Information & Ethics Committee on Oct. 25th, 2017

[Daniel Therrien]

The exceptions where I would like to have the right to be consulted and intervene in court essentially are, point one, what is publicly available versus what is personal information, and, point two, the balance between the public interest and privacy invasion.

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

And that's specific to subparagraph 8(2)(m)(i).

Okay, thanks very much.

[The Chair, Conservative, Bob Zimmer]

Thank you, MP Erskine-Smith.

Next up is MP Gourde, for seven minutes.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

Mr. Therrien, thank you for being here this afternoon.

We all agree that the protection of privacy is really important. But there may be some exceptional cases where a public office holder may be in conflict with the provisions of certain pieces of legislation. Public office holders may influence legislation or major directions for our country. They may also inadvertently promote their privacy and personal affairs.

It's a very fine line. In fact, we more or less have the information needed to know if this person is breaking certain laws or, sometimes, we don't necessarily have the answers we might expect from this person.

[Daniel Therrien]

It's true that the identity of officials or other people may sometimes have to be protected and that, in other cases, it is unreasonable to protect them.

I imagine that there may be differences of opinion, and the circumstances are important. I'll talk to you about the provision of Bill C-58 that states the purpose of the act, because I think it's important to the question you're asking. The purpose of the act is amended to read that the purpose is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions”.

So there will be cases where information affecting a political position or topic x from the public service will be disseminated, which is very much in the public interest. Do the individuals involved in this policy need to be identified? I think the new purpose of the act is helpful in answering this question. It's a tool that did not exist previously.

In the example you gave, would knowing the identity of the public servant enhance the accountability and transparency of federal institutions? It may, or it may not.

Would it promote democratic debate? It may, or it may not.

The purpose of the act is very helpful here in answering these questions. Sometimes, the public debate can be complete, quite democratic, without the need to identify the individuals involved. Sometimes, it will be quite relevant to know the individuals involved to judge the merits of someone's point of view, in order to have an open and informed democratic debate.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

That's why access to information is really very important so that anyone who submits a request can know whether a public office holder is in a conflict of interest, right?

[Daniel Therrien]

Yes, absolutely.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

In the version of this act before us, can a public office holder hide behind the act for not disclosing certain personal information under the Privacy Act?

[Daniel Therrien]

This trend is possible, but the provision relating to the purpose of the act informs everyone, including public servants, politicians, the Information Commissioner, and the courts, to achieve a better outcome on these issues.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Would it be possible for someone to want to test this and for the matter to go before the courts?

[Daniel Therrien]

Absolutely.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Right, so it's possible.

That said, privacy protection is of great importance to all Canadians and to democracy in general. However, with respect to access to information, new policies will be developed in the future to which Canadians are entitled.

Will the provisions of this bill that exclude the Prime Minister's Office and ministers from access create a grey area that will affect access to information?

[Daniel Therrien]

In this regard, I recommended, in the context of the possible reform of the Privacy Act, that the offices of ministers and the Prime Minister's office be subject to access, in the same way as the other departments. I believe this principle also applies to access to information. It would certainly be desirable for the Prime Minister's Office and the ministers' offices to be subject to the provisions of the act and the access mechanism provided for by the Access to Information Act.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

If this isn't the case, would our democracy be affected in the long term? In fact, if we didn't have responses in the House of Commons or responses concerning access to information in the provisions of the Access to Information Act, what recourse would we have?

[Daniel Therrien]

I didn't fully analyze the consequences that a lack of information might have on the principle of proactive disclosure. That's why I can't know what the outcome would be on democracy. This is obviously not a perfect situation and there are improvements to be made.

I would like to bring you back again to the provision on the purpose of the act. What I find very helpful in this provision is that the purpose of the act is to achieve the objectives I have mentioned to you, namely transparency, accountability and democracy. A link has been established between two mechanisms: formal requests for access to information under the Access to Information Act and proactive disclosure.

In addition, the formal access to information mechanism is very important, but it is not an end in itself. Indeed, it is a goal to achieve the true end, that of improving transparency, accountability and democracy. There are other ways to do this, such as proactive disclosure.

Lastly, is it desirable that the Prime Minister's Office and ministers' offices be subject to a formal mechanism? Yes, it is. However, the tool for requesting access under the formal access-to-information mechanism is not the only one that would lead our country to achieve the broader goals of accountability, transparency, and democratic life. Proactive disclosure is another legitimate way of achieving that.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Gourde.

Next up we have MP Weir. You have seven minutes.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks very much.

The government was elected promising to extend access to information to the Prime Minister's Office and then to the offices of other cabinet ministers. I'm wondering if you could tell us whether there's a privacy reason for not doing so or whether you think it would be feasible to administer access to information in those offices, with appropriate privacy protections.

[Daniel Therrien]

There is no privacy reason not to extend the application of the formal mechanism to ministers' offices and the Prime Minister's Office. They could be seen and subject to this law, as any other department would be.

[Erin Weir, NDP, Regina—Lewvan, SK]

I think that's an important point to get on record.

A second aspect of Bill C-58 that is quite concerning is that it would give the government new grounds on which to deny access to information requests. Specifically, it would provide the power to decide that a request is frivolous or vexatious. The argument we heard in Parliament in favour of that provision was the example of an ex-spouse requesting a former spouse's address and work hours. It strikes me that this information should already be protected as personal information and that there's really no need to empower the information officers to determine that the request itself is frivolous or vexatious, but I'm curious what you think about that.

[Daniel Therrien]

That's another point that goes to the Access to Information Act being a means to a broader end. On that point, my understanding is that my colleague the Information Commissioner has sought provisions allowing for refusing to investigate complaints based on their having a vexatious or frivolous nature. She has not recommended, I believe, based on her special report, that she is opposed to other access limitations provided in proposed sections 6 or 6.1 of Bill C-58, including the need for complainants or requesters to identify in some manner the information they are seeking. The Information Commissioner herself is in favour of the concept of “frivolous and vexatious”, but not other limitations.

As a fellow commissioner, having to balance the desire to respond positively to complaints under my act, the Privacy Act, for personal information, and to do that in an effective manner, I can see the need for “frivolous and vexatious” as a ground to refuse to investigate certain complaints. Moreover, I would see that this is something that would make sense to give to departments as well, as long as, as the bill provides, there is a review of the decision by the relevant commissioner. So I'm not opposed to the notion of the concept of frivolous and vexatious.

The other limitations are new, and I'm not opposed to them in principle, on the basis that perhaps some requests could be so voluminous that they would impede the normal workings of a department. The question for me goes back to the objective and purpose of the act. Is it linked to transparency and accountability to answer that request or not for a number of reasons. I'm not opposed to the concept of the limitations, but the language in the wording of the limitations deserves close consideration.

[Erin Weir, NDP, Regina—Lewvan, SK]

For sure. What I'm trying to get at is if one of the goals is to protect people's personal information, is the best way to do that to empower government officials to question the motivation of the request, or is the best way to protect personal information to have this exception for personal information and to empower your office to speak up for privacy in the process?

[Daniel Therrien]

I'm not opposed to giving that kind of authority to departments in the first instance, provided that there is a substantive review by the appropriate commissioner and ultimately the courts.

[Erin Weir, NDP, Regina—Lewvan, SK]

One of the concerns about the access to information system is the length of time it sometimes takes. I think that timely access to information should be the goal we're striving for. Given that there needs to be appropriate consultation with you and your office, can you think of ways to speed up the process?

[Daniel Therrien]

Proactive disclosure is one way, but you need to be careful how that is done. All tribunals, the Information Commissioner, my office, have a responsibility to look at our processes to make sure that they are as efficient as possible. That's also part of the solution. Both the Information Commissioner and the OPC are getting pretty close to the bone. We need sufficient resources to ensure that our mandates can be carried out rigorously and speedily. That is also part of the solution.