A letter from the Information Commissioner of Canada to the Chair of the Senate Committee on Legal and Constitutional Affairs concerning C-51, An Act to amend the Witness Protection Program Act and another Act.

 

June 12, 2013

The Honourable Bob Runciman, Senator
Chair, Senate Committee on Legal and Constitutional Affairs
Senate of Canada
Ottawa, ON  K1A 0A4

 

Dear Senator Runciman:

Thank you for providing me with the opportunity to share my views with the Committee in the course of its review of the Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act.

The Access to Information Act (the Act) establishes a quasi-constitutional right of access to government information subject to specific and limited exemptions.  The Act also provides that decisions to withhold information should be the subject of independent review. A well-recognized principle for access to information laws is the presumption in favour of disclosure which can only be overturned in limited circumstances. These limitations are enumerated in the Act and interpreted narrowly so as to uphold access to information principles while safeguarding sensitive information.

Like my predecessors, I am in favour of exemptions that are discretionary, subject to an injury test, limited in time and subject to a public interest override.  These types of exemptions balance the potential injury with the purposes of the Act.  Exemption provisions along these lines exist in the context of international affairs, national defence and the suppression of hostile activities as well as the law enforcement context: section 15 and 16 of the Act. 

Bill C-51 proposes two measures which are of concern to me.

First, clause 12 of Bill C-51 which amends section 11 of the Witness Protection Program Act (WPPA) expands the type of information which shall not be disclosed. For example, this prohibition includes information about covert operational methods used to provide protection as well as covert administrative methods used to support the provision of protection.

Second, clause 22 of Bill C-51 proposes to add section 11 of the WPPA to Schedule IIof the Access to Information Act which would make the information identified therein subject to the mandatory, class based exemption found in section 24 of the Act.

The combined effect of these proposed amendments will, in my opinion, reduce government transparency unnecessarily by expanding the scope of information that is susceptible to being withheld and by making that information the subject of a mandatory, non-injury based and unlimited in time exemption.

As you know, the Witness Protection Program (WPP) has been in existence since 1984.  It was formalized in 1996 by the enactment of the WPPA.  Since its inception in 1984, the information about the WPP held by the RCMP has been subject to the Access to Information Act.

In my view, the past 29 years demonstrates that the existing provisions in the Act are sufficient to protect the information produced and collected by the WPP

First, the exemption in section 17 relates to the disclosure of information that could reasonably be expected to threaten the safety of individuals. This section applies to most of the information covered by clause 11 of the bill: location of a protected person, change of identity, means and methods used to protect witnesses, and identity and role of persons who provide protection. Section 17 is specifically designed for this type of information. 

Second, section 19, which protects personal information, is also appropriate to protect several of the types of information in question.

Third, section 16 can apply to information regarding the WPP when it is related to an investigation or investigative techniques or when it could be used to reveal the identity of a confidential source of information. Furthermore, section 16(1)(a) can be applied by specified investigative bodies.

Finally, subsection 10(2) of the Act gives an institution the discretion to neither confirm nor deny the existence of information when necessary.

The inclusion of statutory provisions in Schedule II, and the resulting expansion of the mandatory class based exemption found in section 24, has, in my opinion, resulted in the erosion of the right of access.  It has done so by requiring government institutions to consider more than one statute in their decision-making process and making it more difficult for requesters to understand and exercise their access rights. The number of provisions included in Schedule II has increased. When the Act was passed 30 years ago, 33 statutes were listed in Schedule II. Today, it contains 56 statutes.

The expansion of the confidentiality requirement in section 11 and its inclusion in Annex II will therefore, in my view, unnecessarily limit access to information about the WPP

I trust that this information will be of assistance in your deliberations and I remain at the disposal of the committee.

Sincerely,

Suzanne Legault
Information Commissioner of Canada

c.c.: Shaila Anwar, Clerk, Senate Committee on Legal and Constitutional Affairs