Bill C-11 — Public Servants Disclosure Protection Act

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Standing Committee on Government Operations and Estimates

December 14, 2004
Ottawa, Ontario

Opening Statement by Jennifer Stoddart,
Privacy Commissioner of Canada


Thank you for inviting me to comment on Bill C-11, the Public Servants Disclosure Protection Act.

I have had the opportunity to review the Bill and would like to focus my remarks today on Clauses 57 and 58 which add discretionary exemptions under both privacy laws to refuse to disclose personal information where a formal request for access has been filed. I will then conclude my statement by offering my comments on Clauses 15 and 29 of the Bill.

Clauses 57 and 58 — Discretionary Exemptions

Under the Privacy Act, the identity of a person making allegations against another person was considered to be the personal information not of the person making the allegations but of the person against whom the allegations were made. In essence, the Act contains the right to know your accuser.

This approach became somewhat modified when the Federal Court of Appeal decided in 2002 that the identity of the accuser can be the personal information of both the accuser and the accused, with one interest outweighing the other, depending on the circumstances.

The court indicated that, in the context of administrative investigations, fairness will generally require that the identity of the accuser be disclosed. Under the Personal Information Protection and Electronic Documents Act, our Office has applied the same principles in dealing with access requests.

The effect of the amendments in C-11 to both the Privacy Act and PIPEDA is to shift the balance in favour of protecting the identity of the whistleblower by adding new exemptions to the right of access. These are discretionary exemptions which would presumably operate to protect the identity of the whistleblower to the extent possible in light of the purpose of Bill C-11. This, in my view, is a reasonable result in light of the special nature and sensitivity of Bill C-11's subject matter.

This result is also supported by the wording in Clause 11. That clause mandates the protection of the identities of all persons involved in the process, subject to principles of procedural fairness and natural justice.

The Committee may wish to turn its attention to the extent of the application of these principles. It is possible that in some circumstances the whistleblower's identity could be revealed, by virtue of the discretionary exemption and existing case law.

For example if, at the end of an investigation, recommendations are being made that could affect an individual's livelihood, fairness could dictate that the identity of the whistleblower be disclosed. If, however, the allegations could be independently verified and it would add nothing to reveal the identity of the accuser, then the identity might be withheld.

On the whole, I believe that clauses 57 & 58 strike an appropriate balance. There are basically two ways of protecting whistleblowers: providing anonymity, and protecting against reprisals. This Bill does both. It has provisions allowing identities to be withheld, and provides a clear legislative recourse in cases of reprisals. A person who suffers reprisal can approach, as appropriate, the Canadian Industrial Relations Board or the Public Service Staff Relations Board.

Clauses 15 and 29

Information Commissioner Reid expresses concern about the effect of clauses 15 and 29 of the Bill on his ability to maintain the confidentiality of his investigations. I support Commissioner Reid's view and echo his concerns with respect to my own Office's investigations.

Clause 15 refers to the provisions of the Bill allowing public servants, who believe that wrongdoing has been committed, to disclose information about it to their supervisors, designated senior officers, the President of the Public Service Commission, or the President of the Treasury Board. Paragraph 15(b) states that these provisions apply despite any restriction created by or under any other Act of Parliament on the disclosure of information.

Clause 29 requires chief executives and public servants to provide the President of the Public Service Commission or the person conducting an investigation, with any facilities, assistance, information and access to their respective offices that they may require for the investigation. Sub-clause 29(2) specifies that this, too, applies despite any restriction created by or under any other Act of Parliament on the disclosure of information.

I fully support Information Commissioner Reid's view that the very restricted regime for disclosure of information collected by the Information Commissioner during investigations is designed to encourage candour of witnesses and cooperation of departments, and to demonstrate the neutrality of the Information Commissioner as an ombudsman. The Privacy Act and PIPEDA contain essentially the same confidentiality provisions as the Access to Information Act and Commissioner Reid's concerns apply equally to my own Office.

While I understand that the government did not intend Clauses 15 and 29 to extend to the investigative records held by Officers of Parliament and other investigative bodies, I believe that this should be clarified in Bill C-11. Therefore, I support Commissioner Reid's proposed amendments to clause 15(b) and subsection 29(2). Both of these provisions should end with the words, "except those listed in Schedule 1." A schedule would then be required containing reference to the confidentiality provisions in the statutes of Officers of Parliament and other investigative bodies.

In closing I would like to indicate that I support the intention of the Bill to find a positive environment for whistleblowers to perform their public interest function.

Thank you. I will be happy to take your questions.

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