Remarks on Bill C-520

Appearance before the Senate Standing Committee on National Finance (NFFN)

by Suzanne Legault, Information Commissioner of Canada

January 28, 2015
Ottawa, Ontario

(Check against delivery)

Honourable Senators,

Thank you for the opportunity to speak to Bill C-520.

In order to fully assess the impact of this Bill, it is important to understand the mandate and operational reality of each Agent of Parliament.

The Access to Information Act requires the Information Commissioner to engage exclusively in the duties conferred on the office of the Information Commissioner. The Act prohibits the Information Commissioner to hold any other office or engage in any other employment. The same restrictions apply to the Assistant Information Commissioner.

All other employees in my office are public servants. They are governed by the rules of the Public Service Employment Act, as this regime has been described by the President of the Public Service Commission.

My employees must adhere to the Values and Ethics Code for the Public Sector as well as to my Office’s Code of Values and Ethics. It is a condition of employment to carry their functions in a non-partisan manner.

In addition, anyone in my office who conducts investigations must identify any real or potential conflict of interest upon being assigned an investigation file. If a conflict is identified, the file gets immediately reassigned.

As Information Commissioner, I investigate complaints in respect of any matter relating to requesting or obtaining access to records under the Act. I delegate my authority to the investigators in my office. Under this delegation of authority, very few of them have final decision making authority.

Since 2009, my team and I have completed over 10,000 investigations. All of our investigative findings are based on facts and the application of the Act. In the over 30 year history of the Office, not one of our investigations has been found by the Federal Court to be biased.

It is noteworthy as well that the Act does not apply to parliamentarians nor does it apply to Ministers' offices. It does not apply to the Senate or the House of Commons.

As part of my review of this Bill, I also consulted my employees to understand their perspective on how this bill might affect them. The majority expressed serious concerns with the Bill. In their view, the Bill could impede their ability:

to carry on their duties;
to safeguard the integrity of their investigations;
and to protect their reputation.

Some stated that the Bill might have affected their decision to apply for a position at my office. Some have also stated that the adoption of the bill may affect their decision to remain at the Office.

I am obviously concerned about the impact this Bill may have on my ability to recruit and retain the best and brightest.

The Bill is being supported as a means to increase transparency and accountability.

I, of course, am a champion of transparency. However, this does not mean that I recommend that all information be disclosed in all circumstances. As the Supreme Court of Canada has stated in a recent decision:

"Access to information legislation serves an important public interest: accountability of government to the citizenry. An open and democratic society requires public access to government information to enable public debate on the conduct of government institutions. However, as with all rights recognized in law, the right of access to information is not unbounded. All Canadian access to information statutes balance access to information with the protection of other interests that would be adversely affected by otherwise unbridled disclosure of such information.Footnote1"

The interest that would be adversely affected by C-520 is the protection of personal information of employees of Agents of Parliament. The protection of personal information is an exemption to disclosure under the Access to Information Act.

My preliminary review of the Bill leads me to believe that most of the personal information to be disclosed under Bill C-520 would likely be protected under the Access to Information Act.

The stated purpose of the Bill is to prevent conflicts that could occur, or could be perceived to occur, between the employees' past or future partisan activities, and the official duties and responsibilities of these employees working for the office of an Agent of Parliament.

The only conclusion I can come to in reviewing this Bill is that past political or partisan activity could be used to assert the existence of a possible bias in the conduct of an investigation or audit. If the reason for the collection and publication of this personal information is to assert bias, then it raises serious issues. It will affect the integrity of our investigations. It will politicize our investigations. It will undermine our effectiveness as Agents of Parliament.

Lastly, some of you asked questions about the constitutionality of this Bill given its potential implications for the protection of privacy rights and the rights of freedom of expression and the freedom of association. These are, in my view, excellent questions.

I am not sure how one can get any level of assurance at this stage that the impact on these rights has been properly assessed in light of the various mandates of each of the agents, the various functions that our employees fulfill, the necessity of this Bill to address any concerns since none have been identified, and whether the Bill amounts to a reasonable limit on the rights of our employees.

In closing, please be assured of my commitment to assist the committee in its deliberation of this Bill.

Footnotes

Footnote 1: John Doe v. Ontario (Finance), 2014 SCC 36 at paras. 1-2.