Submission to the ETHI Committee on the study of the Access to Information Act

June 7, 2016

Mr. Blaine Calkins, M.P.
Chair, Standing Committee on
Access to Information, Privacy and Ethics
House of Commons
Ottawa ON  K1A 0A6

Dear Mr. Calkins:

I write to the members of the House of Commons Standing Committee on Access to Information, Privacy and Ethics (the Committee) in regard to the oversight model being considered by the Committee as it finalizes its study of the Access to Information Act (the Act).

The independent oversight function is one of the fundamental pillars of access to information. A strong and effective model ensures Canadians access to information rights are respected.

The four points I want to address are as follows:

  1. Benefits of an order-making model;
  2. Shortcomings of the Newfoundland and Labrador model;
  3. Shortcomings of the Privacy Commissioner’s proposal of May 18th, 2016;
  4. Corrections to Mr. Michel Drapeau’s brief relating to the order-making model.

1) Benefits of an order-making model

In my special report entitled, Striking the Right Balance for Transparency, and during my appearances before the Committee on February 25 and May 19, 2016, I strongly endorsed the adoption of an order-making model for oversight, with orders subject to judicial review by the Federal Court. In my view, this is the most effective model to maximize disclosure, improve timeliness across the access to information regime, instill discipline in the system, create predictability, eliminate the de novo proceedings and, overall, strengthen oversight of the right of access.

On March 8, 2016, the Information and Privacy commissioners of Alberta, Ontario and Quebec appeared before the Committee. All three of these commissioners have the power to issue orders and each explained the benefits of their model, including that the order-making model helps to enforce the right of access in an efficient and effective manner, creates a body of jurisprudence, facilitates settlements, reduces complaints about administrative issues, and brings finality to the access to information process.

2) Shortcomings of the Newfoundland and Labrador model

During my appearance before the Committee on May 19, 2016, I cautioned the Committee against adopting the Newfoundland and Labrador model, which is, at the end of the day, still an ombudsperson model. As such, it suffers the same shortcomings as the current federal regime.

Most importantly, the Newfoundland and Labrador model does not resolve the issue of de novo reviews before the Federal Court. A de novo proceeding means the review of the application of exemptions begins anew, with evidence being introduced afresh before the Court.Footnote 1 This allows institutions to be less forthcoming during the investigation and present new or more complete representations to the Court. This has, at times, resulted in the application of new exemptions. Under such a model there is no incentive on institutions to maximize disclosure in a timely manner, particularly in instances where the institution may wish to delay disclosure.

This model is not adapted to the complexity of the complaints received at the federal level. Complaints are often about the application of multiple exemptions or exclusions, and frequently deal with thousands of pages. For example, a request made at the federal level for records related to a G20 conference could feasibly have exemptions applied for information obtained in confidence from another government (section 13), federal-provincial affairs (section 14), international affairs and defense (section 15), law enforcement (section 16), personal information (section 19), advice and recommendations (section 21) and solicitor-client privilege (section 23).Footnote 2  In light of the complexity of the investigations involving multiple applications of exemptions, it would be difficult, and unlikely, to obtain agreement on all recommendations.  As a result, the issues that I encounter today would remain: de novo proceedings before the Federal Court, undue delay for the requester and unpredictability.

Moreover, the volume of complaints is significantly higher at the federal level.  In 2015-2016, I received 2,036 complaints. In contrast, the Office of the Information and Privacy Commissioner in Newfoundland and Labrador received 54, 2014-2015.Footnote 3 I believe volume has a significant impact on the type of oversight model that should be adopted. Given the volume of complaints I receive, it is all the more imperative that the most efficient model be adopted and, in my view, that model is the order-making model, with all of its benefits.

Adopting the Newfoundland and Labrador model simply does not address the very issues that I have identified and that can only be appropriately dealt with by an order-making model.  It does not maximize disclosure in a timely fashion, it does not instill discipline and it does not create predictability with a body of precedents.

3) Shortcomings of Privacy Commissioner’s proposal of May 18th, 2016

The Privacy Commissioner of Canada, Mr. Therrien, appeared before Committee on March 10, 2016. He also provided two letters, one on March 22, 2016, and the other on May 18, 2016.

In his written submission of May 18, 2016, the Privacy Commissioner proposed:

  1. that the decision on the proper oversight model under the Access to Information Act be delayed until 2018; and
     
  2. that should the Committee propose an order-making model under the Access to Information Act, it should not apply to the exemption of personal information found in the Access to Information Act.

The Privacy Commissioner has stated that he is not seeking an order-making model under the Privacy Act. He has also stated that the oversight model under the Access to Information Act and Privacy Act need not be the same.Footnote 4 I agree with the Privacy Commissioner that the regime for each legislation need not be the same. Therefore, there is no reason to delay until 2018 the adoption of an order-making model under the Access to Information Act.

The Privacy Commissioner’s recommendation that the Information Commissioner’s order-making power not apply to the exemption of personal information found in the Access to Information Act, is simply not tenable.

First, section 19 is an exemption for personal information under the ATIA. The interpretation and application of this section falls within the mandate of the Information Commissioner. The OIC has investigated and provided recommendations in relation to the exemption for personal information under the Access to Information Act for over 33 years. In recent years, this exemption has been invoked in about 18% of complaints to the OIC.

The exemption for personal information is the exemption most frequently applied to deny disclosure. In 2014-2015, of 67,032 completed access requests, section 19 was applied to 25,254, or more than 35%. Section 19 is also often applied with other exemptions.

Since 1983, the application of section 19 of the ATIA was raised before various courts in 62 cases. The Information Commissioner was involved in about 53% of these cases. In contrast, the Privacy Commissioner was involved in 11%. The two commissioners were involved together in only four cases, taking opposite positions in two of them.

Gerard V. La Forest, former Justice of the Supreme Court of Canada, acknowledged that although it was possible that the values ​​relating to access to information and those relating to privacy are sometimes in conflict, the frequency and importance of these conflicts had been overstated.

In his study on the possible merger between the Offices of the Information and Privacy Commissioners, he explained this concept in more detail:

It could be argued that it would be better for such a decision, which necessarily involves a conflict between access and privacy, to be made by a single person or body responsible for vindicating both values in equal measure. In theory, this might well be the preferable arrangement. There is little evidence, however, that the Information Commissioner is unable to make impartial assessments of the merits of complaints about section 19 exemptions. The Access to Information Act and the Privacy Act are structured to ensure that privacy is taken into account in all section 19 cases. The Information Commissioner is charged with overseeing the implementation of all of the values inhering in the Access to Information Act, including the privacy values incorporated by reference to the Privacy Act. Further, the courts have developed an extensive body of jurisprudence on the meaning of “personal information,” which to a considerable extent dictates the advice the Information Commissioner renders to institutions.

The available evidence indicates, moreover, that over the years Information Commissioners have done a good job at protecting privacy in section 19 cases. Both the Information Commissioner and the Privacy Commissioner advised me that while section 19 is one of the most frequently invoked exemptions under the Access to Information Act, the vast majority of cases are straightforward. The Information Commissioner indicated that in substantially more than half of section 19 complaints, he has supported the government institution's decision not to disclose information on the basis that it constitutes non-exempted personal information. And of the fourteen reported court decisions involving the review of refusals to release personal information,"' the Privacy Commissioner has intervened to oppose the position of the Information Commissioner in only two'' In both cases, the court agreed with the Information Commissioner that the information in dispute constituted an exemption to the definition of "personal information" set out in section 3 of the Privacy Act and could therefore be disclosed.Footnote 5 (citations omitted)

Furthermore, the Privacy Commissioner’s suggestion to exclude from an order-making model under the ATIA the exemption of personal information would lead to another form of hybrid model.  For s.19 personal information exemption, the Commissioner would make recommendations to the institution. This would be subject to a de novo proceeding before the Federal Court of the institution’s refusal to provide access, initiated by either the requester or by the Commissioner with the requester’s consent.  For all other exemptions where the Commissioner would issue orders to the institution, they would be subject to a judicial review proceeding before the Federal Court, initiated by the institution.

Given the existence of multiple exemptions in complaints, this would lead to a complex and inefficient process. It would also lead to duplicity of proceedings in Court, creating unnecessary delays in resolving complaints.

4) Corrections to Mr. Michel Drapeau’s brief relating to the order-making model.

Mr. Drapeau appeared before Committee on April 12, 2016 and submitted a written brief.  This brief contains several inaccuracies that should be corrected. I enclose, as Appendix A, the corrections to the brief relating to the oversight-model issues identified by Mr. Drapeau.

In closing, I reiterate that oversight is one of the fundamental pillars of access to information. It is imperative that we get this right, based on accurate and complete information, for the benefit of all Canadians.

I thank you for considering my submission and continue to remain available for any assistance the Committee may require as it completes this important study.

Sincerely,

Suzanne Legault
Information Commissioner of Canada

c.c.: Mr. Joël Lightbound, First Vice-Chair
Standing Committee on Access to Information, Privacy and Ethics

Mr. Daniel Blaikie, Second Vice-Chair
Standing Committee on Access to Information, Privacy and Ethics

Michel Marcotte, Clerk
Standing Committee on Access to Information, Privacy and Ethics

Appendix A

Corrections to Mr. Michel Drapeau’s brief relating to the order-making model

Mr. Drapeau appeared before the Committee on April 12, 2016. In addition to appearing as a witness, he also submitted a written brief to the Committee. In this brief and before the committee, Mr. Drapeau disagreed with giving the Information Commissioner order-making power. Mr. Drapeau’s reasons for opposing order-making power are based, in part, on several inaccuracies that should be corrected before the Committee.

Correction #1: Granting order-making power to the Commissioner would not ameliorate the response time for the benefit of requesters under the ATIA

In his brief, Mr. Drapeau asks and answers the following:

[W]ould the grant of order-power to the Commissioner ameliorate the response time for the benefit of requesters under the ATI. The answer is a resounding no. Why? Because the Commissioner plays no part in the front-end part of the ATI regime. During fiscal year 2014-2015, 90% of the 78,193 access to information requests received during the year were closed within 31 and 120 days – all of which without the intervention of the Information Commissioner.Footnote 6

Leaving aside that the statistics referred to are incorrect,Footnote 7 the statistics referred to above relate only to closed requests.  Where requesters have not received an answer is where the Commissioner’s intervention is most needed.  Every year, on average, over 30% of the complaints by the OIC relate to delays.  Of those, 80% are well-founded with the OIC being able to obtain earlier dates for disclosure.  The Commissioners from Ontario and Alberta, who have order-making powers, have testified before the Committee that delay complaints are not an issue in their jurisdictions. Indeed, last year, it was necessary to pursue litigation to the Federal Court of Appeal to obtain a decision that 1100 day extension was unreasonable under the Access to Information Act.Footnote 8

I would add as well that the OIC plays an important role in correcting negative trends and compliance issues with the Act within institutions. I have issued several reports with recommendations that have led to significant policy changes with beneficial impacts for requesters.Footnote 9

Correction #2: Granting order-making power to the Commissioner would constitute a repudiation of the foundational basis for the creation of that office as envisioned by the fathers of access to information.

Mr. Drapeau stated that he held a “strong belief that the fathers of the access regime got it right in the 1977 white paper by adopting the parliamentary option”. In his brief, he refers to both “the 1977 Green Paper on Access to Information legislation”Footnote 10 and the “1977 White Paper on Public Access to Government Documents” to support this contention.

I believe the title of the paper being referred to is “Legislation on Public Access to Government Documents”, prepared by the Honourable John Roberts, Secretary of State. It was published in June 1977 as a Green Paper. As far as I am aware, no White Paper was issued by the government with respect to public access to government documents at that time.Footnote 11

The author of the Green Paper states on page nine that “No firm and specific positions are adopted in what follows, but in some cases proposals are put forward to serve as talking points. The intention is to provide a basis for discussion which will serve to focus and clarify the fundamental choices.”

Under “Complaints Review” the Green Paper discusses 5 options for oversight:

  1. Parliamentary option
  2. An Information Auditor
  3. An Information Commissioner with Advisory Powers
  4. An Information Commissioner with Powers to Order Release
  5. Judicial ReviewFootnote 12

At no point in the Green Paper is a particular option for oversight chosen. Instead, for options 3 and 4, it is asked whether a reviewing officer should “have the power to order the release of a document by the government, should he have no more than public advisory or ‘ombudsman-type’ powers, or should he have a combination of these powers depending on the nature of the exemption involved?”Footnote 13

In his brief, Mr. Drapeau quotes from the Green Paper (erroneously attributing the quotation to the White Paper) to prove that the White Paper “clearly opted instead for what it referred to as the ‘Parliamentary Option’”.Footnote 14

The Parliamentary option was not the option that was eventually chosen and introduced in the Act. In fact, the Parliamentary option does not include the position of an Information Commissioner. Under the parliamentary option model, as proposed in the Green Paper, direct oversight would have been undertaken by parliamentarians.

Further, the quotation used by Mr. Drapeau to support his statement is incomplete to the point that it is misleading. In fact, the Green Paper clearly questions the parliamentary option.

This is the quotation used in Mr. Drapeau’s brief:

[This Parliamentary] option would involve scrutiny by Parliament of the administration of the statute by the instruments use to review the administration of other statutes, such as questions in the House of Commons, debates on Estimates, Ministers and officials appearing before committees, and Opposition days. Means might be provided for some cases to be discussed during proceeding on Adjournments Motion on the House of Commons. . . This option would have the advantage of constituting no infringement of present ministerial and parliamentary responsibility. It would, furthermore, involve very little incremental administrative expense. [Mr. Drapeau’s emphasis]Footnote 15

The complete quote is:

One option would involve scrutiny by Parliament of the administration of the statute by the instruments use to review the administration of other statutes, such as questions in the House of Commons, debates on Estimates, Ministers and officials appearing before committees, and Opposition days. Means might be provided for some cases to be discussed during proceeding on Adjournments Motion on the House of Commons. There could also be provision for some form of special debate on the motion of a specified number of M.P.s and with provision for a “negative resolution”. This option would have the advantage of constituting no infringement of present ministerial and parliamentary responsibility. It would, furthermore, involve very little incremental administrative expense. However, such an option might be slow, cumbersome and inefficient in operation, in the sense that it would seem to provide little or no reliable means of speedy recourse for any particular disappointed applicant. It would constitute an added burden on Parliament and a possibly serious charge on parliamentary time”. [emphasis on text excluded from Mr. Drapeau’s quotation]Footnote 16

Correction #3: Granting order-making power to the Commissioner would strip the Information Commissioner of her status as an Officer of Parliament with the assumption of quasi-judicial functions the Commissioner will become duty-bound to “act judicially” instead of carrying out her work under the guidance and direction of Parliament and report to a Parliamentary Committee.

During his appearance, Mr. Drapeau alleged that, if the Commissioner became a judicial officer, she would no longer come to the Committee and report to its members. Footnote 17 He further stated in his brief that “[t]he current Commissioner insists however that Parliament as a whole no longer play any part in the administration of the Access to Information Act regime.”Footnote 18

An order-making model would not alter the current reporting relationship between the Commissioner and Parliament. For example, Information Commissioners in British Columbia and Ontario, jurisdictions with order-making models, are statutory officers that are appointed by their respective Legislative Assembly to support the work of members in relation to access to information. Both commissioners report directly to the Legislative Assembly in the execution of their statutory mandates.

I have never stated that Parliament should have no role to play in the administration of the Act.

Correction #4: Granting order-making power to the Commissioner would lead to an even greater ‘judiciarization’ and ‘bureaucratisation’ of the OIC complaint mechanism potentially forcing ATI users to live with even longer delays than is currently the case.”

Mr. Drapeau makes the above assertion in his brief and made related comments during his appearance. Footnote 19

On this issue, I refer to the testimony of the commissioners from Ontario and Alberta, who both testified that delays are not a significant or systemic problem in their jurisdictions.  

Correction #5: Quebec is growing increasingly discontent with the order-power regime granted to its Commissioner

In his brief, Mr. Drapeau asserts that Quebec is reconsidering its approach to oversight.Footnote 20

Hearings held by the Quebec legislature in Quebec City on various options to amend Quebec’s access to information legislation indicate that a consensus is forming around keeping the current order-making model. On September 3, 2015, the Quebec Minister of Justice said:

“Thank you, Mr. Chair. And thank you for your presentation where you gave a clear overview of two particular issues. I will not return to the issue of adjudication because a lot has been said about it and we will try to find other means. I think that I have detected, up to now, a kind of consensus for conservatism and hence, keeping the [adjudicative] authority. We will see how we can renew it because we need an institution that will favour a change in culture. Maybe we can do this without transforming the entire current structure.” [translation]Footnote 21

Footnotes

Footnote 1

Examples of ongoing litigation: Information Commissioner of Canada v. Toronto Port Authority, (T-1453-14) and James Paul in his Capacity as President of Canada Defence Construction (1951) Limited and the Attorney General of Canada v. UCANU Manufacturing Corporation, (A-414-15).

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Footnote 2

15 access reports have been issued by the Newfoundland and Labrador Commissioner in 2015-2016.  These reports are published on the Office of the Information and Privacy Commissioner of Newfoundland and Labrador’s website and demonstrate the level of complexity of the complaints filed with that Office. 

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Footnote 3

47 requests for review and 7 complaints, according to the Office of the Information and Privacy Commissioner of Newfoundland and Labrador’s website.

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Footnote 4

During his appearance before the Committee as part of its study of the Privacy Act, Mr. Therrien stated the following:

  • “We’re not asking for order-making powers at this time.”
  • “In order to accelerate the investigations process and render it more efficient, while preserving the informal characteristics of the Ombudsman model, I suggest adopting the new approach found in the Newfoundland and Labrador legislation.” [translation]
  • “It is not obvious to me that if one commissioner has order-making powers, that the other commissioners needs to have the same powers exactly”.

 

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Footnote 5

The offices of the Information and Privacy commissioners: the merger and related issues, Report of the Special Advisor to the Minister of Justice, Gérard V. La Forest, 15 November 2005, p. 29-31.

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Footnote 6

Drapeau brief at p. 3.

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Footnote 7

According to Access to Information and Privacy Statistical Reporting 38B, 2014-15, published by the Treasury Board Secretariat (TBS), during fiscal year 2014-2015, 27.6% of the 67,032 access to information requests were closed within 31 and 120 days. Note that TBS provides a percentage based on the number of closed requests within a specific period. TBS does not provide a percentage based on the number of requests received during the year or the total number of requests in the inventory.

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Footnote 8

Commissioner of Canada v Minister of National Defence, 2015 FCA 56.

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Footnote 9

For example, the government implemented recommendations made by the Commissioner in the investigation into CAIRS (a database of access to information request) http://www.oic-ci.gc.ca/eng/syst-inv_inv-syst_2009-2010_1.aspx. As a result, Canadians can now search summaries of completed requests that are proactively published online. In another example, during the course of a systemic investigation into delays stemming from consultations, the government made significant changes to policies limiting the need for mandatory consultations. This type of consultations delays the processing of access requests. This has resulted in a reduction in the number of extensions for consultations. The Commissioner also made a number of recommendations in her systemic investigation into delays stemming from interference with processing access requests. As a result, the Treasury Board Secretariat made changes to its Access to Information Manual to reflect the Commissioner’s recommendations. A summary of these two systemic investigations can be found here: http://www.oic-ci.gc.ca/eng/rapport-annuel-annual-report_2014-2015_3.aspx

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Footnote 10

See footnote 7, p. 3 of Mr. Drapeau’s brief.

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Footnote 11

I base this belief on the lack of such a document within the historical records within my office, as well as the fact that no document is listed on the Library of Parliament’s “White Papers: Complete List”: See: http://www.lop.parl.gc.ca/ParlInfo/Compilations/FederalGovernment/PaperList.aspx?Menu=Fed-Doc-White&Paper=c6a4db8e-e464-430b-bbfe-ca77532e9ccb

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Footnote 12

Green Paper at pp. 15-19.

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Footnote 13

Green Paper at p. 19.

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Footnote 14

Drapeau brief at p. 5.

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Footnote 15

Drapeau brief at p. 5.

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Footnote 16

Green Paper at p. 16.

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Footnote 17

Mr. Drapeau also makes this assertion on in his brief at p. 4.

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Footnote 18

Drapeau brief at p. 6

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Footnote 19

Drapeau brief at p. 4.

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Footnote 20

Drapeau brief at p. 6.

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Footnote 21

Source http://www.assnat.qc.ca/fr/travaux-parlementaires/commissions/ci-41-1/journal-debats/CI-150903.html#_Toc445903271(around 9:00).

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