Study of the Access to Information Act

Letter to the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI)

May 18, 2016

Mr. Blaine Calkins, M.P.
Chair, Standing Committee on Access to Information, Privacy and Ethics
Sixth Floor, 131 Queen Street
House of Commons
Ottawa, Ontario K1A 0A6

Dear Mr. Chair:

I would like to again express my appreciation of the Committee’s commitment to studying legislative renewal in the area of access to information and privacy.  Needed reforms should advance Canada’s efforts toward open government, strengthen accountability and buttress policy deliberation and decision-making.  Reinvigorating access rights and increasing transparency under both access and privacy regimes are important improvements.  This is to be commended and I thank the Committee for its efforts to date. 

I would like to bring to the attention of the members two issues and recommendations in connection with the current study of the Access to Information Act (ATIA), given the interplay of that statute with the Privacy Act.  This is because, in my view, the two Acts were meant to be read as a ‘seamless code’ and subsequent interpretation by the courts of the two laws bear this out.  It is clear in the ways the two systems interact that amendments to one statute necessarily need to be considered as affecting the other.^{Footnote 1}

As you are aware from your review and witnesses, in 1982, Parliament passed the Privacy Act and the Access to Information Act together, as twin statutes.  Indeed, ensuring a right of access to records and protecting personal information in the hands of government was the dual goal in drafting both these laws.  Given a clear intention that the provisions of the two acts were to be read together – one to protect privacy and ensure access to personal information, the other to encourage more open, informative government – we believe interpretive coherence and definitions between the Acts are critical to their administration.   

Personal information

One primary area in which these acts were intended to achieve this delicate balance is in the common definition of personal information.  Certainly, as the two Acts were initially drafted, much thought went into defining personal information quite broadly.  This was to ensure that the individual right to privacy would be sufficiently protected.  While we fully support open government initiatives and citizen’s rights to access information, we also believe that individual privacy is a value that needs protection within the Access to Information Act regime.  The exemption under ATIA currently applies to personal information (regardless of whether disclosure would constitute an unjustified invasion of privacy).  We believe that this remains an important protection for the privacy rights of individuals, who often are identified in government records.  The goals of transparency and information access can still be met in many cases, for example by severing specific identifiers from records, thus also protecting personal information.   

It is also important for the Committee to bear in mind that the Privacy Act already permits the disclosure of personal information where, in the opinion of the head of the institution, the public interest clearly outweighs a claim of privacy. This public interest override strikes the necessary balance between the individual’s right to privacy and the right of the public to seek access to government information.  It is also a clear example where the Acts need to be read together.  Open government is undoubtedly in the public interest, but so too is safeguarding individual rights to privacy.^{Footnote 2}

As a consequence of this complexity – supported by Supreme Court jurisprudence^{Footnote 3} we would strongly recommend that the ATIA maintain the current exemption for personal information, as defined by the Privacy Act.^{Footnote 4} Should the Committee recommend this exemption be amended it will require serious consideration and consultation.  As noted above, it is upon this definition that the delicate interplay between the two acts turns.  We would therefore recommend that any such proposal to amend this critical exemption be left for the full review of the ATIA that the government plans to undertake in 2018.  This will allow the necessary time to fully consider all the implications, including any unintended effects.  I understand that the Information Commissioner will not be recommending changes to the personal information provisions at this stage and therefore agrees that these modifications can wait for the 2018 review.

Order-making powers

With regard to the Commissioner’s power to issue orders for disclosure, we recommend here as well that the Committee carefully examine the interplay between the Access to Information Act and the Privacy Act.  There is a long line of Canadian jurisprudence that illustrates the healthy tension between opposing interpretations of what is or is not included in the definition of personal information and therefore what can or cannot be released under the ATIA.  Just as amending the definition of personal information without a substantive examination would upset the delicate balance between access and privacy that was struck by Parliament when the two Acts were adopted, so too would immediately granting the Information Commissioner the power to order disclosure of what is claimed to be personal information.  We suggest this should not be done until the full implications can be thought through in the legislative review that will take place in 2018.

I would also like to convey my appreciation to the Committee Members in undertaking this important work.  Should I or the Office be of any further assistance to your study, please do not hesitate to contact me through my Parliamentary Affairs Officer, Pierre-Luc Simard, at 819-994-6015, to make any arrangements necessary.

Sincerely,

c.c. Michel Marcotte
Clerk of the Committee