Information Commissioner before declining an access request, are particularly welcome improvements. 

In my view, however, further amendments are still required for Bill C-58 to represent a marked improvement from the status quo. My remarks will focus on these amendments today.

Recommendations to improve the Bill

I understand my office has already provided to this Committee a copy of a letter I wrote to the President of the Treasury Board with specific recommendations to improve this Bill, as well as a joint letter myself and the Privacy Commissioner wrote to the President of the Treasury Board.

In these letters, you will find detailed descriptions of my four proposals to improve this Bill. I hope you will consider these same proposals today.

First, I recommend that the three additional mandatory requirements being added to section 6 of the Act that requesters must fulfill when making an access to information request should be removed. Indigenous groups and access advocates have echoed this recommendation and it is supported by the President of the Treasury Board.

In my view, these new mandatory requirements create unnecessary barriers to the right of access and could potentially prevent requests from being made.

They assume requesters have a professional understanding of the inner workings of government or at least prior knowledge to the record being sought. This is not always the case for many requesters.

The end result of implementing these requirements would be new limits on the right of access and a decrease in transparency.

Second, I recommend that the one year transition period for the Information Commissioner’s new oversight powers found in the Bill should be removed. This would mean that all complaints made after Bill C-58 receives Royal Assent would be subject to the new oversight model. Failure to implement this recommendation would create a scenario where my office must administer concurrent investigation systems, which I anticipate would result in unnecessary costs, complications and potential delays. The President of the Treasury Board has also supported this recommendation.

Third, I recommend that certain provisions involving the Privacy Commissioner in access investigations should be amended to appropriately balance Canadians' rights to both privacy and timely access. The Privacy Commissioner and I jointly crafted this recommendation and we both agree it will not result in an administrative burden on either of our offices. The President of the Treasury Board has also supported this recommendation.

My final recommendation is that any order of the Information Commissioner can be certified as an order of the Federal Court.

Bill C-58 includes no mechanism for orders of the Information Commissioner to be certified as orders of the Federal Court. This means that, apart from a mandamus application, where I would ask the Federal Court to order a government institution to take a positive action, there is no recourse available in Bill C-58 to address situations where an institution simply decides not to comply with an order issued by me.

A mandamus proceeding is not a rubber stamping exercise, but involves a hearing and decision being rendered by the Court.

In my view, a provision in the Act to certify orders of the Information Commissioner is the simplest, most efficient legislative mechanism to ensure orders are binding and would give assurances to myself and requesters that the Commissioner’s orders will be taken seriously.

Conclusion

As the Information Commissioner, it is my responsibility to ensure the appropriate application of the Access to Information Act. With these four key amendments I have recommended to you today, I believe that Bill C-58 will give me better tools and authority to ensure the right of access is respected and that government institutions are complying with the Act.

However, on its own, this Bill cannot address the delays that are endemic across the access system. Adequate funding, additional resources, better processes, training and technology are necessary so that the obligation of timely access can be met.

Also, if the Government of Canada wants to reassert its leadership as an open and transparent government that is a model for all democratic nations, the Access to Information Act will need further amendments.

On that note, one of the most important elements of Bill C-58 in my view is that it mandates a review of the Act within one year after Royal Assent, and subsequent reviews five years thereafter. These periodic reviews will provide stakeholders with the opportunity to take closer looks at the Act and make further recommendations to improve the many other areas of the Act that are left untouched by Bill C-58 but are greatly in need of updating. 

For example, one would expect that during the next review, the government will take a serious look at the exemptions and exclusions in the Act with a renewed focus on increasing transparency, as well as the need to legislate the duty to document.

In closing, I would like to thank the members of this committee for the opportunity to present my views on Bill C-58. I will be pleased to answer any questions you might have.

Thank you.