Study on issues related to the alleged disclosure of the names of Access to Information applicants

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Standing Committee on Access to Information, Privacy and Ethics

October 2, 2006
Ottawa, Ontario

Opening Statement by Wayne Watson
Director General of Investigation and Inquiries

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As per the Committee’s request, we are appearing today before you to give you an overview of the Office of the Privacy Commissioner’s investigations process, since your Committee is studying issues related to the alleged disclosure of the name of the Access to Information applicants.

It is our understanding that the Access to Information Act is silent on this front. In other words, there is nothing in the Access to Information Act that specifically indicates that the name of a requester cannot be disclosed. Since there is nothing that says you cannot name the requester, on the surface, it would seem that it is not likely a contravention of the Access to Information Act. That said, however, the matter could be a violation of the Privacy Act. This is where our Office comes in.

Generally speaking, the name of a requester is considered personal information, and we can investigate to determine whether there has been an inappropriate disclosure of that personal information. The fact that the information happened to be disclosed in an ATIP request, to us is incidental, though we understand and appreciate the larger implications of course. Whenever personal information is disclosed by a federal department or agency, in any context, it may be subject to scrutiny under the Privacy Act.

When faced with any alleged breach, we need to investigate before coming to any kind of determination or conclusion, and each case has to be looked at on a case-by-case basis.

Up until recently, we have not investigated a similar matter for some time and, in the history of our Office, there has only been a handful of cases. Some well-founded, others not. It all depends on the circumstances.

At this point in time we are investigating a matter related to the naming of an ATIP requester and I’m sure you can appreciate that, given this, we are not at liberty to discuss the matter further. Section 33 of the Privacy Act states that our investigations shall be conducted in private, while section 63 of the Privacy Act tells us we have a duty of confidentiality with respect to any information we collect in relation to our investigations.  That said, we understand that you would find it useful to have a better understanding of our investigations process under the Privacy Act.

Once we receive a complaint, we begin the process with an initial analysis of whether the allegations fall within our mandate – whether it’s a matter related to the Privacy Act. Under that law, we can look at cases where a government department may have improperly collected, used or disclosed an individual’s personal information.

Once we’ve determined that the matter falls within our jurisdiction, we assign an investigator to the case. We then write to the complainant and government institution in question to outline key issues in the complaint. We begin to gather all the facts. This process includes interviews with anyone who might have relevant information to offer. We also look at any appropriate documents. The Commissioner has the power to summon witnesses, administer oaths and compel the production of evidence if voluntary co-operation is not forthcoming. As I said earlier, the Privacy Act forbids us from publicly discussing any specific investigation while it is ongoing.

Throughout the course of our investigation, we collect all the facts of the case and then follow up with a thorough analysis of that information. The analysis may include discussions between the investigator and officials from our legal services, research and policy branches. The investigator then prepares recommendations to the Privacy Commissioner or her delegate. Those recommendations, along with a summary of the facts gathered during the course of the investigation, are passed on to the complainant and the relevant government department or agency. Both parties can make further comments at this point.

Our ultimate goal is to resolve complaints and stop further privacy breaches. We operate under an ombudsman model - encouraging resolution through negotiation and persuasion. Ultimately it is up to the Privacy Commissioner to objectively decide what the appropriate outcome of a case should be. The Privacy Commissioner sends letters of findings to the parties and outlines any recommendations she may have.

The Commissioner can make a few different kinds of findings, for example: “Not Well-Founded” means she does not believe a person’s privacy rights under the law have been breached. “Well-Founded” means a federal institution violated the Privacy Act. “Well-Founded, Resolved” means there was a privacy breach and the government department has agreed to take steps to prevent a reoccurrence.

Unfortunately, beyond making recommendations, the Privacy Commissioner has no further powers to force government departments to ensure that departments implement her recommendations. This is a major gap in the Privacy Act, which is now almost 25 years old and, as you know, badly in need of modernizing. Unlike the federal private sector privacy law, the Personal Information Protection and Electronic Documents Act – or PIPEDA for short – we cannot take the matter to the Federal Court and no real redress is available to the victim.  There is court recourse only for denial of access under the Privacy Act.

The Commissioner has outlined her proposal for reform of the Privacy Act in a paper submitted to your committee in June. She looks forward to the opportunity to meet with you again for a more in-depth discussion of Privacy Act reform.

Thank you. I hope this has provided a clear picture of our investigation process. We are pleased to answer your questions, though I’m sure you understand our obligation to remain silent with respect to any ongoing investigations we may have, given the importance of maintaining the confidentiality and integrity of our cases.

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