Good morning, ladies and gentlemen.
This is the Legislative Committee on Bill C-2, meeting 10. The orders of the day are pursuant to the order of reference of Thursday, April 27, 2006: Bill C-2, an act providing for the conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.
Our witnesses today are representatives of the Office of the Information Commissioner of Canada. We have with us the Information Commissioner, John M. Reid; the deputy information commissioner, J. Alan Leadbeater; the director general, investigations and reviews, J. G. D. Dupuis; and the director of legal services, Daniel Brunet.
Good morning, gentlemen.
Commissioner, we've seen you many times. You know what we do. If you could give us some preliminary comments, I know the members of the committee will have some questions for you.
Thank you for coming.
Thank you, Mr. Chairman.
I want to thank the members of the committee for the opportunity to assist you in your deliberations on Bill C-2.
I'm going to talk about the provisions of the Federal Accountability Act that amend the Access to Information Act.
As some of you know, on April 28 I tabled a special report in Parliament containing my concerns about the government's access to information reform plan. One aspect is the provisions of Bill C-2; the other two elements of the government's access action plan are a discussion paper on reform of the Access to Information Act and the proposed open government act, which my office tabled with the Standing Committee on Access to Information, Privacy and Ethics.
A special report, which has been distributed to you, sets out my position. Hence, these remarks will be brief.
Since the tabling of Bill C-2, Minister Baird has heard my concerns. I am grateful to him and the government for accepting my criticism of Bill C-2 in the non-partisan spirit in which it was given. My concern is that Bill C-2 proposes to add ten new exemptions and two new exclusions to the Access to Information Act, almost doubling the number of secrecy provisions that are now in the act.
I am concerned that the reasons for including two new exclusions are to prevent independent review of secrecy decisions made by CBC and AECL. Whatever the legitimate needs for secrecy that these institutions have--and I certainly agree there are legitimate secrecy requirements--there is no justification for impeding independent oversight of them by the Information Commission and the Federal Court.
I am concerned that none of the ten new exemptions to the right of access require a showing on a clause-by-clause 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 one of the ten new exemptions for internal audit reports is time-limited; secrecy may be asserted for 15 years. 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.
The 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 in my judgment will not serve the overall goal of improved accountability through transparency. In this latter regard, the blanket of secrecy that Bill C-2 throws over draft audit reports and records about wrongdoing in government is particularly regressive.
In my letter to this committee dated May 9, 2006, I offered my suggested amendments to fix the problems I have identified with Bill C-2. If you take a look at the package you received, you will find copies in English and French of the letters I sent to the chairman. If you want to look at them, I'll just run very quickly through the suggested amendments.
The first would be to remove the broad exemptions contained in sections 89, 147, 149, 150, 152, 172, 183, 189, and parts of 222 and 225. The relevant amendments are drawn from the open government act, and they suffice to protect the sensitive information to which these provisions are directed.
The second is to remove section 161, the exclusions for CBC and AECL. The provisions, drawn from the open government act, provide the necessary protection for the sensitive information to which this proposed exclusion is directed.
I note there are a great many needed reforms to the Access to Information Act that have not found a way into Bill C-2. We need to require the creation of records, make cabinet confidence 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 on Access to Information, Privacy and Ethics. I look forward to working with this committee on the broader canvas of access reform.
Mr. Chairman, I and my colleagues are available to answer any questions that members of the committee may have.
Thank you, Mr. Chairman.
Thank you, Mr. Reid. Thank you for your presentation, and thanks for the material that we received in advance of the hearing. It was very helpful.
I'm a little confused here. On page 4 of your presentation, your comments are very clear that you are “concerned that none of the 10 new exemptions from the right of access require a showing, on a case-by-case basis,” that harm or prejudice could result, and that many of them are mandatory, or all of the others, except for the two you mention, regardless of the circumstance. Only one is time-limited. To me it seems very clear that you have concerns and that you are in fact suggesting--with some expertise, I might say, humbly, for you--that these are not good amendments.
I am confused, because I sat in the House numerous times when the president of the Treasury Board said that you said that this is the most radical or expansive act--I won't quote him--that you have ever seen. That you are very pleased with it would be the inference I drew on our side.
I can't reconcile those two comments.
But I might turn to pages 13, 14, and 15 of this little brief--
Perhaps I could answer that, because it is interesting.
When I did see the President of the Treasury Board, at that point I took a copy of the open government act and said to him, “Minister, if you take this act and include it in your Federal Accountability Act, all your problems are solved on that, because that solves it all.” When I made the statement about the radical reform, I was referring to the fact that the government, in its platform, had suggested giving the Information Commissioner order powers, something that I had not asked for and that, as the chairman understands, I have argued against very often in the committee. I thought that was the radical departure.
I assumed, based on what I had heard, that the Access to Information Act provisions that I had given the minister were going to show up in the Federal Accountability Act. They did not.
That seems unusual, to me.
With respect to pages 13 to 15, this document outlines the ten new exemptions. Presuming, from my point of view, that it's a bit of a hit-and-miss situation, are there, of the ten, any that you clearly think should be exempt from exemption, if you like, or exempt from exclusion? Are there ones not there that you think should be included?
In the amendments that we have filed with the chair, I have provided the necessary exemptions for the information that has to be kept secret. We have set it up in such a way that each exemption fits under the 13 exemptions that are there. You'll find that there are amendments to those sections to provide clarity to ensure that the information that has to be kept secret is kept secret. For example, you'll find a specific amendment that deals with CBC journalism and programs.
The other thing to remember is that in terms of the crown corporations that are coming in under the act, all of them are not unique in terms of what has to be protected. There are analogies throughout the systems. For example, if you were worried about marketing plans or anything like that, you would look at the fact that the Bank of Canada is there, you'd look to see that the finance department is there, and you would look to see that the Mint is there.
All the exemptions these people have for the top-secret information that they have is well protected under the act. But when there is a conflict, the act allows for a proper investigation to take place under the aegis of the Information Commissioner. These amendments provide an absolutely closed door that is very difficult for us to go through because in many cases there's no way for the information to come out.
We want to see a system that brings in these crown corporations in the same way that all of the other crown corporations and government departments are in.
Mr. Chairman, draft audits, audit papers, and what not have been protected under the act for the last 23 years. They've never come out unless there has been a reason for them to come out, so there's nothing new in this.
We also have no problem in saying that the documentation and material on any investigation should be kept secret at least until the investigation is over. That makes eminent good sense, and we agree.
There are occasions, however, when it is necessary to be able to go back and trace what actually happened. There should therefore be a requirement for an injury test to demonstrate that great harm would happen if this information in fact came out beforehand. This has been the pattern that is followed in all of these other cases. For example, it is followed in the RCMP and CSIS. All the national security agencies of Canada come under the act.
In this act, we're actually going to try to give audit reports greater protection than we do for secrets all over the government. We simply think they should be treated in the same way. There should be an injury test and, if it's necessary, we should be able to move the material out when it's required.
I'm not alone on this. The integrity commissioner has also come to the same conclusion. It makes eminent good sense to be able to have this information available when required. An injury test provides protection to everybody concerned.
Mr. Reid, good morning and welcome. Thank you for your presentation.
I read with interest your opening statement as well as the special report you supplied to us. I would like to read a few excepts of the special report you tabled at the end of April. If afterwards, you wish to intervene to explain how Bill C-2 might be improved in order to correct this perception, then please interrupt me.
On page 10 of your special report, you state the following, and I quote:
||What the government now proposes--if accepted--will reduce the amount of information available to the public, weaken the oversight role of the Information Commissioner and increase government's ability to cover-up wrongdoing, shield itself from embarrassment and control the flow of information to Canadians.
For a bill that aims at ensuring transparency, this to my mind is quite a damning comment. Would you like to add anything, or is it clear enough?
I am in agreement with you.
Further on in your report, you state:
||The current government's proposals are every bit as much “a bureaucrat's dream“ as were those of the Chrétien government.
You then add:
||There is no more eloquent testimonial to the power of the forces of secrecy in government that the radical change they have wrought, in a few short weeks, to the Prime Minister's election promises for access reform. In his role of Leader of the Opposition, Steven Harper ridiculed the Martin government's decision to release a discussion paper, rather than to introduce a bill to reform the Access to Information Act.
In conclusion, you state:
||Also, the government proposes to keep secret forever all records relating to investigations of wrongdoing in government.
In your opinion, Bill C-2, which purports to be a bill on transparency and accountability, will deliver the completely opposite result if it is passed as it is presently drafted.
Mr. Chairman, the heart of any kind of system of accountability is openness and transparency, and that is gained through the Access to Information Act. Where the materials are not available, it means there is confusion, there is no transparency, and there is little openness.
So I am concerned about the way in which this legislation is presented. It means that those people coming into the act, the crown corporations and some other changes, what they do is prevent information from coming out. If we are not to get more information from these organizations than we can now get by looking at their websites and their financial statements and what not, why then bring them into the act? It makes no sense to force them into the Access to Information Act if in fact the result will be that no flow of information comes out that's not already available.
I also am concerned about the sections dealing with parliamentary officers, particularly my office. When I became Information Commissioner, I discovered to my surprise that we were not subject to our own act. Furthermore, I've discovered to my surprise that we are not subject to the Privacy Act either. What was done in the office before my coming was that previous commissioners had automatically set up a system where we obeyed the strictures of the Access to Information Act as well as the Privacy Act.
I feel that parliamentary officers, your agents, should be the most open and transparent organizations in the Government of Canada. I think we should lead the way in providing that kind of openness and transparency, not only to members of Parliament, but also to the general public.
These provisions, as they are drafted, do not allow that to happen.
Welcome, Mr. Reid.
Mr. Reid, I think you said in one of your articles that it's hard to overstate what a central place freedom of information plays in our democracy, that the public has a right to know what the government is doing with their money, and that this idea is central to everything we stand for.
The Conservatives, during the election, promised to lift this curtain of secrecy in Ottawa. We all welcomed that and looked forward to that opportunity, so I, for one, share the frustration that came through in the language you used in the report you gave recently. We were all crestfallen. Any parliamentary veteran knows that shipping draft proposals to a parliamentary committee is not a way to speedily move forward an issue or get something passed into law. In fact, it's the polar opposite. It's death by committee.
Even though we're crestfallen and disappointed that Bill C-2 won't have meaningful access-to-information amendments, you've put forward a road map for us to at least make sure that Bill C-2 does no harm, and that while we're busy at the ethics committee trying to craft new access-to-information legislation, at least we won't be going backwards; there'll be nothing retrograde about Bill C-2.
First of all, I can say these are very modest ideas. There's certainly nothing radical that I see in the eight recommendations you've made. I am surprised, though, that you didn't advance at least one new idea into Bill C-2 in relation to your frequent comments on the lack of documentation and on the obligation to record what goes on so that the information will be available to subsequent researchers.
Can you say why you chose not to add that into your list of eight recommendations, and speak to how we may add it and still be in order for Bill C-2?
I do find this very useful. I do want to compliment you, Mr. Reid, and your office, for putting together the open government act at the request of the ethics committee in the last Parliament. This is the road map to move forward. I don't mind saying publicly that I wish we had this at this committee, to be able to implement into Bill C-2.
I do understand the limitations, although as a legislative committee we haven't tested how far we can go with amendments and still be in order. I'll be interested to see if they will allow that kind of substance.
As well, Mr. Reid, you are aware that the ethics committee in the last Parliament issued a seventh report just at the end of the Parliament. It called upon government to craft legislation based on the open government act. It seems that every time we get close to meaningful access-to-information reform--just when it's within our grasp--it slips away again for another decade or so. The enemies of true freedom of information seem ever-vigilant and on guard, and as we get close to breaking down these barriers, they rally once again. It seems that they got to this government in the same way that they got to the last government, just as we're about to make a significant breakthrough.
Do you have any comments on that?
Thank you for being here.
I want to discuss some of these so-called “new exemptions” you say are created by the Accountability Act. You said ten new exemptions or exclusions concern you. It's wrong. I'd like to go through the ones you've listed.
Let's start with section 183, Privacy Act, relating to the Privacy Commissioner.
Right now, none of the information exempted in the Accountability Act is accessible under the status quo--none of it. You would not be able to access this information if you filed an ATI today, prior to the passage of Bill C-2. There is no new exemption. There is an expansion with respect to the Privacy Commissioner. We have an exemption here; you speak out in section 222, the Public Service Integrity Commission. That is not a new exemption. The Public Service Integrity Commissioner is not required, under the status quo, to respond to any ATI. We have here another exemption, section 225. That relates also to the Privacy Commissioner. Right now, the Privacy Commissioner is not subject to the act, so it's not a new exemption. We're expanding access to information for that officer of Parliament.
We go down to section 147. This is an exemption relating to the Canada Elections Act. Again, those are exemptions created as a result of an expansion of access to information. An exemption for the National Arts Centre is not a new exemption, because the NAC is not covered under the existing act. There is no current access. A number of them--I've just listed six--are not new exemptions. They're the result of the fact we've actually expanded ATI. Prior to this government's introduction of the Accountability Act, these organizations had no responsibility to reply to access to information requests. Now they have some. You're saying we have not gone far enough, but it's not fair to say we've gone backwards, because the existing exemptions are merely exemptions from new access provisions we've created.
It is wrong to say we are moving backwards away from ATI. You might argue we've not gone far enough, and you probably have some persuasive arguments to convince us we should go further, but to argue we are going backwards on those particular organizations is incorrect.
I'd invite your comments.
I understand that Commissioner Reid might have some very intelligent arguments as to why those exemptions should not be there. What I'm merely pointing out here is that we are not restricting access that was previously available. If we're giving 70% access to information to CBC, that's 70% more than we had under the status quo. There was no access to information for CBC whatsoever prior to Bill C-2. There was no access to information available for the National Arts Centre under the status quo, period. There was no access to information available for the Privacy Commissioner or the officers of Parliament. You might say there should be no exemptions for those organizations, but in fact prior to Bill C-2 there was no ATI ability whatsoever.
I just don't understand your comments that we've gone away from ATI, when in fact we've made major steps forward to expanding and broadening access.
On the other areas that are in fact new exemptions, because some of them are, let's review them.
First of all, on clause 152, discretionary exemptions for internal audit working papers, you made some intelligent arguments as to why you don't believe they should be in there. But, respectfully, these are exemptions that the Auditor General asked for. These aren't efforts by the government to undermine the transparency of government. It's merely a response to another agent of Parliament.
Clauses 172 to 179 are exemptions for Export Development Canada on information related to customers. How could an organization like that operate if you're going to tell customers that deal with the organization their information could become public under ATI?
I'd like to speak first to the issue of audit reports. For 23 years internal audit reports have been subject to the right of access and to an injury test. Internal audit reports are not released unless and until final audits are completed so they can be put in context. They are also subject to all the other exemptions to protect personal information, commercial secrets, national security, and so forth.
The Auditor General and others went before Justice Gomery, who, remember, had the longest public inquiry in Canadian history into part of its mandate, the Access to Information Act. They said that they needed more secrecy with respect to audit reports. Justice Gomery, looking at what happened in sponsorship, said what you need is the way the government has decided to approach this, which is more external members on audit committees, more involvement of the Comptroller General, and so forth. There was no recommendation by Justice Gomery for increased secrecy for draft audit reports or working papers.
There has never been—and I don't think the Auditor General has ever brought forward—one case where audit working papers or draft audit reports have been released before the final audit was out. Once the final audit is out, they can be put in context and the public can ask, why was that changed from the initial draft; who asked for that to be changed--the precise questions that Justice Gomery was asking about why those early audit reports got changed in the sponsorship inquiry.
The theory behind this act is that secrecy should be hard. You should have a burden of justification. Every one of the new exemptions that have been included in this bill say secrecy should be easy--blankets forever, with no injury test.
Welcome, Mr. Reid, Mr. Leadbeater, and colleagues.
As Mr. Martin alluded to earlier, we seem to have been banging at this door for a long time in this country, and I thought all of us had come to the conclusion that it was really time to move forward. We've had over 25 years of experience with this legislation, with this concept; we've learned some things, and it's time to move on.
If I can just state where I think we were--and Mr. Leadbeater and I were discussing this twenty years ago, it seems--public information should be public. That's the principle.
There are going to be some exceptions, but they should be limited, focused, related to injury, and subject even then to a public interest override, and the decisions of the bureaucracy, the administration, should be reviewable by an independent office. That's the principle.
And the last one, I think, is that a parliamentary officer should not have order powers, because a parliamentary officer is an agent of the members of Parliament. It's Parliament that can make its own decisions. It has full powers. It can even put people in jail if it likes. But that's the general principle.
The practical experience we've had is that the original notion that this would simply, initially, have the public bureaucracy make everything open, without having to go through our commissioner, except for a few trigger points that would give pause to consider, has been frustrated by--without putting fault on any individual or even any conspiracy of individuals--bureaucracy being large and slow, and there are political issues and fears. So it just slows it down and it hasn't worked the way it was meant to.
So over the years, and as recently as just over a year ago, your office was asked to make some specific recommendations, based on the history of the office, as to how to improve this, how to break the logjams, how to open things up, how to reach Mr. Leadbeater's transparency. You did that. You created the open government act. You brought it forward as an example to the ethics and information and privacy committee. It endorsed it. The Conservative Party put it in black and white in its election platform, as it spoke about it being a key part of the Accountability Act, which would be the first legislation the government brought forward if it was elected. It was elected, it brought forward an accountability act, and it didn't have the open government act in it. That's what I think we're going to have some real discussion on when we talk about amendments and how to improve the Accountability Act, which we think has many positive things to it.
But I must take just slight issue, respectfully, with Mr. Poilievre, with respect to this actually giving more powers. The issue isn't that more authorities are brought into the ambit of the act. It's the type of exemption that's created that causes the problem, rather than the number of further authorities, and it's this principle of forever, without an injury test, without potential for a public interest override and without a review by the independent--remember, independent of government, not independent of Parliament--parliamentary officer, on behalf of all members of Parliament, having a confidential look to ensure that there is injury and there isn't some overriding public interest.
That's the beauty and the magic of the act that should operate, as one of Commissioner Reid's predecessors said, “as a Maytag repairman”. Once everybody got into the swing of it, it would just happen naturally. And in fact, having greater access, getting into the habit of making information readily available, and organizing it in a record system so it could do that would make government decisions much better, because government would act with itself on full information because it would be in the practice and habit of organizing it in a proper way.
So, Commissioner Reid, I would just put to you that I think what you've done is given us recommendations that could de-fang or disarm the bill as it is now with respect to access to information, but if I take your comments--and certainly I look at the history of the last year--I take it that your main recommendation would be to incorporate the open government act into the Accountability Act.
Mr. Reid, yesterday, we met with aboriginal witnesses who wanted to share with us their wishes regarding Bill C-2. They are asking to be completely excluded from the definitions contained in Bill C-2. Thus, even the Access to Information Act would short-circuit and remove federal authority with regard to verifying accountability with regard to monies granted to aboriginal groups. They are asking to be completely excluded.
According to the amendment to clause 146 of the bill, or proposed section 16.1, contained in your document, there is no obligation to make such a mention there, in other words that the aboriginal groups have placed themselves within the definition so as to ensure that they will not be listed under the exclusions.
Are you in agreement that all aboriginal tribes, be they in a territory or in a province, be excluded from Bill C-2?
The existing law works in this way. Requests for documents that are under the control and in the hands of a government department are subject to the act. That includes an enormous amount of material, including a lot of material on aboriginals. If they are in the control of the government department, they are subject to the act.
Indian and Northern Affairs Canada is subject to the act, so all the documentation that it produces and generates is subject to the act. What is not subject to the act, however, are the documents that are generated by the first nations themselves, which are properly under their own control. They are subject to a mandatory exemption. So if a document comes up that is in the hands of a band council, it is not subject to the Access to Information Act. It is excluded, so we do not see it, and we cannot see it. However, if there are representations that the band council or an Indian group has made to the Government of Canada, and it is properly within the control of the Government of Canada in some way, then that does become subject to the act, just as all other information does.
From the point of view of the Access to Information Act, aboriginals already have the status of being outside the act.
Mr. Chairman, I don't think the CBC journalists would have any problems with the Information Commissioner examining it under the proposals I've made as to whether there's a harm test. After all, we do this with the most sensitive national security material. We deal with all of the CSIS and the RCMP material--all the sensitive national security material.
So I think it's clear from the proposal I've made that indeed the integrity and independence of the CBC news-gathering and programming activities should receive protection. I don't believe, however, that decisions by the CBC to refuse disclosure, as proposed in Bill C-2, should escape independent review or the rigours of an injury test. My position in this case was endorsed by Judge Gomery, and I think it's a very sensible approach.
I do not believe there should be any mandatory exemption from review by the Information Commissioner as set out in the opening part of the act. The Information Commissioner is given that duty to examine all the most sensitive information in the Government of Canada. I don't think this is a difficult duty for us.
You know, we'd really like to urge the members of the committee, and especially the government members, to realize that new institutions that come under this act are scared, and they're worried. I can remember 23 years ago when the police and the security services wanted exemptions and exclusions. They wanted to be out of this because it was new. Three years later, Parliament conducted a review of this act and the police never showed up. The police agreed that they could meet injury tests. If the information is that sensitive, it's very easy to meet an injury test. If it's so sensitive that it needs an exclusion, surely to God it can meet an injury test.
The most sensitive information that the Government of Canada holds, which is the information of the military, national security, counter-subversion, and counter-terrorism, is all subject to section 15 of the act. This is a discretionary injury test exemption; it is not a mandatory class test exemption. We have had study after study after study, and it has never been recommended that section 15 be made into a mandatory class exemption.
This bill says that the Information Commissioner, for example, has a mandatory obligation to maintain the secrecy, forever, of his investigative records, and the same goes for all other officers of Parliament. No investigative body currently covered by the act has that right. I can tell you, if this passes, CSIS, the RCMP, the military, police, and the immigation investigators will all be in tomorrow, and they'll all be saying if the Information Commissioner needs that much secrecy, boy, we really need it too. So be careful.
I have a couple of questions. We've had a number of people who have come to the committee and think they have the perfect solution for access and transparency and more accountability in government. Many of them have said they like everything we're doing. We've had many who have said they like everything we're doing, except that they'd like to be excluded from it.
We understand that you have some proposals; you put them forward. In my view, this Accountability Act is going to open up government and make government more accountable.
There are some things that are in your proposals, such as access to the sources of journalists at the CBC, and we've discussed this. But there is a concern that I have. Someone who has been cleared of all charges because the charges were proven to be malicious or without validity would be subject to access to information. Many people feel that goes too far, that someone who has been wrongfully accused and has been completely cleared should not possibly have their name put out in public. I'd like your comments on that.
Mr. Reid, you're on record as saying the following: “in one way or another, all the checks and balances designed to limit abuses of government power are dependent upon there being access by outsiders to governments’ insider information”, and you go on to say, “a government, and a public service, which holds tight to a culture of secrecy is a government and public service ripe for abuse”. I got that from a speech you gave somewhere, Mr. Reid. I couldn't agree with you more in the way you've stated that. I honestly think people don't realize what a powerful tool and a powerful gift they have in our “right to know” policies in this country. If they knew they would fight for them more aggressively, I honestly believe.
I heard one person say, imagine if we had 30 million auditors instead of just one overworked Auditor General. The amount of waste and corruption.... I'm not implying that there's that much corruption, but imagine how much better government would be. As Oliver Wendell Holmes said, you can't legislate morality, but I think this bill and the recommendations you've made are making the argument that by allowing public scrutiny and by shining the light of day on the operations of government, we can encourage certain types of behaviour and discourage the stuff that we're trying to avoid. In the few minutes I have, I have to say it's a shameful lost opportunity that we're not dealing with meaningful access to information reform in the context of Bill C-2.
Actually, in the House of Commons I told the President of the Treasury Board that I would gladly trade him all this other stuff in Bill C-2 if he would give us the access to information reform that was promised to us in the election campaign, and I would make that offer today too, even though I think the lobbyist stuff is important and the appointments process is important--although due to a snit, the Prime Minister seems to have chucked that portion. Everything else pales in comparison to meaningful access to information reform--the public's right to know. There are very few government insiders that are really fans of the public's right to know, and I think this government and the last government, notwithstanding what Mr. Owen had to say, underestimated the push back from powerful Ottawa mandarins, from the PCO, and from I don't know who. The enemies of the right to know are legion, and they're well armed and they're well connected, because every time we get close, they undermine, and they thwart what we're going to do. Even direct promises from prime ministers are undermined by somebody who seemingly.... Those people who have a vested interest in operating in secrecy seem to win every single time.
I probably don't have any time left, but perhaps you'd care to comment, Mr. Reid. I should give some time to our witnesses to speak.
Let me ask you about another of the suggestions you have with respect to whistle-blowers. You are suggesting that all information with respect to whistle-blowers be subject to ATI.
I'd like to get your comments on why you disagree with one of the exemptions we have. If an investigation into a frivolous or spurious charge laid under the whistle-blowers portion of the act concluded there was absolutely no substance, no basis of truth, to the allegation, we are suggesting that the allegations and the name of the innocent individual involved in this.... In other words, if an allegation had been made against an individual that he or she had done something wrong, and an investigation concluded that there was absolutely no wrongdoing, we are contending--since it was a frivolous allegation to begin with, or at least a baseless allegation--that the the allegation and the name of the whistle-blower should not be made public.
You are contending that all those allegations--no matter how frivolous, no matter how baseless--should be released. Is that correct? Am I accurately reflecting your position?
We've circulated to you a paper comparing the proposals over time in dealing with clause 55 of Bill C-11, and clause 222 on section 55. You have that sheet in front of you. From that point of view, you'll notice that in clause 55 in Bill C-11--the original one--it authorized secrecy for five years. It was discretionary, not mandatory. It used the word “may”. It was focused on protecting the identities of whistle-blowers and those cooperating in investigations. That was the original proposal.
On the other hand, clause 222 of Bill C-2 authorizes secrecy forever. In other words, it never comes out and it's mandatory, not discretionary. It does not focus on identities. It authorizes secrecy for information created for the purpose of making a disclosure and information created in the course of an investigation into a disclosure.
I'm in agreement with the public service integrity officer, and he has suggested that secrecy only cover the period during which the investigation is under way. He has asked for discretion to disclose information in the public interest, such as the identities of wrongdoers.
To take your example one step further, Mr. Chairman, if I have been falsely accused, why should I not have the evidence to protect my reputation? Under this proposal it is mandatory that no information come out forever, so why should I, as a person who has been accused and cleared, not have access to the information? That affects me.
Can I just add to this?
You have to understand what happens now. Allegations and investigations of wrongdoing have been going on in government since time immemorial, and the Access to Information Act has been covering these reports. Here's how they're handled.
If someone asks for a record about an investigation into a wrongdoing against you, government institutions neither confirm nor deny whether they have any such record, because to do so would reveal personal information about you. They release nothing. That's the current way. We're not talking about having a situation where it all goes out. You have privacy exemptions in the act, but there are provisions that allow it to go out with consent if it's already in the public domain, or if there's an overriding public interest. What the provision that has been proposed in Bill C-2 does is take away all of those out-clauses, so there is no public interest override, no consent—you can't even consent to it being disclosed—and no disclosure, even if it's already in the public domain.
We're just saying that the current protections are strong, but they have out-clauses essential in a democracy. What's being proposed takes away those essential out-clauses in a democracy.
Thank you, Mr. Chairman, and thanks to you, Mr. Reid, and to your associates.
I'm taking this not from the legal or the conspiracy perspective. I'm trying to understand from a layperson's perspective what the unfettering of your ability means, as Information Commissioner within the context of a larger, hugely complex organization.
I sat on the public accounts committee, and Mr. Martin also sat on that committee, at the time the issue with respect to the sponsorship matter was investigated through an internal review or an internal audit. At that time there was no hierarchical or accountability loop that would trigger with respect to the information that came out of that internal audit. It just sat there, with no action taken—nothing. At that time—this is around 1995—the Office of the Comptroller General had been dismantled in terms of internal audit reports that would have some sort of repository and response regime.
With that experience, the blanket of secrecy Bill C-2 throws over draft audit reports and records about wrongdoing in government is particularly regressive. Given the experience in 1995, I can't underscore enough how emphatically I agree with that statement. Now that the Office of the Comptroller General has been re-established, and as I understand it, that internal audits are ensconced with the Comptroller General in the provisions of the proposed open government act, if a request were made for access to information that isn't in an internal audit, do you have the authorities, either under this bill or under the access to information draft, to bring forward whatever relevant information you feel would be in the public interest?
Yes. We have the opportunity to investigate to make sure the material that is supposed to come out does come out. We basically get to see the material and to make sure that if it comes out it meets the requirements of the act, and if it doesn't, it meets the requirements of the act.
What I'm concerned about here is that sometimes when you see an audit—an audit is an investigation—I don't think you should see the working papers of the audit until the audit has been completed. It's just like what we do in almost every other thing: when documents are asked for, we use those documents to trace back the flow of a policy and the flow of a decision.
In the same way, when we're looking at audits, we have to be able to go back to look at the original documents and the investigation to be able to assure that things have gone the way they have. The act is a very complex one, as I have said before, because it means that every time there is a request for information coming in, the 13 exemptions come into play, and each one of those 13 exemptions in the act applies to every document that goes out under the Access to Information Act and/or through the government's releasing it on its own.
Thank you, Mr. Chairman.
Commissioner, I much appreciated the set of recommendations supplied. However, the Standing Committee on Access to Information, Privacy and Ethics is also studying the Access to Information Act.
During the election campaign, the Conservatives said that a review of the Access to Information Act and of the federal Accountability Act was of the utmost importance to them. It is thus that yesterday we saw a schedule of 23 hours of sittings per week imposed upon our committee.
I would like to know if you have been invited to appear before the Standing Committee on Access to Information, Privacy and Ethics, which has been tasked with reforming the Access to Information Act. Has the committee begun its work and how often does it sit?
I think it's important for the members of this committee to keep in mind clause 229 of Bill C-2, which allows the government, by order in council, to fix the date of coming into force of these provisions that bring new entities.
I have heard some talk, and maybe government members can clarify for you, that there really is no intention of bringing any of these new entities under this Access to Information Act until a complete review of the open government act, and so forth, is completed by the other committee, and we have no idea when that is. At least that has been part of the briefings that other public servants have received that I've heard of.
So the issue of the timing I think is important. That is, this adding of new institutions, however modestly they've been added, with these exemptions, when are they really going to be added? It's cabinet and not royal assent that will decide when those provisions come into force.
This meeting was scheduled to end a few minutes ago.
Thank you very much, gentlemen, for appearing. I know that the committee be looking at your proposed amendments very carefully.
Thank you again for coming.
This meeting is adjourned until Monday, May 29, at 3:30, in this room.