Bill C-58 of 2017: Accountability and Transparency of the Federal Institutions Updated and Modernized?

July 26, 2017

Now at second reading, Bill C-58 proposes significant amendments to the federal Access to Information Act ("ATI Act"). These amendments affect any organization that shares information with federal government institutions (whether voluntarily or involuntarily), and any person that seeks to access to such information.

The essence of these amendments can be found in the stated purpose of the ATI Act. Under the current ATI Act, its stated purpose is "to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution…".

Under Bill C-58, the amended purpose of the ATI Act would be: "to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions."

To achieve these updated purposes, the ATI Act will be amended to include various provisions that we summarize below.

1) Section 6.1: Under this new provision, a government institution may decline to act on a person's ATI request if the government institution is of opinion that the request is vexatious, made in bad faith or is otherwise an abuse of the right of access. As well, this discretion to decline can be used when the request is for a large number of records or necessitates a search that would unreasonably interfere with the operations of the government institution. A refusal to answer the ATI request is subject to the right of the requestor to file a complaint with the Information Commissioner.

2) A major concern of private organisations that submit information to a government institution relates to the protection of this information, as it is often considered confidential by those organisations. In that regard, section 20 on Third Party Information is not amended, third party information being a) trade secrets, b) confidential financial, commercial, scientific or technical information, c) information the disclosure of which would otherwise impact on the competitiveness of the third party and d) information the disclosure of which may interfere with contractual or other negotiations of the third party remain protected from disclosure. In these cases, the principle remains that the head of government institution shall refuse to disclose the third party information.

3) Section 36: The Information Commissioner will have a new power to compel the disclosure of a government record (or part of a record) following a Commissioner's investigation. If such an order is issued, the government institution must comply with the order within 30 days of the issuance of the order, or within 40 days if a third party is involved.

4) Section 36.2: The Information Commissioner may consult with the Privacy Commissioner of Canada regarding any personal information that may be disclosed in response to an access request. If an order to disclose the information is issued by the Information Commissioner (under article 41), the Privacy Commissioner has the right to contest such order before the Federal Court (article 41).

5) Section 41: An order issued by the Information Commissioner may be contested in Federal Court (depending on the circumstances) either by the government institution concerned or by the third party affected by the request.

6) Section 41.1: The making of an application under section 41 operates a stay of the order issued by the Information Commissioner.

7) Section 43: Other parties affected by an access request are entitled to be notified of an application contesting an order either directly by the applicant or through the government institution (depending on who is making the application to the Federal Court to quash the order).

8) Section 48: The burden of establishing that the government institution is authorized to refuse the disclosure (or not authorized to disclose) falls to whomever is contesting the order.

9) Part 2 of the ATI Act (Section 71.01 and ss) will impose a system of proactive publication of information. This system is described in Government of Canada Factsheets as follows:

"…a new Part would be added to the Access to Information Act that requires institutions to proactively publish specific information that is known to be of interest to the public, and which provides greater transparency and accountability for the use of public funds. More specifically, the proposed amendments to the Access to Information Act would put into law proactive disclosure practices previously only covered by federal policy, introduce new areas of disclosure, and overall, the Access to Information Act would apply to a wider range of organizations…"

10) The Factsheets describe as follows the extent of this obligation with respect to Ministers' offices and government institutions:

(…)

"The Access to Information Act would require that Ministers' offices, including the Prime Minister's Office, proactively publish:

o Mandate letters

o Briefing packages for new Ministers (within 120 calendar days of appointment)

o Titles and tracking numbers of briefing notes (monthly)

o Question Period notes (within 30 calendar days following last sitting day in June and December)

o Briefing materials for Parliamentary Committee appearances (within 120 calendar days after appearance)

o Travel and hospitality expenses (monthly)

o Contracts over $10,000 (quarterly)

o Annual report of all expenses incurred by a Minister's office (within 120 days of the end of the fiscal year)

Similar requirements would exist in the Act for government departments, agencies and bodies listed in Schedule Iof the Access to Information Act (as applicable):

o Travel and hospitality expenses (monthly)

o Reports tabled in Parliament (within 30 calendar days after tabling)

o Briefing packages for new deputy heads (within 120 calendar days of appointment)

o Titles and tracking numbers of briefing notes (monthly)

o Briefing materials for Parliamentary Committee appearances (within 120 calendar days after appearance)

o Contracts over $10,000 (quarterly)

o Grants and contributions over $25,000 (quarterly)

o Reclassification of positions (quarterly)

The following requirements would apply to Crown Corporations:

o Travel and hospitality expenses (monthly)

o Reports tabled in Parliament (within 30 calendar days after tabling);"

11) Some other requirements are imposed on Senate, House of Commons and Parliamentary Entities (Travel expenses, Hospitality expenses and Contracts).

Much can be written on these amendments. Although most of the amendments will primarily impact government institutions, many of those noted above will also have a direct impact on third parties – in particular, the amendments related to the Information Commissioner's new power to issue orders to disclose records that are subject to an access request. Given the "institutional bias" of the Information Commissioner in favor of "more disclosure", we expect that third parties which have shared what they consider confidential information with a government institution will be left to their own resources to fight in court to ensure the protection of their confidential information.

We note that, because of the manner in which the new section 41 is drafted, it may have unintended consequences for third parties who wish to contest the release of their confidential information. As drafted, paragraph 41 (3) grants a right to file an application to a third party "if neither the person who made the complaint nor the head of the government institution makes an application under this section…". What if an application is made that raises grounds of contestation which do not respond to the third party's real concerns or interests? Despite this drafting, we expect that the Court will nonetheless allow the third party to file its own application to raise its concerns and interests – although it would be ideal if Parliament avoids useless battles in Court on the standing of third parties and clarified the provision immediately. Respectfully submitted…

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