The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Saturday, April 29, 2006

Information Commissioner attacks Access to Information amendments in the Federal Accountability Act 

Earlier this week, at a meeting in Calgary, I heard first-hand the Federal Information Commissioner's views on proposed amendments to the Access to Informaiton Act contained in the omnibus Federal Accountability Act. The FAA is promoted as increasing accountability on the part of government and public servants. The Commissioner, John Reid, is of the view that it is a dramatic step backwards. Though it adds a handful of government and crown agencies under the Access to Information Act's purview, it also adds to the exceptions to the general principle of access.

The Commissioner has taken the very unusual step of issuing a special report to parliament to share his views. Here is an extract from the report's introduction:

Office of the Information Commissioner: Reports - Response to the Report of the Access to Information Review Task Force

... Finally, and most important, the content of the Federal Accountability Act, and the government’s discussion paper on access reform, is a cause for grave concern. What the government now proposes – if accepted – will reduce the amount of information available to the public, weaken the oversight role of the Information Commissioner and increase government’s ability to cover-up wrongdoing, shield itself from embarrassment and control the flow of information to Canadians.

No previous government, since the Access to Information Act came into force in 1983, has put forward a more retrograde and dangerous set of proposals to change the Access to Information Act. Most recently, in 2002, the Liberal government of Jean Chrétien established a Task Force of government insiders to come up with recommendations for "reform" of the access law. The result was so pro-secrecy that it prompted this Information Commissioner to table a Special Report to Parliament, in September 2002, raising this alarm:

"Once again we are, with this Task Force Report, confronted with the reality that bureaucrats like secrets – they always have; they will go to absurd lengths to keep secrets from the public and even from each other. Bureaucrats don’t yet grasp the profound advance our democracy made with the passage, in 1983, of the Access to Information Act. They continue to resent and resist the intentional shift of power, which Parliament mandated, away from officials to citizens. A bureaucrat’s dream of reform is to get back as much lost power over information as possible" (p. 10).

The current government’s proposals are every bit as much "a bureaucrat’s dream" as were those of the Chrétien government.

This Special Report, as did the 2002 Special Report, sounds this alarm: The government’s access to information reform plan will not strengthen the accountability of government through transparency – it will weaken it.

There is no more eloquent testimonial to the power of the forces of secrecy in government than the radical change they have wrought, in a few short weeks, to the Prime Minister’s election promises for access reform. In his role as Leader of the Opposition, Stephen Harper ridiculed the Martin government’s decision to release a discussion paper, rather than to introduce a bill to reform the Access to Information Act.

Prior to the election, Stephen Harper, also ridiculed the content of the Martin government’s discussion paper saying that: "it proposes to make the government more secretive than it already is, to propose a new 20 year gag order on draft internal audit reports and working papers, and to try to prevent the release of consultant reports for agencies for 20 years." (Conservative Party press release, June 2, 2005).

The new government has done exactly the things for which its predecessor had been ridiculed. The government has issued a discussion paper rather than a comprehensive reform bill and in the proposed Federal Accountability Act, it has thrown a blanket of secrecy over draft internal audit reports and working papers, for 15 years (no need to demonstrate any potential for injury from disclosure!). Also, the government proposes to keep secret forever all records relating to investigations of wrongdoing in government. The previous government pushed through a secrecy provision for such records (over the objections of the Information Commissioner, public service unions and whistleblowers), but limited its operation to a five-year period.

Here a digression on the government’s decision to refer the Commissioner’s proposals for access reform (the Open Government Act) for more study and debate before being introduced into Parliament. Now is the time for action, not talk! That is the message the Commissioner gave the Standing Committee on Access to Information, Privacy and Ethics on October 25, 2005 – and it remains his position.

The most recent of a long list of exhaustive, detailed, open and professional inquiries was the Gomery Commission of Inquiry. Justice Gomery’s second report – Restoring Accountability (February 1, 2006) – was informed by an extensive national consultation with respect, inter alia, to access to information reform, including, the receipt of comments to a website from the public at large, consultations with experts in five moderated roundtables throughout Canada, receipt of written submissions from experts, academics, interested parties and specific commissioned research.

Based on that widespread consultation with all relevant stakeholders, Justice Gomery made recommendations with respect to access to information reform – specifically, with respect to the reforms contained in the Open Government Act which this Commissioner prepared (at the request of the Standing Committee on Access to Information, Privacy and Ethics) and made public in September of 2005. The views and recommendations of Justice Gomery are set out in Appendix "A". They constitute an affirmation that access to information reform is required and an endorsement of the reforms proposed in the Open Government Act.

To end this digression, then, there are no gaps in the knowledge base on which proper policy choices can be made for access to information reform; there has been full opportunity for debate, critique and persuasion. There is no reason – apart from a loss of political will – to refrain from proceeding with the reforms contained in the Open Government Act as endorsed by Justice Gomery, the Conservative election platform and in the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics presented to the House of Commons on November 21, 2005.

Here's some media coverage of the Commissioner's report:


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