Hill Times published CFE Senior Fellow Ken Rubin’s Critique of the Federal Government’s Proposed Changes to Access-to-Information Legislation (Bill C-58)
Postponed transparency bill does little to promote access while government increases secrecy by Ken Rubin, Hill Times, June 27, 2017 p.15
KICKER: Scott Brison tried to spin how great it would be that some mundane briefing lists, mandate letters, and ministers' expenses would become legally available as part of a take-it-or-leave-it government publication scheme. After some weak transparency amendments, Ken Rubin writes that Mr. Brison should be replaced as Treasury Board president with a “heavyweight champion for open government.”
Just as summer sets in and a parliamentary session ends, in come some very weak transparency amendments.
What started as an election “open government” pledge in the fall of 2015 now appears in mid-2017 as Bill C-58. It took three cabinet ministers last week - Treasury Board Scott Brison, Democratic Institutions Minister Karina Gould and Justice Minister Jody Wilson-Raybould - to announce so very little.
The main expected change to cover some ministers and prime minister's records under the access legislation was abandoned given ministers and PMO resistance.
Instead Brison tried to spin how great it would be that some mundane briefing lists, mandate letters and ministers' expenses would become legally available as part of a take-it-or-leave-it government publication scheme.
The central amendment that did materialize calls for giving the information commissioner binding order review powers with the burden of proof on the government to defend its secrecy practices.
But the commissioner's newly acquired order-making powers would be largely crippled and counter-productive because no amendments were put forward to change the numerous broad exemptions in the Access to Information Act that cut off access to many government records.
Without changing the top-down broadly applied policy advice and cabinet confidentiality regime, the amendments proposed do little to help the commissioner set meaningful precedents or change Ottawa's secrecy. The commissioner remains unable to review cabinet confidences.
Amendments were not offered either to remedy lengthy delays or give the commissioner enforceable penalty powers for those agencies still delaying releases.
The commissioner under the Bill C-58 amendments must also give corporate third parties special rights to be consulted before issuing orders. These orders can and will in many cases be challenged in Federal Court by the government and corporations, and possibly overturned.
What also makes a mockery of the Bill C-58 order-making initiative is that Justin Trudeau government has put forward other legislation that makes certain records off-limits to the commissioner, and the courts' review or their ability to order releases.
Bill C-22 gives the National Security and Intelligence Committee for Parliamentarians' government secretariat and departments power to unilaterally decide what is to be considered security excluded data without independent review. The bill also greatly enhances the prime minister's power to decide what security data is documented and released to the committee that he controls.
Omnibus budget bill C-44 contains a section devoted to setting up a Canada Infrastructure Bank that in Section 28 gives the government power to decide unilaterally what is privileged information (commercial infrastructure financial and political transactions) with no independent review. It is already a controversial enough bill with its provisions that grant Ottawa political direction power in the bank's operation.
The budget bill also contains separate provisions that allow the key House of Commons Internal Economy Committee to continue to meet on many issues behind closed doors with no independent recourse to independent review.
So under Trudeau's Bill C-22 and C-44 new security and commercial data exclusions are put in place that override access legislation. And one amendment in Bill C-58 also directly increases secrecy by expanding and broadening the legal definition of what is able to be exempt under solicitor-client relations.
Public access is not well served either by the government amendment in Bill C-58 giving themselves the mandatory right to refuse to process some requests as too complex and hard to answer, too frivolous or submitted in what the government decides is “bad faith”.
The commissioner then can endorse or reject the government decision of who are targeted unfit access requesters, and also exclude hearing from complainants who are difficult and vexatious.
Such anti-access provisions contradict having a duty to assist requesters and being open to giving more opportunities to releasing more information.
The amendment regulations also raise the specter of a return to high fees in future being demanded of requesters.
Much was made of the lengthy amendments in Bill C-58 setting up a legal publication system parallel to access requests, including for Federal Courts.
But that system mainly produces some but not all expense and contract information (there would be exceptions) and ministerial mandate letters and ministerial briefing information.
It is a stopgap, government-controlled, limited administrative information system not subject to appeal to the information commissioner or the courts, containing a few sanitized offerings the government wants to provide.
It is not at all a system that instantaneously and legally makes needed data on health, safety, consumer and environmental conditions, as well on government operations, automatically public. It is far from the legitimate pro-active disclosure system needed. It offers no legal recourse when there are delays in getting such information and rejects making order-binding appeals possible on the type and quality of information the government provides.
If anything, the Trudeau government wants to hide operational and safety data, making the data difficult to get with access requests. It much prefers extending and enhancing secrecy arrangements such as in the case of one just obtained severed PCO document where Trudeau was to sign in July, 2016 an agreement with Quebec for sharing only sensitive classified information. This is not a government intent in entering agreements for promoting both jurisdictions' pro-active release of information.
Information Commissioner Suzanne Legault, in her final annual report, shared numerous examples of government efforts at refusing information and of poor service that the amendments do little to change.
CBC's Dean Beeby recently discovered that Trudeau's PCO officials were to be added to those gagged for life from revealing classified information. That form of silencing officials does not change with the announced amendments.
CBC's Dave Seglins recently reported on how the government is hoarding secret archives of data on Canada's past actions. That does not change either with these amendments.
The problem is the government's actual secrecy agenda and legislative actions have crushed any anticipated hope that more sunshine and less roadblocks are coming to Ottawa after a 35 year wait for better transparency.
The claim of one Bill C-58 offered amendment is to wait every five years for “advances”. But from other jurisdictions' experience and institutional push backs, it is far from certain that such parliamentary mandated periodic statutory reviews accomplish many progressive changes.
The formula for rebooting Ottawa's penchant for secrecy must start with replacing Brison in a summer cabinet shuffle. He has been mostly non-committal, glib and backtracking on transparency advancements.
Brison could not even be bothered to offer a detailed government response to the House of Commons Access to Information Committee recommendations for reform or to show up at a March national transparency conference he sponsored.
His replacement, if there is one to be found, needs to be an effective heavyweight champion for open government.
It is highly unlikely that the current selection process under Trudeau and Brison will bring forward and produce an information commissioner who is a strong, independent right-to-know advocate for the next seven year term.
The search for a new information commissioner now in the current highly secretive government-controlled competition that closed as of June 16 must be restarted. An open competition attracting the best candidates, run by Parliament, where short-listed candidates are presented in public would be the best route to go.
And most important, real proactive, timely disclosure and service with a duty to document, with a public-interest override provision, fewer and narrower exemptions, and an independent commissioner with binding, enforceable order powers not limited in what can be reviewed are the main stays that are needed for a long overdue, second- generation transparency bill to succeed.
The proposed Bill C-58 amendments are weak and not a formula for rebooting Ottawa's penchant for secrecy. What we have is a government frivolous and deviously intent on sweet-talking and subverting transparency.
Ken Rubin is an advocate for the public's right to know and expert on access-to-information laws and processes. He is reachable at kenrubin.ca
This story was first published by The Hill Times on June 27, 2017, and is republished here with the author's and The Hill Times' permission.