Appearance before the Senate committee on Legal and Constitutional Affairs (LCJC) on Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

October 18, 2018
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Introduction                                               

Mister Chair, Honourable Senators, good morning. I would like to thank the Committee for the invitation today to discuss Bill C-58. With me are Julia Barss, Head of Legal Services, and Sue Lajoie, Executive Director, Privacy Act.

I am pleased that the government is taking concrete steps to modernize the Access to Information Act. Transparency and openness are fundamental to preserving a healthy democratic system.

Concerns

Nonetheless, as I indicated before the House ETHI Committee when I appeared last fall, I am concerned about Bill C-58, in its current form. As drafted, the Bill disrupts the current balance between access and privacy. As you know, the Information Commissioner and I have written to the government to recommend changes to strike a better balance and Minister Brison has indicated a willingness to positively consider these changes.

Let me explain briefly why I think these amendments are necessary.

The ATIA and the Privacy Act have long been considered by the Supreme Court to be a “seamless code” of informational rights, the combined purpose of which is to carefully balance both privacy and access.

Part of the balance lies with the fact that the Commissioners have equal powers. Minister Brison confirmed in his appearance before you that this balance will be disrupted. He characterized C-58 as a “game changer” in giving order-making powers to the Information Commissioner, changing their status from ombudsman to an authority with teeth.

But by granting order-making powers to the Information Commissioner, including in respect of personal information, Bill C-58 risks giving access pre-eminence over privacy.

I appreciate that Bill C-58 provides for formal notification of the Privacy Commissioner and legal recourse in the case of formal OIC orders to disclose personal information. However, this attempt to balance access and privacy falls short because privacy can also be impacted outside of formal orders.

The Information Commissioner can recommend that personal information be disclosed, without an order. An institution can decide to disclose personal information to avoid an OIC order. In such cases, I would not be notified or given the opportunity to intervene, even though the OIC and OPC may diverge on key legal issues relating to the balance of access and privacy.

There are three legal questions where the two offices may have different perspectives:

1. Does the information at issue constitute personal information?
2. Is the information publicly available?
3. Does the public interest clearly outweigh any privacy invasion?

While the Information Commissioner is the champion for access, my office has the central role for upholding the privacy rights of Canadians. It is especially important that this role be recognized as such given the federal government’s stated commitment to increasing transparency, openness and accountability through the Open Government Initiative. Social licence/acceptance of this worthy policy will rest on the confidence of citizens that their privacy will not be unduly impacted.

Proposed solutions

The Information Commissioner and I agree that my office should be consulted when both privacy and access are at play. I understand that you have a copy of the letter Commissioner Maynard and I sent to Minister Brison outlining our joint proposals for amending Bill C-58. The proposals, which Minister Brison expressed support for when he appeared before you, are aimed at ensuring that my office is engaged in an appropriate and timely manner while at the same time avoiding unnecessary delays in providing access under the ATIA regime.

First, there should be a mandatory requirement for the Information Commissioner to consult me whenever she intends to make an order to disclose information that has been exempted under the personal information exemption, or section 19 of the Access to Information Act.

Second, the Information Commissioner should have a discretionary ability to consult me at any stage of her investigation in circumstances that she deems necessary or advisable. A Memorandum of Understanding between the two offices would define specific privacy-related issues or circumstances for which consultations should take place.

Finally, the Information Commissioner should be required to provide me with the final report of the results of any investigation where I was consulted, and we are in disagreement regarding the application of section 19. This would provide me with a right to judicial review in those cases.

Conclusion

In my view, the best way to ensure a balance between access to information and privacy rights would be to grant me order-making powers, as my colleague will have. However, in the absence of equal powers, the solutions we have jointly proposed represent a step towards maintaining this balance.  I would respectfully urge you to consider these proposals.

Thank you for your attention and I would welcome your questions.