Brison's Ingenious Selling of Bill C-58 to the Senate

By Ken Rubin

October 15, 2018 - Treasury Board President Scott Brison was hard at it on October 3 selling Bill C-58 as a great transparency advance, which it is not. 

Kicking off Senate Legal and Constitutional Affairs Committee deliberations on Bill C-58, Brison boasted that Canada is rated number 1 by fellow governments for its open data portal. But that's despite Canada's Access to Information Act being moved down to 55th  on the Global Right to Information index scale that compares over 120 country's FOI legislation.

He did make two concessions at committee, the important one is the government would be no longer be demanding that requesters go through a qualifying test before their applications are accepted.

But Brison made it clear his government is not dropping targeting “frivolous and vexatious” users. Yet his examples in front of the committee of the need for new measures to address such requests, as proposed in Bill C-58, were not very convincing asking for all access requests released in a department, someone wanting his ex-wife's work activity data, copy of e mails of 50 human resource officials. All of those situations could be stick-handled under current access legislation. 

Bill C-58 places the onus, the time-consuming work and costs of determining whether to reject or accept such requests on frivolous and vexatious grounds with the federal information commissioner. 

Not giving up on the new frivolous and vexatious clause is a reminder that the government will still come down on some access subjects and users. Reassurances were not even given that voluminous indigenous land claim requests could not still be targeted as vexatious.

The second concession Brison announced is that the government would drop a one-year transition period between the information commissioner's office would get and be able to use order-making powers.

Former access to information commissioner Suzanne Legault and others criticized the order-making powers put forward in Bill C-58 as weak, ineffective and unenforceable. Brison defended his government's weaker version of order-making powers, noting that the government's new commissioner, Carolyn Maynard, who he recently met with privately, was on side and in his court.

Maynard has said she wants to cut down the number of past user complaints where possible and has acted to create an award for access coordinators acting with good “leadership” behavior, even if there still are long delays in response time in many of the agencies they are a part of.

In his testimony, Brison's crowning sales praise was reserved for Bill C-58's proposal to legalize a new release system that sets some records aside that government would selectively disclose, like minister's mandate letters and expenses. 

Never mind that such records labeled “pro-active” disclosures are to be placed outside of the Access Act's terms and removed from what Brison and officials characterized as being the public “request based side”. Brison did not remind senators that this separated system means removing records like those of the prime minster and ministers permanently outside Access Act coverage.

He and his officials rather cleverly claimed that this new separate government-controlled release system meant better accountability, transparency, and openness. In fact, his officials testified this new system of government releases resulted in putting a new accountability and transparency purpose clause in front of the original purpose of the access act, to grant the public right to access government records. They pooh-poohed any suggestion that their insertion of a “pro-active” purpose would outrank the public's right to know.

 Further, those officials stated that this new accountability purpose clause - far from being mere rhetoric and sloganeering - came to them as an “inspiration” drawing from the “bold” wording found in the Supreme Court 2014 John Doe decision.

But the reality is that the John Doe court decision ruled that the largely-used policy advice exemption could be expanded. That means far more records federally and provincially are now exempt, hardly making governments more accountable.

As well, Brison admitted, there will be exceptions to “pro-active” government postings with little right to complain or have such exceptions independently reviewed. 

I can testify that exceptions are already happening like in releasing ministers' mandate letters. The release of ones sent to the Canadian Commercial Corporation, the agency involved in some pretty controversial sales like the Saudi Arabia light armored vehicles arms sale, have been denied. In addition, one exception to pro-active” contract disclosures encountered was the denial of a Treasury Board-contracted report assessing the government's financial health. 

Nobody quite asked how much this separate, large bureaucratic system of government releases outside the Access Act will cost, or whether this system will distract from getting real operational records under access legislation and ensure avoiding ever granting public access to key ministerial records.

Brison said the new “pro-active” system could expand, but it would be based on what the government selectively decides as “demand”. He did not explain why the very records that should  be given priority and routinely released - such as key ministerial, and safety, environment and consumer reports - are not.

The suggestion that all those belatedly released mandate letters, briefing notes, Question Period notes, briefing material for parliamentary presentations may not amount to anything more than advertising and marketing of government positions and claimed goals was not pursued. 

Perhaps the information commissioner could also be mandated to review such materials to verify how much of these government talking points, released months later, might well qualify as being frivolous and vexatious in nature.

Sadly though, those small amount of government controlled “pro-active” releases mask the government's resistance to substantially reducing the numerous exemptions found in access legislation. By not touching the many broad exemptions, the commissioner's order-making capacities are greatly handicapped, with the public being prevented from obtaining many key records.

One area the Minister took flack on from Senators was why judges' expenses would be covered under Bill C-58 as this, it was put forward, could effect their reputations and compromise the principle of judicial independence. 

Senators asked Brison to convey the message to Justice Minister Jody Wilson-Raybould that they want her to testify on this and other subjects, even though she had not responded to their invitation to appear.

Brison did offer assurances that judicial independence would remain intact just as MPs' and Senators' parliamentary privileges would remain in place. In a rare moment, Brison showed a bit of backbone asserting that releasing judges and Parliamentarians' expenses was surely one form of improving these august institutions' accountability.

Some other revelations were made amid the slew of questions Senators put forward.          

One was that access users could be charged future various fees could users under the flexible terms of Bill C-58. Request-based disclosures would be subject to potentially increasing cost recovery while the far more expensive government controlled “pro-active” releases have no cost or recovery restrictions.

Brison was ingenious in trying to make Bill C-58 sound really good to the Senators. He fell back though on saying maybe more changes may come down the road through Bill C-58's mandated review every five years. And Brison claimed the bill's initial one-time-only review, to be done after its first operational year, also could early-on add those needed “changes”. 

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This story was first published by The Hill Times on October 15, 2018, and is republished here with the author's and The Hill Times' permission.

Ken Rubin is a long-time user and critic of access legislation and has put in a bill C-58 submissionHe is an investigative public interest researcher, author and Senior Fellow at the Centre for Free Expression.

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