Letter Sent to the Honourable Scott Brison

t i{ñb Commissaire lnformation à l'information Commissioner ffi du Canada of Canada Gat¡nèau, Canada K1A 1H3 MAR2 2 2018 The Honourable Scott Brison, P'C., M.P' President of the Treasury Board of Canada 90 Elgin Street, 8th Floor Ottawa ON KlA 0R5 Dear Mr. Brison: It was a pleasure to meet with you this Tuesday, March 20,2018. During our the Senate meeting, i indicated tl.at I would welcome an opportunity to speak !o- Committee that will eventually be responsible for reviewing Bill C-58, An Act to ømend the Access to Information Act aid the Priuacy Act and to make conseqtential amendments to other,Ác¿s. In particular, I informed you that my intent would be to focus on three areas of concerns that remain outstanding, despite amendments made to the Bill before the House of Commons. In a follow-up conversation with your Chief of Staff, Adam Carroll, I committed to share these concerns with your office in advance, with a view to allow further discussion and perhaps early resolution. The purpose of ihis letter is therefore to briefly bring to your attention the remaining issues, which in my view, continue to be of concern, namely: 1. The mandatory requirements found in section 6' 2. The transition period for the ne\M oversight model' S. The lack of an ènforcement mechanism in the Bill for orders issued by the Information Commissioner' The møndatory requirements found in section 6 Bill C-58 imposes three additional mandatory requirements for making an access to information request: (a) the specific subject matter of the request; (b) the type of record being requested; (c) the period for which the record is being Respect requested or the date of the record' i ii',;¡, r,,iil,:rl, lntégrité lntegrty Leadership I agree with the views expressed by First Nations advocacy groups, journalists and historians that these nðw requirements impose new barriers that would have a detrimental impact on their work and would limit what requesters can ask the government for-. The new section 6 could even deter Canadians from making a iequest in the first place, as the change requires a sophisticated understanding of the workings of govãrnment, or at least prior knowledge of the record being sought. Unfortunately, amendments made in the House of Commons to Bill C-58 to remove an institution's ability to decline a request for failing to meet the new requirements of section 6 have not resolved this issue given the strong mandatory language found in the section (the provision uses "shall" and therefore does not allow for any discretion). In other-words, if an institution has met their duty to assist obiigation" *d the new mandatory requirements of section 6 still have not been metl the institution could refuse to respond to it. As I mentioned during our *".iing, my office has already received complaints in which institutions have refused to process access requests based. on the absence of the three proposed criteria. Accordingly, I would propose removing the new mandatory requirements to section 6 from nilf C-SA and-keep the current wording of the Access to Information Act. The transition periodfor the new ouersight model My second concern is with respect to the effective date of the new oversight piovisions. These provisions *ould not come into effect when the Bill is passed, but rather a year later. As a result, my office could find itself administering three distinct investigation and complaint systems: 1. Complaints made before Bill C-58 is passed and that are still being investigated at my office would fall under the current, recommendation- only model. 2. Complaints made during the first year after 8il1 C-58 is passed, which would include new types of complaints and reviews, would also fall under the current, recommendation-only model' g. Complaints made after Bill C-58 is passed, and on or after the date that the new oversight provisions become effective would fall under the new, recommendation plus order-making model' It is my view that these transition periods will create more confusion in the system, for my office, institutions, and complainants alike. They will result in concurrent invesiigation systems, running at the same time, potentially for a number of years and will further impact the efficiency of our investigative processes' Should the new oversight model come into effect upon Royal Assent for those complaints made from that d.ay onwards, I believe that institutions would still have Page | 2 ample time to adjust to the new order powers. This is because orders would not be issued until the end of an investigation, which takes several months to complete. This investigation period would, in effect, function like a transition period. I would therefore propose to remove the transition period and have all complaints made after Bill C-bS ieceives Royal Assent be subject to the new oversight model. The lack of øn enforcement mecltanism in the bitt for orders issued by the Information Commissioner Finally, on a smaller scale but still a concern for me, is the fact that Bill C-58 proviáes no mechanism to have orders issued by the Information Commissioner ðertified as a judgment or an order of the Federal Court. This means that apart from a mønd"àrrutõ application, which would need to be filed by my office, there is no recourse availablê in Bill C-58 to address situations where an institution would simply decide not to comply with an order from the Commissioner, without having recourse to the Federal Court for a review. Although it is not expected that such situations will arise frequently, providing a certificãtion mechanism in Bill C-58 would give assurances to myself and requesters that the Commissioner's orders will be followed (absent Federal Court review). I would therefore proposed to amend section 36.1 so that any order of the Information Commiisioner can be certified as an order of the Federal Court. In conclusion, I should add that there were also some concerns expressed by myself and the Privacy Commissioner with respect to the Privacy Commissioner's involvement in to information investigations. However, Commissioner Therrien and I have""ce*" recently sent to your office a joint proposal to amend Bill C- 58 to address these concerns. I trust you will consider our proposal as the most efficient and balanced approach to protecting both access and privacy rights' Thank you for taking the time to review my proposals and directing them as you see appropriate for parliamentary review. I greatly look forward to working with you in the future on issues of joint concern, Yours sincerely, Maynard Commissioner of Canada Page | 3.

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