Remarks to the Standing Committee on Government Operations and Estimates Bill C-11 – “Whistleblowing”

OTTAWA, ONTARIO

[2004-11-18]

Mr. Chairman, I am grateful for the opportunity to contribute my views to your consideration of Bill C-11. Accompanying me today are: Alan Leadbeater, Deputy Information Commissioner and Daniel Brunet, Director of Legal Services.

The Office of the Information Commissioner has a wealth of experience in the subject of "whistleblowing" or, to use the words of Bill C-11, "disclosure of wrongdoing". Almost every case of whistleblowing, since 1983 (when the Access to Information Act came into force), has involved access requests for records relating to the alleged wrongdoing. Sometimes, the access requests are made by the whistleblower in order to gain lawful possession of records relevant to the wrongdoing. Some access requests are made by lawyers representing whistleblowers who feel they have suffered reprisals. And some access requests are made by members of the media and members of Parliament, to whom whistleblowers have reached out for help. When instances of wrongdoing are reported in government, the most frequent response from governments is to attempt to keep the wrongdoing "under wraps".

The most current example of the relationship between whistleblowing and the Access to Information Act is the sponsorship scandal, which has resulted in the establishment of the Gomery Commission of Inquiry. As we have learned, the problems with the management of the sponsorship program came to light, in the first place, when internal audits of the program were requested and released, to the media and opposition, under the Access to Information Act. Once released, the troubling conclusions of these records were brought to the attention of Parliament and the Auditor General and the rest, as they say, is history. These internal audits, as we now know, were conducted as a result of an internal disclosure of wrongdoing by Mr. Allan Cutler and others – and yet those audits and their troubling results were not made public until access requests were received. What, you may ask, is the point! It is this: provisions of Bill C-11, if they had been in force when Mr. Cutler made his internal disclosure, would have authorized PWGSC to refuse under the Access to Information Act to disclose those early audits of the sponsorship program.

This, then, is my first concern about C-11; in my view, the consequential amendment to the Access to Information Act contained in section 55 of Bill-11 will enable government institutions to suppress for 20 years instances of wrongdoing – especially those that are reported internally. Moreover, as I will show, the amendment contained in section 55 of Bill C-11 will not, as the government maintains, ensure that the identities of whistleblowers are protected.

I hold this view because section 55 of Bill C-11 proposes to add an additional exemption to the Access to Information Act, allowing government to refuse to disclose any "information obtained or prepared" by any of the officials to whom a disclosure of wrongdoing may be made. Those officials are: a whistleblower’s supervisor, the designated senior officer referred to in subsection 10(2) of Bill C-11 or to the President of the PSC.

This proposed exemption from the right of access does not contain an injury test – as does the existing exemption relating to investigations (i.e. paragraph 16(1)(c) of the ATIA) – and it would place a veil of secrecy over records relating to wrongdoing for 20 years.

As I said earlier, in my view, there is no merit to the government’s argument that this new reason for secrecy is necessary to ensure that the identities of whistleblowers are kept confidential.

The Access to Information Act already contains a mandatory exemption from the right of access for personal information, including the identity of a whistleblower (section 19). Moreover, other provisions of Bill C-11 make it clear that there are no guarantees of confidentiality to whistleblowers. For example, section 11 and paragraphs 22(d) and (e) state that the obligation to protect the identities of whistleblowers is subject to obligations to disclose the identity contained in other statutes (such as the Privacy Act, Access to Information Act, Public Service Staff Relations Act, and Criminal Code) and in the principles of natural justice. In other words, on its face, Bill C-11 alerts potential whistleblowers to the fact that allegations they make against others, may be disclosed along with the identity of the whistleblower.

Again, this reinforces my view that section 55 is not intended to protect the identities of whistleblowers but is designed to keep details about alleged wrongdoing secret.

To summarize my first concern, then, I urge this Committee to amend Bill C-11 by deleting section 55. By so doing, the Committee will ensure that government institutions must meet the injury test contained in 16(1)(c) of the Access to Information Act (or the requirements of one of the other of the Act’s exemptions) before keeping details about alleged wrongdoing secret. Moreover, deleting section 55 will not diminish the amount of protection under law for the identities of whistleblowers. The Access to Information Act already gives strong, mandatory protection to personal information to the extent that such information merits protection under the Privacy Act or in the public interest. On this point, I will leave it to the Privacy Commissioner, Jennifer Stoddart, to deal with the proposal in sections 57 and 58 of Bill C-11 which propose to create additional reasons to deny individuals access to their own personal information.

My second concern arises from the provisions of sections15 and 29 of Bill C-11. Section 15 authorizes public servants to disclose information, in accordance with sections 12 to 14, and the President of the PSC to be provided with information, "despite – any restriction created by or under any other Act of Parliament on the disclosure of information". These provisions, if enacted, would seriously compromise the scheme for balancing the need for confidentiality and the need to ensure a mechanism for the reporting of wrongdoing, which Parliament set in place in the Access to Information Act.

The scheme in the ATIA is this: First, the Commissioner and all his employees are placed under a mandatory obligation not to disclose any matter that comes to their attention during investigations (section 62). Second, if a possible wrongdoing in another department comes to the Commissioner’s attention during an investigation under the ATIA, Parliament set out the nature of the disclosure which may be made by the Commissioner and the process for so doing. In particular, subsection 63(2) of the ATIA reads as follows:

"The Information Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against any law of Canada or a province on the part of an officer or employee of a government institution if in the opinion of the Commissioner there is evidence thereof."

In summary, then, the wrongdoing disclosure scheme under the ATIA:

applies to any information collected during investigations of other government institutions;
applies only to wrongdoings in the nature of offences under federal or provincial law;
applies only when the IC decides that there is an evidentiary basis for the suspicion that an offence has been committed;
authorizes disclosure to the Attorney General of Canada but to no one else.

The whole basis of the investigative scheme and powers of the Information Commissioner is that his investigations be conducted in secret (section 35) and that evidence collected by the Commissioner not be disclosed or used in any proceedings, other than those stipulated in subsection 36(3) and paragraph 63(1)(b) of the ATIA (i.e. reviews by the Federal Court of refusals to disclose or in prosecutions for perjury, obstruction of the Commissioner or wrongful destruction of records.)

This very restricted regime for disclosure of information collected by the Commissioner during investigations is designed to encourage candor of witnesses, cooperation by departments in providing information and to demonstrate the neutrality of the Commissioner as an ombudsman. All of that carefully crafted architecture is at risk of being wiped away by section 15 of Bill C-11.

Section 15 of Bill C-11, on the other hand, authorizes any public servant working for the Information Commissioner to disclose to the President of the PSC investigative records which he or she feels may disclose a wrongdoing in another department. Moreover, section 29 of Bill C-11 would give the President of the PSC power to intrude into the Information Commissioner’s investigative records despite the carefully crafted confidentiality regime which applies to such records in the ATIA and described above.

I understand that the government did not intend sections 15 and 29 to have such effects with respect to the investigative records held by officers of Parliament and other investigative bodies.

I am told by Treasury Board officials that the intention was to remove any legal impediment to a public servant’s authority to report possible wrongdoings in his or her own organization. I support that goal. Regrettably, the broad wording used in sections 15 and 29 authorizes the investigative records of the OIC to be used and disclosed in a process or proceeding unrelated to the purpose for which the information was collected or compiled. This is directly contrary to subsection 36(3), and sections 62 to 65 of the Access to Information Act.

This result strikes at the very foundation of the design and purpose of the Office of the Information Commissioner; it will be used as a reason by government to challenge the Information Commissioner’s extraordinary powers to obtain sensitive or privileged records, and it will authorize employees of the Commissioner to bypass the IC’s authority and depart from their statutory duties of confidentiality under the Act.

Complainants come to the Information Commissioner for help in getting records, but most have a grievance, concern or agenda which motivated their access request in the first place. The Commissioner’s investigators maintain their neutrality and fairness as between the complainant and the government institution against which a complaint is made, by concentrating solely on whether or not a refusal to disclose was lawful; they do not, and should not, become involved in righting other types of wrongs. Yet this Bill C-11 would not only authorize, but might even require, the Commissioner and his investigators to become institutionalized whistleblowers and, hence, radically alter the mandate set out for them in the Access to Information Act.

I hasten to add, that my suggestion for amending paragraph 15(b) and subsection 29(2) would not prevent any public servant working for the Information Commissioner from reporting instances of possible wrongdoing, which are alleged to have occurred in the OIC. Neither would they reduce the powers of the President of the PSC to investigate any such reports. My suggested amendments are designed solely to preserve the confidentiality of information obtained or generated during our investigations of complaints against other government institutions.

What, then am I proposing with respect to paragraph 15(b) and subsection 29(2)? I propose that the following words be added to each provision: "except those listed in Schedule I".

A schedule would then be required containing reference to the confidentiality provisions in the statutes of officers of Parliament and other investigative bodies. In the case of the Access to Information Act, the relevant provisions are sections 62 to 65.

I am grateful for your patient attention; I and my colleagues are available to answer your questions.