Remarks on recommendations for Bill C-58

Appearance before the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI)

by Suzanne Legault, Information Commissioner of Canada

November 1, 2017
Ottawa, Ontario

(Check against delivery)

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Introduction

Good afternoon honourable members. Thank you for inviting me to appear during your study of Bill C-58.

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 this committee made in its final report.  These include:

• Extending coverage of the Act to include the Prime Minister’s Office, Ministers’ offices, and administrative institutions that support Parliament and the courts. 
• Legislating a duty to document the decision-making process in government.
• Improving timeliness
• Maximizing disclosure of government information by amending the advice and recommendations exemption and the exclusion for Cabinet Confidences.
• Strengthening the oversight powers of the Information Commissioner of Canada by legislating a true order-making model, with the certification of orders as if they were issued by the Federal Court.
• And finally, a mandatory review of the Access to Information Act in 2018, and every five years thereafter.

Since then, I have also recommended to the Ministers of Justice and of the Treasury Board by letter dated December 8, 2016, that an amendment be made during this 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 Information and Privacy Commissioner of Alberta v. the Board of Governors of the University of Calgary.

Bill C-58 fulfills only two of these seven priority recommendations: mandatory review of the Act every 5 years and solicitor client privilege.

On September 28, 2017, I tabled a report in Parliament entitled Failing to Strike the Right Balance for Transparency, detailing my concerns with Bill C-58 and my recommendations to improve it.

I would be pleased to answer any questions you may have on that special report, but for now, I will focus my remarks on a few key issues that have been raised during your review and that were not entirely addressed in my Special Report.

1. Proactive disclosure and judicial independence

The Committee has heard from a witness representing the Canadian Superior Courts Judges Association.  This witness has concerns that the proactive disclosure found in Bill C-58 with respect to Judges could interfere with judicial independence or could compromise the security of the judges.  The CBA, in its written submission, has raised similar concerns.

When I tabled my report Striking the Right Balance 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 judges themselves. I recognized that judicial independence is a cornerstone of our judicial system and that certain records should be excluded from the Act.

Bill C-58 proposes to proactively disclose individualized information relating to incidental expenditures and representational, travel and conference allowances, including the judge’s names. This, according to the Association, could jeopardize the independence of judges and compromise their security.

In order to address these concerns, the Association suggests that expense information according to the categories of reimbursable allowances set out in the Judges Act be published according to each Court.

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 could be made to reside with the chief justice of the court concerned should be considered by the Committee.

2. Personal information

The exemption for personal information

Based on the testimonies presented to the Committee and committee members' questions, it is useful to clarify how this exemption 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 ATIA that contains personal information.

Personal information is defined in section 3 of the Privacy Act and is incorporated into the ATIA by virtue of section 19.

Personal information means information about an identifiable individual that is recorded in any form including such things as information related to race, religion, address, fingerprints, etc.

Section 19 of the ATIA provides the following instances where disclosure of personal information is authorized:

1. the individual to whom it relates consents
2. the information is publicly available, or
3. the disclosure is in accordance with section 8 of the Privacy Act.

Section 8, in turn, contains a list of instances where personal information can be disclosed.

Particularly, section 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 clearly outweighs any invasion of privacy that could result from the disclosure. 

According to section 8(5) of the Privacy Act, the head of a 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, if he deems it appropriate, notify the individual to whom the information relates, of the disclosure.

Section 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 over 28,000 requests, which is about 39.3% 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 within institutions.

In terms of complaints to my office, this exemption was cited in over 300 complaints last year, making up 52% of the exemption complaints received. It is important also to recognize that the personal exemption is used, almost invariably, with other exemptions in any given complaint. However, most issues related to the personal exemption provision are resolved at very early stages of our investigations and are rarely contentious.

Indeed, of the over 13,000 investigations that my office has completed so far since I have been at the helm of the OIC, I have issued a formal recommendation to release personal information in seven cases.

During that time as well, there have been a total of 21 cases in court related to the personal information exemption under the ATIA, 19 of those brought forward by third parties and two by my office.

Although the Privacy Commissioner can intervene in these cases, the current Privacy Commissioner has never done so.

Bill C-58 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 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 the investigation. No timelines are provided for this process.

We know that this will affect over 300 investigations per year that not only deal with personal information but with many other issues.

Second, the Information Commissioner may consult, at her discretion, 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 investigation further than Bill C-58. 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 where the Information Commissioner makes a recommendation to disclose personal information, in addition to where an order has been issued.

My colleague argues that this involvement of the Privacy Commissioner in the Information Commissioner's investigations is necessary because Bill C-58 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, as a champion of privacy, must weigh in to ensure the balance is maintained.

Respectfully, I disagree.

Bill C-58 does not alter the exemption for personal information and 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.

It is true that the Information Commissioner is a champion for transparency. I am, however, first and foremost, a regulator. As such, in conducting the investigations under the legislation, I must apply the law. The law related to this exemption has not changed. My investigations will consider the same legislation. The exceptions that allow disclosure are at the discretion of the head of the institution. 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 C-58 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 C-58 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 ATIA.

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 open to complaints, a mandatory obligation 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 ATIA 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 where the exemption for personal information is at play given the existing safeguards that already exist in our respective legislation. The recommendation in my report 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 in Bill C-58 under new section 36.2.

Second, 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(1) of the ATIA. In essence, I recommend maintaining new section 37(2). 

And finally, section 41(4) of Bill C-58 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, the personal information exemption.

Conclusion

I was pleased to hear during the ministers’ appearance that the government is open to making amendments from this Committee on Bill C-58. My report contains 28 recommendations to improve Bill-58 and I encourage you to consider them in reviewing this bill.

In closing, I would like to thank the members of the ETHI committee for the opportunity to present my views on Bill C-58. I will be pleased to answer any questions you might have.

Thank you, Mr. Chair.