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CHAPTER I:

LOOKING BACK ON A TERM OF SERVICE


By law, information commissioners give an annual accounting to Parliament of their activities and concerns. Once every seven years, however, they traditionally look back, not just over the past year, but over their entire term of office. July 1, 2005, will mark the end of this commissioner’s seven-year term and this year’s annual report is his occasion to offer Parliament more than just a one-year snapshot.

At the beginning of his term, in 1998, the commissioner’s first impressions included these:

  • that parliamentarians are determined to have a fiercely independent information commissioner. (In 1998, members of both houses of Parliament insisted on the opportunity to put questions to the nominee before voting on the appointment – a first for any officer of Parliament);
  • that Parliamentarians were deeply troubled by resistance to, and noncompliance with, the Access to Information Act. The most tangible illustration of this concern came in the form of passage into law of a private member’s bill (put forward by Ms. Colleen Beaumier) making it an offence to destroy, alter or conceal records (or to counsel or direct anyone else to do so) with the intent to deny access rights set out in the Act;
  • that it is something of a conflict of interest to have (as we do) the Minister of Justice responsible in cabinet, and in Parliament, for the Access to Information Act. After all, the Minister of Justice is the commissioner’s adversary in all litigation initiated by the commissioner, and it is the minister’s role to advocate on behalf of secrecy;
  • that, despite a sea of change in the information technology and government organization environments in which the law operates, the Access to Information Act had not been modernized and strengthened to keep pace. A unanimous report by an all-party committee of MPs in 1986 had recommended wholesale changes; no government (Liberal or Conservative) paid any heed;
  • that the strategy of delay was in widespread use by the bureaucracy to deny and control access to government-held information. In 1998, 55 percent of complaints to the commissioner concerned failure to meet statutory response deadlines;
  • that the government’s records management infrastructure was inadequate to support information rights (access and privacy), good decision-making, thorough audit and preservation of the history of Canadian governance;
  • that the workload of the commissioner’s office exceeded its resources to give timely, thorough and fair investigations. The backlog of incomplete investigations in 1998 was equivalent to six months of work (some 742 cases), a doubling from the previous year. The government’s control over the purse strings posed the greatest threat to the effectiveness and independence of the commissioner; and
  • that the stubborn persistence of a culture of secrecy in the Government of Canada owed much to weak leadership, not just on the part of leaders of government and the public service, but also on the part of Parliament. In 1998 – 15 years after the coming into force of the Access to Information Act – the Parliamentary committee designated to keep the commissioner’s annual reports under review had never convened for that purpose.

Seven years of experience has reinforced those initial impressions; indeed, those concerns remain at the forefront of the challenges for the coming seven years. That is not to say that there has been no progress; there have been improvements, accomplishments and positive developments on many fronts. Yet, the clear lesson of these seven years is that governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, information commissioners and members of Parliament, must be maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, information will be disclosed.

LOOKING BACK ON A TERM OF SERVICE Positive Developments

1. Support for the Commissioner’s Powers

For virtually all but one of the past seven years, the government of former Prime Minister Chrétien engaged in numerous legal challenges to the jurisdiction and powers of the Information Commissioner. Most of those attacks were resolved by the Federal Court last year and the details of the court’s decision are set out in last year’s annual report at pages 9 to 13. The government of Paul Martin continues the legal challenge (by pursuing an appeal to the Federal Court of Appeal) of the Information Commissioner’s right to see records which the government claims to be subject to solicitor-client privilege. Despite that remaining uncertainty, it is now settled, and accepted by the government, that the Information Commissioner has the authority to compel the production of records, for investigative purposes, which are held in the PMO and ministers’ offices. It is also settled, and accepted by the government, that the commissioner has the authority to compel ministers and exempt staff members in ministers’ offices and the PMO, to appear and give evidence relevant to matters under investigation by the commissioner.

The Federal Court has also decided that the government may not come to it for rulings on the substance of matters which are under investigation by the commissioner. The Federal Court has made it clear that the scheme of the Access to Information Act gives Canadians the right to have a full investigation of their complaints by the commissioner before the Federal Court will become involved.

LOOKING BACK ON A TERM OF SERVICE Positive Developments

2. Creation of a New Parliamentary Committee

In his first Annual Report to Parliament (1998-1999), this commissioner suggested that the responsibility for overseeing his office should be moved from the busy Standing Committee on Justice and the Solicitor General to a committee more able to concern itself with access to information matters. In 2002, the commissioner commenced reporting to a committee called the Standing Committee on Government Operations and Estimates. After the election of a minority Liberal government in 2004, a new committee was formed and named: the Standing Committee on Access to Information, Privacy and Ethics. Already, since that committee’s creation, the Information Commissioner has appeared several times to give evidence with respect to his 2004-05 spending estimates, his 2003-04 annual report, and on issues of new funding mechanisms for officers of Parliament and reform of the Access to Information Act.

In this latter regard, the new committee has made it a priority to ensure that the Access to Information Act is modernized and strengthened - whether or not the Minister of Justice brings forward a reform bill, as promised. This increased level of parliamentary interest in, and scrutiny of, the operations of theAccess to Information Act is a very positive sign of parliamentary leadership in nurturing the public’s right to know.

LOOKING BACK ON A TERM OF SERVICE 

Positive Developments

3. Reform of the Access to Information Act

Access to Information Act owes its existence to courageous and persistent backbenchers in the Liberal, Conservative and New Democratic parties. As mentioned previously, the amendment to add an offence of wrongful destruction of records was an initiative of a Liberal backbencher. The impetus in recent years, for a broad overhaul of the Act came, too, from backbenchers from all parties, led by former MP John Bryden. The principle of his private members’ bill received unanimous support in the House (all party leaders stood in a recorded vote) at second reading. The 2004 election put an end to that bill; however, it was revived after the election under the sponsorship of NDP member, Pat Martin. As a result of discussions between Pat Martin and the Minister of Justice, Mr. Martin agreed not to go forward with his private member’s bill on the understanding that the Minister of Justice would introduce a government bill which would be true to the principles of Mr. Martin’s private member’s bill.

Regrettably, there has been backtracking by the Minister of Justice. While continuing to profess that the government is committed to proceeding with long-overdue reform of the Access to Information Act, the minister referred a framework discussion paper to the Committee on Access to Information, Privacy and Ethics, rather than a reform bill. It is also disappointing that the framework discussion paper reveals a government preference for increasing secrecy and weakening oversight. This commissioner’s proposals for reform, and concerns about government proposals to weaken the Act, are set out in a special report to Parliament tabled in September 2002.

LOOKING BACK ON A TERM OF SERVICE 

Positive Developments

4. Fewer Delays in the System

Early in this commissioner’s term, the persistent, widespread problem of delay in answering access requests became the commissioner’s top priority. Through special reports (report cards) to Parliament on the performance of individual departments and the use of order powers to compel ministers and deputy ministers to explain why mandatory, statutory response deadlines were being ignored, the commissioner sought to bring the government’s attention to bear on solving the delay problem.

Many departments took up the challenge, made timeliness a priority, devoted the resources necessary and instituted streamlined processes for answering access requests. In year one (1998), all six institutions reviewed received a grade of "F". In those six institutions, from 35 percent to 86 percent of answers to access requests were late. Last year, in those same institutions, the percentage of responses which were late ranged from a high of 17 percent in Foreign Affairs and International Trade to 3.8 percent in the Privy Council Office.

This dramatic improvement in the delay situation is also reflected in the profile of complaints to the Information Commissioner. In 1998-99, 49.5 percent of the 1,351 complaints which were investigated related to failure to meet response deadlines. Last year, delay complaints represented 14.5 percent of the office’s workload. This year, that percentage has increased to 21 percent. This, then, is both a positive and negative story; substantial improvements have been made, yet vigilance is essential because some backsliding is evident.

LOOKING BACK ON A TERM OF SERVICE 

Positive Developments

5. Improved Records Management

Over the years, since 1998, significant intellectual, policy, financial and human resources have been brought to bear on what was recognized as a crisis in the government’s records management. As is often the case in large organizations, momentum for action came from scandal and public exposure of records management shortcomings, such as: inability to find important records; failure to create an accountability paper trail; failure to establish and respect retention and disposal rules appropriate to different types of records; failure to accord appropriate security to sensitive records; and failure to build and maintain centralized, indexed systems of records which capture all forms of recorded information including electronic records, such as e-mail exchanges.

In recent years, governments and public servants are coming, albeit slowly, to the realization that good record-keeping is essential to good, accountable governance. Conducting government business in an oral culture (in the belief that the rigors of accountability through openness can be avoided) is not as comfortable for officials as originally thought. It has come to be seen as fraught with danger: that capable, honest officials may be put at the mercy of the versions of events recounted by officials who are incompetent, dishonest or embarrassed by their predicaments; that the authority for action may not be provable when challenged; that government decisions will not be fully informed by past experience and that there will be no continuity of knowledge when officials resign or retire.

A very positive, tangible illustration of this changing attitude was the adoption, in 2003, by the government of a new policy on the management of government information. For the first time, officials are required (only, so far, by policy) to create records to document their decisions, actions, deliberations and transactions. While it is true that this requirement is not well known in government and not broadly respected – especially by senior officials – it marks an important development.

Indeed, throughout government, there are a myriad of initiatives underway to tackle the crisis of information management. These efforts need focus, coordination, senior level support, resources and analysis in order to be pulled together into a government-wide solution (or set of solutions). That is the next challenge for an already impressive effort.

LOOKING BACK ON A TERM OF SERVICE 

Positive Developments

6. Information Rights Education and Training

From the very beginning, when the Access to Information Act was passed, there has never been sufficient attention to the education and training of those involved in the Act’s administration. There have been sporadic efforts by government to provide training to the ATIP officers and coordinators in government institutions, but there has never been mandatory training, there are no system-wide knowledge standards or codes of conduct, and no professional accreditation for information rights specialists. While training and education for access and privacy specialists has been sporadic and inadequate, training and education for senior officials, deputy ministers, ministers and ministerial exempt staff has been almost non-existent. It is often at these senior and political levels where ignorance of the law wrecks the most havoc.

Over the past several years, a ray of hope has been shining through. The University of Alberta became the first Canadian university – indeed, the first in the world – to offer a comprehensive, online, post-secondary, certificate program on the administration of information rights, including access to information and privacy laws. The program – Information Access and Protection of Privacy (IAPP) Certificate Program – is offered by the Government Studies center of the University of Alberta’s faculty of extension, in collaboration with leading information rights experts. The online courses are enhanced with audio and video presentations, guest speakers, discussion groups and technical and instructional support. Successful completion of five courses is required to obtain the IAPP certificate.

The Information Commissioner became involved as a supporter and user of the IAPP’s services. The commissioner’s involvement was conditional, however, on the program becoming national in scope and delivered in both official languages. The University of Alberta took up that challenge and courses in French commenced this year.

[For more information, phone 1-877-686-4625 (toll free) or e-mail at govstudy@ualberta.ca. Website:www.govsource.net/programs/iapp]

It is to be hoped that this program will lead the way towards a full academic and professional standard for individuals who seek a career in information rights administration in government or the private sector.

LOOKING BACK ON A TERM OF SERVICE 

Persistent Problems

1. Distrust

There continues to be a deep distrust of the Access to Information Act at all levels in government and, most regrettably, in Parliament. In particular, the vigor of the Act’s exemptions, to protect information which should be kept secret, is doubted. As a result, whenever governments propose laws which involve sensitive information, there is often a knee-jerk decision to add new exemptions to the Act, remove records from the coverage of the Act or weaken the commissioner’s (and court’s) oversight of decisions to keep such information secret.

Regrettably, parliamentarians rarely question government’s distrust of the access law when it manifests itself. Recent examples include: the provision in the Anti-Terrorism Act allowing the Attorney General to stop an investigation by the Information Commissioner into denials of access to information which the Attorney General considers sensitive to national security; the decision to exclude the Ethics Commissioner’s Office from the coverage of the Access Act, even though its predecessor – the Office of the Ethics Counsellor – was covered; the decision to include in the proposed whistleblowing legislation (Bill C-11) an amendment to the Access to Information Act allowing government to refuse access, for 20 years, to information collected or compiled as a result of a whistleblower’s report.

Indeed, since the Act came into force in 1983, governments and parliaments have agreed that secrecy provisions in 50 statutes will be mandatory, even if the information doesn’t qualify for any of the substantive exemptions set out in the Access to Information Act. So much for the articulated purpose of the Act which is that, "necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government"! (section 2)

Bill C-11

Nothing demonstrates the distrust of the access law, and the ignorance of its effect, more than the amendments to it proposed in the so-called "whistleblowing" bill.

In what the government insists was a well-intentioned effort to give assurances of confidentiality to potential whistleblowers, it decided that all information collected or compiled as a result of a whistleblower’s report should be kept secret for up to 20 years. To accomplish this, it proposes to amend the Access to Information Act to include the following provision:

"55. Section 16 of the Access to Information Act is amended by adding the following after subsection (1):

(1.1) The head of a government institution may refuse to disclose any record requested under this Act that contains information obtained or prepared by the President of the Public Service Commission under thePublic Servants Disclosure Protection Act, by a senior officer designated under subsection 10(2) of that Act or by a supervisor to whom a public servant has disclosed a wrongdoing under section 12 of that Act and that is in relation to a disclosure made or an investigation carried out under that Act if the record came into existence less than 20 years prior to the request."

The effect of this provision is to enable government to cloak in secrecy for 20 years a great deal of information including:

  • identities of whistleblowers;
  • identities of accused persons;
  • details of the allegations of wrongdoing;
  • details of actions taken to investigate the allegations
  • details of remedial actions taken to prevent future wrongdoings;
  • details of disciplinary action taken against wrongdoers;
  • details of disciplinary action taken against whistleblowers;
  • details of retaliation actions or retribution against whistleblowers.

The government has given no explanation as to why it needs to keep the details of alleged wrongdoing secret for 20 years. Intended or not, the only purpose of a new exemption of this breadth is to offer the government legal means to engage in cover-up and damage control. Public Service unions, and those whistleblowers who have come forward, do not want a secret system for investigating disclosures of wrongdoing – they want protection from retaliation. They see a strong right of access to be one such protection.

To compound the insult to accountability, the government also proposes in Bill C-11 to amend the Privacy Act to put an end (in whistleblowing situations) to the long-standing, quasi-constitutional right of an individual to have access to his or her own personal information (subject to limited, specific exemptions) to request correction, if necessary, and to know what opinions or views others expressed about him or her. That provision in Bill C-11 is as follows:

"58. Section 22 of the Privacy Act is amended by adding the following after subsection (1):

(1.1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that was obtained or prepared by the President of the Public Service Commission under thePublic Servants Disclosure Protection Act, by a senior officer designated under subsection 10(2) of that Act or by a supervisor to whom a public servant has disclosed a wrongdoing under section 12 of that Act and that is in relation to a disclosure made or an investigation carried out under that Act if the information came into existence less than 20 years prior to the request."

The effect of this provision is that both whistleblowers and accused persons will lose, for 20 years, their rights of access and correction with respect to their own personal information collected or compiled pursuant to Bill C-11.

Again, the government states that its only reason for introducing this amendment to the Privacy Act is to protect the identities of whistleblowers. Of course, this explanation begs the questions: Why take away the privacy rights (of access and correction) from the whistleblower? How does this serve to encourage whistleblowers to come forward? How do whistleblowers go about getting the evidence that their complaints have been taken seriously or that they have been the victims of retaliation?

Finally, the most astounding feature of this proposed amendment to the Privacy Act is that it removes, in the whistleblowing context, the fundamental right we all have to know who is making allegations against us and the nature of those allegations. Heretofore, this principle has only been abrogated for confidential police informants and in national security cases. Indeed, the government patterned sections 55, 57 & 58 of Bill C-11 on the 20-year secrecy authority given by the Access and Privacy Acts to law enforcement agencies.

This long-standing rule against anonymous accusations has been a hallmark of our civilized society built on respect for the integrity of the person. Former Privacy Commissioner, John Grace, appeared before the Public Accounts Committee to object to the then Auditor General’s proposal to set up a fraud and waste hotline where anonymity would be guaranteed. He insisted that making the Public Service of Canada into an informer society, where faceless accusers would be encouraged, would undermine a key privacy right and be inconsistent with Canadian values. The Public Accounts Committee agreed, and the anonymous fraud and waste hotline did not go ahead.

Dr. Grace’s successor, Bruce Phillips, too, went to battle in defence of the privacy right of an individual to have access to opinions and views others express about him or her. His battle was against the government’s proposal to allow employees to provide anonymous performance appraisals of their supervisors. This "reverse appraisal" proposal was seen by government as necessary to ensure that employees had a voice in evaluating their managers. Commissioner Phillips strongly insisted that a "flavour-of-the-month" initiative of this sort should not take precedence over the quasi-constitutional right each of us has to know what others are saying about us (when recorded in government records) and who expressed those views.

It must be emphasized that preservation of the right of individuals to know what others say about them does not mean (under either the Access or Privacy Acts) that there are no circumstances in which the identity of a whistleblower can be kept from the accused wrongdoer. For example, both the Privacy Act and the Access to Information Act would allow identities of accusers and whistleblowers to be kept secret during investigations and, otherwise, if disclosure could reasonably be expected to be injurious to investigations or law enforcement. Moreover, both Acts would protect the identities of both whistleblowers and accused persons from being disclosed to anyone else. In other words, the media or the public at large cannot now obtain access to the personal information of individuals (including their identities as whistleblowers or accused persons). No amendment of either Act is necessary to accomplish this result.

Bill C-11 is a classic case study of the depth of misinformed distrust of the ability of the Access to Information Act to protect sensitive information and to draw an appropriate balance among justifiable secrecy, the public interest in accountability and the individual’s privacy right of access and correction with respect to his or her own personal information.

LOOKING BACK ON A TERM OF SERVICE 

Persistent Problems

2. Inadequate Resources

Year after year, information commissioners have asked Treasury Board ministers to provide adequate (not extravagant) funds to enable commissioners to effectively discharge the duties Parliament gave them. The requests are routinely denied or pared down to bare bones.

Year after year, the Information Commissioner’s workload of complaints increases and, without adequate resources, the backlog of incomplete investigations also increases. Now, it ranks at an all-time high; it represents more than a full year of work for every one of the commissioner’s 23 investigators. In 1986, parliamentarians reviewed the operations of the Access to Information Act and asked the Information Commissioner to aim to complete investigations in 90 days. That target has never been met due to lack of resources. This year, the median time to completion of an investigation is some six months.

Again, this year, the commissioner put forward a request for seven additional investigators for three years to clear the backlog, and eight additional investigators for the long-term to ensure that the backlog did not redevelop. Treasury Board ministers agreed to give the commissioner five additional investigators for fifteen months and none for the long-term. Resources for such a short-term would, for all practical purposes, be wasted. In one year, the commissioner could not recruit for only one year, train, security clear and deploy five new investigators to accomplish any appreciable reduction of the backlog. Moreover, with no permanent increase to the number of investigators, the incoming workload will still outstrip the resources available, contributing to more backlogged investigations. The commissioner told the President of Treasury Board that the Board’s response to the commissioner’s request was a recipe for failure and a waste of taxpayer funds. The minister’s response: Try again next year.

And that, of course, is the deep flaw in the manner in which the commissioner’s office is funded – due to its control of the purse strings, the government has control over the effectiveness of Parliament’s officer. So much for independence!

It is vital that Parliament take over the role of ensuring the commissioner get adequate resources to do the job and, of course, holding him or her accountable for how resources are utilized. Parliament took such a step with one of its officers, the Ethics Commissioner. It is equally important that it do so for the Information Commissioner and the other officers of Parliament who are mandated to investigate government actions and decisions.

In February 2005, the Standing Committee on Access to Information, Privacy and Ethics launched a study into this issue. The government, too, is considering proposals for a funding mechanism for officers of Parliament which is not controlled by the government of the day. In the meantime, this funding gap cries out for immediate redress.