We did look at that aspect, Peter, just in terms of where the proper place for this was. The advice that we were given is that, while it could exist within PROC, as is sometimes legislated, Standing Order 108(3) allows us at the end, with “the ethical standards of public office holders” the purview to review.
What we're trying to do is, as my grandmother used to say, “Never waste a good crisis.” If something goes wrong, the worst thing you can do is not learn any lessons from what has happened. We see this use of the Ethics Commissioner.... She is in an awkward space sometimes, Chair, as you know, because the conversations that we as MPs have with her are by default private, in order to say things. I've had conversations with her privately, and I want to have them publicly. I think that would be helpful to everybody.
If we are not to learn from these things, the concern is that the message sent is that the act has contained within it provisions, for example, that if I own a company but I number the company, then it changes my ethical obligations on reporting. It changes my obligations with respect to conflict of interest, which is the code, a different thing. Yet this committee is charged under 108(3) to look at moments like this, and we have a moment like this right now, “the ethical standards of public officer holders”.
I hear the concern about whether it's best done at PROC or best here. We read 108(3) pretty clearly. It says, “the ethical standards of public office holders”, so here is where we can review. The Ethics Commissioner certainly would be the first witness we would want to call.
Chair, as I said, I was conscious of having very good and important witnesses in front of us on Bill . This is the mechanism that we have. As I said at the beginning, I don't wish to belabour this.
The frustration and question for many Canadians whom we hear from is what exactly the rules are and how the interpretation of the rules manifests in real life for us as public office holders.
We have a case in front of us that I think helps illustrate some of the problems with the act. We put a motion before Parliament. I'm not sure whether any colleagues here spoke to it, but when colleagues of mine spoke to it, all we got from the benches opposite was a speech about everything except ethics, everything except the ethical guidelines and the code.
We tried in Parliament in debate. We tried in question period to ask simple and straightforward questions about disclosure, about ownership, about conflicts of interest. I think it's a fair assessment to say that we haven't received answers. I watched the last night in front of the media on CBC. He was asked very straightforward questions—nothing scatological, nothing like “Have you sold your shares”, for example. Again, there was no answer.
If committees aren't the place to charge that, if Parliament is not the place to charge it, if speaking to the media is not the place to discharge this, then where is? At some point the government can't say in their mandate letters that ministers must “bear the fullest public scrutiny”—I think that is the call, the commitment for each of the ministers of the crown. The opposite has been true: we don't have full public disclosure; we can't know what ethical rules have been broken. We also can't know that simply saying “the Ethics Commissioner gave me this advice”, when we don't actually hear from the Ethics Commissioner as to what the process is when an MP goes before her and says, “This is my financial arrangement”....
I have pertinent questions, and I think all members likely have pertinent questions for her asking how she manages conflicts of interest. How does she manage, for example, when the conflict of interest shield is your own chief of staff, whom you hired? Is there not a dynamic and a tension there, that a person whom you hired is now responsible for telling you “no, no, and no” and not explaining it?
These things, for which we think there are legitimate places within the ethics act to guide us, and in the members' code, I would argue, which can be exploited simply by doing something quite common—well, not common for most middle-class people, but simply common in business, to set up a numbered account.... Then suddenly our ethics code no longer speaks to it. Well, that's no good.
I think that if the wants, and I think he is sincere in this, to focus on his job, which is to run and administer and regulate the financial sector—in which he has holdings, by the way, but regardless—the best way to do so, in my experience, is to clear the air, to come forward, to tell us everything. If he says there's no conflict of interest, then there should be no problem in clearing the air, in being transparent, which is also in his mandate letter.
We have found the opposite to be true, in debates in the House, in question period, and in his dealings with the media. We turn then to committee, because committee is a deliberative place, where we put people here in front of us and ask them questions.
I hear Nathaniel's concern about politicization, but to vote against this, to say that we're not interested in hearing from the Ethics Commissioner, that we're not interested in hearing from the , is in fact an act of politics. It's to say these things aren't important, when clearly they are for everybody watching.
If there is some amendment they seek to move on this, if there's some other way to crack this nut, we're very interested in the conversation. To simply reject efforts to fix the loopholes in the act, however.... It's hard to draw any other conclusion than that the government is not sincerely interested in getting to the bottom of this.
I want to talk about the proposed reforms to the Access to Information Act from the B.C. perspective. I think I will start by characterizing the scope of the act, which is the ideal of openness and transparent access to information, so the public can be involved in the debate. However, we find most of the act is focused on exceptions to access, so I find it a bit ironic that the bulk of the act is about exceptions, as opposed to access, and openness, and transparency.
With that opening perspective, the same thing exists in British Columbia, but in terms of right of access and making requests for information, proposed Bill suggests to require the requester to specify the subject matter, the type of the record, and the period for which they are requesting.
The federal commissioner's position has been that she feels the current requirements in the act are sufficient. B.C.'s law requires an individual to request records in writing, to provide sufficient detail for an experienced employee to identify them, and to submit their requests to the public body the applicant believes has the information. In other words, there is a duty to assist in B.C. and that is enshrined in our legislation, so you can't just turn away an applicant. You must assist them in getting the records that they are looking for. In some cases, if a request goes to the wrong ministry, it can be transferred to the correct ministry, rather than saying there are no responsive records.
In order to refuse an access request, Bill will allow institutions to decline to act on a request if it does not include enough detail, if the person has already been given access or can access by other means, or in circumstances where the volume of pages could interfere with operations. The federal commissioner is also concerned about that because she believes it's overly broad.
In B.C., public bodies must apply to my office for an authorization to disregard a request and we will then review that. Public bodies have a duty to assist applicants and as part of that duty, they may ask the applicant for more information about what records they are requesting for the purpose of assisting that individual. However, they cannot ask why they are requesting it.
Public bodies can charge an applicant fees to respond to a request, except when that request is the applicant's own personal information. This increases the public body's duty to assist, as the fees assist in some level of cost recovery, but typically not entirely, for some requests that would otherwise appear disruptive to operations, but just because it might be disruptive to operations does not mean that the public body must not respond to the request. Quite often, our office does receive complaints around the fee structure that a public body proposes to charge and often those are at issue in terms of gaining access to the records.
As it relates to the coverage of the Prime Minister's Office, Parliament, and courts, the issue is that the Prime Minister's Office, Parliament, and the courts are not covered under Bill . It does provide for mandate of proactive disclosure of certain records for those entities, but with timelines longer than the regular access requests. The commissioner has no oversight over the information that those entities would disclose proactively and an institution can decline to respond to someone, if they are requesting information that the institution has already disclosed.
In B.C., our law applies to the office of the premier, to the ministers, and to cabinet records, but not to court records. The access to records held by these government departments is not unfettered. Exceptions do exist and they are clearly in our act.
For example, our act prohibits a public body from disclosing information that would reveal the substance of deliberations of the executive council or any of its committees, including advice, recommendations, policy considerations, draft legislation, or regulations submitted or prepared for submission to the executive council or any of its committees.
The government receives many access requests for records held by those government departments each year and the records are fundamental to the accountability and to the object of access to information.
Bill proposes to insert the words “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions”. That's proposed to be put in the purpose clause. If that's the purpose, then access should be extended to those offices where those decisions are made.
On order-making power, the proposal is that the courts would review the Information Commissioner's order de novo, allowing for submission of other information and other facts after the investigation by the Information Commissioner. In B.C. we have full order-making power and orders can be registered with a supreme court. These orders are produced by adjudicators after an investigation and mediation process. It's a separate process. The two do not overlap.
In most cases, parties do not apply for a judicial review of our orders or a decision of my office, although they can. In B.C., with limited exceptions, such as in cases where a public body is claiming solicitor-client privilege over records, the courts have determined that the appropriate standard of review of my decisions is reasonableness. They review all our decisions and our orders on that basis.
If Bill were to be implemented in B.C., it would not provide incentive for public bodies to be meaningfully engaged with our office in the investigation or mediation phase. We resolve probably 95% to 99% of our investigations at the investigation mediation phase and rarely have to go to orders. That's a much better process for the applicant and the public body.
In other areas of concern, there is the transition period. Parts of the bill that relate to complaints to the Office of the Information Commissioner and the commissioner's power to investigate would not take effect for a year. It would only be applicable to those complaints received after that effective date. In British Columbia, our act was amended in 2011, and it came into force immediately upon royal assent. That just removed any uncertainty between applicants and government about their requirement to respond under those new conditions.
I will make a little note on information management. The government is now telling my office that they get requests for access to information that may involve hundreds of thousands of pages. They're not allowed to ignore those requests because of the size. In fact, we've encouraged them to start to disclose on a staged basis. But I note that if the information systems designed by government ministries to manage their operations also included thoughtful consideration of the requirement for access to information and transparency of their work, the work taken to respond to requests would be much easier and simpler as the information systems would already be anticipating that the information might be having to be disclosed.
It doesn't help in today's world but as we're designing our information systems going forward it's as if we say privacy by design to protect personal information, but it's access by design to enable the transparency and the delivery of those records to people who have a valid reason to know them.
I'll end there.
Thank you to the committee for inviting the CAJ today.
I'm Nick Taylor-Vaisey. I'm the president of the Canadian Association of Journalists. I'm here today in that capacity and do not speak on behalf of my employer, which is Rogers Communications and Maclean's magazine.
Today I'm speaking to you from Toronto, but our national board represents almost every corner of Canada. The CAJ is a truly national association of working journalists with members all over the country and across all forms of media.
Before I offer you our thoughts on how this committee could proactively improve the access to information reform on the table in the form of Bill , I'd like to spend just a few seconds telling you about the CAJ.
The CAJ was founded in 1978 as the Centre for Investigative Journalism, a non-profit organization that encouraged and supported investigative journalism. Over the years we broadened our mandate and now offer high-quality professional development, primarily at our annual national conference, and also outspoken advocacy on behalf of journalists.
Our members include some of the most dogged investigative reporters in the country, journalists who have read freedom of information laws back and forth and have actively used them to inform their stories. They serve the public interest by digging up information their readers require to be informed citizens.
As you know, because you see it every day, excellent journalism reshapes public policy and improves people's lives. An effective access to information law allows journalists, and by extension the broader public, to be better informed, and at an even more basic level a good law serves the public's right to know.
This committee is well aware of the need for access to information reform. You've studied this issue exhaustively and have made important and necessary recommendations to the government. You now have before you a bill that the government has called “the most comprehensive reform of access to information in a generation”.
Of course, the Information Commissioner's opinion is different. She has said that Bill “would result in a regression of existing rights”. Heather Scoffield from the Canadian Press told you earlier this week that her Ottawa bureau, one of the most active in Canada when it comes to using the law—journalists like me are usually pretty jealous of the CP bureau's work—is “alarmed” to “see more ways for the government to turn us down and deny us information”.
The CAJ hopes the committee will work to change several damaging aspects of Bill .
The first is that the government promised to expand the number of offices, including ministers' offices, that were subject to the act. Instead, Bill subjects ministers' offices to increased proactive disclosure. You'd be hard pressed to find a journalist who doesn't celebrate increased proactive disclosure. The problem is that governments control what is proactively disclosed, and a strong access to information law actually shifts that balance of power to the public. The CAJ urges the government to keep its election promise and subject ministers' officers to the right of access.
The second point is that Bill would allow departments to decline to act on requests deemed “vexatious” or “made in bad faith”. Both the Information Commissioner and this committee recommended that the government add a “bad faith” clause to the law. The proposed clause, however, could kill requests that don't include narrowly defined criteria, including the specific subject matter of the request, the type of record being requested, or the period for which the record is being requested.
Now, as journalists go about their work—our work—they will not always have all that information at their disposal. To dismiss those requests that lack only certain details as vexatious or in bad faith is an unnecessary overreach. The CAJ, like the Information Commissioner, urges the committee to remove these amendments in clause 6 from Bill .
The third point is that Bill doesn't give the Information Commissioner effective order-making powers. The bill does technically enshrine order-making power, but the Information Commissioner has criticized the toothlessness of that element of Bill C-58. She's also suggested a different approach that would enact real enforceability, and the CAJ supports those recommendations. Of course, Mr. McArthur just spoke in some detail about that particular element of the bill.
The last recommendation is that Bill is a step backwards on fees for access. Early on in its mandate this government made a decision to waive all fees except for the mandatory $5 application fee. Bill C-58 reintroduces those fees and only says that they “may be prescribed by regulation”. Fees act as a barrier to access, and the CAJ believes the government should follow its interim directive of 2016.
Ultimately, journalists are hoping for an access to information law that shifts the culture within government, including that of both political actors and the broader public service. Bill will not get there. It adds new restrictions to the right of access and, outside of more government-managed proactive disclosure, won't instill a culture of openness by default. Journalists will spend more time clarifying or appealing requests, often with no clear path to a resolution, and sometimes at a significant financial cost.
Access to information coordinators, who are often caught between journalists and citizens who want information and government officials who don't want to give it up, will continue to have one of the most unenviable jobs in the public service.
Thanks for your time. Once the witnesses have finished their statements, I'm of course happy to answer your questions.
Thank you, Mr. Chair and members of the committee, for having Evidence for Democracy here today.
We're very pleased to be here to discuss Bill and we're happy to see that the Access to Information Act is being revitalized for the first time in a long time—and actually for the first time within my lifetime.
Evidence for Democracy is a non-partisan, not-for-profit organization promoting the transparent use of evidence in government decision-making. E for D works with parliamentarians, public servants, scientists, and the public to ensure that the best available evidence and science make it into policy, and in a method that is transparent and open.
Robust evidence and facts underpin our democratic process. When Canadians do not have access to the science and evidence created and used by government, we cannot effectively hold our governments to account and our democracy suffers. As many of you are aware, access to scientific information in government has not always been available. When scientists are muzzled, cannot speak to the media, or fear for their employment if they speak about their research, our democracy is greatly impacted.
This government and many other members have worked hard over the last two years to ensure that government science can be openly communicated to the media and to the public. We're pleased to see these positive steps forward; however, this is only one part of being able to access government information. The ambitious undertaking of revitalizing the Access to Information Act is certainly another part of it. The revitalization of this act was long overdue and is an opportunity to truly modernize it, improving accountability and trust between the government and the Canadian public.
It is our opinion that there are serious flaws with Bill as it stands now; however, we recognize the opportunity to change and strengthen it. Our recommendations are similar to those of the other witnesses today: to focus on proactive disclosure, the denial of requests, and the ability for the Information Commissioner to order records.
On proactive disclosure, the decision to make ministerial mandate letters open by default was a commendable step by this government. We're pleased to see it enshrined in Bill and look forward to the normalization of this practice. These mandate letters have helped us as advocates and researchers to understand government priorities and desired changes. This is a positive step; however, it does not go quite far enough.
Evidence for Democracy, like many, interpreted the access to information reform presented by the Liberal Party in its election platform as including the ability to ATIP ministers' offices and the PMO. We are disappointed that this is not part of Bill and are concerned that proactive disclosure, while laudable, in its current configuration does not reach far enough.
We're deeply concerned that proactive disclosure of information is not overseen by the Information Commissioner. We see the information commissioner role as an incredibly important one and do not want to see parts of access to information legislation removed from that office's oversight. It is imperative that proactive disclosure be under the purview of the Information Commissioner.
Additionally, there must be shorter timelines for disclosure specified in the act, and it should allow for individuals to still request access to information.
We agree with this committee's recommendations, particularly recommendation number 23, that purely factual or background information, information on, and a record of decision made by cabinet or by any of its committees on an appeal under the act also be disclosed.
Furthermore, the ministers' offices and Prime Minister's Office must be required to respond to access to information requests. Proactive disclosure on its own is not sufficient; right to access should be extended to these offices.
With that, I will hand it over to Katie Gibbs, my colleague.
When it comes to the bill's amendments to section 6, as it stands now we are concerned about requests that may be deemed vexatious and turned down. We do not believe that government departments or agencies should be able to determine that a request is vexatious and deny it. We think that only the Information Commissioner should be able to make those calls.
We believe there should be some means for the Information Commissioner to say that something is vexatious, but we think there need to be very clear specifications added into the act around what exactly “vexatious” means. It's a very subjective term as it stands now.
Additionally, the bill requires requesters to specify very specific information, such as the topic, the type of record, and the time period. While this may sound simple, it can be very challenging for civil society groups. NGOs like ours, but certainly members of the public, often do not have that very specific information prior to submitting a request. These changes really make it harder and not easier for the public to access information. We feel that this provision dramatically weakens our access to information legislation and really provides governments with a mechanism to subvert the intent of the acts, if they choose to.
The last issue we're concerned about is around the authority of the Information Commissioner in section 36, which allows the Information Commissioner to order a government institution to either reconsider denying access or order that a record become available. In theory, we absolutely think this is a positive change, but we have concerns about the timeliness of this process as well as the resources required within the Information Commissioner's office to fulfill this mandate.
We would remind the committee here that the scientific community is still waiting on a report from the Information Commission on the muzzling of federal scientists. This investigation began in March 2013, and we are still waiting for the report. It has been four and a half years, and we still don't have answers. Obviously, I think, we can all agree that this is unacceptable.
In the scenario that we see with these changes, someone would submit a request to the relevant departments. It would consequentially be denied, which we assume would take a few weeks, if not the full 30 days. They would then have to take it to the Information Commissioner. We assume they would then need some time to review it. Say that they do compel the government to produce the record; it then has 30 days again to actually produce the records.
Really, then, we're looking, even under a best case scenario, at its taking potentially months to actually get the documents. Again, this is assuming that the Information Commissioner would actually be able to review the case immediately, but given that the office is under-resourced as it is, it seems likely that there could be a significant delay in the process and in their ability to review the case. We want to make the case that in order to fulfill any new mandate given to the Information Commissioner, the office will need a significant addition of resources to match any new mandate being put on them.
Additionally, again we support this new mandate for the Information Commissioner to order records, but we are concerned that the bill does not really provide any teeth for the office to do that job effectively. It's not currently clear what kind of recourse there would be if the institution just refused that order from the Information Commissioner.
It is thus our opinion that the bill needs some serious work and amendments, but we are very pleased to see that the act will be reviewed in one year and then again in five years. We think that regular renewal and revitalization of an act so vital to our democracy is imperative. As data practices and government evolve, so too should our access to information laws.
We look forward to seeing what the committee does with this bill, and the reviews.
Thank you for your time.
Thank you, Chair. I'll try to go quickly.
I was looking through, Mr. McArthur, your office's recent records. You had about 20,000 requests over a five-year stretch. Only 20 of those went to an appeal to the commissioner after the request had been made. There was a complaint by the public, and you folks got involved.
I was looking at a recent survey—I don't know if it was by Mr. Nick Taylor-Vaisey's organization or another—looking at grading all the provinces and the federal government. You got a B. You didn't get one of the As that four other provinces got, but four got Bs, and two Cs, and three unfortunately got Ds. The loser in this was the federal government, which got an F, and was the worst.
I'm wondering about this condition of duty to assist. I have an access to information request that was done by a Canadian into Finance Canada asking for information with respect to the divestment of the finance minister. They wrote back saying, ”I must inform you that, after a thorough search, no records exist in the Department of Finance Canada concerning this request.”
Is the duty to assist, then, at that point when the officer would then find out where the records do exist, then assist the applicant in finding out where they are? Because that's where it ends. That's the dead end federally.
Provincially if someone wrote to Finance, and the records weren't in Finance, but they were over in the ethics department or some other department, would the duty to assist require that officer to then assist the public to get to the place where the records are?
Thank you very much, Mr. Chair.
Members of the committee,
thank you for inviting me to provide my views on Bill .
First of all, I want to say that we support the government's commitment to open government, and we see this review of the Access to Information Act as welcome and long overdue. Making more government information available to the public is crucial to fostering transparency, accountability, and trust.
The OPC has frequently championed transparency. For example, as part of Privacy Act reform, but also in our submission to Treasury Board Secretariat on revitalizing access to information, we expressed support for open government, particularly in enabling informed citizens to participate fully in democratic debate. However, it is recognized internationally that open government can and should only be achieved in conjunction with appropriate privacy protections, for societal acceptance is predicated on trust that privacy will not be unduly infringed.
The online environment requires rigorous de-identification techniques to be applied and validated by experts prior to disclosure. The OPC and Statistics Canada can play key roles in minimizing the inadvertent release of personal information by government in the course of implementing open data initiatives.
We are confident that access and privacy are parallel goals that can be reconciled. The Access to Information Act and the Privacy Act have long been considered by the Supreme Court to be a “seamless code” of informational rights, the combined purpose of which is to carefully balance both privacy and access.
The court has further held that the personal information exception to access is mandatory and “should not be given a 'cramped interpretation' by giving access pre-eminence over privacy”.
Our previous comments on the Access to Information Act focused on the importance of maintaining this balance. We spoke in favour of maintaining ATIA's public interest exception that permits the disclosure of personal information only where the public interest clearly outweighs a claim of privacy.
We had also recommended that the definition of “personal information” not be amended. We are pleased that Bill leaves these concepts unchanged.
We further recommended that Parliament defer changing the Information Commissioner's power to order the disclosure of personal information until a legislative review has been done of the Privacy Act and its interplay with the Access to Information Act.
Nonetheless, Bill proceeds to confer upon the Information Commissioner order-making powers, including in respect of personal information disclosures. This would significantly and clearly disrupt the balance struck in the current legislation. We acknowledge that Bill takes limited steps to restore balance, primarily through notification requirements and legal recourse against formal OIC orders. However, this falls far short of maintaining the required balance, as privacy would be impacted outside formal orders or through OIC recommendations or institutions' decisions to disclose personal information to avoid OIC orders. I would not be notified or given the opportunity to intervene in such cases, even though the OIC and OPC may diverge on key legal issues relating to the balance of both rights.
For example, the offices may disagree on the degree of risk of re-identifying anonymized information or metadata, which could be determinative in assessing whether it constitutes personal information that should not be disclosed. The commissioners may also diverge on whether personal information is publicly available and whether the public interest clearly outweighs a privacy invasion, particularly in light of the new purpose clause in Bill , which the Information Commissioner finds concerning, but which I find helpful.
Recently, in response to the bill before you, the Information Commissioner has taken issue with the proposed obligation to consult the Privacy Commissioner. She says consultation is unnecessary as the OIC has years of experience in interpreting the relevant provisions. This is very unfortunate, and clearly inappropriate as the Supreme Court has recognized the—quote, unquote—“central role” of my office in protecting privacy.
It is true that the OIC has significant experience in interpreting the personal information exception to access, but that experience has been developed as a champion for access rights. To ignore the views of other actors who have a legal role in ensuring the balance between access to information and other rights plainly makes the case that, as legislators, you must recognize in Bill the role of the OPC as privacy champion. Furthermore, this should be extended to all situations where privacy is in need of protection. The quasi-constitutional nature of the right to privacy is another reason to enshrine this role in the bill before you.
To restore the balance between access and privacy in Bill , I propose two legislative solutions.
First, the bill should require mandatory notification of and consultation with the OPC in all cases where personal information is at real risk of being disclosed without the individual's consent, and not just when there is a formal order about to be issued. The point would not be to consult in every case in practice. Although the obligation to notify and consult with the OPC would be the rule, this obligation in the interests of resource efficiency would not apply to lower-risk situations where the OIC and the OPC had agreed that consultation would not be necessary. This type of agreement would support collaboration with the OIC to ensure the best balance between these two fundamental rights.
Second, I recommend that Bill give the OPC the opportunity to seek judicial redress in all cases where personal information is at material risk, and again not only those where an order has been made. Again, this right of redress would not be exercised in every case in practice, but only where necessary to protect privacy and to develop jurisprudence that would guide both commissioners, departments, and citizens on the applicable law.
To bring further clarity to my proposals, I have attempted to put them in statutory language. I believe you have these texts before you now.
Mr. Chair and the committee, with your indulgence I will spend a few more minutes to explain—I think that's crucial—why this bill disrupts the current balance between access and privacy.
The current balance upheld by the Supreme Court of Canada in several judgments is based on a number of factors including, first, the substantive provisions of the Access to Information Act and the Privacy Act, including the definition of personal information, the fact that the personal information exception in the access act is mandatory rather than discretionary, and the wording of the public interest exception, which requires that the public interest and disclosure “clearly outweigh” privacy invasions in order to prevail.
As a result, the Supreme Court held that as the law now stands, the combined purpose of the two acts is to protect both privacy and access rights and strike a careful balance between the two. The court even added that as things stand, privacy is paramount over access.
The second consideration, the roles of the two commissioners currently, one being the access champion and the other having a central role in protecting privacy, both being ombudspersons who can only make recommendations and not orders, and the role of departmental heads who ultimately have the discretion to decide on exceptions in general and specifically when the public interest and disclosure clearly outweighs privacy.
It's important to understand that while Bill maintains some of these factors, which are important for the Supreme Court in maintaining the balance, it changes others, notably the roles of the Information Commissioner and Privacy Commissioner and their authority to make binding orders. Changing the balance between the roles of the two commissioners and departmental heads may well have an impact on the interpretation of the substantive provisions. Giving the OIC the authority to make these orders could well mean that the OIC's interpretation will prevail between disclosure in the public interest and privacy.
The problem is not that the OIC is inherently unfair or unknowledgeable—it's true that they have experience—but rather that it is a champion of one side of the balance. Someone needs to speak for the other side, particularly when the Information Commissioner in her special report on this bill is on record as saying it is unnecessary and inappropriate to consider the other side.
The OPC will rarely be involved according to Bill , despite having a central role according to the Supreme Court. The bill provides that the OPC will be notified only in the case of formal orders and only in these cases will we be able to see judicial redress. Yet, privacy may be at risk not only where OIC formal orders are made, but in other situations. Departments are much more likely to comply with the OIC's interpretation, knowing that the OIC ultimately has the authority to make binding orders. As government officials acknowledged to you last week, it is only in very rare cases that departments will use their resources to challenge OIC orders.
Similarly, when the OIC makes a recommendation under the new regime, or even when discussions take place between the OIC and departments during the investigation of a complaint, departments are much more likely to comply with the OIC's view, knowing that the OIC can ultimately order the department to accede to its interpretation of the law.
Bill ultimately creates an incentive to give access pre-eminence over privacy, which is contrary to the Supreme Court jurisprudence. I am deeply concerned about this and have suggested a few simple solutions to this poor balance.
Thank you for your attention, and I look forward to answering your questions.
It's true that the identity of officials or other people may sometimes have to be protected and that, in other cases, it is unreasonable to protect them.
I imagine that there may be differences of opinion, and the circumstances are important. I'll talk to you about the provision of Bill that states the purpose of the act, because I think it's important to the question you're asking. The purpose of the act is amended to read that the purpose is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions”.
So there will be cases where information affecting a political position or topic x from the public service will be disseminated, which is very much in the public interest. Do the individuals involved in this policy need to be identified? I think the new purpose of the act is helpful in answering this question. It's a tool that did not exist previously.
In the example you gave, would knowing the identity of the public servant enhance the accountability and transparency of federal institutions? It may, or it may not.
Would it promote democratic debate? It may, or it may not.
The purpose of the act is very helpful here in answering these questions. Sometimes, the public debate can be complete, quite democratic, without the need to identify the individuals involved. Sometimes, it will be quite relevant to know the individuals involved to judge the merits of someone's point of view, in order to have an open and informed democratic debate.