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Bob Zimmer, Chair Standing Committee on Access, Privacy and Ethics

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Bob Zimmer, Chair Standing Committee on Access, Privacy and Ethics Bob Zimmer, Chair Standing Committee on Access, Privacy and Ethics October 23, 2017 I am submitting for translation and circulation a brief further analysis and warning concerning Bill C- 58's flaws. This is especially necessitated in light of the overwhelming rejection of Section 6 amendments that greatly limits the right to access by many groups, including respected journalist news wire services like Canadian Press and by many indigenous groups as represented by the National Claims Research Directors. Warning: Expect challenges if Bill C-58 Section 6 amendments are rammed through and passed in its current proposed form to include: .. a Canadian Charter of Rights and Freedoms constitutional challenge on discriminatory grounds .. class actions in the name of access users who are deprived of full applicant rights .. United Nations indigenous case brought forward given the lack of consultation and honouring of their constitutional and fiduciary rights. .. many complaints to the Information Commissioner and applications filed for judicial review. That's as serious as these regressive changes in Bill C-58 get. Let's take a step back and recognize that the first-generation Access to Information Act was predominantly a Secrecy Act. That's because it made as one of the key Act's underlying principles the right to exemptions; and further along, announced that excluded ministerial, prime minster and cabinet records were the untouchable fourth “principle”. The other two underlying principles of the Access to Information Act were the right of access and the right of review, albeit as legislated in 1982 with limitations. There is no movement in bill C-58 to a second-generation Right to Know Act where the principal tenet becomes disclosure with fuller access and review rights. Bill C-58 wants the disclosure terms even more closely controlled by bringing in government-given disclosures as a new Part 2 “principle” with no request or review rights. What's not stated is that needed resources for handling access to information legislation are to be shared with cumbersome expensive periodic pro-active government “reports”. Restrictions on accessible machine readable records are still included, and there is no legislated duty to keep and disclose digital data operational records and make them free, user friendly, and accessible. The only “modernization” insiders envisage is tighter exemptions and more restrictive and narrower access and review. For a second-generation Right to Know Act to work, its cardinal principal must be a duty to assist, serve, document and disclose, period. But governments seem to think they are doing the public and users a favour by “assisting” them under even tighter controls as to who gets in the front door to get the privilege to experience delays, deceptions and rules and by periodically putting together offerings called “open data”. No one is stating that certain defined exceptions like personal information and security should not be in RTI legislation but they need to be truly restrictive and not highlighted as a principle. Since when is it a stated prime freedom of information purpose to allow over 500 ways of loosely of saying no to predominate, where full coverage is not there for all institutions or where the Act explicitly rules out applying for data on its top-dogs? Taming the Information Commissioner even further under the guise of giving the office some minimal order powers is disgraceful and cynical. Proposed take-it-or-leave-it legislation includes giving the courts de novo powers as if the office's investigative reviews are hardly to be honoured and enforced. The Office is excluded from reviewing cabinet, some security and all “pro-active” files. The retained broad range of exemptions and exclusions are hardly a recipe for an effective commissioner office that no amount of appeasing resources will remedy. Bringing the Privacy Commissioner into the Access to Information Act who want that office to take a more active role (or perhaps the hidden idea is to eventually merge the two offices) is suspect. It reveals government thinking, needlessly pitting the two offices against one another and causing delays and unnecessary awkward interaction instead of letting them under tough new separate legislation to effectively grow and become two advocates, one for greater transparency and one for privacy protection. The Information Commissioner whose analysis of Bill C-58 has much to offer is to be brought before the Access to Information Committee at the same time as amendments to Bill C-58 are already largely in play. Perhaps it will be up to the parliamentarians next door to take the time and effort and sober thought to stop such mean-spirited and contrary legislation. I speak from much experience and worry how persistent and fearless users will fare with even more subjective and unilateral interventions allowed under Bill C-58. From my perspective of over 40 years of following and reviewing access bills, Bill C-58 is one of the worst and most counter productive. Respectfully Submitted Ken Rubin kenrubin.ca --- This email has been checked for viruses by AVG. http://www.avg.com Bob Zimmer, Chair Standing Committee on Access, Privacy and Ethics October 20, 2017 I provide and submit and attach a further earlier June 27, 2017Hill Times column for translation and circulation to the Committee where I originally reviewed Bill C-58's shortcomings. May I add having reviewed the September 20, 2017 "Charter statement" on Bill C-58 by the Minister of Justice tabled in the House of Commons that it is a short self-serving document that falls fall short of exposing the proposed Access to Information Act amendments' inconsistency with the Canadian Charter of Rights and Freedoms, especially in its proposals to limit independent review, its heavy handed anti-access provisions, its tight so-called government controlled "pro-active disclosures" provisions, and its push back against any substantial advance of reducing or ending the many excessive secrecy loopholes the Access to Information Act has. As for the disappointing self-congratulatory testimony on Wednesday, October 18, 2017 of the Treasury Board and Democratic Institutions Ministers and separately of government officials from Treasury Board, PCO and Justice, it added little except a rigorous defense of a top-down cabinet secrecy system and an attempt to tarnish access users as at times gumming up and abusing the access to information "system", including an example of calling ex-spouses after the work schedule of their public employee ex-partner a vexatious bad faith application that requires a heavy handed exclusion from applying rather than denial under existing access to information provisions. It is fitting that the first public briefs the Committee has are from indigenous groups who are concerned their access to materials will be stymied and who wanted to be by necessity consulted first and who want Bill C-58 withdrawn. Again, it is regrettable that the Committee has so little time to review this bill that the majority government wants dealt with quickly instead of withdrawn as badly flawed. Ken Rubin kenrubin.ca 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.
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