E4D appears in front of parliament to comment on new access to information legislation

In June, The Liberal government introduced Bill C-58 to amend the Access to Information Act, which hasn’t been updated since its introduction in 1983.

There are some positive changes in the bill, including a regular five-year review to the act, and new powers for the Information Commissioner to compel governments to release requested information.

Despite these improvements, the bill falls significantly short of the Liberal’s campaign promises and introduces some troubling new authority for departments to deny requests.

On October 25th, Evidence for Democracy’s Katie Gibbs and Kathleen Walsh gave testimony to the Standing Committee on Access to Information, Privacy and Ethics (ETHI) for Bill C-58 to highlight these concerns and suggest ways for the bill to be improved.

Bill C-58 fails to open up the Prime Minister’s Office or Cabinet to information request, in direct contrast to their election promise.

In addition, the amendments grant the head of the government institutions the authority to decline requests for information if they deem them to be ‘vexatious’.Bill C-58 also requires requesters to specify very specific information, such as the specific topic, type of record and time period and their request may be denied if this information is not provided. These changes dramatically weaken our Access to Information legislation and provide governments with a mechanism to subvert the intent of the Act.  

Below you can read the full statement given by Evidence for Democracy at committee. You can also listen to the audio, including the questions asked by the committee on ParlVu.

Evidence for Democracy testimony to the Standing Committee on Access to Information, Privacy and Ethics (ETHI) for Bill C-58

Good afternoon, and thank you, Mr. Chair, and members of the committee for having us here today. I’m Kathleen Walsh, Director of Policy at Evidence for Democracy, and am here with my colleague Dr. Katie Gibbs, Executive Director. We’re pleased to be here to discuss Bill C58, and are happy to see that the Access to Information Act is being revitalized for the first time in my lifetime.

Evidence for Democracy is a non-partisan, not-for-profit organization promoting the transparent use of evidence in government decision-making. E4D works with parliamentarians, public servants, scientists, and the public, to ensure that the best available evidence and science make it into policy, and in a method that is transparent and open. Robust evidence and facts underpin our democratic process. When Canadians do not have access to the science and evidence created and used by government, we cannot effectively hold our governments to account and our democracy suffers.

As many of you are aware, access to scientific information in government has not always been available. When scientists are muzzled, cannot speak to media, or fear for their employment if they speak about their research - our democracy is greatly impacted.  

This government and many other members, have worked hard over the last two years to ensure that government science can be openly communicated to the media and the public. We are pleased to see positive steps forward. However, this is only one part of being able to access government information. The ambitious undertaking of revitalizing the Access to Information Act is another part of this. The revitalization of this act was long overdue, and is an opportunity to truly modernize it, improving accountability and trust between the government and the Canadian public.

It is our opinion that there are serious flaws with Bill C58 as it stands now, however, we recognize the opportunity to change and strengthen it. Our recommendations focus on (1) proactive disclosure, (2) the denial of requests, and (3) the ability for the information commissioner to order records be presented.

Proactive Disclosure

The decision to make Ministerial mandate letters open by default was a commendable step by this government. We are pleased to see this enshrined in Bill C58 and look forward to the normalization of the practice. As advocates and researchers, these mandate letters have helped us understand government priorities and desired changes. This is a positive step. However, it does not go far enough.

E4D, like many, interpreted the Access to Information reform presented by the Liberal party in their election platform to include the ability to ATIP Ministers’ offices and the PMO and We are disappointed that this is not part of Bill C58,  and are concerned that “proactive disclosure,” while laudable, in its current configuration, does not nearly reach far enough.

We are deeply concerned that proactive disclosure of this information is not overseen by the Information Commissioner. We see the Information Commissioner as an incredibly important role, and do not want to see parts of Access to Information legislation removed from their oversight.It is imperative that proactive disclosure be under the purview of the Information Commissioner. Additionally, there must be shorter timelines for disclosure specified in the Act, and it should allow for individuals to still request access.

We agree with the committee’s recommendation (number 23) that purely factual or background information; information in a record of decision made by Cabinet or any of its committees on an appeal under an act be disclosed.

Furthermore, the Ministers offices and PMO must be required to respond to access to information requests. Proactive disclosure on its own is not sufficient, and right to access should be extended to these offices.

Denial of Requests

When it comes to Bill C58’s amendments to Section 6 of the act, as it stands now, we have concerns about what requests may be deemed vexatious, and turned down. We do not believe that the head of a government department or agency should be able to deny a claim, and only the information commissioner should be permitted to do so. We also believe this should only be permitted to occur under truly vexatious circumstances -- and we would ask the committee to consider very clearly specifying what is meant by vexatious. Additionally, C58 requires requesters to specify very specific information, such as the specific topic, type of record and time period. While this may sound simple, it can be very challenging for civil society groups, much less members of the public to know all of this information prior to submitting a request. This change makes it harder, not easier for the public to access information.  As it stands now, this section dramatically weakens our Access to Information legislation and provides governments with a mechanism to subvert the intent of the Act.  

Authority of the Information Commissioner

Section 36 which allows the Information Commissioner to order a government institution to either reconsider denying an access to information request, or ordering the record be made available. In theory this is a positive change; however, we have concerns about the timeliness of such an order, and the resources required by the Information Commissioner to fulfil this mandate. We would remind the committee here that the science community is still waiting on a report from the commissioner on the muzzling of federal scientists. The investigation began in March 2013 and we are still waiting for the report. It has been four and a half years and we still don’t have answers, that is unacceptable.

If you consider the timeline in which a situation like this would take place, as we understand it, it involves a request being submitted to the relevant department and consequently denied, which one could assume will take a few weeks (if not the 30 days allotted for a response), then submitting the request and the denials to the Information Commissioner who would then need to review the case and  compel the government department to produce the record within 30 business days - we’re looking at best, months of proceedings. This is assuming that the Information Commissioner would be able to review the case immediately. Given that the office is already dramatically under-resourced, it seems likely that there could be a significant time delay in their ability to review the case.  In order to fulfill this new mandate along with the existing roles of the Information Commissioner, the office needs significantly more resources.

Additionally, will we support this new mandate for the IC to order records released, we are concerned that Bill C58 does not provide the teeth for the office to do this job effectively. It’s not clear what recourse would be available if the institution refuses to act on the order.

While it is our opinion that Bill C58 needs some serious work and amendments, we are very pleased to see that the act will be reviewed in one year, and again five years afterwards. Regular renewal and revitalization of an act so vital to our democracy is imperative. As data practices and government evolve, so too should our ATI laws. We look forward to seeing what the committee does with this bill and the subsequent reviews.

Thank you for your time, and we would be pleased to answer any questions.

 

Katie Gibbs

Directrice générale

Katie Gibbs est une scientifique, organisatrice et défenseuse de la science et des politiques fondées sur des preuves scientifiques.