THE OFFICES OF THE INFORMATION AND PRIVACY COMMISSIONERS: THE MERGER AND RELATED ISSUES

Introduction

The Mandate

On July 22, 2005, Her Excellency the Governor General in Council, on the recommendation of the Prime Minister, appointed me to the position of Special Advisor to the Minister of Justice, the Honourable Irwin Cotler.[1] The Terms of Reference of the appointment are as follows:

To prepare, for the consideration of the Minister of Justice, a report assessing the challenges of the current model, reviewing models used in other jurisdictions, and developing options for the Government's consideration.

In particular, the report is to include an assessment of the merits of fully merging the offices of the Information Commissioner and the Privacy Commissioner into a single office as has been done in numerous provincial jurisdictions, as well as an assessment of the merits of cross-appointing a single Commissioner to both functions while maintaining two separate Commissions.

In conducting the analysis, the reviewer should consider whether either a merger or cross-appointment would have an impact on the policy aims of the Access to Information Act, the Privacy Act or the Personal Information Protection and Electronic Documents Act, and to advise on how best any such impacts might be effectively avoided.

The reviewer's findings and recommendations are to be submitted to the Minister by November 15, 2005.

My primary task, as I understand it, is to provide independent advice to the Minister with respect to the matter described in the second paragraph of the Terms of Reference; that is, to assess the merits of combining the functions of the Information Commissioner and the Privacy Commissioner, either through a full merger of the commissioners' offices or the cross-appointment of a single commissioner to both positions. As discussed in greater detail below, the question of merging the two offices has been mooted repeatedly since 1982, when the Access to Information Act and the Privacy Act were brought forward together to Parliament as a part of a single Bill. During this period, a number of parties, including both governments and commissioners, have proposed merging the offices. The latest proposal was issued by the current Information Commissioner, John Reid, in 2003 (he has since repudiated this proposal).

To date, however, no one either in or outside government has undertaken a comprehensive, public review of the advantages and disadvantages of such a merger. It must be stressed that in the limited time available to conduct this review, it was not possible to pursue the kind of detailed independent research that was completed, for example, by the Task Force that recently reviewed the operation of the Access to Information Act.[2] I am confident, nonetheless, that my findings and recommendations on the questions of merger and cross-appointment, which are set out in Part II of this Report, are based on a well-informed and sound assessment of the merits and demerits of these alternatives.

In addition to the specific issues of merger and cross-appointment, the Terms of Reference instruct me to assess the "challenges of the current model," review "models used in other jurisdictions," and develop "options for the Government's consideration." I have dealt with this aspect of my mandate in two ways. First, to the extent that these tasks bear on the immediate questions of merger and cross-appointment, I have incorporated them into my analyses of those questions. Second, in Part III of this Report I have described some of the key challenges facing the existing models for promoting and protecting two inter-related rights of major importance to our polity: the right of the public to access information in the control of the government and the right to privacy in relation to personal information contained in government records.

In the process of conducting this review, it became clear to me that the most critical challenges facing the offices of the Information and Privacy Commissioners - such as the culture of secrecy inhering in the federal bureaucracy, the need for better information management systems in government, and the increasing threats to Canadians' privacy posed by rapid technological and social change - have little to do with the question of merging the offices. Given the limited time allocated for this review, I cannot hope in this Report to analyse these challenges in detail or to provide firm recommendations on how they should be met. What I can do is highlight some of the challenges that should be considered in the process of reforming the existing access to information and privacy regimes, whether or not a merger is pursued.

The Process

The analyses and recommendations in this Report are based on two types of information. I relied, first, on the usual litany of documentary evidence, including relevant federal, provincial, and comparative legislation, academic writing, government and commission reports, cabinet documents, and newspaper articles. Secondly, I solicited input from a variety of parties interested in the work of the two offices. To that end I conducted a series of interviews and meetings, both in person and over the telephone, with the current federal Information and Privacy Commissioners (including senior members of their staffs), a number of former federal commissioners, and several provincial commissioners. These individuals provided me with invaluable insights into the workings of the federal and provincial access to information and privacy systems. Many of them also supplied me with written submissions and background materials relevant to the review. I am extremely grateful for the assistance that these persons provided. I also conducted meetings with and solicited submissions from a variety of academics, practitioners, and public interest organizations. Their input was also exceptionally valuable and I thank them for their participation. Of necessity, many of these consultations were organized on short notice. The quality of submissions was nonetheless high, and I am especially thankful to the participants for contributing to this review in a timely fashion.[3]

Despite the limited time at my disposal, I am satisfied that I was able to get a good cross-section of the views of interested parties. It should be noted, however, that with limited exceptions, I did not consult with officials from the federal government.[4] This is an important omission, and it should be kept in mind in reviewing the conclusions set out in this Report. I felt, however, that it was necessary to ensure that the review was conducted in a thoroughly independent manner.

Though it is in some sense an obvious point, it must be stressed that my conclusions are not binding on the Minister, and I do not have the effrontery to think that they will necessarily commend themselves either to the Government or Parliament. My hope is that the Report will have the merit of more clearly identifying and clarifying the factors that must be weighed in making decisions on merger and related issues than had been the case before my work began.


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