Evidence of meeting #17 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commissioner.
A recording is available from Parliament.
9:55 a.m.
Conservative
The Chair Conservative Blaine Calkins
All right. Fantastic.
We'll now move to Mr. Jeneroux, please, for somewhere in the neighbourhood of five minutes.
9:55 a.m.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
I want to get back to a bit of what Mr. Saini touched on, which is the transition that happened between the commissioner to the hybrid model in your province. You indicated that what we should be expecting if there were to be change to an order-making model would be significant. Just to clarify, what was the model previous to the hybrid model?
9:55 a.m.
Member, Independent Statutory Review Committee
It was a pure ombudsman model. The commissioner made his recommendation and the public servant could ignore it. If the public servant wouldn't comply with it, the requester had the obligation to then go to court, create money, engage a lawyer, and so on. This was a tremendous deterrent. Most people would not take that step. Very few would.
9:55 a.m.
Member, Independent Statutory Review Committee
That's why we changed the wording and moved the burden from the requester to the department.
9:55 a.m.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
If you're looking at a sliding scale, you made one step. What we would be looking at, in your opinion, would be a giant step, or two steps, in getting from an ombudsman to an order-making model.
9:55 a.m.
Member, Independent Statutory Review Committee
It's an easy step. You just switch the burdens.
We've stayed with the ombudsman model where what the commissioner directs is a recommendation. The public servant has to comply, unless it goes to court to get an order to set it aside.
9:55 a.m.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Also talking about your current model, right now—and correct me if I'm wrong—you have a combined information and privacy commissioner in one office. Was that up for review at all during your committee? Were there any suggestions, perhaps from some of the witnesses, on switching that?
9:55 a.m.
Member, Independent Statutory Review Committee
There was no recommendation to us and no complaint about that system. It worked fairly well. As a matter of fact, the privacy side of it had been enacted only a short time before. It started out as being just a statute with respect to access to information, and the privacy sections were implemented some years after the initial one.
9:55 a.m.
Member, Independent Statutory Review Committee
I think Ms. Stoddart was of the view that one of the things a lot of people passed over was that Bill 29,with all of its implications for access, actually advanced the cause of privacy in Newfoundland and Labrador substantially, because it modernized the whole privacy aspect of the law.
9:55 a.m.
Member, Independent Statutory Review Committee
Yes. The privacy parts were the poor cousins of the existing legislation. People had relatively few rights of recourse to the commissioner, so we tidied that up.
However, our work in Newfoundland was not really so much about personal information. There are large parts about personal information. A lot of the population's concerns about personal information were in reaction to health information; there had been some controversies about use of personal information. Newfoundland has a very new, modern, and contemporary public health information act, so it's a different context from this.
9:55 a.m.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Ms. Stoddart, along that same line, we have had witnesses here who have indicated that they see a benefit in combining the two offices. From what I understand, in your past career here in Parliament representing one of the offices, it's always been separated.
Is there any direction you can give us on whether to keep it separate, or are you of the opinion there ever should be a time to perhaps combine it?
9:55 a.m.
Member, Independent Statutory Review Committee
I won't speak directly to that. I think the present Privacy Commissioner can certainly inform you about that. But there was a government study made of that in 2005, with a very important Supreme Court justice who recommended keeping the offices separate.
On the other hand, I notice in looking around the world that Canada is probably one of the last jurisdictions to have separate commissioners. I believe Australia is putting both offices together, and so on.
I think the government will have to make that decision and examine the practical consequences in the Canadian system of either keeping the status quo, which was the last expert recommendation, or of moving ahead.
Certainly, there is the important issue and fact—as some of the people who have appeared before you have noted—that the acts are read together. That's what the Supreme Court has said. Many parts of them are identical. They refer one to the other. So if you change the Access to Information Act in the way we changed it in Newfoundland, for example, then you have to ask yourself parallel questions about the Privacy Act.
10 a.m.
Conservative
10 a.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Mr. Wells, I want to thank you for your contribution to our country. I've admired you from afar for many years.
You were premier from 1989 to 1996. Newfoundland has had through three or four premiers since then.
10 a.m.
Member, Independent Statutory Review Committee
I've lost count, but I think there have been five, at least.
10 a.m.
A voice
There have been seven.
10 a.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
I guess that is a lot.
One of the things we've talked about—and certainly our commissioners have talked about—is the culture of secrecy, the culture of delay, and the government being seen as laggards. We hear that again and again.
With respect to Newfoundland and Labrador when you were premier, and again, fast-forward to Premier Ball, I think you've evolved from some openness to proactive disclosure, to Bill 29, which seemed to take you backwards, and then to a new act in 2014.
Can you share with me what you've seen, how you've seen the culture in Newfoundland evolve, and where it really started to go wrong, or is it just something that's always been that way?
10 a.m.
Member, Independent Statutory Review Committee
There was a time when there was no access to information. I think Newfoundland was the second jurisdiction to implement a freedom of information act, Nova Scotia being the first, and then I think the federal one was implemented. I believe Newfoundland's was in 1982 and Nova Scotia's in 1978, something along those lines. So this is a fairly recent phenomenon in this country, and most members of the public service and most politicians were always imbued with the idea that you don't talk about anything you do in government. It was a breach of your oath of confidence. Every civil servant takes an oath of confidentiality that they will not disclose these things. That was the culture prior to access to information.
It's going to take some time before that culture gets changed. The culture couldn't change in the 30 years between 1982 and 2012, when they brought in Bill 29. Bill 29 took us back to that old culture. Even though there had been some departure from it in the prior 30 years, Bill 29 took us back to it. Don't blame government. I was part of government in the sixties with Mr. Smallwood and outside the cabinet room, you never talked about anything government did. It just wasn't done, unless it were something that was debated on the floor of the House of Assembly.
The culture has come a long way since those times. Bill 29 saw a retrenchment back to the old ways to some degree, and that's what caused a massive public reaction that resulted in the committee being put in place.
10 a.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
What would have been in the government's mind at that time with respect to Bill 29? I've read a lot about it, but it seems like there was just a large public outcry right from the get-go on that. What were they thinking?
10 a.m.
Member, Independent Statutory Review Committee
The matter that is a public issue right now in Newfoundland was probably the driving force. All this came about at a time when the government was involved in promoting a major Newfoundland government public undertaking in the development of Muskrat Falls, a $7-billion project. A $7-billion obligation on the backs of a mere 525,000 people is a pretty heavy burden to carry, so people were naturally concerned, but government was struggling ahead. That was coupled with the fact that the whole question of the development of Labrador power on the Churchill River is a controversial matter, coupled with the fact that the government was not readily making information available, on the basis that it was confidential. They were negotiating with Nova Scotia and with potential contractors and designers, and they just weren't making information available. The public couldn't get adequate information on what the government was about to undertake with this thing. It was all of those things. When you bring Bill 29 into that political milieu, you can understand that it just created a massive public reaction. Those were the primary factors.
You would know better. You were in the news media at the time.
10:05 a.m.
Member, Independent Statutory Review Committee
As imperfect as the existing access law was, there was a feeling that the commissioner was the arbiter of what happened. Even though the commissioner couldn't order public bodies to do things, Bill 29 expressly forbade him from doing certain things. For example, the clerk of the cabinet could declare a document a cabinet document, and the commissioner had no recourse to determine whether it was. It was the same thing with respect to solicitor-client privilege. Ultimately, when the court case proceeded, as Mr. Wells discussed, 80% of the documents for which solicitor-client privilege was being claimed as a protection didn't deal with solicitor-client privilege at all. As a result, there was this huge, if you would, deficit of faith in what this law was, emanating from Bill 29. There was a real perception that the commissioner, perhaps not having had the strongest legislative position prior to that, had an even weaker ability then to be able to ensure that public bodies were doing what they should have been doing, and that the commissioner had the right to actually investigate and determine what was being done.