Access and Privacy – A Question of Democracy

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Remarks at an ATIP Community Breakfast

June 23, 2011
Ottawa, Ontario

Address by Chantal Bernier
Assistant Privacy Commissioner of Canada

(Check against delivery)

Good morning and welcome! It is always an honour for us to meet with those who apply the Privacy Act on a daily basis.

Access and Privacy: A question of democracy

I wholeheartedly agree with the words of appreciation Commissioner Stoddart expressed a few moments ago. While the work you do is not always easy and may not always be fully appreciated, it is essential to democracy.

Thank you for your dedication and relentless efforts. I am very pleased to have the opportunity to talk to you this morning and strengthen the ties between us.

This morning, I would like to discuss the renewed partnership between the OPC and you. This enhanced version will both enrich the support we lend you and improve the services we deliver jointly to Canadians.

Our partnership is based on five themes:

  • Independence, but not isolation;
  • Established principles and changing contexts;
  • Compliance through support before punishment;
  • Improved service to Canadians, a joint venture; and
  • Working together as allies.

I will take advantage of the few minutes I have been given to share my thoughts on these themes.

Independence, but not isolation

Being an agent of Parliament involves both power and responsibility: we have the duty to remain at arms' length from the political program of the government in power in order to freely question its foundations in light of our mandate to protect the fundamental rights we have been given.    

The balance struck between that independence and government's active participation in privacy protection is crucial because our Office is increasingly urged by you, and your colleagues who are responsible for developing policies and programs, to include privacy considerations right from the start.  

To meet these new demands, and maintain our independence while also sharing our expertise, we will capitalize on our review function: we will expect you, or your departmental colleagues, to submit your draft programs, policies or bills from the very first steps of their development.

We will be pleased to provide the necessary advice to ensure that privacy considerations are integrated into program objectives or proposed policies.

Established principles and changing contexts

The second theme of our renewed partnership attempts to reconcile the changing context of privacy protection with the inertia of the legislative framework in this sector. A clear analytic framework is required at the outset to ensure that the fundamental principles of privacy protection are affirmed, while the terms of their application is sufficiently flexible. Our reference document (A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century) is the first example of this.  

We will also adapt our outdated legislative framework to the current context, many aspects of which were not yet part of our daily lives when the Privacy Act was enacted in 1985.

Requests for legal access to IP addresses, international agreements on security perimeters, massive and repeated attacks on the security of networks that contain all our personal and financial information, cross-border transfer of data—all of these were unknown to us the year that the Nordiques (unfortunately) defeated the Canadians in 7 games of the Stanley Cup series.

A few years ago, we proposed some amendments to the Privacy Act. We attempted to, for example:

  • have the four-part necessity test included in the Act;
  • broaden recourse under Section 41; and
  • obtain discretion to refuse to process some requests.

Since these amendments were rejected, we adopted the following administrative measures to make up for them:

  • The four-part necessity test is required in all privacy impact assessments. 
  • A clear policy on the application of Section 41 has been adopted.
  • Negotiations are underway with complainants to combine certain requests, and audits are being conducted to address the systemic issues raised by the complaints.  

Compliance through support before punishment

The third theme in our renewed partnership relates to support before punishment. Some departments have very acute challenges in relation to privacy protection: the Correctional Service of Canada faces a huge amount of requests;

HRSDC holds volumes of sensitive personal information; the RCMP, CRA, Transport Canada and others are under unprecedented pressure to use every bit of technology to gather personal information in the name of public safety.

Art Dunfee and his team have already started meetings with those departments faced with particular challenges, precisely to provide increased support.

And we have developed tools to address these new challenges:

  • First, we have been bolstering our work on PIAs. As the Commissioner was saying earlier this morning, we have recently published a guidance document and are offering trainingto public servants across the federal government to help them use the PIA process to build better programs.
  • We have issued an Expectations document to clarify what we want to see in PIAs.

Improved service to Canadians, a joint venture

The fourth theme of our renewed partnership focuses on our priority: serving Canadians. It is clear to us that taking a cooperative approach with the ATIP community will be essential to achieving that objective.

This means a shorter turnaround time for you to reply to our investigation questions.

It also impacts the schedule related to deemed refusal: if you do not grant access to the complainant's personal documents within a set period of time, we will rule that there is deemed refusal and the issue will be referred for judicial review.

Working together as allies

Finally, having been a senior official in Ottawa for so long, I know how tough your job is, I know how you challenge your departmental colleagues to comply with the Privacy Act. We will continue to provide you with training to face those challenges, we will continue to stress the need to increase our resources to meet demand and we will continue to bolster the crucial importance of your mandate—since it is, as I said at the beginning, a matter of democracy.

We need to continue to have conversations like the one we are having this morning. We need to maintain the collaborative relationship that will allow us to fully achieve our shared objective of protecting Canadians’ right to fair treatment of their personal information.

Again, thank you for accepting our invitation. I hope you enjoy your morning with us. I now turn the microphone over to Art.

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