It’s been more than 30 years since Pierre Trudeau’s government passed weak access to information legislation. Today, his son Liberal Party Leader Justin Trudeau has put forward as a pre-2015 election gamut, a private member’s bill, “A Transparency Act” (Bill C-613). First reading debate occurred in late November.
Bill C-613 offers up a few amendments to access legislation. But, as described below, those proposals hardly are sufficient game changers to drastically increase opening up government records and meetings.
One proposed change, via an amendment to the Parliament Act of Canada, aims to divide the House of Commons’ secretive Board of Internal Economy meetings into mandatory open and closed sessions. Closed BOIE sessions would continue for security, employment, staff relations and tenders discussions and such secret meetings could be open if all parties, at only their discretion, unanimously agree.
It’s unclear how this consent to open secret BOIE sessions would work in practice. Would it mean, for instance, that the media would be informed in time to be present? And would the Commons Board of Internal Economy’s public sessions be recorded verbatim and broadcast?
It’s not a step forward to keep all BOIE contract matters behind closed BOIE doors, including the payment of lawyers to defend MPs. And why should the BOIE’s discussions or exchanges with the Speaker’s Office, on such staff related matters as setting up procedures for handling cases of sexual assault, remain potentially off-limits to public access and reporting?
Trudeau’s proposed bill does not include covering Parliament under access legislation. Such extended coverage could, for instance, grant public access to the House Speaker’s records and to a parliamentary steering committee’s in-camera deliberations. No mention is made either of the touchy subject of some openness around party caucus meetings, which is allowed in other countries’ access legislation. As a start, last year, Trudeau did order his MPs to make their expenses public.
This bill states that government information should be “made openly” available and that exemptions to public access should be “rare” in addition to being limited and specific, and if there is “uncertainty,” the emphasis should be on releasing records.
In practice, the act’s many exemptions are widespread and these proposed wording changes, while well intentioned, are hardly sufficient to move the yardstick towards greater record releases. What’s required is: the elimination of many of the Access to Information Act’s exemptions and ending the exclusion of Cabinet, ministers’ office, and PMO records, broader coverage, wider open meeting, pro-active disclosure requirements, and stronger whistle blowing protection.
One useful amendment proposed would make machine-readable records that require data retrieval work accessible. Right now, there is official resistance and Federal Court decisions that weigh against such record creation. Trudeau rather awkwardly calls this greater record access coverage an opening “by default.”
The bill does not assign the information commissioner explicit duties to monitor or enforce the production of such machine-readable records. Nor did the bill assign explicit duties to the commissioner to ensure, such as in NDP Pat Martin’s defeated private member’s bill (Bill C-567), that significant government deliberations be done in writing and that there be a “duty to document.”
The Trudeau bill does offer one solution to delays by tying the payment of the $5 application fee to only those with replies sent within 30 days. However, refunding this fee may be cumbersome and not enough of a deterrent to prevent delays in government response times. It would be better to have no application fees and more effective to penalize those agencies responding late and to greatly restrict the length of the time extension officials can claim.
Central to his bill is a proposal to giving the Canada’s access to information commissioner binding orders on matters like fees, delays, and denials. But the bill’s wording only states that the commissioner “may” issue orders.
Again, possibly because of bad drafting, the sole discretion is placed in the commissioner’s hands to determine time lines for the government to carry out such orders while rightly providing the means via the courts to have such commissioner orders enforced. Currently, from personal experience, it can take the commissioner over five years to issue non-binding findings.
Bill C-613’s final amendment clause calls for a mandated immediate Parliamentary review of access legislation and thereafter at least every five years. This suggestion has been made before and may not drive drastic transparency changes. Statutory periodic reviews, while productive, do not guarantee improvements and can give conservative legislation drafters, officials, and special interest groups a regular platform to propose more secrecy provisions.
The Conservative Party response to Bill C-613 delivered in Parliament by Treasury Board parliamentary secretary and Conservative MP Dan Albas was negative. Albas indicated his party would oppose the bill and this means the bill stands little or no chance of getting beyond the first reading debate stage.
Albas stated in the November debate that the Trudeau bill his party opposes would result in more administrative costs and greater delays, including in its provision requiring “detailed explanations” every time an exemption is applied. Forgetting his own leader’s 2006 election pledge, Albas dismissed giving the information commissioner binding order powers.
No party leader is promising in this election year relief from our deadbeat access to information system and well-known secrecy antics.
Unfortunately, Trudeau’s bill would do little if anything to ensure that Parliamentarians and the public would get as a right data now being denied on such matters as the estimated Canadian Iraq war costs and the economic costs of tax evasion.
A party leader like Justin Trudeau must do more than move the secrecy yard line slightly. That’s especially the case if he aspires to be the next PM and wants to be and be seen as a champion advocate for transparency.
Ken Rubin can be reached at kenrubin.ca
The Hill Times