Canadian Bar Association
Annual Access to Information and Privacy Law Symposium

A Brief Retrospective

Suzanne Legault, Information Commissioner of Canada

Ottawa, ON

October 28, 2016

Check against delivery.

 

Thank you John for your kind introduction.

Good morning everyone.

It is a pleasure to be here and a privilege to open your 2016 Access to Information and Privacy Law Symposium.

I have been at the Office of the Information Commissioner of Canada for ten years. During that time, my team and I have completed over 10,000 investigations. As I complete my first marathon as Information Commissioner of Canada, I thought I would use my ten minute sprint to share with you ten ideas. Ten ideas from the past, the present and the future.

Number 1: Access to information rights are a key pillar of our democracy

In Canada, the right of access to information is a quasi-constitutional right. The Supreme Court of Canada has determined that our right of access to information is a derivative right of freedom of expression, protected under subsection 2(b) of the Canadian Charter of Rights and Freedoms, “where it is a necessary precondition of meaningful expression on the functioning of government” (Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23). This same section of the Charter also protects our freedom of thought, our freedom of belief, and our freedom of opinion.

It is always against this backdrop that we must assess, analyse, exercise and protect our rights of access to public information and our government’s performance in administering these rights.

It is our job at the Office of the Information Commissioner of Canada to protect access to information rights.

In doing so over the years, we have shed light on the situation of Afghan detainees, Indigenous land claims, tax evasion schemes, the life of René Lévesque, the life of Norman Bethune, government procurement, the tragedy in Lac Mégantic, and many many more.

Number 2: Access delayed is access denied

A phrase that you have all heard time and time again – unfortunately. In 2002, Canadians would get a response to their access to information requests within 30 days in 69% of the cases. By 2011, that rate had fallen to 55%. My office, as you know, conducted a series of systemic investigations into delays in response times. Our recommendations to the various institutions were all accepted.

We also brought an application in the Federal Court for the determination that a 1,100 day extension was unreasonable and, as a result, amounted to a refusal of access. As you might remember, we actually lost that case in the first instance (Canada (Information Commissioner) v. Canada (National Defence), 2014 FC 205). We had to take the matter to the Federal Court of Appeal. Last year, the Federal Court of Appeal actually confirmed that an unreasonable extension was tantamount to a refusal of access (Information Commissioner of Canada v. Minister of National Defence), 2015 FCA 56). I am sure that anyone hearing this would think – well, of course – that is simple common sense. Well, that was not the common sense interpretation of these extension provisions for the last 30 years. That decision has changed the parameters of time extensions at the federal level. As of last year, that response time rate was back to 65%. One can only hope that it will continue to improve.

Number 3: My favourite quote

“There is a hint of Lewis Carroll in the position of those who oppose the Information Commissioner:

‘[w]hen I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.”

This quote comes from Justice Harrington’s decision in the first reference to the Federal Court on an access to information issue (Information Commissioner of Canada v. Attorney General of Canada, 2015 FC 405).

In this case, the government was essentially arguing that an e-mail was not an electronic record. It was an extremely challenging legal argument!  Certainly not the side one would prefer to be on in any law school moot court exercise!

As a result of that decision the federal government had to stop charging fees for searching and preparing electronic records. Subsequently, the federal government issued an interim directive this spring to eliminate all fees except for the initial 5$ fee.

Number 4: Avoiding access to information: let me count the ways

A few days ago, we learned from media reports that the premier of Nova Scotia was using the phone to conduct government business in order to avoid access to information.

At the federal level, the phone was replaced a few years ago by BlackBerry Personal Identification Numbers (PINs). In 2013, we found that 98,000 BlackBerrys were issued across the government. PINs were widely used across departments. Even though it was possible to store instant messages sent via BlackBerry by actively enabling a function using the BlackBerry Enterprise Server software, only two of the institutions we investigated had taken that step, and only one stored all types of instant messages. In the other nine institutions, the retrieval of such messages in the case of deletion or loss was practically impossible, since they were not stored on a central server.

We made several recommendations, including that instant messaging on all government-issued wireless devices be disabled except where certain conditions were met. This recommendation was not accepted by the government of the time. PINs are still used in the government. According to the government of the time, all records on PINs were inherently transitory. I learned recently that PINs would be replaced by some other technology. I have yet to find out more details.

Number 5: The political temptation

My colleagues from Ontario, BC and Alberta have had their share of investigations related to some form of political interference into the access to information process. Indeed, there seems to be a strong temptation to do so.

In our case, Public Works and Government Services Canada had received a request for information that was contained in a fifteen chapter report on asset management. The access professionals had decided that the entire report should be disclosed. However, after making this decision, they received an email from a member of the Minister’s staff to “unrelease” the report. They actually retrieved the report from the mail room. This investigation was followed by another investigation into the processing of eight access to information or consultation requests received by PWGSC. Several recommendations were made to the department, including that the matters be referred to the RCMP for investigation.

I do believe that behaviours have changed at the federal level as a result of these investigations. I have not been seized with another similar matter since then. Let’s hope it will continue.

Number 6: We are guardians of values

My colleague, the Commissioner of Official Languages often refers to agents of Parliament as guardians of values.

You may recall that the May 2015 budget bill included provisions to erase retroactively the application of the Access to Information Act. It erased all administrative, civil, or criminal liability arising from any action, from any person, under the Act, back to the time when the Ending the Long Gun Registry Act was first tabled in Parliament. This was done at a time when we had referred evidence to the Attorney General of Canada of the possible commission of an offence under the Act. The evidence pointed to the destruction of records in the registry while an access to information request was validly made.

We issued a special report to Parliament, filed an application for judicial review in the Federal Court (Information Commissioner of Canada v. Minister of Public Safety and Emergency Preparedness, T-785-15), and initiated a constitutional challenge in the Ontario Superior Court (Information Commissioner of Canada and Bill Clennett v. Attorney General of Canada et al., 15-64739). Meanwhile the Federal Court ordered the production of the remaining records to be sealed and kept at the Federal Court. The Ontario Provincial Police did not investigate because, as they told us, there was no longer a criminal offence to investigate.

These litigation cases are being held in abeyance. Negotiations with the current government point to a resolution in the near future.

The government at the time said that it was merely fixing a loophole. I testified before the parliamentary committee that it was creating a black hole. If you remember Orwell’s 1984, you cannot escape the analogy that the federal government at the time was attempting to erase this history into a Memory Hole of the Records Department of the Ministry of Truth. Except this was not a work of fiction in some dystopic world. This was our Canada in 2015.

I say that we are guardians of values because I could have simply said nothing; our investigation was confidential. It would have been easy, but it would have been wrong.

Number 7: Legislative reform of the Access to Information Act: Just do it

In March 2015, I tabled a special report in which I made 85 recommendations to comprehensively modernize the Access to Information Act

In October 2015, we saw the election of a new federal government that campaigned on a platform of openness and transparency.

Shortly thereafter, the new government released, for the first time at the federal level, the mandate letters of all of the newly-appointed ministers.

The Minister of Justice and the President of the Treasury Board received clear direction from the Prime Minister. They are to review the Access to Information Act to ensure that the application of the Act is extended to ministers’ offices, the administration of Parliament and the courts, and to provide my office with the power to issue orders.

In March 2016, Minister Brison announced that reform of the Act would follow a two-phased process. The first phase would seek to introduce a bill in the winter of 2017 to Parliament consistent with the mandate letters, with a few minor additions. The second phase would begin in 2018 and involve a more comprehensive review.

The House of Commons Standing Committee on Access to Information, Privacy and Ethics conducted a comprehensive review of the Act in the spring of 2016 and issued its report in June of this year. I made recommendations to this parliamentary committee on reform for the first phase in order to maximize transparency. These include:

  • a legislated duty to document with appropriate sanctions for non-compliance
  • addressing delays by implementing a series of recommendations focused on introducing discipline into the system
  • repealing all exclusions, and replacing them with exemptions where necessary
  • amending the exemption for advice by adding a reasonable expectation of injury test, and narrowing the scope of its application
  • creating a mandatory exemption for Cabinet confidences when disclosure would reveal the substance of deliberations of Cabinet, and narrowing the scope of its application
  • adding a public interest override to the Act

If we are to achieve meaningful reform of the Access to Information Act, we must go beyond what the government has proposed in its first phase of reform of the Act. If amendments to the Act are limited to just what the government has proposed so far, we will not be able to move forward with an open government agenda, which relies not only on open data and open information, but also open dialogue.

This brings me to number 8.

Number 8: A transparent and open government requires a cohesive and integrated vision with a focus on a change of culture

Overall, the approach to open government requires an integrated vision.

This means that open government must not be limited to just open data; it must also be about open information and open dialogue. It also requires a significant focus on a change of culture within government, otherwise the rays of sunny ways will not pierce through the various institutional levels.

In practice, this means that that government must create records in reusable formats and with disclosure in mind.

Communications policies should be aligned with the government’s open by default vision and implemented so that direct, informal interactions between public servants and citizens and journalists are not only allowed, but encouraged.

And it also means that any changes to the legislative framework must be aligned with the government’s Open Government agenda.

Number 9: The future is now.

Every month or so I have a meeting with my Director of IM/IT. This week he informed me that several departments are potentially moving to cloud computing and that PINs on BlackBerry will be replaced by another technology.

That same day in the evening I attended a seminar organized by the Canadian Committee for World Press Freedom with the President of the Treasury Board, Mr. Brison and Mary Francoli. We discussed the proposals for reform to the Act. We discussed the “first phase” review, then the “in-depth” review in the second phase, the complexity of the reforms and the need for further study in 2018.

Since the Act came into force, there have been 10 parliaments. During this same time period, there have been eleven reviews of the Access to Information Act undertaken by committees of parliamentarians or government, with an additional four government reviews looking at the administration of the Act. Not to mention all of the recommendations made by the various Commissioners over the years. The issues that we are planning to study have been identified as issues with our current regime for the last 30 years.

Meanwhile, millennials are in their 30s. The new generation is using computers and communications tools before they even start school. The speed of new technologies brings new challenges in the application of our access laws. We must catch up and keep pace.

Which brings me to my number 10.

Number 10: The importance of resilience.

We must continue to strive for excellence. Our diligent work and our resilience has led to progress year after year, and it is our continued focus that will ensure results.

We have seen some significant developments in these past few months, but the real reforms have yet to be presented to Parliament.

The real test lies ahead.

Our work has just begun. We need to hold our governments to account and insist that they properly protect our information rights.

Canadians want and deserve more.

Conclusion

In closing, I would like to leave you with a piece of trivia. In the French Revolution Calendar, every month was divided into three ten day weeks. The weeks were called decades.

In all honesty, in the last ten years, some weeks did feel like decades.

At the same time, the last decade has flown by like the wind. This is, in large part, because I have had the extraordinary privilege to work for a cause that is a fundamental pillar of our democracy alongside intelligent, insightful, dedicated, resilient and courageous people, many of whom are here today. 

Many of whom I am lucky to count as friends. 

Thank you.