Remarks to Canadian Access and Privacy Association Conference CAPA – 2005 -- “Federal Access to Information at the Crossroads – A Commissioner’s Perspective”

OTTAWA, ONTARIO

[2005-11-22]

I am extremely pleased to be here today to speak to my colleagues in CAPA.  CAPA has been a mainstay of the federal access and privacy community for over 15 years and I always look forward to your conferences.  While it is not the first time I have spoken to you, it certainly looks like it will be my last, since, as many of you know, my seven-year term as Information Commissioner was up last June 30^th, and my nine month extension ends on March 31^st of next year.  From every indication, these last months as Information Commissioner are going to be packed with exciting issues and, perhaps, high drama.

I want to speak to you today on the topic “FEDERAL ACCESS TO INFORMATION AT THE CROSSROADS – A COMMISSIONER’S PERSPECTIVE”.  That term is much overused, but I believe we truly are at a crossroads, one that will affect you, your jobs and the future of access to information in Canada.

Since the election last year, much has happened, and yet nothing much at all has happened both politically and with reform of the Act.  We are, once again, facing an election.  Once again, all parties are claiming to be champions of ethical renewal in government – all are promising to improve accountability of government by strengthening the Access to Information Act.

I believe that there is a true public appetite now, in the wake of the sponsorship scandal, for Parliament to take the leap.  The Standing Committee on Access to Information, Privacy and Ethics has resoundingly rebuffed the suggestion made by the Minister of Justice that more study and talk is required.  On November 3, 2005, the Committee unanimously passed this motion.

“Moved that the Committee direct the Research Staff to draft a report to the House of Commons, that the Committee accepts the Proposed “Open Government Act” as drafted by the Office of the Information Commissioner of Canada.  It is further recommended to the House of Commons that it instruct the Justice Minister to consider the advisability of introducing legislation in the House of Commons based on the provisions of this act by December 15, 2005.”

The reason that action, not more study, is required is that governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner.  Governments claim to embrace openness but they act to exert political control over what is disclosed and the timing of disclosure.  If the right of access is to be meaningful, the legal incentives for compliance must be strengthened, there must be a well-resourced and fiercely independent watchdog and all members of Parliament must become engaged in monitoring the manner in which Ministers and public servants discharge their obligations to be transparent.

I believe that the proposed new Open Government Act that I presented to the Standing Committee on Access to Information, Privacy and Ethics in October, is the right blueprint for reform.  It contains 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, Agents 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, (more on this in a moment)
• 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 Mr. 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 have many of you, I have been intrigued by what I have heard from the Gomery Commission witnesses and read in his first report.  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, and ATIP coordinators bullied, 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.

Mr. Justice Gomery’s first report was issued earlier this month and, in it, he stated that “public disclosure of the Sponsorship Program was the result of efforts by a diligent journalist whose access to information requests resulted in knowledge about the Program, to the public and parliamentarians alike, for the first time.”  He went on to say that “this serves to illustrate the role that an effective access to information regime can play, enabling a more informed public and a vigilant opposition in Parliament.”  As you know, Mr. Justice Gomery’s second report will contain recommendations designed to prevent sponsorship and advertising mismanagement in future and to clarify the respective accountabilities and responsibilities of ministers and public servants.  He has identified the Access to Information Act as one of the accountability and transparency mechanisms about which he will make recommendations.

These glimpses into how governance in Canada worked at a particular time and in a particular program are profound reminders that abuses of state power occur and persist in dark corners of secrecy.

For that reason I have asked Mr. Justice Gomery to look carefully at my blueprint for reform of the Access to Information Act, which I have drawn to his attention, and I have urged him to support my calls for a requirement to create and 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.

If I may briefly discuss something that I promised I’d come back to earlier, that is clarifying and setting out the roles and responsibilities of Access Coordinators in the Act.  In my draft bill, you will note several changes to the Act which related directly to Access Coordinators.

First, you’ll see that I recommend the name of the position be changed to Open Government Coordinator, in keeping with the change of the name of that Act.  This term, “Open Government Coordinator is now defined in section 3 of the Act.

Second, you’ll find that, in section 73, this Coordinator must be the holder of the delegation from the head of the institution.  This provision is intended to end the practice, in some government institutions, of giving little or no delegation of authority to the Access to Information Coordinator in favour of giving such delegation to senior, operational executives.

Third, section 73.1 specifically allocates responsibility for the proper discharge of obligations imposed by the Act to the head, the deputy head and the Open Government Coordinator.  This provision underlines the importance of the duties of the Coordinator and ensures that senior management of the government institution also respect and enforce the rights and obligations under the Act.  This provision is meant to bring home to Coordinators that Parliament expects them to be the open government “conscience” of their institutions.  It is also meant to alert the head and the deputy head of government institutions that they will be individually and collectively accountable to Parliament and the public, along with the Coordinator, for the manner in which their institutions administer the Act.  These are important provisions and, if passed, should assist Coordinators, and their Officers, in their quest to do the right thing.

I am frankly troubled by the profound pressures placed on coordinators by their superiors to administer the access law as part of the departmental communications function and to avoid, at all costs, embarrassing the minister.  I am troubled by the absence of a comprehensive, mandatory training strategy for ATIP offices, senior officials and exempt staff.  I sense we are witnessing the birth pangs of a new profession in the public service and CAPA needs to be a true midwife in this process.  So far, CAPA’s potential has not been fulfilled.  It is my view that CAPA’s influence in the system is waning.

So, I’d like to issue a challenge to you, the members of CAPA.  I’d like to challenge you to lead the way towards the creation of a new information rights professional in Canada.  To do that, an important first step, it seems to me, is for CAPA to form an alliance with the Canadian Association of Professional Access and Privacy Administrators (CAPAPA) an organization incorporated under Alberta legislation but which is national in scope and very proactive in promoting uniform education, training and certification programs (as an aside, I am pleased to note that the Chair of the CAPAPA executive, Carla Heggie, is in attendance today).  An alliance with CAPAPA will assist CAPA in establishing the credibility of independence – in a way similar to that which has been accomplished by the federal Association of Professional Executives of the Public Service.

On issues like reform of the Act or merger of the commissioners’ offices, CAPA’s voice doesn’t, now, carry enough weight because CAPA hasn’t really decided what kind of a beast it wants to be.  CAPA stands the best chance, with a national complexion and independent heart, to change a culture of secrecy in a way no commissioner can.

I urge CAPA to be a force for better networking among coordinators and with users, academics, members of Parliament and the public.  Most of all it must be a resource and a source of pressure for professional standards.  I understand that your Executive is about to propose a mentoring programme to you, the members, so that more experienced members, regardless of the institution where they work, can volunteer to make themselves available for informal consultation and questions regarding your work and how to apply the Act.  I applaud that initiative.  I also urge more of you to obtain credentials by taking certificate and diploma programmes such as the one offered by the University of Alberta, you must seek to become an association of fully-qualified and certified professionals.  I challenge this organization to seize the opportunity, to be an influential champion of information rights not just here in Ottawa – but across the country.

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.