Appearance before the House of Commons Standing Committee on Public Accounts on the Report of the Auditor General of Canada – The Public Sector Integrity Commissioner of Canada

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February 15, 2011
Ottawa, Ontario

Opening Statement by Chantal Bernier
Assistant Privacy Commissioner of Canada

(Check against delivery)

Thank you for inviting me to appear before the Committee on its study of the Office of the Auditor General's report on the Public Sector Integrity Commissioner of Canada. My apologies on behalf of the Privacy Commissioner as she is very ill and not able to be here today. I am accompanied by Nathalie Daigle, Acting Senior Counsel.
My comments will briefly summarize the Privacy Act provisions as they relate to disclosure and present some issues the Committee may wish to consider as it moves forward with its study. The two main issues for the Committee to consider are 1) whether the definition of personal information and 2) the disclosure of that information.
The Privacy Act defines personal information as information about an identifiable individual that is recorded in any form. According to paragraph 3(f) this also includes correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence.

Federal department and agencies, subject to the Privacy Act cannot disclose personal information without consent.  However, there are exceptions to this provision listed under sub-section 8(2) of the Act. I will discuss paragraphs 8 (2)(m) and (c) in more detail.

Paragraph 8(2)(m) of the Privacy Act permits the disclosure of personal information where, in the opinion of the head of the federal institution in question, the public interest clearly outweighs any invasion of privacy that could result from the disclosure;  or, disclosure would clearly benefit the individual to whom the information relates. It is up to the head of the institution to determine whether the public interest outweighs the right to privacy. I would like to underline two aspects of 8 (2)(m): disclosure is discretionary but is subject to a standard of clear public interest in disclosure.

In relation to section 8 (2)(c), we recognize Parliament’s authority to compel the production of documents that may contain personal information. Indeed, we welcomed this Committee’s 2009 report on the Power of Committees to Order the Production of Documents, particularly where it states that a committee’s power will seldom be “exercised without consideration of the public interest”.

Privacy does more than protect the individual; privacy is an important social value that is fundamental to democratic societies. Privacy is a constitutional right protected by section 8 of the Canadian Charter of Rights and Freedoms and the Privacy Act has been judged to be a quasi-constitutional statute.

In accordance with these principles, Committees should explore with government departments some privacy-respectful alternatives that balance the Committee’s authority with the legal responsibilities of federal institutions.  This could be done through, for example:

  • in camera meetings;
  • restrictions and enforced guidelines on how documents are delivered, whether electronically or in paper format; and,
  • proper procedures for securing that information.

I note that this was done by the Committee on December 14, 2010, when, after requesting information about some 228 disclosures of wrong-doing, members chose not to seek the names of individuals.

I think this was a reasonable approach and I applaud the Committee for being able to identify a way to access the information while showing sensitivity to privacy.

It is important to note that the threshold for disclosure under the Public Servants Disclosure Protection Act is set at a rather high level. Section 22.2 of the Privacy Act, which was added as a result of the creation of PSIC, states that the Public Sector Integrity Commissioner shall refuse to disclose personal information requested under subsection 12(1) of the Privacy Act (access requests) that was created in the course of an investigation. This is a even higher threshold than our own investigations at the OPC.

Secondly, and although I am not an expert on the Public Servants Disclosure Protection Act, Section 44 of that Act states that information (and not only personal information) should only be disclosed when it is “required” by law, and not only “authorized” by law.

In conclusion, we recognize Parliament’s authority to compel the production of documents that are necessary to do its work, but we also believe it is possible that the personal information requested should be limited to what is necessary to keep public servants accountable without jeopardizing the intent of the Public Servants Disclosure Protection Act.

Thank you and I look forward to your questions.

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