Opening Remarks to Standing Committee on Access to Information, Privacy and Ethics

OTTAWA, ONTARIO

[2005-10-25]

I am grateful for this opportunity to formally present to this committee my proposals, as Information Commissioner, for strengthening the Access to Information Act.  This committee asked me, before the summer break, to provide a proposed reform bill and I commend the committee for its determination to ensure that we have, in Canada, the strongest possible right of access to government-held information.  Members from all parties understand that transparency of government is essential to accountable government.  Indeed, every member of the House of Commons, then present, stood and voted in favour of Bill C-201 at second reading – in favour of making government more open and accountable.

Indeed, the spirit of Bill C-201 is reflected in the proposal I present to you today, evidenced most clearly by my adoption of Bill C-201’s provision that the name of the Access to Information Act be changed to the The Open Government Act.  My proposal, like Bill C-201, expands the number of institutions to be covered by the Act, reduces the scope of secrecy permitted by the Act, expands the powers of oversight by the Commissioner and the courts, increases incentives for compliance and penalties for non-compliance.

Under my proposals, only the courts and offices of MPs and senators would not be subject to the right of access.  My proposals make it clear that offices of Ministers and the PMO would be covered by the Act.

In the draft that I propose, the last remaining area of unreviewable secrecy – cabinet confidences – would become subject to review by the Information Commissioner and the courts.  Under my proposals existing mandatory, class exemptions would be abolished in favour of discretionary, injury-test based exemptions, and all exemptions from the right of access would be subject to a public interest override.

You will see, too, that my proposals would impose additional obligations on government to:  1) monitor the operations of the access to information program; 2) collect appropriate statistics to enable Parliamentarians and the public to assess the health of the system; and 3) report annually to Parliament on the efforts it has made to make government truly open and transparent.  The Information Commissioner, too, would have wider responsibilities to oversee, audit and report on the government’s compliance with the Act.

None of these improvements, however, can ensure accountability through transparency unless there is a foundation of professional record keeping by public officials.  The most fundamental, pivotal proposal I am making is that a legal duty to create appropriate records be imposed and that an offence be created for failure to fulfill that duty.  Although this latter provision did not appear in Bill C-201, there is universal acknowledgement of the reality that the right of access is being rendered meaningless by a growing oral culture in government.  The failure by public officials to be professional in creating records is also undermining the work of Parliament, the Auditor General, the National Archivist, the police and judicial inquiries.  Conducting governance by winks and nods simply leads to poor decision-making, inept administration and corruption.

I am aware that members of this committee have had a full briefing from my Deputy Commissioner, Alan Leadbeater, on the contents of my proposed bill.  I am not going to go over the same ground, rather, by way of concluding these remarks, I want to speak about a couple of proposals which I have chosen not to make – reforms which I feel would be unwise.

First, I am not recommending that the Information Commissioner be given order powers and, hence, be transformed from a specialized ombudsman to a specialized judge.  There is no evidence that order powers would strengthen the right of access, speed up the process or reduce the amount of secrecy.  The experience of 22 years is that the ombudsmodel works very well - fewer than 1% of complaints end up before the courts.  The experience in the jurisdictions that have order powers is that they rely heavily on the ombudsapproach, reserving the order-making role for the rare, tough cases.  Moreover, the amount of litigation is no less in the order-making jurisdictions, where governments are not hesitant to challenge the Commissioners’ orders in the provincial courts.  Finally, I agree with my predecessor, John Grace, that the ombudsmodel gives Information Commissioners more freedom to be as courageous as possible in interpreting the law and recommending remedial action.

Second, I am not recommending that the Office of the Information Commissioner be merged with the Office of the Privacy Commissioner under a single commissioner.  This proposal was not part of Bill C-201 nor has it been recommended by any parliamentary committee, task force, ad hoc committee of MPs, or interest group, during the 22 years since the Access and Privacy Act came into force.  In my view, the government’s decision to ask former Supreme Court of Canada Justice Gérard LaForest to study the single-commissioner model, is curious in its timing.  This issue, in my view, is a red herring which should not divert attention from the challenge of making the right of access as strong as reasonably possible.

The message I have given to Justice LaForest is that Canada has derived great benefit from having separate commissioners to champion the values of privacy and openness.  While these values do not come into conflict often, Parliament, the courts and the public have been counselled by the strong advocacy of opposing points of view put forward by separate commissioners.  In a single-commissioner model, there is a risk that one value would be subordinated to the other and that public debate would give way to behind-closed-doors debate within the confines of the single commissioner’s office.

I simply do not believe that the public interest would be served by adopting the single-commissioner model.

Thank you for your attention.  I am available to answer your questions.