Remarks to the Canadian Study of Parliament Group

OTTAWA, ONTARIO

[2005-1-19]

I am pleased to be here to take part in this Parliamentary Business Seminar of the Canadian Study of Parliament Group.  As an Officer of Parliament myself, I am obviously interested in the topic of Officers of Parliament.  As the note that accompanied the announcement of this seminar stated, while Officers of Parliament have been around the Canadian scene almost since Confederation, very few Canadians know much about them, and that includes the media.  It is said that there is even disagreement as to how many of us there are!

Regardless of how many Officers of Parliament exist, they all have at least one thing in common, that is that each and every one is a mechanism by which we improve the accountability and transparency of our government.  The health of any democracy can be judged by the strength and efficacy of these essential mechanisms of accountability and transparency.

As Information Commissioner of Canada, I am responsible for one such fundamentally important of these mechanisms, the Access to Information Act.  I know that sounds like I may be exaggerating the importance of the statute that I help administer, but this isn’t just my opinion.  It is also the opinion of the Supreme Court of Canada. 

On June 26, 1997, the Supreme Court gave its decision in the case of Dagg v. Canada (Minister of Finance).  At issue was the release, pursuant to a request under the Access to Information Act, of the names of public servants who had signed in the logs to work on weekends.  The Court found that the names of public servants who worked overtime were not personal information and had to be released. 

In the course of his opinion, Mr. Justice LaForest stated that “[t]he idea that members of the public should have an enforceable right to gain access to government-held information, however, is relatively novel.  The practice of government secrecy has deep historical roots in the British Parliamentary tradition. … As society has become more complex, governments have developed increasingly elaborate bureaucratic structures to deal with social problems.  The more governmental power becomes diffused through administrative agencies, however, the less traditional forms of political accountability, such as elections and the principle of ministerial responsibility, are able to ensure that citizens retain effective control over those that govern them.”

Having set the historical stage, Mr. Justice LaForest made the following points about access to information laws.  He said, “[t]he overarching purpose of access to information legislation, then, is to facilitate democracy.  It does so in two related ways.  It helps to ensure, first, that citizens have the information required to participate meaningfully in the democratic process and, secondly, that politicians and bureaucrats remain accountable to the citizenry.  … Access laws operate on the premise that politically relevant information should be distributed as widely as possible.  …  Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable.” 

It can’t get any clearer than that.

The Access to Information Act is the statute that shifts the balance of power from the state to the individual.  It was proclaimed in force just over twenty-one years ago, on July 1, 1983, and was the federal act that gave Canadians a positive right of access to records held by federal government institutions.  Any Canadian, wherever they may be in the world, or any person or company physically present in Canada, may make a written request to be given access to any record under the control of a government institution.  The government institution has thirty days either to give access to the record or claim exemptions for part or all of the material requested.

Under certain, limited, circumstances, this thirty-day time limit may be extended, for example, when the request is for a large number of records or necessitates searching through a large number of records, or when consultations with other departments or third parties are necessary.

Under the Act, the government no longer has the right to decide, by fiat, what is secret and what can be disclosed.  This is now decided by law.  The Act sets out some 13 reasons for secrecy, referred to as "exemptions" from the right of access.  They include the protection of records containing:  information obtained in confidence from other governments, personal information and trade secrets.  As well, it protects from disclosure information which, if disclosed, could be injurious to the conduct of federal-provincial affairs, to the conduct of international affairs, to the defence of Canada, to the detection, prevention or suppression of subversive or hostile activities or to lawful investigations.  The Act also authorizes secrecy for information which, if disclosed, could threaten the safety of individuals, adversely affect the economic interests of Canada or reveal the advice or recommendations given by officials and lawyers.

But, even if the requested records contain information that may be exempted, the government institution has this overriding obligation:  it must disclose any part of the record that does not contain exemptible information by severing that information from the rest of the information contained in the record and releasing it to the requester.  It is this "severance" requirement that is particularly time-consuming, requiring officials to review records on a line-by-line basis, blacking out what is exemptible and releasing the remainder.

What happens when the requester is not happy with what is released or the time it has taken to do so?  This is where I, and my office, come in.  We are the independent redress mechanism that the Act calls for in section two, the “purpose of Act” section, when it states that decisions on the disclosure of government information should be reviewed independently of government.  The Act gives me, as Information Commissioner, the legal obligation to receive and investigate complaints about delays, fees, denials of access or any other matter relating to requesting or obtaining access to government records.  There is no fee to file a complaint with the Information Commissioner.  I also have the power, at any time, to begin an investigation on my own initiative into any of the matters previously described.

To assist in the conduct of investigations, Parliament gave to the Information Commissioner strong powers including:

the power of a Superior Court of Record to compel persons to give evidence and to produce documents and other things;

the power to receive and accept such evidence or information whether under oath, by affidavit or otherwise as the Information Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law;

the power to enter any premises occupied by any government institution and to examine or obtain copies or extracts from any books or other records found there, with the exception of Cabinet Confidences and;

the authority to converse in private with any person in any government premise.

In the exercise of these powers, the Federal Court has also ruled that I have the jurisdiction, if necessary, to punish individuals for the offence of contempt.

Rarely, however, do we resort to our coercive powers.  In over 99 percent of cases, we follow the traditional informality associated with ombudsmen.  For the most part, my investigators act as communicators, facilitators and mediators.  Complainants often have not expressed well to departments what it is they are seeking.  Often we play a clarifying role which solves the problem.  Departments may have misunderstood the sensitivity of the records and during our investigation are persuaded to reconsider.  These types of resolutions occur in the vast majority of our investigations.  Too often, we find ourselves searching for missing records – but that raises a subject for another day – the crisis in information management.

In the rare cases where resolutions are not attainable at the investigative level, it will be necessary for me to make a recommendation to the head of the government institution that a certain course of action be followed.  I have no power to order government institutions to release records or lower fees.  That decision rests with the head of the institution against which the complaint is made.  But there is an incentive for compliance beyond my persuasive eloquence – it is the ability of requesters and my office to ask the Federal Court to review a refusal to disclose and order the records released.

When it appears that a case cannot be resolved and will go to court, we commence a more formal process of interviews on the record and under oath in order to ensure that issues, positions and evidence are fully articulated and well-understood and to develop a record for the court's consideration.

Despite the fact that I don’t have order powers, we enjoy a remarkable success rate in obtaining access to information for complainants.  During the last three fiscal years, less than one percent of the complaints to my office resulted in litigation; all the rest were resolved by my office.

My office is the first of a two-step redress mechanism.  The Courts, including the Federal Court – Trial Division, the Federal Court of Appeal and the Supreme Court of Canada, are the second step.  Federally, my part of the redress process is based on the Ombudsman model, also known as the investigative model.  As I said, I don’t have order-making powers, as most of my provincial counterparts do who operate on the adjudicative model.  Still, with a success rate of over 99%, I don’t feel I need or want order-making powers.

Part of what makes for a successful Information Commissioner and a successful Officer of Parliament is independence.  Without sufficient attributes of independence, the job can’t be done properly.

True independence requires things like a fixed and lengthy term of office – mine and the Privacy Commissioner’s is seven years.  It is crucial that the reporting relationship be directly to Parliament, as Officers of Parliament have, and not through a minister or deputy minister or other official.  Another indicia of independence is salary.  My salary is pegged at that of a Federal Court judge, it is not set by government.  A vital indicia of independence is being insulated from wrongful dismissal by the government.  Officers of Parliament are only removable for cause – misbehaviour – and then only upon a joint vote of the House and Senate.

The Federal Court of Canada had occasion to consider the independence of the Information Commissioner in its decision in Rowat v. Canada (Information Commissioner), a case where a public official, whom I was considering citing for contempt of court, challenged the constitutionality of my power to enforce my own orders.  In that case, the court set out some essential conditions of judicial independence, which it also applied to this Officer of Parliament.  These conditions were security of tenure, a basic degree of financial security such as a right to salary and pension established by law and not subject to arbitrary interference by the Executive, institutional independence with respect to matters of administration that relate directly to the exercise of the decision-maker’s judicial function with no ability of an external force to interfere.  The Federal Court found that the Information Commissioner met these tests of independence.

There are weak spots in the independence of the Information Commissioner, and other Officers of Parliament.  These are found in the appointment and renewal stages of the process.  It takes a joint vote of the House and Senate to appoint the Information Commissioner.  Yet, in majority Parliaments, an officer of Parliament can be approved even if every member of the opposition parties votes against the candidate.  This, in fact, happened in the case of the nomination by Prime Minister Mulroney of Bruce Phillips, in 1990, as Privacy Commissioner.  Perhaps with my own appointment up for renewal on July 1^st of this year, it isn’t wise for me to mention these things, but the fact remains that there needs to be a formalized role, concurrence I suggest, for the opposition party or parties in the nomination process for Officers of Parliament.

In closing, let me cover one final point.  It is essential, in my view, that Officers of Parliament themselves be as accountable and as transparent as possible.  To this end, we should all be made subject to the Access to Information Act, something I have been requesting for some time.  I daresay that had we been subject to the Act years ago, the infamous Radwanski Affair might not have happened or would not have gotten as far as it did.  The case of the Privacy Commissioner, George Radwanski, shows what can happen when an individual and an institution goes off the rails with no mechanisms of accountability readily available.

Of course, all of these mechanisms of accountability will be of little use in the absence of good records management practices.  This is my “hobby horse”.  We citizens must insist that records be created, instead of business being done by nods, winks and nudges, that they be stored so they can be readily retrieved and that they be kept for a sufficient length of time to serve archival, audit and access rights.

In several reports to Parliament, I have argued for legislated rules for recordkeeping in the federal government. I outlined the need for a recordkeeping law, identified what it might contain and pointed to other jurisdictions where these provisions exist.  Canada does not impose a general legal obligation on ministers of the Crown and their departments to create and maintain records that adequately document key organization activities, decisions, policies and transactions.  This requirement would be at the heart of a recordkeeping law.  Too often, critical records of key decisions and actions are missing in an increasingly casual and oral information environment.  Not only does this undermine our mechanisms of accountability, it degrades the history of the country and fosters poor decision-making in government.  All Officers of Parliament depend on there being a paper trail.  Our job is to investigate, question, evaluate and recommend.  All the independence and strong powers in the world will help us not a wit, if records of what government officials have been up to do not exist.

I am grateful for your interest in my office and Officers of Parliament in general.  It is my plea to all of you, and all those who value strong democratic institutions, to make the fine art of records management, the object of your careful attention and concern.

I thank you for your kind attention.  I will be happy to answer any questions you might have at the appropriate time.