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Results: 1 - 15 of 1420
John Cousens
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John Cousens
2013-06-06 16:51
I would say if we looked at what the U.K. has just done within the legal framework, the privacy and data protection framework of the EU, there must be some incredible learning to take away from there. If they can do it, I'm not sure why Canada can't do it, because they have a framework that is very robust compared to some of the other nations that are doing this.
Martin.
View Peter Braid Profile
CPC (ON)
Great.
You've mentioned the U.K., and in your presentation you talked about the status of cloud computing in the U.S., Australia, and New Zealand. Any government with an advanced economy is equally concerned about privacy and security. What have these countries done that we haven't done to overcome this issue or this obstacle?
John Cousens
View John Cousens Profile
John Cousens
2013-06-06 16:52
Martin hosted a panel at our last conference in Banff in March. It was a panel of his peers, mostly lawyers who know this issue to a t. It was fact based. It was unemotional. I found it interesting, but some were a little bit bored by it. It was a practical discussion. It drove out and got to the facts. It removed emotion and parked it at the door. I thought it was one of the best discussions on how to address this issue.
I'll put it back to Martin, and he can summarize his findings, because he assembled the panel of experts to have that dialogue regarding the barriers for Canada.
View John Carmichael Profile
CPC (ON)
Thank you, Mr. Chair.
I'd like to follow up on Ms. Gallant's and Mr. Braid's questions.
Mr. Kratz, you talk about our society as being risk averse. I understand that. As Canadians, we're all very conservative in our thinking, and I use that term in a liberal way.
In another study that was done not too long ago we talked about data warehouses, aggregators, and that most of them are located in the U.S., as an example. One of the concerns we heard and that I came away with.... Today, in listening to the CSPs, and as you talk about it, I think it goes beyond risk aversion. I think we're in a litigious society. We have concerns about that data. I, as an SME, am storing my customers' data. That customer data is being warehoused somewhere in the U.S., perhaps, through a CSP. How secure is it?
I understand your point on the risk aversion, but as a small business.... Certainly, when you start talking to government about becoming a major user of the product, how secure is it? How much assurance can we have that we're going to be able to preserve the privacy of that data?
Martin Kratz
View Martin Kratz Profile
Martin Kratz
2013-06-06 16:56
Thank you for that question.
I think to answer the question it helps to look fundamentally at what cloud computing is. It's basically a way to offer a flexible, elastic service on a utility basis. It's a standardized service provided to many customers. Those customers are demanding high levels of accountability on issues such as data protection, including privacy legal obligations as well as security obligations.
When there is a failure or breach, we read about it in the papers. There's tremendous motivation by this industry to get this right. The issue is to look at who the cloud vendors are, to look at their meeting of internationally accepted common standards for security and privacy protection, and to hold them to account on that. One of those mechanisms is to have an audit mechanism so that the customer, the SME or the government customer, is able to monitor proper care and handling of data, including personal information.
John Cousens
View John Cousens Profile
John Cousens
2013-06-06 16:57
The Ontario government has implemented a program, privacy by design. It's out of the office of the Information and Privacy Commissioner of Ontario, Ann Cavoukian. It walks through a fact-based process that allows both government and agencies that want to use cloud computing.... It says, “Here are the regulatory requirements. Report on them.”
Many have gone through this within the Ontario government and have come out the other end saying they are able to use some of these services that are available.
View John Carmichael Profile
CPC (ON)
In that case, has the Ontario government mandated that the data warehousing or the storage of that data for PIPEDA and for all the other security mechanisms we require be in Canada?
Martin Kratz
View Martin Kratz Profile
Martin Kratz
2013-06-06 16:58
I'll speak to that.
The Ontario government has not mandated that the data be in Canada. Rather, it looks to a due diligence process around the quality of the service providers and holds them to account to ensure adequate control and security for the protection of the data.
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-05-29 15:56
Thank you, Mr. Chair.
Thank you for inviting me to speak to you today in relation to your study of Bill C-461.
This bill proposes the repeal of section 68.1 of the Access to Information Act, which excludes information relating to the Canadian Broadcasting Corporation's journalistic, creative, or programming activities, subject to an exception for information relating to its general administration.
The bill would replace that exclusion with a new exemption, which would allow CBC to withhold records that could reasonably be expected to prejudice the journalistic, creative, or programming independence of the CBC.
At the outset, I would like to describe briefly the general structure of the act, the limits to the right of access and the powers given to my office.
To that end, Mr. Chair, I have circulated a document to committee members which sets out in a little more detail the various exemptions and exclusions, and explains the difference between the two. The document also explains the general provisions of the legislation as applied to my powers. It provides committee members with more information.
The legislation creates a right to access information under the control of government institutions, subject to specific and limited exceptions. The act limits access by way of exemptions and exclusions.
Exclusions provide that the act does not apply to certain records or information. The act also includes various exemptions that permit or require institutions to withhold a range of records and information.
The act gives the commissioner broad investigatory powers, including access to all the documents under the control of the federal institution to which the act applies. The commissioner has broad powers to require the production of these records.
Thus, when an exemption is invoked by an institution, the commissioner has access to the documents in their entirety. However, where an institution invokes an exclusion, access to the underlying information or records depends on the nature of the exclusion relied on by the institution.
The commissioner's access to records and information, which had been identified by the CBC as falling within the exclusion found in section 68.1, was at issue before the Federal Court of Appeal at the time of my appearance in October 2011. In November 2011, the Federal Court of Appeal rendered its decision.
The question of the extent of the commissioner's powers to examine documents for which an exclusion is invoked was raised in the investigations of the many complaints about the CBC's use of section 68.1 of the act.
As the result of the CBC's challenge to my power to compel the production of documents mentioned in that section, the Court of Appeal confirmed that the commissioner is allowed access to documents covered by the exclusion in order to determine whether the exception fell within the exception for information relating to the administration of the CBC.
With respect to information that would reveal a journalistic source, the Federal Court of Appeal's explanation was:
The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception. In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record—or the part thereof—revealing this type of information would be exempt from the Commissioner’s power of examination.
In its decision, the Court of Appeal resolved the scope of the commissioner's powers to compel the production of the records to which CBC has applied section 68.1. What the decision does not resolve is the scope of the exception to the exclusion and the meaning of the terms used in section 68.1, such as “journalistic, creative or programming activities”. So this does not preclude subsequent litigation on the scope of the exception or the exclusion.
Before I discuss the specific modifications proposed by Bill C-461, it is important to emphasize that the challenges related to access to information are complex. They demand thoughtful, unified action, and are not easily amenable to a piecemeal solution.
Like my predecessors, I have more than once observed that the act requires modernization to bring it in line with more progressive and international models. While it is true that the act was considered state-of-the-art legislation when it received royal assent in 1982, it is now significantly outdated. While acknowledging the need to amend the law, I maintain that it should not be done in a disjointed way, since this leads to issue-specific amendments that erode the act's status as a law of general application.
At the very least, the structure of the act as a whole must be considered when amendments are proposed. We must examine not only the specific interests to be protected by changes or additions to the law, but also the spirit of the law, the way in which it is structured, and its general framework. The chosen approach must, in my view, preserve the law's character as one of general application.
The amendments proposed in Bill C-461 in relation to the CBC reflect what I suggested when I appeared before this committee in October 2011.
Since the committee has been having hearings, I have been following the comments of the stakeholders very closely, as well as the comments of parliamentarians in the House of Commons, and I'll be happy to discuss some of the issues that have been raised by various parties.
At this time, Bill C-461 proposes the repeal of section 68.1 and the insertion of a discretionary, injury-based exemption that would permit the CBC to withhold information that “could reasonably be expected to prejudice the corporation's journalistic, creative, or programming independence”. A discretionary, injury-based exemption will ensure requesters' rights to an independent review process in all matters.
To be clear, any information or records obtained by my office are reviewed solely for investigative purposes. Indeed, the access act's confidentiality requirements are very strict and do not allow the disclosure of any information during the performance of my duties.
In concluding, I ask the committee to consider how these proposed amendments to the Act will apply to the more than 200 complaints currently under investigation. Will the new provisions be applicable to ongoing files, that is, requests and complaints to CBC, or only to new requests? The bill in its current form makes no mention of transitional measures for dealing with existing files. So I invite the committee to consider that matter as it deliberates.
In my view, it would be better that the new provisions be applicable to existing complaints and requests since a requester may simply make a new request, thereby benefiting from the application of the new provisions. But, for that to be the effect, a specific provision is needed, in my view.
With that, Mr. Chair, I would be pleased to answer your questions.
View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-05-29 16:23
Thank you very much, and welcome back, folks.
The government is going to propose an amendment to Mr. Rathgeber's bill on two fronts. I'd like to get your opinion. They're going to come with an amendment regarding journalistic sources. How should that amendment look? If they want to protect journalistic sources, what kind of amendment could we make to this bill to protect journalistic sources?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-05-29 16:23
First, I must say, in my view, journalistic sources will be protected anyway. I think they're protected under the current act, and I think they will be protected under the proposed bill as well. You have to look at the act as a whole. Section 19 of the act protects personal information as well. It's also a provision we use in matters of human sources, for instance in national security matters.
As far as I'm concerned, the fact that it's a discretionary exemption would still protect journalistic sources. The fact that I am allowed to review documents does not mean they will be disclosed. It doesn't address your colleague's point.
I must seriously admit that the idea of having a new amendment that would make an exclusion to a discretionary exemption—and I have not seen it. Having spent several years in litigation to try to assess how an exception to an exclusion applies is a little bit of.... Seriously, operationally, I would rather not see that. I would certainly prefer to see a proposed amendment before that's done, especially since I think it's not necessary to protect journalistic sources.
View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-05-29 16:24
How do you square that with the testimony we heard at the last committee meeting, where every witness said this is their biggest concern?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-05-29 16:25
Frankly, I don't see it. There are two issues. The first issue is that I have the right to review documents, which could include journalistic sources. In my view, because of the confidentiality of the provision, it does not mean that journalistic sources are compromised.
The second issue is that there does not exist, at this time, a full-fledged protection of journalistic sources anyway, which goes to the point of your colleague. When people say there's a potential of disclosure, well, there is a potential now that journalistic sources can be disclosed because they can be disclosed by a court under the Wigmore test.
It's not an absolute privilege; it's not an absolute protection. That is the status quo right now.
I'm not going to comment on an amendment I haven't seen, but please consider this: you are going to create another difficult situation if we create another exclusion to an exemption. How that's going to work, I really don't know. I haven't seen any amendments. I really don't know how that would work, in practice.
If it's going to happen, my recommendation would be to have a mandatory exemption, not an exclusion. This would mean it would be mandatory for the CBC to protect journalistic sources. That would still allow me to review the matters.
I'll tell you why I think it's best if I'm allowed to review the matters. We have this all the time in matters of national security, in terms of human sources. You can have a whole document where there are human sources being referred to in the document. Then there are other types of information that may allow you to identify the human source, and then there's other peripheral information that the institution could claim allows the journalistic source to be identified. It's not so simple.
So far, we have not had any case that dealt with journalistic sources. It is not a big issue. Is it worth complicating the act and adding an exclusion to an exemption? My advice is no.
View Patricia Davidson Profile
CPC (ON)
Along those lines—and I'll ask both of you—do you really feel there needs to be a distinction between general information and the journalistic source? Do you firmly believe that the journalistic source needs to be protected, and do you think Bill C-461 does that? Or do you not think it needs to be protected?
Stephen Taylor
View Stephen Taylor Profile
Stephen Taylor
2013-05-29 17:10
I think journalistic sources need to be protected. I think Parliament is supreme in the land. I've heard from other stakeholders that perhaps a judge would be more appropriate in reviewing such information. But I believe the Information Commissioner is better placed within the supremacy of Parliament to review this information. She stated earlier that she wouldn't be releasing this information; it would only be within the scope of investigation.
I note that previous stakeholders of the CBC, when asked if any access to information requests had been made on journalistic sources, replied that none had been made. I think that any reasonable person would be able to see on the face of it what a request constitutes: information on the administrative capacities of the CBC versus the outing of a journalistic source. I know that any such information would be excluded, as stated by the Information Commissioner, in such a release. It would be blacked out on those documents.
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