• that a strategy of delay was in widespread use by the bureaucracy, to deny and control access to government-held information. In 1998, 55% of complaints to the Commissioner concerned failure to meet statutory response deadlines;
• that the government’s records management infrastructure was inadequate to support information rights (access and privacy), good decision-making, thorough audit and preservation of the history of Canadian governance;
• that the workload of the Commissioner’s office exceeded its resources to give timely, thorough and fair investigations. The backlog of incomplete investigations in 1998 was equivalent to six months of work (some 742 cases) a doubling from the previous year. The government’s control over the purse strings posed the greatest threat to the effectiveness and independence of the Commissioner; and
• that the stubborn persistence of a culture of secrecy in the Government of Canada owed much to weak leadership, not just on the part of leaders of government and the public service, but also on the part of Parliament. In 1998 – 15 years after the coming into force of the Access to Information Act – the Parliamentary Committee designated to keep the Commissioner’s annual reports under review – had never convened for that purpose.

More than seven years of experience has reinforced those initial impressions; indeed, those concerns remain at the forefront of the challenges for the coming seven years. That is not to say that there has been no progress; there have been improvements, accomplishments and positive developments on many fronts. Yet, the clear lesson of these seven years is that governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, Information Commissioners and Members of Parliament, must be maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, information will be disclosed.

In my first Annual Report to Parliament (1998-1999) I suggested that the responsibility for overseeing my office should be moved from the busy Standing Committee on Justice and the Solicitor General to a committee more able to concern itself with access to information matters. As a first step, in 2002, my office ceased reporting to the Justice Committee and began reporting to a newly created committee, the Standing Committee on Government Operations and Estimates. After the election of a minority Liberal government in 2004, there was even more good news. A new committee was formed and named: the Standing Committee on Access to Information, Privacy and Ethics. Already, since that committee’s creation, I have appeared several times to give evidence with respect to my spending estimates, Annual Report, and on the issues of new funding mechanisms for officers of Parliament and reform of the Access to Information Act.

The second piece of good news is that there have been positive developments towards modernizing and strengthening the Access to Information Act. Although, as I will also explain, there have been setbacks in this regard, too. In recent years, backbench MPs, led by John Bryden, pushed hard for a broad overhaul of the Act. The principle of his private members’ Bill received unanimous support in the House (all party leaders stood in a recorded vote) at second reading. The 2004 election put an end to that Bill; however, it was revived after the election under the sponsorship of NDP member, Pat Martin. As a result of discussions between Pat Martin and the Minister of Justice, Mr. Martin agreed not to go forward with his private member’s Bill on the understanding that the Minister of Justice would introduce a government Bill which would be true to the principles of Mr. Martin’s private member’s Bill.

In April, 2005, the Minister of Justice appeared before the Standing Committee and announced that, instead of tabling a bill, he had decided to issue a “discussion paper” – A Comprehensive Framework for Access to Information Reform. This was a disappointment to Pat Martin, who had only withdrawn his bill on the understanding that a government bill would be forthcoming. Especially disappointing was the fact that the framework paper appears to be guided by the Delagrave Task Force report, which recommends additional limits to access, rather than by the Bryden/Martin Bill.

The Standing Committee then took the unusual step of asking my office to produce a draft reform bill for its consideration, a request which I agreed to honour. My draft bill has been provided to the Standing Committee and it is available for public consultation on my website. Since I agreed to produce a draft bill, the Minister of Justice announced that he, too, would produce a draft bill this fall. The Minister’s bill has yet to be tabled.

My reform proposals contain the following features:

• All exemptions should contain an injury test and be discretionary. As well, all exemptions should be subject to a public interest override. In this way, Parliament would send the clear message that this is an openness law not a secrecy code and that the default position is disclosure.
• Public officials should be required to document their decisions, actions, considerations and deliberations. This law, this right of access, means nothing if public officials don’t keep appropriate records and conduct governance in an oral culture.
• The last vestiges of unreviewable government secrecy – i.e. cabinet confidences – should be brought within the coverage of the law and the review jurisdiction of the Commissioner. Cabinet confidentiality risks being broadly, and too self-servingly, applied by governments when it is free from independent oversight.
• The coverage of the Access law must be made comprehensive to all the mechanisms of government through which public funds are spent or public functions discharged. Of course, I refer here to all Crown Corporations, Foundations, Agent of Parliament as well as Ministers’ offices and the PMO. The right to know is at profound risk when governments have the discretion to decide which entities and, hence, which records, will be subject to the right of access and which will not.
• The very purpose of the Access to Information Act was to remove the caprice from decisions about disclosure of government records; now we must remove the caprice from decisions about which entities will be subject to the Act.
• Connected with this notion, that the coverage of the Act should be comprehensive, is the notion that the Act should be a complete code setting out the openness/secrecy balance. No longer should we permit secrecy provisions in other statutes to be mandatory, in perpetuity, without meeting any of the tests of secrecy in the Act’s substantive exemptions. Section 24 of the Access to Information Act, which sets out this open-ended, mandatory, class exemption, should be abolished.

And there are a host of other important changes such as:

• setting out the roles and responsibilities of Access coordinators,
• establishing incentives for respecting response deadlines, and
• expanding the mandate of the Information Commissioner

A digression is in order here for me to mention a new issue which arose during the summer. At the time my appointment was renewed for a total of nine months, the government announced that it would appoint an “eminent person” to advise the government whether or not the offices of the Information and Privacy Commissioners should be merged under a single commissioner.

The person chosen for this review, The Honourable Gérard La Forest, is someone in whom I have confidence, but it seems to me to be an odd time to be taking the focus away from the reform of the Act. It might cause a cynical person to believe that the government has thrown the “merger” idea on the table now, merely to justify stalling the reform process until after the next election.

I want to take a few moments to address this issue of merging the offices of the Privacy and Information commissioners under a single commissioner.

In 2003, as Parliament agonized over what to do with George Radwanski and how to revitalize a demoralized Privacy Commissioner’s Office, I issued a paper proposing that subsection 55(1) of the Privacy Act be triggered until the end of my term. That provision authorizes the appointment of the Information Commissioner as the Privacy Commissioner. I argued then for taking the single-commissioner approach at the federal level, for the short period until the end of my term, at which time some actual experience with the single-commissioner model could be assessed and the immediate Radwanski problem could be addressed.

When you issue a public paper, you have to be prepared for the reaction to it. I received, in response to my paper of October 2003, a great deal of thoughtful feedback from members of Parliament, members of the media, academics, access requesters, the interim Privacy Commissioner, and from my provincial colleagues. Almost everyone disagreed with me. They made a strong case for keeping two commissioners and, thereby, ensuring a vigorous public debate about resolving conflicts between privacy and openness rather than incestuous, in-house discussion leading to a single-commissioner position.

The provincial experience, of course, is that the single-commissioner model can work well. Yet, even some provincial access to information and privacy commissioners took issue with the single-commissioner model at the federal level. They reminded me of the vast differences in scale and scope, of the access and privacy domains at the federal level; they told me that the strong advocacy of two federal commissioners, helped them sort out information policy issues and resist pressures for privacy to dominate openness, or vice versa.

All those who commented on my proposal, reminded me that the leaders and citizens of Canada have been well-served by having separate commissioners fighting and advocating for the values of openness and privacy. We have, as a result, a healthier balance between these two values in Canada than does the United States, where freedom of information takes pride of place, or than many countries in Europe, where privacy holds sway.

I have been impressed by these arguments; I have recanted; I no longer advocate the single-commissioner model. I accept that there are few shortcomings in the dual-commissioner model and I now admit that the dual-commissioner model is far less open to abuse than would be the single-commissioner model. In the single-commissioner model, it is certainly possible that one value – openness or privacy – would get preferential treatment. In the single-commissioner model, that which is most healthy in a democracy – public debate – may give way to internal, bureaucratic discussion and compromise.

And so, I tell you here, as I have recently told the government, through Dr. La Forest, that I no longer support or advocate the single-commissioner model. I believe that the public interest would not be served by moving to that model at the federal level.

I predict, too, that the Sponsorship Inquiry, presided over by Mr. Justice Gomery, will be a positive development in the life of the Access to Information Act. As you know, the second element of Justice Gomery’s mandate is to make recommendations to prevent sponsorship and advertising mismanagement in future and to clarify the respective accountabilities and responsibilities of ministers and public servants. In his call for public input, Justice Gomery identifies the Access to Information Act as one of the accountability and transparency mechanisms about which he will make recommendations.

As have many of you, I have been intrigued by what I have heard from the Gomery Commission witnesses so far. We have heard evidence about deliberate attempts to avoid keeping a paper trail of decisions, recommendations and actions.

We have heard evidence about the direct involvement of PMO and ministers’ offices in the management of government programs.

We have heard evidence about the subtle, and not so subtle, ways elected officials have of ensuring that program outcomes are driven by partisan preoccupation rather than public interest preoccupations.

We have seen how access requests are stonewalled and ignored in order to save ministers and departments from embarrassment. And, most troubling of all, we have seen evidence that, in times of a perceived national unity crisis, governments may feel that the obligation to be law abiding is optional and that ends come to justify any means.

Now these glimpses into how governance in Canada worked at a particular time and in a particular program are profound reminders that the greater the transparency of governance the smaller the risk or opportunity for abuse of power.

For that reason I expect that Justice Gomery will look carefully at my blueprint for reform of the Access to Information Act and I urge him to support my calls for a requirement to keep records, making it clear that ministers’ offices and the PMO are subject to the right of access, building in incentives for timely responses, clarifying the roles and responsibilities of access coordinators and expanding the coverage of the Act to capture all public functions and expenditures of public funds.

As I come to the end of my term as Canada’s Information Commissioner, I am both humbled and proud that I have had the chance to serve my country in this way. More than ever, I am convinced that secrecy brings out the worst in governments and public officials. Good, honest, democratic governance requires transparency. In my battles to help breakdown and transform a deeply entrenched culture of secrecy in Ottawa, I have been enormously encouraged, supported and enlightened by the provincial commissioners who have been my colleagues, by my dedicated staff and by the communities of information rights professionals who I meet at gatherings such as this.

All of you have my sincere gratitude for your support over the years and for your dedicated efforts to ensure the health of our democracy through respect for information rights.

Thank you for your kind attention. I will be happy to answer any questions you may have.