Thank you, Mr. Chair.
Good afternoon, everyone.
Honourable members, thank you for inviting me to appear before you to discuss Bill .
I have closely followed your work, I have reviewed the testimony of the various witnesses, and I have read the submissions you have received during your study. I have taken these into account for my submission today.
As you are aware, persistent calls to reform the Access to Information Act have been made ever since its adoption. In the 30-plus year history of the Office of the Information Commissioner of Canada, my predecessors and I have documented multiple challenges and deficiencies with the act.
In March 2015, I tabled a special report in Parliament where I proposed an in-depth reform of the Access to Information Act. Included in this report were 85 recommendations that would resolve recurring access to information issues and create a culture of openness.
During this committee's 2016 study of the act, I identified the recommendations from my special report that should be prioritized in the first phase of the government's reform.
My recommendations from that appearance are still the priorities I would recommend today to modernize the act. They are also recommendations the committee made in its final report.
First, we recommend extending the coverage of the act to include the Prime Minister's Office, and administrative institutions that support Parliament and the courts.
Second, we recommend legislating a duty to recommend the decision-making process in government.
We also recommend reducing delays.
Moreover, we recommend maximizing disclosure of government information by amending the advice and recommendations exemption and the exclusion for cabinet confidences.
In addition, we recommend strengthening the oversight powers of the information commissioner by adding to the act a true order-making model, with the certification of orders as if they were issued by the Federal Court.
Finally, we recommend including in the act a mandatory review of the Access to Information Act in 2018, and every five years thereafter.
Since then, I have also recommended to the Minister of Justice and to the President of Treasury Board, by letter dated October 8, 2017, that an amendment be made during the first phase of amendments to provide for a clear provision preserving the ability of the Information Commissioner to review records over which the exemption of solicitor-client privilege is claimed by government institutions. This recommendation followed the decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. University of Calgary.
Bill fulfills two of these seven priority recommendations: that is, the mandatory review of the act every five years, and the recommendations related to solicitor-client privilege.
On September 28, 2017, I tabled a report in Parliament entitled “Failing to Strike the Right Balance for Transparency”, which details my concerns over Bill and my recommendations to improve the bill.
I would be pleased to answer any questions you may have on that report, but for now, I will focus my remarks on some of the issues that have been raised during your study and that were not addressed in detail in my special report.
First, in relation to proactive disclosure and judicial independence, the committee has heard from a witness representing the Canadian Superior Courts Judges Association. This witness raised concerns that the proactive disclosure found in Bill with respect to judges could interfere with judicial independence or could compromise the security of the judges. The Canadian Bar Association, in its written submission, has also raised similar concerns.
When I tabled my report “Striking the Right Balance for Transparency” in 2015, suggesting amendments to modernize the act, I recommended extending coverage of the act to the bodies that provide administrative support to the courts, not to the judges themselves. I recognized that judicial independence is a cornerstone of our judicial system and that certain records should be excluded from the purview of the act.
Bill proposes to proactively disclose individualized information relating to incidental expenditures and representational, travel, and conference allowances, including the judges' names. This, according to the association that presented before this committee, could jeopardize the independence of judges and compromise their security.
In order to address these concerns, the association suggested that expense information according to the categories of reimbursable allowances set out in the Judges Act be published according to each court's expenditures.
In my view, this recommendation is reasonable and should seriously be considered by this committee. Currently the expenditures related to these categories of information are not available to the public.
As well, the association's recommendation that the decision of whether judicial independence could be undermined by the publication of the proactive disclosure documents could be made to reside with the chief justice of the court concerned, and should also, in my view, be considered by the committee.
The second aspect that I want to address—and I think you have to be patient with me and bear with me—is in relation to personal information. I thought, in preparing the remarks for today, that I would actually go into some detail—basically, to go back to basics in a way—to explain how the exemption for personal information is addressed under the Access to Information Act.
Based on the testimonies presented to the committee and committee members' questions, it is useful to clarify how the exemption for personal information is applied under the Access to Information Act.
The personal exemption is found at section 19 of the Access to Information Act. It is a mandatory exemption. It states that the head of a government institution shall refuse to disclose any record requested under the Access to Information Act that contains personal information.
Personal information is defined in section 3 of the Privacy Act and is incorporated into the access act by virtue of section 19. It states that “personal information means information about an identifiable individual that is recorded in any form including” such things as information related to race, religion, addresses, fingerprints, and so on.
Section 19 of the access act provides the following instances in which disclosure of personal information is authorized: the individual to whom the information relates consents to the disclosure, the information is publicly available, or the disclosure is in accordance with section 8 of the Privacy Act.
Section 8, in turn, contains a list of instances in which personal information can be disclosed. In particular, subparagraph 8(2)(m)(i) states that personal information may be disclosed for any purpose where, in the opinion of the head of the institution, the public interest in disclosure outweighs any invasion of privacy that could result from the disclosure.
The head of the government institution shall notify the Privacy Commissioner in writing of any disclosure of personal information prior to the disclosure, under paragraph 8(2)(m), and the Privacy Commissioner may, in turn, if he deems it appropriate, notify the individual to whom the information relates.
Paragraph 8(2)(m) was applied over 7,700 times by government institutions in 2015-16. This would have triggered mandatory disclosure requirements by institutions to the Privacy Commissioner.
Of the requests completed by government institutions in 2015-16, the exemption for personal information was applied by government officials to more than 28,000 requests. That's about 39% of the total number of requests. The exemption for personal information is the most frequently cited exemption by institutions.
These decisions on disclosure are made by government officials on a routine basis.
In terms of complaints to my office, this exemption was cited in over 300 complaints last year, and this is pretty consistent year over year. This makes up 52% of all the exemption complaints that my office reviews. It is important to recognize that the personal exemption is used almost invariably with other exemptions in any complaint to my office. However, most issues related to the personal exemption provision are resolved at the very early stages of our investigations and are very rarely contentious.
Indeed, since I have been commissioner, we have dealt with over 13,000 investigations. I have issued a formal recommendation to release personal information in seven cases.
During that time, there have been a total of 21 cases in court related to the personal information exemption under the access act. Of those, 19 were brought forward by third parties, not by the Information Commissioner, and two of those cases were brought forward by my office. Although the Privacy Commissioner can intervene in these cases, the current Privacy Commissioner has never done so.
Bill incorporates the Privacy Commissioner into the Information Commissioner's investigative process in two instances. First, if institutions notify the Privacy Commissioner of a complaint to my office, the Information Commissioner will have a positive legal obligation under Bill C-58 to seek representations from the Privacy Commissioner.
Will institutions feel compelled to notify the Privacy Commissioner? If so, there will be a positive legal obligation to involve the Privacy Commissioner in all of these investigations by the Information Commissioner. No timelines are provided for in this process. We know that this will affect over 300 investigations per year that not only deal with personal information but with many other investigative issues.
Second, the Information Commissioner may consult at her discretion—this is in Bill —when she intends to issue an order that personal information be disclosed.
The Privacy Commissioner, in his submission, proposes to expand his role in access to information investigations further than Bill already does. He recommends making consultation with his office mandatory when the Information Commissioner intends to issue an order or a recommendation in all instances involving disclosure of personal information. He also recommends that the Privacy Commissioner be able to seek judicial redress when the Information Commissioner makes not just an order, but also a recommendation to disclose personal information.
My colleague argues that this involvement of the Privacy Commissioner in the Information Commissioner's investigations is necessary because Bill changes the balance between access and privacy rights. He argues that the Information Commissioner is a champion of one side of this balance, and therefore the Privacy Commissioner, whom he describes as the champion of privacy, must weigh in to ensure that balance is maintained. Respectfully, I disagree.
Bill does not alter the exemption for personal information that currently exists under the law. It does not significantly alter the definition of personal information. It maintains the test for public interest disclosure and the obligation for institutions to notify the Privacy Commissioner should they decide to disclose based on public interest.
It is true that the Information Commissioner is a champion for transparency in public policy debates. I am, however, first and foremost, a regulator. As such, in conducting the investigations under the legislation, I must apply the law as it is written. The law related to this exemption has not changed. My investigation will consider the same legislation that it has considered for the last 34 years.
The exceptions that allow disclosure are at the discretion of the head of the institution. When we conduct investigations in relation to this, our investigative work reviews whether the head of the institution has exercised their discretion in a reasonable manner. The Information Commissioner does not substitute her own exercise of discretion for that of the head of the institution.
As I have explained in my special report, given that Bill does not provide for an actual order-making power, the shift in balance advanced by both the government and the Privacy Commissioner is not grounded in the new provisions of Bill and is at best entirely speculative.
Any mandatory obligation to consult the Privacy Commissioner is, in my view, not required, and will hinder the efficient investigation of access to information complaints. Most importantly, it will impact the integrity of investigations under the Access to Information Act. This can occur in at least two circumstances.
First, since the Office of the Privacy Commissioner is also subject to the Access to Information Act and therefore subject to complaints to my office, a mandatory obligation to consult with his office would create a conflict of interest.
Second, it is common for requesters to seek information under both the Information Act and the Privacy Act. They use both acts to maximize the amount of disclosure they will obtain from government institutions. It would directly affect the integrity of the investigations under the Access to Information Act should the Information Commissioner be obligated to disclose information related to these investigations to the Office of the Privacy Commissioner.
In sum, for all the reasons above, I do not recommend that the Privacy Commissioner be involved in the investigation of access to information matters when the exemption for personal information is at play, given the existing safeguards that already exist in our respective legislation. The recommendations in my report in this regard should be followed.
However, should the committee consider it necessary to involve the Privacy Commissioner into the investigations of the Information Commissioner, I recommend, first, that consultation with the Privacy Commissioner should be at the discretion of the Information Commissioner, as is provided for already in Bill under proposed new section 36.2.
Second, I recommend that notice to the Privacy Commissioner be given when the report of an investigation sets out an order requiring the institution to disclose a record or a part of a record that the head of the institution refuses to disclose under section 19 of the Access to Information Act. In essence, I recommend maintaining proposed new subsection 37(2). Finally, new subsection 41(4) of Bill could be maintained to allow the Privacy Commissioner to apply to court for a review of orders of the Information Commissioner related to section 19.
Mr. Chair, I have been pleased to follow your work and to hear during the minister's appearance that the government is open to hearing amendments from this committee on Bill . My report contains 28 recommendations to improve Bill C-58, and I encourage you to consider them in reviewing this bill.
Thank you for your study.
I am now ready to answer your questions.
One of the things that the government promised was to have ministers' offices covered by the Access to Information Act. This piece of legislation does not do that. I have said that this was one of the priorities in the first phase of amendment. I have said publicly that at the very least the government should ensure that ministers' offices are covered under the access act. I would think that would certainly be a top priority.
With the proactive disclosure scheme that's being proposed under Bill , although I fully support proactive disclosure, the concern I have with the current regime is that it results in an important regression of existing access rights in relation to ministers' offices. This is a real concern of mine. Proposed section 91 basically says that the Information Commissioner does not have jurisdiction over that part 2, which is all the proactive disclosure.
Everything that's in part 2 right now, all of this proactively disclosed information, is currently subject to the Access to Information Act. With regard to lists of briefing notes, QP preparation, briefings to heads of institutions, all of this material is currently subject to the Access to Information Act. If the government institution applies exemptions to that information, those exemptions can be reviewed by the Information Commissioner.
Under Bill , if the government applies exemptions to the proactive disclosure documents, those exemptions cannot be reviewed by anyone. I think that's a very real concern. Those would be two of the most important points.
The third one that is really important are the criteria that have been embedded in Bill for anyone who wishes to make an access to information request. Aside from my own recommendation in that respect, you have heard from many requesters who are basically saying that this would be a major regression.
When I was preparing for this committee, I went back to the request that was made by Daniel Leblanc, the journalist who uncovered the sponsorship scandal. That request would not have met the new requirement under Bill . That's a perfect example of how new section 6, as it is currently worded in Bill C-58, would amount to a massive regression. I have that request somewhere, but it essentially reads something along the lines of “all records related to the sponsorship budget from 1994 to the time of the request”, which was 2000. That would not meet the test under section 6. That would be denied. I think that's a huge problem.
The News Media association did a recent audit of the federal government to assess the government's performance. In doing this audit, it sent 29 requests to federal institutions. When I looked at those 29 requests, several of them would not have passed the test under the new section 6. Something like 41% of those requests would not have been valid requests.
Last night, before I left my office, one of my directors of investigation told me that an institution had refused to respond to a request, and we had a complaint because the subject matter of the request was not in the request. Allison here, who is the executive director of investigations, has completed an investigation in which an institution is already applying the criteria in Bill , which are not even in force yet, to deny requests for information.
Those are only two that I have complaints about so far. That's the concern I have with the criteria in new section 6.
I'm going to take all your time if I continue, but there you go. I have only mentioned three.