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.
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