Shawn McCarthy is president of the Canadian Committee for World Press Freedom and a reporter for The Globe and Mail.
When the Trudeau government released its long-awaited bill (C-58) to reform the 34-year-old Access to Information Act on a sunny Friday afternoon before Parliament's summer recess, it gave itself a check mark in the promise-kept column.
C-58 represents an improvement over the current system. And the Liberals suggest it is a first step, with promises of more sweeping reforms some time later. But why wait?
Anyone taking the time to review C-58 before Parliament resumes Sept. 18 will find the Liberals come up short on election promises made on Access to Information (ATI) reform in 2015. As the Centre for Law and Democracy noted in a review of C-58, the proposed legislation "is far more conspicuous for what it fails to do."
Let's look at those promises, starting with one the bill seems to have delivered – enhanced powers for the Information Commissioner.
Bill C-58 gives the commissioner the overdue power to order government departments to disclose information. However, it does not limit the government's ability to deem information it wants kept secret as a "cabinet confidence."
Under the existing ATI law neither the commissioner nor the Federal Court has the right to verify whether a cabinet confidence determination is justified. Here, Bill C-58 maintains the status quo; that should change.
C-58 would ensure the commissioner has the power to examine records the government claims are subject to solicitor-client privilege (Section 23).
This was urgently needed after a Supreme Court of Canada ruled last year that solicitor-client privilege could only be abrogated where legislation explicitly allowed it.
The Liberals promised that the ATI law would be amended to apply to the Prime Minister's Office and offices of ministers. In C-58, the Prime Minister's Office and the offices of ministers remain off limits to information requests made under the Act.
However, in what the B.C. Freedom of Information and Privacy Association calls a "bizarre slight of hand," the PMO and ministers' offices will be required to release such things as travel expenses or contracts. The government claims that by adding that disclosure requirement, it has kept the election promise, even though Canadians won't be able to ask for information from the PMO or ministers' offices as they can in several provinces.
The government promised in 2015 to eliminate all ATI fees except the nominal $5 application fee. That promise was delivered before C-58 was tabled.
The Liberals also vowed to amend the ATI law to make government "open by default." But C-58 would give government departments the right to ignore information requests that they deem to be "frivolous or vexatious." That exemption is being imposed without warning or justification, and is a power that should not be held by a government department that could benefit by wide interpretation in its own interest. It should be removed from the bill.
Finally, the Liberals promised a review of the act every five years. C-58 delivers here. However, five-year reviews often fall between the cracks in some statutes while others such as the Bank Act are reviewed and amended every five years without fail because they will otherwise sunset. The ATI Act should have the same sunset status.
It was sadly predictable that once in power, the Liberals would find reasons to water down their commitments and withhold the types of information that they had promised to make available to the public.
In Prime Minister Justin Trudeau's mandate letters to Treasury Board President Scott Brison and Minister of Democratic Institutions Karina Gould, he said it is "time to shine more light on government to ensure it remains focused on the people it serves."
Bill C-58 leaves too much in the shadows. Canadians deserve a bill that meets the aspirational language of the 2015 campaign and those mandate letters.