During the 2015 election campaign, Justin Trudeau’s Liberal government ran on a platform that promised to make “government information more accessible.” A lot’s happened since, between the SNC-Lavalin scandal putting the administration’s accountability to the test, Canada holding a continuously unimpressive spot in world press freedom rankings and a News Media Canada freedom of information audit showing that the Trudeau government’s “performance was even worse than in the latter years of the former Stephen Harper government.”
In 2017, the Liberals proposed Bill C-58, the first substantive updates to the Access to Information Act in more than 30 years. The most notable changes in Bill C-58 include a new approach towards disclosure — which set overly vague limits on access-to-info request refusals — along with reducing the information commissioner’s powers, some have argued, and raising fees on requests.
Despite the widespread controversy surrounding the bill, the Senate has opted to amend rather than scrap the cumbersome legislation after a six-month review. On May 1, the Senate sent Bill C-58 back to the House of Commons with more than 30 amendments.
With its last reform in 1983, the federal access-to-information system is in shambles. As a result of the outdated and ill-reformed system, Canada consistently ranks as one of the lowest countries in the Global Right to Information Rating. If passed in the Senate, Bill C-58’s many loopholes could only further bury government records and along with it, government transparency.
“…where the bill gives, it also takes away.”
Justice Minister David Lametti claims that this bill “significantly raises the bar to government transparency in Canada.” However, the response from the Senate and its proposed changes to the bill’s framework seem to suggest otherwise.
For information watchdogs, the bill as it was first tabled posed grave concerns and sparked an outcry for alternative reform. As the NMC report notes, “…where the bill gives, it also takes away.”
While civil advocacy groups like the Committee to Protect Journalists agree the law is in need of “robust reform,” they oppose many amendments that Bill C-58 proposes to FOI. Similarly, the Canadian Association of Journalists condemned the bill when it was first proposed in 2017, stating that because of the bill, “journalists will spend more time clarifying or appealing requests, often with no clear path to a resolution and sometimes at a significant financial cost.”
Based on the following concerns, the Senate has urged the House of Commons to amend over 30 issues that Bill C-58 poses to freedom-of-information.
Why you should worry about Bill C-58
The concerns raised most frequently among civil rights groups, and more recently the Senate, are:
- Denying information requests
- Fees and wait times
- Lack of disclosure through code names
- Info commissioner’s powers
A subject of much alarm for civic rights groups is Section 6 of the bill, as its changes to disclosure would allow the government to deny requests if they’re deemed “frivolous,” “vexatious,” even “large” or “unreasonable.”
As of May, the original wording in the section has been one of the main amendments highlighted by the Senate, as the section would give departments an easy out to dismiss requests from journalists.
In a 2017 letter, Alexandra Ellerbeck – the North American coordinator at CPJ – implored the bill’s sponsor, former Kings-Hant MP Scott Brison, to consider their recommendations of establishing solid limits for exemptions and address the long wait times the public experiences.
“The reason this exists is because the government serves the public. The idea that this can be so hard to get and is such a fight is ridiculous.”
Ellerbeck wrote about the concerns with the new wording. She argued these grounds were contentious and could only further hinder how journalists get information.
“There’s already a tendency to find excuses to deny information by using ill-defined, catch-all terminology, so that’s the concern,” Ellerbeck said in an interview.
“I think access to information is one of the most important tools that journalists have in their arsenal,” she said. “The reason this exists is because the government serves the public. The idea that this can be so hard to get and is such a fight is ridiculous.” Ellerbeck said.
Ellerbeck concluded that not all amendments are regressive to information access, that CPJ’s main concerns lie with sections 6 and 11. “I wouldn’t say the bill would necessarily derail (press freedom in Canada) but it’s certainly a move in the wrong direction and far inadequate to what people were hoping for.”
Former CAJ president Nick Taylor-Vaisey also stipulated that Bill C-58 was not the reform the broken ATI system needed, when he addressed the House of Commons in 2017.
“The problem is that governments control what is proactively disclosed, and a strong access-to-information law actually shifts that balance of power to the public. The CAJ urges the government to keep its election promise and subject ministers’ offices to the right of access,” Taylor-Vaisey remarked.
He raised current issues that still exist within Section 6, but also noted that there’s been some positive changes to the section since 2017.
“(The amendments on Section 6) did clarify the grounds for vexatious requests,” said Taylor-Vaisey in an interview. “They did back down on that. It doesn’t fix everything, but it does improve things.”
Moving forward, he said he thinks the prospects of the bill getting scrapped at this point is low. “The system is still broken. It still doesn’t have enough resources,” he said, adding that he thinks there’s little the media community can do to block Bill C-58 at this stage.
“The culture of secrecy that is basically government-wide is still suffering. More things are redacted than should be and that remains a cultural issue in the government.” Taylor-Vaisey concluded.
Fees and wait times
Bill C-58 was tabled by Trudeau’s government as an amendment aiming to eliminate excessive processing and filing fees endemic to the ATI system. Section 6 of the bill suggests otherwise.
In order to keep processing documents, the flat $5 processing fee would be raised to $25 and could increase dramatically if the head of the government institution in question decides the inquiry requires too much research or is too large. This fee hike contradicts the Liberal government’s 2015 platform of removing all fees except for the existing $5 fee.
Excessive fees tacked onto requests continue to be a frequent complaint in the Canadian media community.
— Alexander Quon (@AlexanderQuon) April 26, 2019
If not addressed immediately, the desperate state of Canada’s freedom of information system will rapidly snowball into a civil liberties issue.
Brenda McPhail, director of privacy, technology and surveillance at the Canadian Civil Liberties Association, said that raising fees undermines the democratic principle of freedom of information. “The fact that some requests require a lot of work should not mean there is no right of access to information.”
While journalists have grown accustomed to fees when accessing crucial government information, growing wait times have also become a normalized part of Canada’s ATI system — a key part of the system’s failure that doesn’t look like it’s getting reformed anytime soon.
— Dean Beeby (@DeanBeeby) March 7, 2019
Sen. Pierre-Hughes Boisvenu, a member of the Senate’s special committee assigned to review Bill C-58, put forth changes to exclude the use of code names following the rigamarole of the Mark Norman trial, in which the vice-admiral’s legal team presented documents showing the military had used aliases for him in an effort to conceal information from the public.
My amendment to Bill C-58 (Access to Information Act) was adopted earlier today. My amendment strengthen the offense of obstructing access to information. It prevents public servants from using codes (as in the vice-admiral Norman affair).
— Sénateur Pierre-Hugues Boisvenu (@SenatBoisvenu) April 4, 2019
The Department of National Defence’s continual use of code names as a security precaution has been a hot-button topic in the national FOI discussion for some time. The use of code names in government databases easily hides documents from outside inquirers and can make it nearly impossible for the public to probe potential wrongdoing.
From 2017 to 2018, over 54 per cent of processed requests were only partially disclosed, meaning the public was only getting a sliver of the picture. Removing this screening technique would be a great step in the right direction towards proactive disclosure.
When it was first tabled, Bill C-58 made no mention of reforming this privacy issue in the ATI system.
“If information is hidden behind codes it makes that info impossible to retrace. In your opinion, is that a problem then with the Access to Information Act?” Boisvenu asked Lametti.
At the reading, Lametti’s reply was that he had no comments on the matter and that he would inquire further into whether Bill C-58 amends code names.
Since last February, Boisvenu has taken steps to address and amend code names within the access system.
Exclusion of information commissioner
The information commissioner is an ombudsman, independent from the government and functioning as an information watchdog. Bill C-58 still blocks the commissioner from inquiring into certain records if they’re labelled as “cabinet confidences.”
Among changes proposed by the Senate is a provision that would give the information commissioner more clout by allowing an order to be certified by a federal court judge in the case that the commissioner’s motion is ignored.
Power to the information commissioner is perhaps the most critical factor to a well-functioning ATI system. The commissioner promotes government transparency by ensuring the government respects freedom of information legislation, and defends civil liberties.
When the bill was first proposed in 2017, former information commissioner Suzanne Legault disapproved of the bill’s handling of the information commissioner’s role and called it a “regression of existing rights.”
The information commissioner plays a key role in safeguarding civic interests — until provisions are set forth to give them full information access, certain government records will remain in the shadows.
The state of Canada’s FOI
Clearly, there is widespread agreement across the Canadian media community that the federal ATI system needs strong reform. CPJ, CAJ and CCLA are just a few out of the many organizations advocating for change.
McPhail of CCLA stipulated that, “A strong access regime is essential to ensure those in government remain accountable, and Bill C-58 fails to provide the comprehensive reform to achieve that goal.” All of the existing issues highlighted above have contributed to a vastly ineffective legislation, a direct product of its outdated framework.
— Patrick McCurdy (@pmmcc) March 19, 2019
— Amanda Connolly (@amandacconn) March 14, 2019
— Kyle Duggan (@Kyle_Duggan) March 15, 2019
In instances in which government confidence and transparency is in question, having a functioning, efficient and public ATI system is paramount. A way to inform that change is by continuing to monitor and have a dialogue on the reform that Canada’s FOI system needs.
Access-to-information is a critical tool for journalists to keep the public informed, break stories about the state of Canadian domestic and foreign affairs and hold the government to account. Doing so has only become increasingly laborious in a broken system.
Bill C-58 — legislation rife with contentious clauses — has been the only substantial effort the Liberal government has made to change information access in Canada. The question becomes: What steps can we take to reduce the deeply-rooted culture of secrecy around information disclosure in Canada?