Annual Report: 2004-2005

There continues to be a deep distrust of the Access to Information Act at all levels in government and, most regrettably, in Parliament. In particular, the vigor of the Act’s exemptions, to protect information which should be kept secret, is doubted. As a result, whenever governments propose laws which involve sensitive information, there is often a knee-jerk decision to add new exemptions to the Act, remove records from the coverage of the Act or weaken the commissioner’s (and court’s) oversight of decisions to keep such information secret.

Regrettably, parliamentarians rarely question government’s distrust of the access law when it manifests itself. Recent examples include: the provision in the Anti-Terrorism Act allowing the Attorney General to stop an investigation by the Information Commissioner into denials of access to information which the Attorney General considers sensitive to national security; the decision to exclude the Ethics Commissioner’s Office from the coverage of the Access Act, even though its predecessor – the Office of the Ethics Counsellor – was covered; the decision to include in the proposed whistleblowing legislation (Bill C-11) an amendment to the Access to Information Act allowing government to refuse access, for 20 years, to information collected or compiled as a result of a whistleblower’s report.

Indeed, since the Act came into force in 1983, governments and parliaments have agreed that secrecy provisions in 50 statutes will be mandatory, even if the information doesn’t qualify for any of the substantive exemptions set out in the Access to Information Act. So much for the articulated purpose of the Act which is that, "necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government"! (section 2)

Nothing demonstrates the distrust of the access law, and the ignorance of its effect, more than the amendments to it proposed in the so-called "whistleblowing" bill.

In what the government insists was a well-intentioned effort to give assurances of confidentiality to potential whistleblowers, it decided that all information collected or compiled as a result of a whistleblower’s report should be kept secret for up to 20 years. To accomplish this, it proposes to amend the Access to Information Act to include the following provision:

"55. Section 16 of the Access to Information Act is amended by adding the following after subsection (1):

(1.1) The head of a government institution may refuse to disclose any record requested under this Act that contains information obtained or prepared by the President of the Public Service Commission under the Public Servants Disclosure Protection Act, by a senior officer designated under subsection 10(2) of that Act or by a supervisor to whom a public servant has disclosed a wrongdoing under section 12 of that Act and that is in relation to a disclosure made or an investigation carried out under that Act if the record came into existence less than 20 years prior to the request."

The effect of this provision is to enable government to cloak in secrecy for 20 years a great deal of information including:

• identities of whistleblowers;

• identities of accused persons;

• details of the allegations of wrongdoing;

• details of actions taken to investigate the allegations

• details of remedial actions taken to prevent future wrongdoings;

• details of disciplinary action taken against wrongdoers;

• details of disciplinary action taken against whistleblowers;

• details of retaliation actions or retribution against whistleblowers.

The government has given no explanation as to why it needs to keep the details of alleged wrongdoing secret for 20 years. Intended or not, the only purpose of a new exemption of this breadth is to offer the government legal means to engage in cover-up and damage control. Public Service unions, and those whistleblowers who have come forward, do not want a secret system for investigating disclosures of wrongdoing – they want protection from retaliation. They see a strong right of access to be one such protection.

To compound the insult to accountability, the government also proposes in Bill C-11 to amend the Privacy Act to put an end (in whistleblowing situations) to the long-standing, quasi-constitutional right of an individual to have access to his or her own personal information (subject to limited, specific exemptions) to request correction, if necessary, and to know what opinions or views others expressed about him or her. That provision in Bill C-11 is as follows:

"58. Section 22 of the Privacy Act is amended by adding the following after subsection (1):

(1.1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that was obtained or prepared by the President of the Public Service Commission under the Public Servants Disclosure Protection Act, by a senior officer designated under subsection 10(2) of that Act or by a supervisor to whom a public servant has disclosed a wrongdoing under section 12 of that Act and that is in relation to a disclosure made or an investigation carried out under that Act if the information came into existence less than 20 years prior to the request."

The effect of this provision is that both whistleblowers and accused persons will lose, for 20 years, their rights of access and correction with respect to their own personal information collected or compiled pursuant to Bill C-11.

Again, the government states that its only reason for introducing this amendment to the Privacy Act is to protect the identities of whistleblowers. Of course, this explanation begs the questions: Why take away the privacy rights (of access and correction) from the whistleblower? How does this serve to encourage whistleblowers to come forward? How do whistleblowers go about getting the evidence that their complaints have been taken seriously or that they have been the victims of retaliation?

Finally, the most astounding feature of this proposed amendment to the Privacy Act is that it removes, in the whistleblowing context, the fundamental right we all have to know who is making allegations against us and the nature of those allegations. Heretofore, this principle has only been abrogated for confidential police informants and in national security cases. Indeed, the government patterned sections 55, 57 & 58 of Bill C-11 on the 20-year secrecy authority given by the Access and Privacy Acts to law enforcement agencies.

This long-standing rule against anonymous accusations has been a hallmark of our civilized society built on respect for the integrity of the person. Former Privacy Commissioner, John Grace, appeared before the Public Accounts Committee to object to the then Auditor General’s proposal to set up a fraud and waste hotline where anonymity would be guaranteed. He insisted that making the Public Service of Canada into an informer society, where faceless accusers would be encouraged, would undermine a key privacy right and be inconsistent with Canadian values. The Public Accounts Committee agreed, and the anonymous fraud and waste hotline did not go ahead.

Dr. Grace’s successor, Bruce Phillips, too, went to battle in defence of the privacy right of an individual to have access to opinions and views others express about him or her. His battle was against the government’s proposal to allow employees to provide anonymous performance appraisals of their supervisors. This "reverse appraisal" proposal was seen by government as necessary to ensure that employees had a voice in evaluating their managers. Commissioner Phillips strongly insisted that a "flavour-of-the-month" initiative of this sort should not take precedence over the quasi-constitutional right each of us has to know what others are saying about us (when recorded in government records) and who expressed those views.

It must be emphasized that preservation of the right of individuals to know what others say about them does not mean (under either the Access or Privacy Acts) that there are no circumstances in which the identity of a whistleblower can be kept from the accused wrongdoer. For example, both the Privacy Act and the Access to Information Act would allow identities of accusers and whistleblowers to be kept secret during investigations and, otherwise, if disclosure could reasonably be expected to be injurious to investigations or law enforcement. Moreover, both Acts would protect the identities of both whistleblowers and accused persons from being disclosed to anyone else. In other words, the media or the public at large cannot now obtain access to the personal information of individuals (including their identities as whistleblowers or accused persons). No amendment of either Act is necessary to accomplish this result.

Bill C-11 is a classic case study of the depth of misinformed distrust of the ability of the Access to Information Act to protect sensitive information and to draw an appropriate balance among justifiable secrecy, the public interest in accountability and the individual’s privacy right of access and correction with respect to his or her own personal information.