Information & Ethics Committee on May 31st, 2016

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

We had suggested that we go beyond citizens, too. That's of concern to the Department of Citizenship and Immigration who sees the potential for a very large expansion of requests.

[Doug Letto]

That's right, because you don't have to be a citizen to make an application.

[Clyde Wells]

You don't now, under the existing legislation.

[Doug Letto]

No.

[Clyde Wells]

But a landed immigrant or a resident—

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

You go through an intermediary. The request is made by an intermediary who is a Canadian citizen.

[Doug Letto]

I would say this. With regard to Bill 29, whatever the motivation for the act as it materialized, the report that had been done prior to ours was replete with examples of senior public servants asking for exclusions and exemptions in the act, and they were put in place. The attitude was that “We have to restrict the amount of information that's available under the business interest clause because people won't do business with the province.” There was this fear that somehow the whole public enterprise that is government would collapse if people could have more information about it.

That's where the retrenchment started, and that's where the diminishment of access rights began. Our committee had five separate instances where people, representing either public agencies or agencies that had some connection with the government, asked to be excluded from the act. They had this apprehension that hugely negative things would happen if people had access to certain information. They painted a picture of what might happen, not what did happen.

There's tremendous pressure to exclude from the act various organizations and agencies. I would ask you to be aware that that's a natural tendency on the part of public agencies that will appear in front of you that may not want as much access to their information.

[The Chair, Conservative, Blaine Calkins]

Colleagues, if I may, I'd like to ask a few questions while we have some time. I seem to exercise this right probably more than I should as chair. First of all, I want to thank all of you for coming and making your way here today. I found the conversation to be very enlightening.

As we wind down our study on access to information, we'll be going through the draft report that our analysts have prepared for us and will likely add some of the testimony that we've heard today. This meeting is also a segue into our resuming the existing study we have on the privacy legislation.

Given the fact that your study actually rewrote the legislation, because it's a joint role and responsibility in Newfoundland and Labrador.... Here at the federal level, of course, we have a commissioner for each role. Even though the budgets for the Privacy Commissioner and Information Commissioner are basically jointly held when it comes to the estimates and how those budgets are passed, each one has its own autonomy and authority to look after its legislative mandate.

Ms. Stoddart, I think you are uniquely positioned as a former privacy commissioner to tell us any of the things we need to look for as we move forward and transition into the study of the privacy legislation. My question for you is severalfold.

One, does it make sense at the federal level to even look at a potential model in which Canada would have commissioner for both access to information and privacy, or should we maintain the current yin versus yang, where we have an Access to Information Commissioner and a Privacy Commissioner? Would it make any sense having one such commissioner in terms of economy of scale, and would it make any sense in terms of the entirety of the process and an overall oversight point of view?

We also received a letter from the Privacy Commissioner as part of our mandate, who was very much concerned about opening up and broadening access to information as it pertains particularly to individuals' personal information and the ability of the Information Commissioner to have order-making powers to that effect. I'm wondering if you can give us any insight as we move forward on some of those concerns that have been brought up?

[Jennifer Stoddart]

I think all those concerns are valid, and I would encourage the committee to look with an open mind at all the possibilities, at this point, and all the factors that should be considered.

I have a few comments. First of all, when I came to the Office of the Privacy Commissioner, I understood that there was a history of, shall we say, less than complete co-operation between the two commissioners and their offices. I felt strongly that was not in the interest of the Canadian public. Mr. Robert Marleau, who was the interim privacy commissioner after John Reid, and I did the most possible to set up cordial relations, which continued between me and Commissioner Legault. That situation of competition, I guess—I don't know what it was, I wasn't there but just heard about it—had been extant for several years. I don't think that's appropriate between government agencies. We know it happens, but we know that individuals all have their own personal information rights and their access to information rights. It's important that if there are two commissioners, it be made clear that they and their offices should work together.

One of the results of that competition, shall I say, was that the offices then developed their separate administrations. You could logically ask, “Why isn't there one administration for the two offices?“ That was how it developed, so there are things like that you should know.

Secondly, I was fortunate in the time I was federal commissioner to benefit from several fairly generous increases in funding from Treasury Board and the government on submission of the appropriate proposals and requests. I don't know what the budget is now. I think it's about $17 million or $18 million, or something like that. It depends on how you count it with benefits and so on. The point I'd like to make is that I believe it is still far in excess of the Access to Information Commissioner's budget. Worldwide, even when you look at a joined-up commission, like in the U.K.—it's always been that way in the U.K.—since the access to information law was passed, it was added to the duties of the existing privacy commissioner.

It's in the nature of the access to information function that it tends to take a lot of the funds, and there is perhaps an understandable pushback from the government of the day to not be as excited about funding more access to information requests about its own activities. The Privacy Commissioner rarely gets into such a possible contradictory position with the government, because lately many of the privacy issues have been about technology and about third parties, notably what the private sector is doing or what we should be doing in terms of national security and about surveillance policy, for example, in which the government is actively looking for advice.

We have two different positions, and the Canadian privacy office has been able to do good work—I am partial—over the years because of the generous budgets and because of the support it got from the Canadian government. There are a few things to take into account. There's a bit of jurisprudence where the Access to Information Commissioner is contesting a decision of the Privacy Commissioner, but it's usually settled in a way that doesn't involve going to court.

[The Chair, Conservative, Blaine Calkins]

Excellent, thank you very much.

I have one other question. There are a lot of information requests that are of general interest, whether it's the media or interested citizens accessing information as it pertains to how the government conducts itself. However, there are also a lot of information requests that come from individual Canadians wanting to find out information about their particular file, whether it's a file that might be with Citizenship and Immigration, or with a particular department or agency, or whether they're applying for something. I'm wondering, in the course of your deliberations and study, and in your recommendations, what was done when a citizen found out information was being held about them by the government that was either incorrect, factually wrong, or for which there needed to be some kind of recourse. What system did you put in place, or does that fall beyond the scope of the access to information and privacy office in order to correct information that the government holds about individual citizens?

[Clyde Wells]

That's provided for in the legislation and there's a right to have your information corrected. When you discover that the information the government holds is in error, there's a statutory obligation to correct that information and to remove the incorrect record about the individual. There is clearly a right to have it done.

[Jennifer Stoddart]

We broadened the rights of citizens to requests to know about different treatments of their personal information in the hands of government.

Before our committee's work, they could only refer to the commissioner at very limited times. The commissioner could not do his own audit of personal information practices. He could not conduct his own investigation, as I remember.

All this was broadened so that people had the complete right to look at what was being done, what their personal information was. The commissioner could investigate on his own initiative, and all that could go to the commissioner and then off to the Newfoundland Supreme Court.

We broadened the privacy rights.

[The Chair, Conservative, Blaine Calkins]

Mr. Erskine-Smith wants to ask a question.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I want to follow up on the Information Commissioner bracketing the institutions funded in part by government, institutions that perform a public function on behalf of the federal government, and specifically those organizations with the authority to regulate and set standards on behalf of the federal government, where the federal government defers to those organizations.

Mr. Wells, you mentioned having a principle here. Would there not be a principle that we would extend access to information to these organizations?

[Clyde Wells]

For all those organizations, I assume that individuals would be appointed by government.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

No, not always.

[Jennifer Stoddart]

Can you give us an example like the Standards Council of Canada?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

The example that the Information Commissioner gives is Nav Canada.

[Clyde Wells]

Nav Canada?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I don't suggest there are a great many. I think Mr. Wells is correct that the vast majority of them will have the majority of their boards of directors appointed by the government. But in cases where the majority of directors have not been appointed by the government, why would we not have access to information laws apply where these organizations do regulate on behalf of the government and there is deference by government to them?

[Clyde Wells]

I agree. There should be access to their information. On a principled basis, they should be included—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

And to follow up on that—

[Clyde Wells]

—where they're exercising regulatory power.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

That's exactly right.

For institutions funded in part by government, $5 million is a significant amount of money. I would put to you that the principle is a de minimis principle, and I think Mr. Scarpaleggia picked up on this.

Take the Pan Am Games, for example, which hundreds of millions of taxpayer dollars funded. The Taxpayers Federation would think as a matter of principle taxpayers ought to know how that money was spent.

There is a principle for extending coverage of the act to organizations where a significant amount of public money has been spent at the very least on access to information coverage being extended to how those funds were expended.

Do you agree?

[Clyde Wells]

You can get information from the government records and the government can release it, and under the legislation that we had there would be no limitation on releasing that third- party information. I would think that a government advancing $100 million to an agency like the Canadian Olympic Association would require that organization to report to government exactly what it did with the money and government would report to the public.