2016-2017 6. Advising Parliament

As an Agent of Parliament, the Commissioner provides advice to Parliament on important access-related matters and reports on the functioning of her office.

House of Commons committee studies the Access to Information Act

“Our Access to Information Act is clearly outdated and severely outranked nationally and internationally. It fails to strike the right balance between the public’s right to know and the government’s need to protect information….Now is the time to take bold action to ensure Canadians’ access rights are protected.”

–Information Commissioner Suzanne Legault, appearance before the ETHI Committee, May 19, 2016

The House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) commenced a study of the Access to Information Act on February 25, 2016. The Information Commissioner appeared twice during this study.

In her first appearance, she discussed her special report, Striking the Right Balance for Transparency: Recommendations to Modernize the Access to Information Act.^{Footnote 1}

In her second appearance, in light of the government’s proposal to move forward with reform in a two-stage process, she gave recommendations on priorities for the first phase based on their greatest impact on transparency.^{Footnote 2}

Priority recommendations during first phase reform

Coverage of the Act

Extend the scope of the Act to ministers’ offices and institutions that support Parliament and the courts.

Duty to document

Establish a comprehensive legal duty to document, with appropriate sanctions for non-compliance.

Timeliness

Address delays by implementing the series of recommendations found in Striking the Right Balance for Transparency, including:

limiting time extensions to what is strictly necessary based on a rigorous, logical and supportable calculation, up to a maximum of 60 days.

allowing longer extensions only with the permission of the Office of the Information Commissioner.

limiting delays stemming from consultations with other institutions, other jurisdictions and third parties.

Maximizing disclosure

Amend the exemption for advice and recommendations (section 21) to give effect to the government’s accountability and transparency agenda. This includes:

limiting the exemption’s application to protect only the interest at stake, so the exemption applies only where disclosure would result in injury.

limiting the scope and duration of this exemption.

Repeal the Cabinet confidences exclusion and replace it with a mandatory exemption that is limited to when disclosure would reveal the substance of deliberations of Cabinet.

Include in the Act a general public interest override.

Oversight

Strengthen oversight of the right of access by adopting a comprehensive order-making model.

Mandatory periodic review of the Act

Require parliamentary review of the Act in 2018, and every five years thereafter.

The Commissioner also provided the ETHI Committee with four written submissions during its study, addressing:

the use of criteria to determine coverage under the Act, specifically for entities that are funded in whole or in part by the government or that perform a public function;^{Footnote 3}
how her proposed oversight model would work in practice;^{Footnote 4}
her concerns with applying the oversight model currently in place in Newfoundland and Labrador to the Federal context;^{Footnote 5} and
her recommendations related to entities that receive grants, loans and contributions, and how special delegation investigations are conducted at the Office of the Information Commissioner.^{Footnote 6}

The ETHI Committee tabled its report, which contains 32 recommendations, on June 16, 2016. The majority of these recommendations closely align with the Commissioner’s, including a legal duty to document, order-making powers for the Information Commissioner, the ability of the Office of the Information Commissioner to review Cabinet confidences, and a stricter application of the exemption on advice and recommendations.^{Footnote 7}

The ETHI Committee requested a Government Response, which was tabled on October 17, 2016.^{Footnote 8}

Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians

“The work of the Committee will be a key pillar in regaining the trust and increasing the accountability framework of our national security agencies....At present, Bill C-22 does not strike the right balance between protecting the national security interest, and transparency and accountability. In its current form, the Committee will not be able to achieve its goal.”

–Information Commissioner Suzanne Legault, appearance before the SECU Committee, November 24, 2016

The Commissioner appeared before the House of Commons Standing Committee on Public Safety and National Security (SECU) as part of its study of Bill C-22 on November 24, 2016. This bill proposes to create a joint national security and intelligence committee of parliamentarians, mandated with overseeing national security and intelligence matters.

During her appearance, the Commissioner flagged serious concerns with the bill and provided solutions for the Committee (see “A review of Bill C-22”).^{Footnote 9}

The SECU Committee made substantial changes to Bill C-22 during its clause-by-clause study of the bill, some of which addressed the Commissioner’s concerns. However, many of those changes were undone in the House of Commons when amendments to revert the bill more closely back to its original version were passed.

Bill C-22 passed third reading in the House Commons on April 4, 2017 and is now before the Senate.

A review of Bill C-22
Concerns	Solutions
1. The ministerial override of the Committee’s review function The Committee’s broad mandate to review matters related to national security and intelligence is undercut by providing that the Minister of a department may override a review where the Minister determines it would be injurious to national security.	There should be no ministerial override of the Committee’s review function.
2. The Committee’s ability to obtain information There are exclusions to the Committee’s right to obtain information that undermine the review function. They also include no explicit consideration of the public’s interest in providing the Committee with this information.	Provide the Committee with robust access to records, with no limitations. In the event that limitations on the Committee’s access to information are determined to be necessary, add a public interest override.
3. The timeframes to provide information to the Committee Information is to be provided to the Committee “in a timely manner.” Language like this is vague and open to abuse.	There should be a precise number of days (30) to provide information to the Committee.
4. The private nature of the Committee’s meetings The threshold for when Committee meetings go in camera is unclear and could easily result in nearly all of these meetings being private.	State clearly that the Committee’s meetings will be public by default, and only go in camera where a clear threshold is met.
5. The limitations placed on other review bodies when collaborating with the Committee and The direction that review bodies of the RCMP, CSIS and CSEC cooperate with the Committee is weakened by a clause that prevents these review bodies from sharing information that a Minister decided to withhold from the Committee.	There should be no limitations placed on other review bodies when collaborating and sharing information with the Committee.
6. The final nature of decisions made by ministers. The Minister is the final decision making authority with respect to providing information to the Committee. This could lead to overly-broad interpretations of the law that favour non-disclosure to the Committee.	Decisions made by ministers should be reviewable by the Federal Court. If it is determined that some exclusions to the Committee’s access to information are necessary, any disputes about the application of exclusions should be subject to judicial review
7. Application of the Access to Information Act to the Secretariat Although Bill C-22 proposes to extend coverage of the Act to the Secretariat of the Committee, the Bill proposes to exempt from the right of access any record that contains information created or obtained by the Secretariat or on its behalf in the course of assisting the Committee in fulfilling its mandate. This mandatory exemption is overly broad and could result in the Secretariat having only the veneer of transparency.	The exemption under the Access to Information Act for the Secretariat should be discretionary and focused on protecting only the information that is subject to the review function of the Committee.

Main and supplementary estimates

The Commissioner also appeared before the ETHI Committee to discuss the Main^{Footnote 10} and Supplemental Estimates^{Footnote 11} for the Office of the Information Commissioner of Canada for 2016–2017. The appearances occurred on May 10 and November 24, 2016, respectively.