Canada's first Information Commissioner was one of Canada's very accomplished public servants – Ms. Inger Hansen.  Ms. Hansen came to the job, in 1983, after having served as Canada's first Privacy Commissioner under PT IV of the Canadian Human Rights Act.  Prior to assuming the Privacy Commissioner position, Ms. Hansen had served as Canada's first Correctional Investigator – the ombudsman for Canada's prisons.  And before that she had a successful career in the public service of Canada.

 

Very early in her mandate as Information Commissioner, she became seized of a complaint about the adequacy of responses given by the department of External Affairs concerning the expenses incurred by former Prime Minister Mulroney during a trip to Paris.  The Prime Minister and his senior advisers had not expected this new right of access (and independent review) to implicate them so directly.  Terms like "journalistic bottom feeding" and "frivolous and vexatious" came into common usage to describe certain access requesters.

 

Ms. Hansen pursued her investigations thoroughly, even though it took her into the innermost sanctions of government.  Terms like "over zealous", and "unreasonable" were whispered at the senior levels to describe the Information Commissioner.  As Ms. Hansen's term drew to a close, senior public officials were openly asking the rhetorical question: "Why can't the Access Commissioner's office be more relaxed, less aggressive?”

 

When Ms. Hansen's term came to an end in 1990, the decision was taken not to renew her term, although, even on the evening of her last day on the job after eight years of service, no one in authority called to tell her that she would not be renewed.  Instead Prime Minister Mulroney turned to John W. Grace, then Privacy Commissioner and, previously, a distinguished newspaper editor and commissioner of the CRTC (Canada’s regulator of broadcasting, cable and telecommunications undertakings).  Dr. Grace came to the job with a reputation for fair-mindedness and a well-known aversion to heavy-handed regulation and recourse to the courts.

 

I think it is fair to say that Mr. Grace was full of enthusiasm for introducing a new civility into the Information Commissioner's office – he too had been saturated with the gossip about the police mentality and zero-tolerance philosophy alleged to have been the hallmark of Ms. Hansen.  Dr. Grace started his term with a commitment to resolve all complaints on a “take-a-Deputy Minister-to-lunch” basis without recourse to the Federal Court.

 

And that philosophy worked well – for a couple of years – until he received a complaint against the Prime Minister's insistence that public opinion polls on national unity issues, paid for by taxpayers, should remain secret.  That was the turning point; everything started to change.  The winds of hostility from the top began to blow.  The most senior officials of the Prime Minister’s Office, and the Privy Council Office warned John Grace away from these polls.  They even went so far as warning him that, if he persisted, he could be contributing to the breakup of the country if he persisted.

 

Dr. Grace persisted, because the secrecy was clearly illegal.  And so, the first case Dr. Grace took to Federal Court, the case that broke his perfect record of finding solutions over lunch, was against Prime Minister Mulroney.  And the Office of the Information Commissioner began to feel the ICARUS effect – the melting of relations which occurs when one flies too close to the top.  It was also John Grace who started holding Ministers and Deputy Ministers (rather than junior officials) to account for failure to remedy the chronic problem of delay in the system.  They did not appreciate being implicated in what Dr. Grace told Parliament was a "silent, festering scandal".

 

Cooperation dried up, more formality crept into the Commissioner's work.  And by the end of Dr. Grace's term, the same whisper campaign experienced by the first Information Commissioner, was abroad at the senior levels – terms like “star chamber”, “out of control”, “overzealous” were commonplace.

 

Again, the government looked for a more "reliable" replacement.  At the end of Mr. Grace's term, the government put forward the name of a public servant to replace him.  The person proposed, was honourable, to be sure, but she was a "government insider" who had felt the sting of the Access to Information Act.  Her spending had been exposed by access requesters and she had headed a government funding agency with a checkered record in respecting the right of access.  To her credit, the nominee withdrew her name and Prime Minister Chrétien nominated me, a former Liberal member of Parliament and cabinet minister under Pierre Trudeau.

 

Now, I find myself nearing the end of my term and it did not take long for me to be called upon to investigate senior level secrecy and, like ICARUS, I too felt the heat.  The complaint which did it was the complaint about the Prime Minister's refusal to disclose even a severed version of his agenda books.  And there were a litany of other complaints relating to the PM and ministers arising from their refusal to disclose such things as expense records, cabinet discussion papers and notes of senior committees.  Again, the negative whisper campaign was put in train and history began to repeat itself.

 

Commissioners have no discretion whether or not to investigate complaints.  Ms. Hansen was duty bound to investigate the Mulroney expense matter, as was Dr. Grace bound to investigate the secrecy surrounding polling and as I was legally bound to investigate the refusal to disclose the Prime Minister's agenda.  It seems not to matter that Information Commissioners can only make recommendations at the end of the day; when they get near the top, the wagons circle, the cooperative tango stops, the whisper campaign about an unhealthy relationship starts.

 

This long background leads me to my first observation.  The question of the personal style of an Information Commissioner is nothing new.  In my experience, the personal style has little influence on the ultimate effectiveness of the Commissioner or his or her relationship with the administration.  We have had three uniquely different federal Commissioners in Canada in terms of their approaches and personalities.  All have one thing in common, they were loyal to the statutory mandate given to them by Parliament.  None saw themselves as advocates for either requesters or government.  John Grace used to say:  "When I get criticized from both sides, then I feel I'm probably doing my job well."

 

My second observation is this:  Parliament put all the pieces in place to ensure that Information Commissioners are independent of government, and Parliament legally obliged them to get to the bottom of every complaint.  Commissioners do not have the legal room to make more than minor adjustments to their approach.  If a Commissioner feels a witness needs to be interviewed, then the interview will take place either voluntarily or under order.  Any commissioner will do the same, only the witnesses have a choice – the Commissioner has no choice.

 

If a commissioner feels documents need to be reviewed then the review will take place either voluntarily or under order.  Any commissioner will do the same, only the record holders have a choice – the commissioner has no choice.  Information Commissioners do not choose to be "bold" or "formal" or "court-like" – they react to the circumstances they face because they have no legal option but to conduct thorough, independent and fair investigations.  Commissioners do not, and should not, let government officials or complainants deter them from discharging that obligation.

 

My third, and final observation, is this:  For almost twenty years, under three Commissioners there has been a consistency of experience:  the vast majority of cases investigated by Information Commissioners have been conducted informally:

few subpoenas or orders

few interviews under oath

few court cases

Different styles in other words, had uniform outcomes.

 

This uniformity of experience is because the business end of the ATI system is not the top end.  It is at the front lines where most complaints are investigated and resolved between investigators and analysts.  In Canada, the atmosphere is entirely different at that level where the work is done.  There, the system is in better health than it has ever been – resourcing to departmental access units has been increased in recent years, there has been a greater focus on training/education and in most departments a spirit of mutual respect and cooperation exists between investigators and analysts.  At the front lines, is where well accepted qualities of dispute resolution – honesty, patience, respectful listening, clear communication and keeping the pressure always on the problem, not the people – really make all the difference.

 

Thank you.