Information & Ethics Committee on Nov. 1st, 2017

[Suzanne Legault]

The other aspect of the proactive disclosure proposed in Bill C-58 can certainly support what you are saying. If issues threaten to jeopardize the safety of individuals or judicial independence, it would be appropriate to apply exemptions. The legislation provides for exemptions in cases where individuals' safety may be in jeopardy. I proposed that exemptions also be provided to protect judicial independence. However, since that is really a constitutional principle, I presume that judges could make revisions if they believed that judicial independence was at stake, even if that is not indicated in Bill C-58. This is really my opinion. Like my colleague, I am not an expert in this area.

In addition, when we were preparing for our appearance today, we did not have access to that witness's submission to the committee. We simply based our review on what he said before the committee, as well as the committee's reports. We did not have all the information, so we could not analyze it in detail.

That said, I wanted to discuss this issue before the committee because he is the only witness to have raised it. In my opinion, his arguments deserve the committee's attention. The recommendations he made—publishing total amounts per court rather than for each individual judge—are a happy medium. I think they are worthy of the committee's consideration.

[Michel Picard, Liberal, Montarville, QC]

According to my understanding, your exceptions would open the door to a negotiation of compromise, a middle ground that would help reach the same goal. It would satisfy those asking for information, while taking into account safety and integrity.

Have I understood what you said?

[Suzanne Legault]

Yes, it's very possible, but as I mentioned, we didn't have the benefit of consulting the full brief. That said, I do think that Mr. Bienvenu's suggestion was a welcome one.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Next up is MP Kent, for another five minutes.

[Peter Kent, Conservative, Thornhill, ON]

Thank you very much, Chair.

I'd like to come back to the disclosure of personal information. I'm sure you saw the presentation from the Privacy Commissioner before us, and heard his arguments that Bill C-58 would disrupt a balance that he sees between your two offices. He invokes the quasi-constitutional nature of his office, which I assume you would counter with invoking the quasi-constitutional nature of your office and Canadians' right to access to information.

He recognizes your significant experience over the years, but his qualification, his reluctance, would not seem to offer a positive response to your suggestion of discretion. Do you think some mention of discretion in the application and your decision on his inclusion in the process would be a solution?

[Suzanne Legault]

I'm saying that if committee and Parliament decide that there really has to be some measure of involvement of the Privacy Commissioner under C-58, it should be first in terms of consulting the Privacy Commissioner during investigations under my legislation, so it should be at the discretion of the Information Commissioner. I say this because of what I highlighted in my remarks, which was that most cases are resolved at the very early stages of investigation.

The way Bill C-58 is currently drafted, it's basically open to a government institution to decide to notify the Privacy Commissioner as soon as they receive the notice of a complaint. If that occurs, then I “shall” consult with the Privacy Commissioner. In that respect, that would really impede the investigation and affect its integrity. If it is at the discretion of the Information Commissioner to consult, only in very few cases would there be contentious issues between the two offices. We really have a long history, over 34 years, of these two offices functioning together in the interpretation of that section. There have been very few instances of disagreement, so that's why.

Bill C-58 already provides that if there's going to be an order, during the time for the government to respond, or the time before the order becomes a deemed order, there has to be a notification to the Privacy Commissioner, and there is an opportunity for the Privacy Commissioner to bring the matter to court. That process is already provided for in C-58.

What the Privacy Commissioner recommends, if I understood correctly, is that even at the level of a recommendation, he would have to be notified. That's what we have now. We have that regime now. We make recommendations to institutions on a regular basis. Very few instances deal with recommendations to disclose personal information, and I have no obligation to consult with the Privacy Commissioner. That's been the case for 34 years.

[Peter Kent, Conservative, Thornhill, ON]

This comes back to your figures—the 13,000 cases and the seven personal requests. Can you characterize what those seven would represent?

[Suzanne Legault]

This is something we can provide to the committee, because we have them.

[Peter Kent, Conservative, Thornhill, ON]

Sure, but because they are exceptions, they would all fall into a similar set of considerations.

[Suzanne Legault]

Two cases went to court recently. One was dealing with a request to the Prime Minister's Office in relation to information regarding Senators Duffy, Brazeau, and Wallin. That was in the Federal Court. We recently had a decision, and that involved some information that the Prime Minister's Office considered to be personal information. I disputed that before the Federal Court. The issue was whether the information was a discretionary benefit or not. The court decided in accordance with what we proposed, for the most part. That decision is not entirely in the public domain, because it's under appeal.

That's one of the few examples, and the Privacy Commissioner could have intervened in that case. That ability to intervene in those cases exists under the current regime.

[Peter Kent, Conservative, Thornhill, ON]

I assume he didn't.

[Suzanne Legault]

No.

[The Chair, Conservative, Bob Zimmer]

Thank you, MP Kent.

We're going to have lots of time for questions after the round is done.

Up next, for five minutes, is MP Fortier.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

I would like to give my time to MP Baylis.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

I want to come back to clause 6. It's asking for three things when you make a request: the subject, the type of record you are looking for, and the time period.

To me, that sounds exceedingly reasonable. I read also the intention of the clause. It's meant to provide an experienced employee—not even a new one, but an experienced employee of the institution—with help to identify the record with a reasonable effort. I find that part exceedingly reasonable.

We received testimony from Canada Border Services Agency and IRCC, and they welcome this clause because they believe it will make them more efficient in fulfilling the ATIPs, but you're against it. It seems reasonable to me, and the people who have to do the work see it as reasonable, but you're saying it's not reasonable.

[Suzanne Legault]

I am the Information Commissioner. I don't make the access to information requests. Requesters make the access to information requests. Governments have to respond to access to information requests—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

In a timely fashion, no less.

[Suzanne Legault]

You can see that it's perfectly understandable for government institution representatives to say that these are good amendments, because it allows them not to process access requests that they are currently processing—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

I disagree with that point. I don't think they are saying that they don't want to process them. In fact, if I look at the percentages, these two groups process 60% of all access to information requests.

I would take a completely different approach from the one you're taking, Ms. Legault. The people who do the majority of the work have asked for what seems to me an extremely reasonable thing: tell us what you're looking for, and the time frame, so we can be more efficient. You are presenting it as if they are just saying this so they can say no to everything. That doesn't jibe with me.

[Suzanne Legault]

What I am saying is that what is being proposed in the new section 6 in Bill C-58 is a regression of existing rights.

Under the current legislation, if I made an access request for all records related to “sponsorship budget”, I would be able to have my access to information request processed. If I made an access to information request in relation to all records related to Afghan detainees, I would be able to get my access request responded to. Under Bill C-58, it would not be responded to.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Let's stay with the two that do the brunt of the work for our government, IRCC and CBSA. These do more than 50%; they do 60% of all requests. They have said that these very reasonable guidelines.... I understand you're saying it's a regression. We've also heard from many people that they want efficiency. The people who do the brunt of the work say that giving them this little bit of information would help them be more efficient. You say that this is a regression.

I don't agree with that assessment. I think that's progress. I think that's an attempt at being more efficient, and simply asking for this seems reasonable to me. I understand there might be the Afghan detainee one. We'll put that aside. Let's deal with the brunt of the business.

How is it a regression for the people at IRCC or CBSA? Why would they want to use that?

[Suzanne Legault]

I think you would have to ask them, because they—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

We did ask them. They said it's good.

[Suzanne Legault]

Yes, so they don't see it as a regression, and I fully respect your perspective on this.