Evidence of meeting #38 for Access to Information, Privacy and Ethics in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Mr. Fraser, do you have any idea why this is happening?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
I don't know the specifics of it. I certainly am aware that the Privacy Commissioner has said that.
The Correctional Services of Canada is an institution under the Privacy Act. Individuals would have a right of access to their own information. I certainly have seen instances in which access to information provisions, under privacy legislation or under access legislation, public and private sector, are used in order to get information either as an antecedent to litigation or as a substitute for it, or just as part and parcel of somebody wanting to find out what somebody else has on them. They may simply be an instrument of individuals to find out what information there is about them that is being held by the institution.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
So I guess either of you would be in a position to help us figure out how to address this concern.
Chair, National Criminal Justice Section, Canadian Bar Association
I should add that certainly it is my understanding that the information the corrections service might hold in relation to an individual might be relevant to issues such as classification within the prisons, or perhaps even parole eligibility. So to the extent that the personal information is going to relate to those issues, it is going to be of obvious interest to an individual. And that interest is going to be engaged if a person believes he or she should be held in a prison of lower classification, a lower-security institution, or if the person is being denied parole and the person contests that.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
On page 11, under section F, which is dealing with recommendation number 6, you suggest that the Privacy Act should be amended to authorize the commissioner not to prepare a report in specified circumstances. What kinds of circumstances are you contemplating?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
What it comes down to, ultimately, is that the Privacy Commissioner has scarce resources, scarce staffing, just as every other government department. Also, as of necessity, every individual has a right to make a request for access to their own information, about the existence of their own information, and otherwise. There's a very low barrier to entry, and that's important, for individuals to exercise their rights of access under the Privacy Act.
The concern is, and it has been at least a position taken by the Privacy Commissioner, that there are inquiries or complaints generated that might amount to being frivolous or vexatious, or might have been initiated for collateral purposes, so in order just to be an irritant rather than actually exercising what amounts to a legitimate right.
We are suggesting that if there is a reasonable basis to believe that this is the case, no purpose would be in fact served by proceeding further with a full investigation, with producing a report, to provide a mechanism to short-circuit that. While not addressed within our report, if the commission were to make a decision like that, and the individual was sufficiently aggrieved and believed they did have a legitimate case, they would have the opportunity, under other legislation, to seek judicial review of that decision, to have a judge take a look at it.
So it would include, one would hope, the protections to make sure that only in fact those cases that are frivolous, vexatious, or malicious are short-circuited at that particular point.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Right. You're saying the commissioner would have the opportunity to say this particular complaint is frivolous or vexatious and it's not in the public interest, but at the same time, that individual who made the complaint could then appeal that decision to the Federal Court. Is that not your recommendation number 2?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
Recommendation number 2, with respect to a Federal Court oversight, relates specifically, or at least within the four corners of our court, with an ability to order a government department to follow the requirements of the Privacy Act. So it doesn't relate specifically to the enforcement mechanism or to requiring the Privacy Commissioner to do or to not do things.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
So an individual would not have the opportunity to appeal to the Federal Court if they disagreed with the Privacy Commissioner.
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
They would have a slightly different procedure under a different statute, the Federal Courts Act, which allows you to seek judicial review of any decision. So it wouldn't amount to an appeal under the Privacy Act.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
The chair is telling me that my time is limited, and I have an additional question. So I'll leave that discussion aside for a moment.
Dealing with recommendation 9, on page 12, section H, the five-year statutory review, you suggest, without any explanation, that this committee review this legislation every five years. Now, you may or may not be aware, but we haven't reviewed this legislation in 25 years, and it's not likely that there would be a desire to do it as often as you suggest.
I'm wondering if you could help us understand why you think the time and expense would be necessary to review it every five years, keeping in mind that we understand that with PIPEDA things change frequently in the marketplace, and there's certainly a need to review that every five years. But with respect to this legislation and the less frequent change in how the public interacts with the government, what would be the value in reviewing it so often? Would it not suffice to do it less frequently?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
In my opening remarks I did list a number of the factors that contribute to our belief that even though the fundamental relationship between the citizen and their government is relatively static, the information management practices, the complexity of the information that's collected, the consequences of that are changing just as rapidly in the government sphere as in the private sector.
While we're not purporting to say that a full comprehensive review needs to be done every five years, at the minimum there needs to be a bit of a reality check to make sure that this important piece of legislation that's been identified by the Supreme Court of Canada as being quasi-constitutional actually does keep up with the requirements of modern society. And it's our view that it hasn't. The world has changed significantly. The government information practices have changed very significantly since 1982, and it's very difficult to say what the next five years, ten years, fifteen years are going to look like.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
This is why I'm so glad we're taking the time to review this at this present time. And I hope we're not derailed.
Liberal
Charles Hubbard Liberal Miramichi, NB
Thank you.
First of all, I'm very pleased with your submission. It really goes number for number with the various recommendations the Privacy Commissioner has made.
As practising lawyers, have you had any direct interventions on behalf of your own clients with the Privacy Commissioner or her office?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
With respect to the particular matters enumerated within this?
Liberal
Charles Hubbard Liberal Miramichi, NB
If you go back to 1982, have you had clients that said they were having trouble under the Privacy Act and you dealt with the privacy commission on their behalf?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
Taking off my CBA hat and putting on my private practice hat, one of the differences between a piece of legislation like the Privacy Act and other pieces of legislation is that it's essentially designed to be user friendly. For example, the primary right that's given to citizens under this piece of legislation is the right of access to their own information. It sets out a scheme through which they can, without the assistance of lawyers, fill out forms and ask for their own information.
But to get directly to your question, people have asked why they are collecting this information, and my response has had to be “Because they can”. They ask what they can do about it, and I answer “Not much”.
Liberal
Charles Hubbard Liberal Miramichi, NB
One group that probably avails themselves more of this act than others would be the 300,000 people who work for the public service. Those who apply for jobs within the public service can apply under the Privacy Act to find out why they weren't promoted, why they didn't get certain jobs, why they weren't hired. From that point of view, I think that every manager has to be very much concerned with what he or she does with data in terms of working with people.
Do public servants have a fair showing in terms of privacy legislation, going back to 1982? You see soldiers who say “I didn't get my sergeant's rank”, or “I didn't get my promotion to major”, or “Someone has written a bad report on me, and I would like to get a copy of that report”.
I do know that many federal institutions are reluctant to provide the complete details on particular individuals when they request that information. With the present act and the changes we're talking about here, will it in any way enhance the ability, or will it be a further problem to managers within the public service? If a job is open and ten people apply, only one person gets it and there are six people who are dissatisfied, how big an operation are we involved with in terms of the privacy legislation?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
It's very interesting that you highlight the access to one's own information, which is likely the way the Privacy Act is used most often. It most immediately has an impact on the lives of individuals who are employees of the government, but also individuals who want to know the basis for decisions that are made about them.
A central maxim of privacy legislation is access to one's own information. It's interesting that these recommendations don't suggest a significant overhaul of the access to one's own information. They relate to the collection, use, and disclosure of personal information by government institutions and by public bodies.
To ultimately answer your question, I hope, I don't think the changes we have suggested are going to dramatically change that and either lead to a stampede of individuals asking for their own information or somehow restrict or hamper supervisors in that particular capacity.
The one that comes to mind, which would most particularly have impact on that, would be the requirement that one collect only information that's reasonably necessary. I could see it happening, for example, in the hypothetical situation you put forward of somebody doing an evaluation of potential candidates for employment or promotion. If the supervisor has used information that really isn't necessary or relevant to that decision, they would have crossed the boundary within the privacy legislation. They would have gone too far in collecting information that likely would be irrelevant, or too intimate, or what have you.
Liberal
Conservative
Mike Wallace Conservative Burlington, ON
Thank you, Mr. Chair.
Thank you, gentlemen, for coming.
Mr. Fraser, in your private practice, what kind of law do you practise?
Treasurer, National Privacy and Access Law Section, Canadian Bar Association
I practise privacy law and information technology and IP law.
Conservative
Mike Wallace Conservative Burlington, ON
Okay, thank you.
If I heard you correctly, if you had your choice from an organizational point of view and you were giving us advice, instead of what the committee has sort of framed itself around thus far, the organization that you represent would have liked us to do a much more thorough review of the act, clause by clause or whatever you want to call it, since it has never really been reviewed to that extent since its inception. Is that correct?
