May 18, 2006
Ottawa, Ontario
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 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 in September of 2005 with the Standing Committee on
Access to Information, Privacy and Ethics.] The Special Report, which has been
distributed to you, sets out my positions and, hence, these opening remarks will
be brief.
Since the tabling of Bill C-2, Minister Baird has heard me out about my
concerns. I am grateful to him and the government for accepting my criticisms of
Bill C-2 in the non-partisan spirit in which it was given.
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 one of the 10 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.
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 which Bill C-2 throws over draft
audit reports and records about wrongdoing in government, is particularly
regressive.
In my letter to this committee of May 9, 2006, I offered my suggested amendments
to fix the problems I have identified with Bill C-2. In essence they would:
Remove the broad exemptions contained in sections 89, 147, 149, 150, 152, 172,
179, 183 and portions of 222 and 225. The relevant provisions drawn from the
Open Government Act suffice to protect the sensitive information to which these
provisions are directed.
Remove section 161 (exclusion 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 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 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.
