Senators planning to send back access bill with major changes

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The Senate is planning to send the government’s access-to-information bill back to the House of Commons as early as this week with more than 30 amendments, but it’s not clear if all those changes will be supported by cabinet.

A Senate committee is expected to table its report Tuesday after a six-month review of Bill C-58, the federal government’s long-promised update of the Access to Information Act. The bill was widely panned when it was first introduced in June, 2017.

The bill – as amended by the committee – will be put to a final Senate vote as soon as possible, according to the terms of a behind-the-scenes agreement among the groups in the Senate to move government bills along as Parliament enters its final weeks. A majority of the amendments are from the government itself but senators have added a number of their own.

The access act has been in place since 1983, yet federal governments have repeatedly ignored calls to modernize the law. The access-to-information system is often used by journalists to break stories about internal government policy debates and public spending. It is also used by businesses, researchers and MPs to gather information on the inner workings of government.

Anyone can request government documents for a $5 fee. However, users have long reported major problems with the law, including heavy government redactions and lengthy delays.

The bill creates a new regime of “proactive disclosure” – which is not subject to the traditional oversight of the Access to Information Commissioner – in which government departments will regularly release frequently requested information. This includes briefing books for new ministers and the notes ministers use during Question Period. The proactive disclosures also call for detailed reporting of expenses by MPs, senators, ministers and their staff and senior public servants.

Célia Canon, a spokesperson for Justice Minister David Lametti, said the government will carefully consider the Senate’s amendments before making a decision on whether to support them in the House of Commons.

“Any amendments to Bill C-58 should meet Canadians’ expectations of enhanced transparency, respect the fundamental principle of judicial independence and foster public confidence in our judicial institutions,” she said in a recent e-mail.

One of the biggest questions is whether the government will accept a Senate amendment related to the disclosure of judges’ expenses. In response to concerns from judges that detailed reporting could expose them to harassment, senators amended the bill so that courts will only be required to disclose broad categories of spending, rather than linking spending to specific judges.

Mr. Lametti had cautioned senators earlier this year that such an amendment could make the information “almost meaningless.”

The Liberal Party’s 2015 election platform promised major transparency improvements, including a pledge to apply access laws to the Prime Minister’s Office and ministers’ offices, which are currently exempt.

However, the then-access to information commissioner, Suzanne Legault, said in 2017 that the bill failed to deliver on those promises and dismissed it as a step backwards.

The amendments by the Senate’s legal and constitutional affairs committee have not changed the fact that the PMO and ministers’ offices remain off limits for access requests.

However, some Senate amendments were aimed at giving the law more teeth. Specifically, one amendment changes new order-making powers given to the access to information commissioner so that the order can be certified by a federal court judge, giving it more force in the event that a department ignores the commissioner’s decision.

Most of the Senate amendments in committee were made at the request of the government itself, which proposed changes based on criticism raised during parliamentary hearings. For instance, requesters will no longer have to state the specific types of documents they are requesting after critics said the bill’s original wording would have made it easier for departments to dismiss requests.

Ottawa researcher Ken Rubin, who files large volumes of requests on behalf of various clients including The Globe and Mail, said that even with amendments, the bill fails to address the main problems of excessive redactions and delays.

He also predicts the documents released under proactive disclosure will be indistinguishable from the government’s news releases and other public relations material now that officials will know the documents are destined for publication on a government website.

“The act is really a con-job. It’s really contrived,” he said in an interview.

Independent Senator Pierrette Ringuette, who is sponsoring the bill in the Senate, said the amended bill is “absolutely” an improvement over the status quo and there are provisions for the legislation to be regularly reviewed by the government and parliamentary committees.

“I think this is a major, major piece of progress in regards to the rights of citizens to have information, to have it proactively disclosed without having to make a formal request,” she said. “This is modernizing the entire system and I am very happy about it.”