Editorial: Bill C-58 Will Make the Government Less Transparent

The Liberals rightly criticized the Conservatives for not being transparent when they were the government. Now that the Liberals are in power, they plan on following through with their promise to update the Access to Information Act. The problem? Bill C-58 will result in a less transparent government in which the government decides what the public should know.

In the lead up the last federal election the Liberals made the promise that “Government data and information should be open by default, in formats that are modern and easy to use.” And so they set out to accomplish this in bill C-58.

So what does this have to do with the space sector?  It’s simple, news organizations like SpaceQ report on government activities. Government departments sometimes provide the information requested and at other times say no. On occassion, and it appears on a more frequent basis going forward, there is a the need to submit Access to Information and Privacy (ATIP) requests. Under the new legislation it will be harder to get the information we need. And that information is important as we do our job to inform the public on what the government does and how it justifies its decisions.

Unfortunately as Suzanne Legault, Information Commissioner of Canada, wrote in her special report tabled in Parliament September 28, “after studying the Bill, I have concluded that the proposed amendments to the Access to Information Act will not advance government transparency. The proposed Bill fails to deliver on the government’s promises. If passed, it would result in a regression of existing rights.”

Commissioner Legault highlighted these deficiencies in bill C-58;

• The government promised the bill would ensure the Act applies to the Prime Minister’s and Ministers’ Offices appropriately. It does not.
• The government promised the bill would apply appropriately to administrative institutions that support Parliament and the courts. It does not.
• The government promised the bill would empower the Information Commissioner to order the release of government information. It does not.

“It imposes added obligations on requesters when making a request, adds new grounds for institutions to decline to act in response to requests, reintroduces the possibility of various fees, and, for some information, replaces the right of access and independent oversight with proactive disclosure. It allows the government to decide what information Canadians can obtain, rather than letting Canadians decide for themselves.”

Michael Geist, a law professor at the University of Ottawa, who has covered this issue for years said of the new legislation, “the (Liberal) bill promoted as fulfilling its commitment on access to information reform. Discouragingly, it fails to do so. The bill does not live up to the campaign promise nor does it fully address longstanding concerns with the law.”

One of the issues Geist is highly critical of is that of proactive disclosure saying the “bill substitutes a commitment to bring the Prime Minister and government ministers under the Access to Information Act with a promise of ‘proactive disclosure.’ Proactive disclosure, a reference to an open-by-default approach for certain ministerial information such as mandate letters and briefing books, is not a substitute for access to information.” In other words it’s up to the government to proactively disclose information if it is so chooses.

SpaceQ agrees with the assessments by both Commissioner Legault and Geist.

In particular the change in procedure when requesting records will make it very difficult for us to access records. Why? The onus is now on the requester to have prior knowledge of the record being sought.

When requesting a record we would need to know;

(a) the specific subject matter of the request;
(b) the type of record being requested; and
(c) the period for which the record is being requested or the date of the record.

If we aren’t armed with this information, the request can be denied.

The Bill has completed Second Reading and will now go to committee. After that, parliamentarians can suggest changes in the report stage followed by a Third Reading. Before the bill passes it will first go to the Senate. There’s still time to change the bill.

The Information Commissioner made 28 recommendations in her report. The government would be wise to consider these and other suggestions to fix the bill.

If the government intends to fulfil its election promise of a more Open and Transparent government, then it has the responsibility to rectify the deficiencies of this bill. The government has an opportunity to fix the Access to Information Act and serve Canadians. Not doing so would set a dangerous precedent whereby Canadians may not be permitted to access important information they have a legal right to.