ASSESSMENT OF THE SENATE AMENDMENTS TO BILL C-2 ADOPTED BY THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS INSOFAR AS THEY RELATE TO ACCESS TO INFORMATION (AS PRESENTED TO THE STANDING COMMITTEE ON ACCESS TO INFORMATION, PRIVACY AND ETHICS)

OTTAWA, ONTARIO

[2006-11-6]

(Speech delivered by Deputy Information Commissioner, Alan Leadbeater)

From the perspective of the Office of the Information Commissioner, the amendments to the Bill C-2 provisions on access to information, adopted by the Standing Senate Committee on Legal and Constitutional Affairs, are a mixed bag of positive, pro-openness and negative, pro-secrecy changes.

Positive Changes

On the positive side, the Senate Committee ensured that internal audit working papers less than 15 years old will be automatically secret only until the final audits to which they relate are complete, or until two years have elapsed from the date of the commencement of the audit, whichever is the earlier. In the House version, audit working papers were required to be kept secret for 15 years. [s. 150]

As well, the Senate Committee ensured that the audits of the Auditor General, including drafts and working papers, will only be automatically secret until the completion of the related audits. Indeed, the investigations of five Officers of Parliament (Auditor General, Commissioner of Official Languages, Information Commissioner, Privacy Commissioner and Commissioner of Lobbyists) will only be automatically secret, as a result of the Senate Committee amendments, until the related audits and investigations are complete. [s. 144] Under the version of C-2 as passed by the House of Commons, the investigative and audit records of the Auditor General and the Commissioner of Official Languages would have been secret forever.

Although the Senate Committee preserved the provision in the House version of C-2 which gave a class exemption (no injury test) to investigations conducted under the Canada Elections Act, it changed it from a mandatory class exemption to a discretionary class exemption. [s. 145]

The Senate Committee amendments would also reduce the scope of secrecy for records held by government institutions relating to investigations into complaints of wrongdoing in government. In the House version of C-2, secrecy of such records would be mandatory, forever; under the Senate Committee amendment, mandatory secrecy would only be justified if related investigations were ongoing or to the extent necessary to protect the identities of public service whistleblowers or those who provided information or cooperated with related investigations. [s. 221]

A similar scope for secrecy is given, under the Senate Committee amendments, to records held by the Public Sector Integrity Commissioner relating to investigations of allegations of wrongdoing. In this latter regard it is worth noting a troubling anomaly in the Senate Committee amendments relating to how requests for disclosure to the Public Sector Integrity Commissioner are handled under the Access to Information Act (ATIA) versus the Privacy Act. The Senate Committee amendments would authorize disclosure of information requested under the Privacy Act which would identify a whistleblower or a person who cooperated in an investigation, with their consent. Disclosure of such information would not be authorized, even with consent, under the ATIA. [s. 221 and 224]

Finally, on the positive side, the Senate Committee amendments would give heads of government institutions a discretion to disclose any information if the public interest in disclosure clearly outweighs in importance any loss, prejudice or harm that may result from the disclosure. [s. 150.1]

Negative Changes

However, in a disturbing and ironic twist, that same provision [s. 150.1] brings us to a discussion of the negative aspects of the Senate changes. In its proposal for a public interest override, the Senate has made it mandatory to refuse disclosure of “any information that relates to national security”. This is “disturbing” since the ATIA’s existing section15 exemption, relating to national security, is a discretionary, injury-test exemption – an exemption which has worked well to protect Canada’s security for 23 years.

The Senate Committee’s version of the public interest override may have the effect of creating a zone of secrecy of such breadth and depth (note the use of the phrase “information that relates to national security”) that there will be no accountability through transparency for the myriad of federal activities, departments and agencies involved in national security matters. No one, not in the House or Senate Committee or in any of the studies into access reform, has sought such a blanket of secrecy for national security; no one and no group has criticized or suggested changes to the existing section 15 exemption for national defence and security information.

Another negative, pro-secrecy change is the Senate Committee amendment to severely restrict the coverage of the ATIA insofar as 10 of the newly added institutions is concerned. The Senate Committee amendments provide that there will be no right of access to any existing information held by the newly added foundations or Officers of Parliament. In other words, for these new institutions, the right of access will be only in respect of records created after the coming into force of Bill C-2. [s. 159] No institution added to the ATIA has ever had this treatment; when the ATIA came into force in 1983, all records held by government were covered, no matter whether they were created before or after the coming into force of the Act. The Senate Committee justified its decision not to make accessible existing records, held by foundations and Officers of Parliament, as follows: “As a matter of principle, we believe that laws should have a retroactive application or effect only rarely and only because of compelling reasons.” (Senate Debates, Vol. 143, No. 41, p. 996). That reason is suspect, however, considering the Senate Committee proposes to give “retroactive”, as well as prospective, effect to the coverage of records held by the estimated 50 to 60 Crown Corporations and wholly owned subsidiaries made subject to the ATIA by Bill C-2.

The exemptions contained in the ATIA proved vibrant enough in 1983 to protect pre-existing information that merited protection, and would do so now. Why should Canadians be deprived of the right to find out what the newly added foundations have been doing since their creation?

Why would Officers of Parliament need such blanket protection for all previously-created records when Bill C-2 goes to such lengths to give them the specifically tailored exemptions necessary to protect any information that merits secrecy?

Also on the negative side, the Senate Committee removed the Canadian Wheat Board from the coverage of the ATIA and added a mandatory class exemption for the National Arts Centre. [s. 148] There is no rational justification for either of these pro-secrecy changes.

The National Arts Centre apparently convinced the Senate Committee that it needed a tailor-made blanket of secrecy to protect its confidential relations with donors. However, that argument simply fails in the face of the evidence. For example, the National Gallery has lived comfortably with the ATIA even though it is highly dependant on confidential relations with donors. The existing provisions of the ATIA enable the National Gallery to be accountable through transparency without compromising its ability to function. The same is true for the Canadian Cultural Property Export Review Board; it is able to protect confidential relations with its clients and applicants despite being subject to the ATIA. The NAC simply has no demonstrated need for more secrecy than these other cultural institutions.

The Canadian Wheat Board has a national mandate and significant impact on Canadians and the Canadian economy. Its importance is reflected by the fact that five members of its Board of Directors are appointed by the federal government. As well the federal government guarantees the Wheat Board’s payments to farmers and guarantees the Board’s borrowings, currently at some $6 billion.

Even the Board itself recognizes its obligation to be accountable through transparency – it has a voluntary information disclosure policy and a process by which individuals may make access requests. Its own “exemptions” are reflected in the ATIA. However, the Board’s disclosure policy is voluntary, discretionary, subject to no independent complaint mechanism and requires requesters to disclose to the Board the exact purpose for which the requested information is to be used. The public interest calls out for the Canadian Wheat Board to be accountable through transparency and it is clear that, being made subject to the ATIA, will not compromise the confidentiality of the types of information it must protect in order to effectively discharge its mandate.

Conclusion

The foregoing listing of positive and negative features of the Senate Committee amendments to Bill C-2 is not intended to be exhaustive. This review does not deal with the fact that additional zones of secrecy were added to the Canada Elections Act and given to the Canada Foundation for Sustainable Development of Technology, or that the duty to assist would be strengthened.

Nevertheless, the foregoing review, taken together with the content of the Information Commissioner’s Special Report to Parliament, tabled in April 2006, explains why the Office of the Information Commissioner remains of the view that, in their overall effect, the access to information provisions of Bill C-2 – whether it be the House version or the Senate Committee version – will not materially improve the accountability of government through transparency.