Evidence of meeting #73 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 c-58.
A recording is available from Parliament.
NDP
Erin Weir NDP Regina—Lewvan, SK
Assuming that your office and the Information Commissioner's office were properly resourced, would it be realistic to shorten the length of time to respond to requests for access to information?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
If you mean the time would be shortened to certain periods, like 30 days, no, but if you mean shortened vis-à-vis the time it actually takes currently, which is months and sometimes over a year, absolutely.
NDP
Erin Weir NDP Regina—Lewvan, SK
Yes, I think that's where the concern comes in. It's all these requests for extensions and that kind of thing. I don't think anyone is complaining about the initial 30 days.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
One thing I would add along the lines of refusing to deal with certain requests or requiring requesters to provide certain information is that being more explicit in giving the commissioners the authority to manage their caseloads through mechanisms like mediation would also help.
The reality is that we have a large volume of files. We want to deal with them as best we can. Some of them require extensive, substantive examination; others less so. More authority for the commissioners to manage the caseloads in a way that is fair and just but also efficient would be helpful.
Liberal
Michel Picard Liberal Montarville, QC
Thank you, Mr. Chair.
Mr. Therrien, it's a pleasure to see you again.
Let's look at the problem from a different perspective. There is concern about how the government passes information on to the public. Let's take the perspective of the people who receive the information and have in their possession information that could potentially be harmful to a third party because of the nature of the information or something that may be relevant to some aspect of another person's privacy.
What is the recourse available to the person who receives the information or the person who has been harmed by the information, given that we're asking for more and more transparency and for the floodgates to be opened?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
My answer will have two parts.
First, under the mechanism that I call the formal access mechanism—in other words, access to information requests made to the department—there are certain provisions in the Access to Information Act and the Privacy Act to protect certain third parties, particularly those with commercial interests, but not others.
For example, if person A makes an access to information request that deals, among other things, with information about person B, the department should normally refuse to disclose information about person B. I am concerned about the impact of the Information Commissioner's orders in such cases. Normally, information about person B should be protected, but the person has no recourse if the wrong decision is made under the current act, except for certain third parties, including those with commercial interests.
Liberal
Michel Picard Liberal Montarville, QC
Does this danger give a little more justification to the relevance of addressing your office?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Yes, but my recommendation is very limited. It targets cases where a complaint is made to the Office of the Information Commissioner of Canada. In fact, if I don't go further, it's partly because I don't have the resources needed to study more files.
Moreover, in the context of an open government policy, the public will now receive the information—and this will be increasingly the case in the future—following a proactive disclosure process or as a result of making government information available to the public. It will not necessarily be through a formal access to information mechanism, which is actually rarely used.
It is in part for this reason that I consider it quite commendable, but there is a risk for individuals in this regard. Among other things, the government may think that certain anonymized information may be made public for the public interest, but it is possible that this information is, in fact, personal. That is why I would like to play a more active role and why Statistics Canada could also play a role in ensuring that disclosure made in this way does not endanger third parties.
Liberal
Michel Picard Liberal Montarville, QC
Thank you.
Please excuse me for making a bit of a weak comparison. When a search warrant is issued during a criminal investigation, you have to be extremely precise about what you're asking for—you're not allowed to go fishing, for example. It's clear, understood and accepted. But when a request for information is so broad, at least as far as I can see, can we ask for almost anything, and the fact of asking for the information won't have any repercussions, if I use a criminal investigation as comparison?
What I'm referring to here are the comments of certain organizations and journalists who appeared before the committee. They assured us that this doesn't apply to fishing trips, but there is no limit to what you can ask, although you want to know what the purpose of the request is. You can't ask an individual who says they aren't fishing why they want access to a given piece of information. If information considered to be public is accessible to everyone, there is no limit to the information that can be requested. I could ask for access to a Government of Canada database, and there would be no limit. To me, no fishing trip is finer than that.
What's your opinion on that?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
There can be abuse on both sides. An applicant may file an extremely broad application which, to use your term, is a fishing trip and requires the government to allocate resources to respond to that request.
According to the witnesses who appeared earlier, members of the public may have difficulty defining the parameters of their requests. That's absolutely true. Conceptually, I don't see any problem in asking individuals to specify their demands, insofar as they can, which isn't always the case. There must be good faith on both sides. The commissioner must also review whether people acted in good faith in defining the scope of their requests and the government's response.
Liberal
Michel Picard Liberal Montarville, QC
Can a department also assess the good faith of a request and then decide that it is vexatious or ridiculous, instead of having absolutely just the decision—
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I don't have a problem with this. I presume the good faith of the departments. It's true that some requests can be vexatious. Departments could abuse this power. That's why the Information Commissioner has to look at cases like that. I don't see any problem in giving this authority to departments at first instance.
Conservative
The Chair Conservative Bob Zimmer
Thank you.
We have one last question from MP Kent. You have five minutes.
Conservative
Peter Kent Conservative Thornhill, ON
Thank you very much, Chair.
Thank you to you and your staff, Commissioner, for appearing before us today.
I'd like to focus on your disagreement with the Information Commissioner with regard to consultation, and although you see an improvement in Bill C-58 in terms of strengthening the relationship, there is still disagreement.
I'd like to ask you about the past, or coming to the present, do you often meet with your counterpart to discuss some of these issues, your concerns, her concerns?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
We have a good relationship. The discussions rarely touch on—
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
—the interpretation of privacy, personal information, and so on because that arises in the context of specific files, and the practice has not been to consult much on these issues in part for reasons of confidentiality of investigations, and so on. On that particular issue, the consultation has not been frequent.
On other issues, for instance, we just jointly signed a resolution along with provincial commissioners on the question of solicitor-client privilege in the context of access requests, so we often will agree on certain issues. On this question of what I'll refer to as the tension between access and privacy, it's less so.
Conservative
Peter Kent Conservative Thornhill, ON
Has it been in your experience that institutions, departments, or officials in those departments, or even ministers, public office holders, have come to you with concerns about information requests that they are considering fulfilling with concerns for privacy?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
They do that very infrequently, but they do it. I think the point is that they don't have to do that. When people make requests for information under access to information that includes personal information, it is the responsibility of the departments to assess what to do with the personal information, and there is no obligation whatsoever for the departments to consult us. Because they want to make the right choice, in some cases, very few, they consult us.
One of the advantages, I would suggest, of the amendment that I'm suggesting, which would call for agreements between the Information Commissioner's office and my office, would be to enhance that co-operation, because I think co-operation is necessary and useful. There's an area where our mandates merge. We need to talk, and one of the advantages of the amendment that I'm recommending to you would be that it would require consultation in some cases.
Conservative
Peter Kent Conservative Thornhill, ON
As you have laid it out here and you suggested in your remarks, this is a reason to enshrine the constitutional nature of privacy in the act itself, in Bill C-58 amendments.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Ultimately, there are cases where two important quasi-constitutional rights can be in tension or in opposition. That's normal in a democracy. That's not the only case. This is not a personal thing.
My point is that, if there are two important quasi-constitutional rights that can be in tension, the law should not rely on the goodwill of one to consult the other. The law should require consultations, to ensure that the right result is achieved.