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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.

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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.

Thursday, October 15, 2009

Government declines proposed reforms to access and privacy laws 

The Minister of Justice has responded to the Standing Committee on Access to Information, Privacy and Ethics' reports on reform to the Privacy Act and the Access to Information Act with a robust "thanks, but no thanks".

House of Commons Committees - ETHI (40-2) - Reports and Government Responses Report 11 - The Access to Information Act: First Steps Towards Renewal (Adopted by the Committee on June 15, 2009; Presented to the House on June 18, 2009)
Government Response: 11th Report of the Standing Committee on Access to Information, Privacy and Ethics, "The Access to Information Act: First Steps Towards Renewal" (Presented to the House on October 9, 2009)
Report 10 - The Privacy Act: First Steps Towards Renewal (Adopted by the Committee on June 8, 2009; Presented to the House on June 12, 2009)
Government Response: Tenth Report of the Standing Committee on Access to Information, Privacy and Ethics, "The Privacy Act: First Steps Towards Renewal" (Presented to the House on October 9, 2009)

Thanks to Michael Geist for the pointer.

Some media coverage from the Canadian Press:

The Canadian Press: Harper government refuses to expand information, privacy laws

Harper government refuses to expand information, privacy laws

By Joan Bryden (CP) – 2 hours ago

OTTAWA — The Harper government has quietly nixed recommendations to expand and modernize Canada's access-to-information and privacy laws.

Justice Minister Rob Nicholson's rejection of reforms to the 26-year-old laws sparked accusations Thursday that the Tories have reneged on campaign promises to bring openness and transparency to the federal government.

"The access system now does not work," said Michel Drapeau, a lawyer and a leading expert on accessing government documents.

"They appear to like it this way."

Nicholson's rejection was also greeted with disappointment by privacy experts, who warned that Canada's outdated Privacy Act does not cover modern technologies, such as surveillance cameras and DNA samples collected from suspects.

Nor does it give the privacy commissioner any recourse to the courts when the government inappropriately discloses personal information, no matter how serious the breach.

"We're very disappointed, actually," said Chantal Bernier, assistant privacy commissioner.

"While we agree with the minister that privacy is well protected in Canada, we feel we can do better."

A Commons committee had recommended, among other things, that the information commissioner be given more power to force the government to disclose information in a timely manner.

Drapeau said only 10 to 20 per cent of access requests receive a response within 30 days, as intended under the law. The rest routinely take up to two years with some dragging on as long as four years.

Suzanne Legault, interim information commissioner, said Drapeau's view of the access system is overly pessimistic. She said 57 per cent of requests get a response within 30 days.

Still, she acknowledged there's an "urgent need" to modernize legislation to remedy some "very long delays" in responding to access requests.

Legault pointed out that the act was drafted in the days when bureaucrats kept paper records "in a neat file folder." Now, they are inundated with digital information, such as streams of emails with attachments, that is harder to manage and takes longer to sift through.

"We really live in a world of digital information and the system hasn't adjusted," Legault said.

The Commons committee had also wanted the privacy law expanded to cover new technologies. And it wanted to beef up provisions governing the disclosure of personal information by the Canadian government to foreign states - one of the most urgent needs in the wake of the Maher Arar case, according to Bernier.

Based on information provided by Canadian security authorities, Arar was detained in the U.S. and deported to Syria, where he was tortured.

In responses to the committee tabled quietly last week, Nicholson rejected the proposed reforms as too cumbersome, unnecessary or ill-considered.

He said giving the information commissioner more powers would shift the nature of the job "from an ombudsman model towards a quasi-judicial model," which would be inconsistent with other independent parliamentary watchdogs.

He rejected the notion that information requesters should have direct recourse to the Federal Court if access is refused, arguing that such a reform "would increase the caseload burden on the Federal Court."

On the privacy recommendations, Nicholson ruled out legislative restrictions on the disclosure of personal information to foreign states, arguing that law enforcement and security agencies "require a flexible approach" to information sharing.

"They must be able to share their intelligence within Canada and well as with their foreign partners," he wrote.

Moreover, Nicholson argued that efforts to combat international child abductions, forced marriages and worldwide health threats would be "seriously hampered" by restrictions on information sharing.

Nicholson maintained both the Access to Information Act and the Privacy Act are strong pieces of legislation. And he suggested "administrative alternatives, such as enhanced guidance and training" could be "equally effective" in improving both the access and privacy regimes.

Copyright © 2009 The Canadian Press. All rights reserved.


10/15/2009 08:11:00 PM  :: (1 comments)  ::  Backlinks
Is there anything within the act about off shore data storage. Not being a lawyer, i've had a hard time understanding all the nuances.

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