Information & Ethics Committee on Nov. 24th, 2009

[Douglas Rimmer]

Perhaps I could add to that.

Certainly it is not at all meant to be an arbitrary concept that gets applied on the fly. It's meant to be applied in a structured way to the activities of the department and to the information they collect to identify which of those pieces, in an upfront way, need to be kept, and to put in place the structures to do that. As I mentioned, we're currently working with our colleagues at Treasury Board Secretariat to develop guidelines to departments. So while they have the responsibility to make that choice themselves--understanding their business, which they understand better than anyone else--they're going to do so within a framework and with tools that we have provided to them. Again, that brings a rigour and structure to that decision-making process that we would also, in itself, expect to be documented. We would expect them to identify and document which records have a business value.

[The Chair, Liberal, Paul Szabo]

From time to time departments would second or farm out work, and the discussion about who's in and who's not looks fairly comprehensive. There are circumstances when some body, some company, would be used to do certain work that involved issuing correspondence or receiving information back. Does this directive and the rules of the game cover the practices in this third party, which is not a government agency or department?

[Peter Bruce]

There are those contexts of whether it has business value that they would apply. If the records have a business value to government, they should be captured as part of the process. Usually in those contractual arrangements there is a duty to provide some documentation as part of either the process or the results of the process.

[The Chair, Liberal, Paul Szabo]

If I give you a specific example, you may be able to understand. There was a case where a department wanted to communicate with a number of people, and they provided a printer, St. Joseph Printing—they used to be the Queen's Printer—with database information about the persons and it produced letters to those persons. The return envelope was addressed to St. Joseph Printing so the return mail would come back to the printer. Then I assume that the printer would communicate with the department that was requesting the service.

That's why I'm asking the question. Is this printer, St. Joseph Printing, apprised of the rules of how our information should be safeguarded and documented and reported and transmitted?

[Peter Bruce]

My sense is that if the information is being collected on behalf of government to implement a government program, then that should probably be an explicit part of the contract.

[The Chair, Liberal, Paul Szabo]

But you don't have access to check whether they're safeguarding or managing or protecting the information in the way you would for the department. That's the problem. If it's farmed out, you don't have the reach.

[Douglas Rimmer]

The directive governs not only the creation of records and their eventual disposition but also their good management. Departments have to ensure that records are appropriately safeguarded.

There was reference earlier to looking at it from a risk profile, which would include examining the possibilities for inadvertent disclosure. Certainly the privacy legislation and other pieces of legislation apply to that as well. So in managing their information, departments have to be aware of all those factors. If as part of their business they are sharing that information with whoever they're sharing it with, it's still their information, used for their business purposes, and they would have to conform with the policy requirements.

[The Chair, Liberal, Paul Szabo]

Thank you. Now I understand. There still is control. The responsibility is still with the department. Whenever the government contracts through either the Financial Administration Act or Treasury Board guidelines, all these responsibilities have to be safeguarded in activities of exchanging information with third parties—something like that.

But you have no jurisdiction to go to a third party company to check.

[Douglas Rimmer]

Again, the accountability is with the department. As I think we've explained, there are a lot of tools for us to get reporting from departments and to have an opportunity to assess what departments have done.

[The Chair, Liberal, Paul Szabo]

That's helpful. Thank you very much.

Are we all done, colleagues?

The members seem to have exhausted their questions, at least for the time being. There was one undertaking to provide us some information. It may be efficient for you to communicate directly with the clerk, and the clerk will appropriately circulate a response. You can discuss the form of that.

We have a couple of other small pieces of business, so at this point I would like to thank Mr. Bruce and Mr. Rimmer for coming and allowing us the opportunity to meet with them and learn a little more about an extremely important initiative area. I think we share their hope and enthusiasm that it will improve the operation of some of the important acts that this committee and the government as a whole are interested in.

Thank you kindly. You are excused.

[Peter Bruce]

Thank you.

[The Chair, Liberal, Paul Szabo]

Colleagues, at the last meeting when we had the Information Commissioner before us, she was asked some questions. She responded directly to me; I got this in both official languages yesterday when I came to Ottawa. I didn't notice that it wasn't carbon copied to the clerk, so I apologize.

She was asked these questions: What countries have an exclusion for cabinet confidences? Were any security certificates issued to the Office of the Information Commissioner under the Anti-terrorism Act to suspend an investigation? What are the top five exemptions or exclusions and complaints against the Privy Council Office?

The answers are here, with pie charts and the whole bit. They are very good responses. If the members would like them immediately, we could arrange to get them to you. For the rest of the committee members, they will be circulated to you in the normal fashion. Okay, so the clerk has them.

The second item is the government's response, and more specifically the Minister of Justice's response, to the committee concerning our 10th report on the so-called quick fixes to the Privacy Act. We have similarly considered this matter with respect to the Access to Information Act and made a report there.

I'm open at this point. It is an item on our agenda, and I want to hear if there is any further discussion, commentary, or suggestions on the minister's response to the committee. I open it to members.

Madam Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

We all got a copy of the minister's response. It was so much like the response we got on the good work we did on the Access to Information Act, as far as the tone is concerned. Paragraphs were taken from one letter to the other--they were identically phrased.

In reading it I was looking for some ray of hope, because we did a lot of good work on the Privacy Act, and as the chair pointed out, it's the tenth report. I thought it was a very serious study that didn't get the response it merited. The Privacy Commissioner also confessed to a measure of disappointment about the government's response to the committee's report.

Therefore, I would like to move a motion that mirrors pretty much the motion we adopted on the response to the Access to Information Act. The motion is that the committee report to the House its profound disappointment with the response of the Minister of Justice to its tenth report entitled “The Privacy Act: First Steps Towards Renewal”, and that the committee recommend to the government that it introduce in the House, no later than March 30, 2010, a new Privacy Act that would reflect the committee's proceedings and recommendations.

[The Chair, Liberal, Paul Szabo]

Mr. Wrzesnewskyj.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

It's a motion that is quite serious in its tone and the consequences--having to call the minister before the committee because of the nature of a response to a report. Once again, in this last case the committee expended tremendous time and energy on a report that was pretty much consensual in all of its recommendations.

I guess after Mr. Marleau took the time to count the number of words in our report...the 1,005-word response that came from the minister. Actually, the last time I think it was half that number. The only difference from the previous letter is that I think he added extra words, but unfortunately it's just as dismissive in nature as his previous letter.

Consequently I'll be supporting...and I'd almost be tempted to add an extra word in there and say “dismissive” letter, because it's quite dismissive of the work we've done here.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Mr. Chair, I'm disappointed and perplexed with the response of Liberal members to this excellent letter that we've received from the Minister of Justice. Let's review the letter before we begin condemning it.

It reads:

The Government welcomes the opportunity to respond to the Report of the Standing Committee on Access to Information, Privacy and Ethics entitled the Privacy Act: First Steps Towards Renewal, released June 12th, 2009. This Report is a culmination of the work that began in the spring of 2008, at the time the privacy commissioner tabled with your committee her ten recommendations for immediate reform of the Privacy Act. She referred to these “quick-fixes” and recently added two more recommendations to her list.

Mr. Chair, that does not sound dismissive to me. In the opening paragraph, there is a complete acknowledgement of the information that this committee sent to the minister. The letter goes on:

The Report states that the committee fully supports five of the privacy commissioner's 12 recommendations, and gives qualified support to one additional recommendation.

Clearly, the minister is demonstrating a comprehensive knowledge of the committee's position on the privacy commissioner's recommendations. If I go down the page, it reads:

In our view, the current definition of personal information in the Privacy Act, together with the application of the Charter, is sufficient to address the scenarios raised by the privacy commissioner.

Now, at this point we see a parting of ways between the Minister of Justice and the Privacy Commissioner, between the government and the committee. I would suggest to you, Mr. Chair, that this is an honest disagreement that, in the view of the justice minister, the current definition of personal information in the Privacy Act, together with the charter, is sufficient to address the scenarios raised by the Privacy Commissioner.

You don't have to agree with that assertion, Mr. Chair, nor does the committee. At the same time, to suggest that we should condemn a minister of the crown simply because he takes a different viewpoint from us, I think, puts this committee at a long-term disadvantage. If we, as a committee, are going to be initiating honest conversations between Parliament and ministers into the future, we must do so in good faith, in recognition that there will be occasions when our counterparts in the government have a different viewpoint from us.

We live in a country that was made to work by compromise and consensus, by taking different viewpoints and finding a way to bridge the gap, not by pulling out a hammer and beating someone over the head simply because they happen to have a different perspective. I would encourage us, rather than passing the motion in question, to produce a letter, perhaps in your name, Mr. Chair, writing the minister with our response to his letter, not condemning him or his letter but maybe challenging some of the points so that we could work through these disagreements and perhaps close that gap as we move forward.

Mr. Chair, to come out with a motion that has as its sole purpose to strike at another Canadian representative in a very aggressive and negative way only serves to build barriers rather than to build bridges. I think we have a lot of bridge-builders in this community on both sides, so let's get busy building bridges and work on building consensus. I think that's the Canadian way and I think it's the way this committee should proceed.

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Siksay, please.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

I want to thank Madam Simson for introducing this motion, which I will support, Chair.

Rather than seeing it as a refusal to pursue new possibilities for privacy reform, as Mr. Poilievre was suggesting, I think it's essentially calling a spade a spade and expressing our disappointment that the minister has rejected all of the recommendations put forward by both the Privacy Commissioner and by the standing committee.

Frankly, Chair, that's unacceptable, given that we haven't had a significant reform of our Privacy Act since it was first introduced back in 1983. The minister would suggest that everything's okay with privacy legislation in Canada, while the reality is that it's not okay. We need some significant attention to be paid to these issues.

In his letter, the minister talks about his rejection of the idea that PIPEDA and the Privacy Act can be brought into some kind of alignment, as is suggested by the commissioner. We know from the commissioner's testimony that other jurisdictions are looking at exactly this. The minister seems to say, “Do as I say, not as I do”, in trying to set up this disparity between the public and private sector with respect to privacy considerations. Frankly, I think that's unacceptable.

We've had long discussions at the committee about the importance of legislating rather than just having policy documents, and about the contribution this can make to effective privacy legislation. Frankly, I just don't buy the minister's argument here and I think we need to express our disappointment that he uses the argument that there's some kind of obligation in policy to say that legislation isn't required. I think it's an unacceptable approach to ensuring the privacy of Canadians.

He spends some time in his letter also talking about some perceived conflict between privacy legislation and effective and efficient law enforcement. Again, Chair, I think that's a red herring. The deputy commissioner was very clear that good privacy policy can actually improve the efficiency of police work, of investigation and law enforcement and security work, because we're not collecting a whole bunch of information that's not important to the actual undertaking.

I think it's again an argument that doesn't hold water. To use those specific arguments to reject the work of the committee, to reject the suggestions of the commissioner, and to say further, once again, that Privacy Act reform isn't necessary in Canada is profoundly disappointing, Chair, and that's why I'll be supporting this motion.

If the minister wanted to bring in two major pieces of legislation in March, that would be a lot of work for the committee, but I'd be prepared to go there, Chair.

So again, I want to support this motion.

[The Chair, Liberal, Paul Szabo]

Okay.

Colleagues, this room is booked precisely for 11 o'clock, with teleconferencing. We don't want to inconvenience the committee coming in, and I think this is an important discussion that we should reflect on a little bit further, so I'm going to suggest that we carry it over to our meeting on Thursday. We'll pick it up where we are right now.

Subsequent to that, you may have noticed that in the materials forwarded to you and probably received in your offices yesterday there are two documents. One is on the Access to Information Act and recent proposals for reform. The other is similar, but these are proposals that came out of the Information Commissioner's office from the right-to-know legal panel that it ran, under which it had a whole week of interesting interventions. I had our researchers prepare these documents for your information so that you would know all of the work that has gone on with regard to access to information. We are looking forward to having a steering committee meeting about where to go from here, and I thought these documents might be useful to the committee to bring pretty well everything that's on the table so far into a couple of documents that we'll be able to consider.

So after we've finished with disposing of the current item before us, I'd like to have an open discussion at the committee on these documents. The researchers will lead us through them to some extent, simply to understand where we have been and where we are right now, and that may give us a better focus on what else we might do, if anything. This will be the committee's decision, so we should prepare for it.

If that's acceptable to the committee and there is no further business, we're adjourned.