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Recurring Themes:
Merger of the Offices of the Information and Privacy Commissioners

From time to time, since the early 1990s when the Mulroney government announced its intention to merge the offices of the Information and Privacy Commissioners under a single commissioner (an initiative which was not abandoned), the pros and cons of such an initiative have been debated. The debate commenced anew in this reporting year when the former Liberal government announced, in June of 2005, that it would appoint an eminent person to inquire into, and make recommendations concerning, the merits of merging the Information and Privacy Commissioners’ offices.

The person so appointed, former Supreme Court Justice the Honourable Gérard La Forest, conducted his review between July 22, 2005 (the date of his appointment) and November 15, 2005 (the date of his report to the Minister of Justice). Dr. La Forest was assisted by Professor Steven Penny of the Faculty of Law, University of New Brunswick. While the short term given Dr. La Forest did not permit him to hold public hearings, he consulted broadly with relevant stakeholders and experts. All of those who dealt with him, including this commissioner, were impressed by his thoughtfulness, convinced of his independence of mind, struck by his intellectual honesty, and inspired by his personal integrity.

Dr. La Forest made the following recommendations:

  • "There should not be either a full merger of the offices of the Information Commissioner and the Privacy Commissioner or an appointment of one commissioner to both offices. These changes would likely have a detrimental impact on the policy aims of the Access to Information Act, the Privacy Act, and PIPEDA.
  • If the Government and Parliament decide to proceed with a merger or cross-appointment, implementation should be delayed for a considerable period of time. The transition should take place gradually, and only after the challenges facing the current access and privacy regimes have been thoroughly studied and addressed.
  • Caution should be exercised in proceeding with any attempt to share the corporate services personnel of the offices of the Information and Privacy Commissioners. Care must be taken to establish mechanisms ensuring adequate accountability and control.
  • Government must do much more to foster a "culture of compliance" with access and privacy obligations. With respect to access, it should:
     
    • make it clear to officials that access should be provided unless there is a clear and compelling reason not to do so;
    • develop better information management systems;
    • ensure adequate training for access officials;
    • create proactive dissemination policies; and
    • provide adequate incentives for compliance.

With respect to privacy, it should:

  • pay greater attention to the implications of programs involving the sharing, matching, and outsourcing of personal information;
  • ensure adequate training for privacy officials; and
  • develop comprehensive privacy management frameworks.
  • The Access to Information Act and the Privacy Act should be amended to specifically empower the commissioners to comment on government programs affecting their spheres of jurisdiction. Ideally, there should be a corresponding duty imposed on government to solicit the views of the commissioners on such programs at the earliest possible stage.
  • The Access to Information Act and the Privacy Act should be amended to recognize the role of the commissioners in educating the public and conducting research relevant to their mandates.
  • The option of granting order making powers to the Information and Privacy Commissioners should be studied in further depth.
  • The Access to Information Act and the Privacy Act should be amended to specifically empower the commissioners to engage in mediation and conciliation."

[La Forest Report, pp. 55-56]

It is a tribute to Dr. La Forest’s courage that more than fifty percent of his recommendations are reminders to the government that appointed him that there are a number of access to information and privacy issues having more importance for Canadians than the pros and cons of the merger of the commissioners’ offices. The following extract from the report identifies the central challenge for the Access to Information Act:

"There is undoubtedly a need for certain kinds of government information to remain confidential. This need is reflected in the many exemptions to access set out in the Access to Information Act. The Act itself proclaims, however, that as a general rule ‘government information should be available to the public’, and the ‘necessary exceptions to the right of access should be limited and specific’. If this legal principle is to have its full effect, however, the bureaucracy must experience a profound cultural shift."

[La Forest Report, p. 46]

There is a welcome consensus as to how to encourage this "cultural shift", among the La Forest recommendations, the Gomery recommendations, the Information Commissioner’s recommendations, and the promises for access to information reform contained in the Conservative Party election platform.

Following publication of Dr. La Forest’s endorsement of two separate offices, the Privacy Commissioner and the Information Commissioner made a joint request to the Clerk of the Privy Council that their two offices be separately listed in Schedule 1.1 of the Financial Administration Act. This separate listing would give legal recognition to the separate status of the two offices – a result which has also been recommended by the Auditor General in order to ensure that the two offices could have separate general ledgers. According to the Auditor General, separate general ledgers would improve the accountability of the two offices. As of this writing, there has been no response from the Privy Council Office.



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