OPENING STATEMENT FOR THE LEGAL AND CONSTITUTIONAL AFFAIRS COMMITTEE

OTTAWA, ONTARIO

[2006-9-20]

Mr. Chairman, committee members, I appreciate the opportunity to assist you in your deliberations on Bill C-2. My evidence relates to the provisions of the Federal Accountability Act which amend the Access to Information Act.

As some of you may know, on April 28, 2006, I tabled in Parliament a Special Report containing my concerns about the government’s access to information reform action plan – one aspect of which are provisions of Bill C-2. The Special Report, which has been distributed to you, sets out my positions and, hence, these opening remarks will be brief.

My concern is that Bill C-2 proposes to add 10 new exemptions and two new exclusions to the Access to Information Act, almost doubling the number of secrecy provisions which are now in the Access to Information Act.

I am concerned that the reason for including two new exclusions is to prevent independent review of secrecy decisions made by the CBC and AECL. Whatever be the legitimate needs for secrecy these institutions have – and I certainly agree that there are legitimate secrecy needs – there is no justification for impeding independent oversight of them by the Information Commissioner and the Federal Court.

I am concerned that none of the 10 new exemptions from the right of access require a showing, on a case-by-case basis, that disclosure could reasonably be expected to give rise to some injury, harm or prejudice. The very purpose of the Access to Information Act is to impose a burden of justification on those who wish to assert secrecy. Only three of the 10 new exemptions are time limited. For draft internal audit reports and audit working papers, secrecy may be asserted for 15 years. Draft audit reports become accessible after final audit reports are published. Working papers however, remain secret for 15 years. With respect to the Information Commissioner, Privacy Commissioner and Commissioner of lobbying, secrecy must be asserted until their investigations are complete. And only two of the new exemptions are discretionary in nature. All the others make secrecy mandatory, regardless of circumstances, regardless of how old the information is and regardless of whether there may be a compelling public interest in disclosure.

This approach to amending the Access to Information Act, and to adding new institutions to its coverage, is contrary to the stated purposes of the Act and will not serve the overall goal of improved accountability through transparency. In this latter regard, the blanket of secrecy forever which Bill C-2 throws over audit working papers, records about wrongdoing in government, and the audit and investigative files of the Auditor General and the Commissioner of Official Languages, is particularly regressive.

In a nutshell, my suggested amendments to fix the problems I have identified with Bill C-2, are as follows:

Remove the broad exemptions contained in sections 89, 145, 147, 148, 150, 172, 179, 183 and portions of 221 and 224. The other exemptions in the Access to Information Act fully protect the sensitive information to which these provisions are directed.

Remove section 159 (exclusion for CBC and AECL). The exemptions contained in the Access to Information Act provide the necessary protection for the sensitive information held by AECL and the programming and journalistic records of the CBC can be protected by the carefully worded exemption which I have proposed (see attachment “A”) and which was endorsed by Justice Gomery.

I note too, that there are a great many needed reforms to the Access to Information Act which have not found their way into Bill C-2. We need to require the creation of records, make cabinet confidences an exemption rather than an exclusion, clarify that records held in ministers’ offices are subject to the right of access, establish criteria for adding new institutions to the Act’s coverage and provide a public interest override. The government has chosen to have these, and the other reforms proposed in the draft Open Government Act, dealt with by the Standing Committee of the House of Commons on Access to Information, Privacy and Ethics. I look forward to working with it on the broader canvas of access reform.

I, and my colleagues are available to answer your questions.