Hon. Joseph A. Day (Leader of the Senate Liberals):
Ms. Maynard, thank you for being here this evening and welcome to the Senate of Canada.
My questions relate to Bill C-58 and your thoughts and opinions in relation thereto. Just so the record is clear, Bill C-58 is entitled “An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.”
Dozens of First Nations and tribal councils have raised concerns regarding how Bill C-58 would affect long-standing land claims, given that the majority of evidence related to historical land claims is in the possession of the federal government. I’ll refer you to the area in and around clause 6 of Bill C-58, and section 6 of the previous legislation that talks about the ability of the commission to refuse a request on certain grounds. I understand that some amendments have been made, but there are still concerns being expressed.
According to the National Claims Research Directors, Bill C-58 would hinder the ability of First Nations to access information related to their claims, grievances and disputes with the Government of Canada.
In October of last year, Treasury Board President Scott Brison pledged to address those concerns. And as I indicated, some changes were made, but it is still felt that they’re not sufficient.
Could you provide me with an update on whether there is any appetite, any desire, any likelihood that the federal government will make further changes to this legislation to meet these concerns being expressed?
Ms. Caroline Maynard: Unfortunately, I am not aware. I am not working with the people responsible for the amendments to the act. All I know, as you would know as well, is what I read in the newspaper and what I’ve read in the reports.
From my own perspective and with my own experience, when I read the amendments to the act I do share some concerns with the fact that section 6 would possibly limit access to information or would delay access, because now section 6 has been amended so that access cannot be denied without the authority or the approval of the commission. As I said earlier, when you add criteria that could potentially limit access or delay access, it is concerning.
I understand that the act will be reopened for review in a year and in five years from now. If I were to become the next commissioner, in the next year I would be in a better place to assess and re-evaluate those concerns that have been raised so far and report back to Parliament on whether or not there have been concerns that are the result of the impact of these changes on access rates.
Senator Day: Thank you. Can I take from that that you agree with some of the concerns being expressed by First Nations and those who help First Nations with their long-outstanding land claims?
Ms. Maynard: I definitely agree with concerns that anything that limits further access of Canadians is of concern.
Senator Day: I agree with that too. More specifically, how about First Nations and those who help First Nations with their claims in relation to land claims?
Ms. Maynard: I do, yes.
Senator Day: Thank you. I’m having some difficulty hearing you, but you’re probably having difficulty hearing me too, so we’re even.
I will take up one other area of questioning, if I may. It’s my understanding that where one research topic spans various types of media, such as quite commonly used Post-it Notes that would often be stuck to a file, or a verbal communication, or digital messages, Bill C-58 would not apply. Are you in agreement with my interpretation of Bill C-58 in relation to those various types of media?
Ms. Maynard: Again, I haven’t been in the position of commissioner and I don’t have all the expertise of the commission, but my understanding is that currently it applies to those Post-it Notes. They would be considered transitory documents, and in some institutions, for sure, people would tend to remove those. That’s why I said earlier that we need to change the culture within our institutions and we need to make sure people understand why access to information is important to Canadians.
The best example is when we refer to our managerial experience: Employees need to understand the decisions made on their behalf, and they need to have some information to trust a manager. It’s the same thing for the government. Canadians are entitled to information so that they can trust the decisions that have been made on their behalf.
I keep thinking that even if we had the best legislation, the most progressive legislation in the world, if the institutions don’t document their decisions, you’re not going to have better access. That’s why we need to work with institutions. We need to promote access and transparency, not just best practices.
One of my concerns with the current publication authority is that it seems to be focused on insisting on those decisions that are against institutions. I don’t want to work against institutions. I would want to work with institutions on making them aware of their responsibilities, encouraging best practices and finding solutions. The Auditor General has the green, the yellow and the red. Maybe that’s something we can do with institutions to encourage best practices.
Senator Day: Your comments with respect to best practices prompt another question. Given that certain types of communications are excluded and given that it’s important for the public to be able over time to have access to what might have been said in the past, would you consider now or in the future a legal obligation to document whenever a government representative — a civil servant — is in discussions on a file with respect to someone on the outside? Would you consider a legal requirement to document so that the documentation and the historical trail would be there?
Ms. Maynard: Whether or not a duty to report should be legislated, I would leave to Parliament to decide, but I think a policy, encouragement from the commission and from every partner and stakeholder in this access is definitely the way to go — working together with stakeholders and with the Privacy Commissioner to make sure everybody is consistent in their approach. My mandate will be to apply the law. If the legislation adds some obligations, I will make sure those obligations are respected.
Senator Day: We would hope you would see it as part of your obligation to encourage policy development as well, and if there is a need for changes in legislation in the future, as you indicated, there would be reviews of the legislation in the future. We would expect that you could provide us some guidance in that regard.
Ms. Maynard: I would. It’s encouraging to know that in one year the act will be reopened, and there will also be a review in five years, so those lessons learned and those concerns can be reassessed. As the agent of Parliament, I would make sure that it would be my duty to report on the data and the concerns that I would have investigated during my tenure.