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

Part I: Background (continued)

A History of Proposals to Merge the Offices of the Information and Privacy Commissioners

The possibility of merging the Information and Privacy Commissioners' offices was in some sense contemplated from the time Parliament first adopted the Access to Information Act and the Privacy Act. Section 55 of the latter statute provides that the "[t]he Governor in Council may appoint as Privacy Commissioner . . . the Information Commissioner appointed under the Access to Information Act." This power, however, has never been invoked. There have always been two separate commissioners, and the two offices have always operated independently of one another, though for the period between 1983 and 2002, the two officers shared corporate management personnel (i.e. finance, human resources, information technology, and general administration).[48]

In 1985 and 1986, the idea of merging the two offices was considered by the parliamentary committee responsible for the three year statutory review of the two Acts.[49] The committee recommended that the offices be kept separate in order to avoid any real or perceived conflict of interest in the discharge of the commissioners' mandates.[50] In the 1992 budget, the Government announced an intention to merge the two offices as part of an effort to streamline government and "encourage a balancing of interests between the two objectives of privacy and access to information."[51] The Government planned to use section 55 of the Privacy Act to appoint the Information Commissioner as Privacy Commissioner. Information Commissioner John Grace spoke in favour of the proposal. The proposal was criticized, however, by a number of parties (including Privacy Commissioner Bruce Phillips, privacy advocates, and the Canadian Bar Association), and it was not implemented. In the mid-1990's, the Government considered the idea of merging the Information and Privacy Commissioners' offices with the Canadian Human Rights Commission. This proposal too was ultimately rejected. The Government returned to the idea of merging the Information and Privacy Commissioners' offices in 1998, but again no action was taken. In 2001, an ad hoc parliamentary access to information committee recommended the merger of the two offices,[52] but the government did not respond publicly to the proposal. Lastly, in October 2003, Information Commissioner John Reid authored a position paper advocating the merger of the two offices.[53] The Government, however, did not move forward on this proposal.

Access and Privacy Legislation in the Provinces, Territories, and other Countries

The various proposals to merge the offices of the Information and Privacy Commissioners have undoubtedly been influenced by the adoption in the provinces and territories of a model combining the functions of an information and privacy commissioner in a single office. In every province and territory, access and privacy issues are handled by one office. There are important differences, however, in the ways these offices function. There are three basic models. In the first, which has been adopted by Quebec,[54] Ontario, British Columbia, Alberta, and Prince Edward Island,[55] there is a single commission[56] exclusively dedicated to the oversight of the public sector access and privacy regimes. In Quebec, British Columbia, and Alberta, the commission also supervises the application of private sector privacy legislation.[57] In all five provinces, the commission is empowered to make binding orders mandating compliance with the legislation, subject only to limited rights of judicial review. This power differs markedly from the federal commissioners' recommendatory role.

Like the first, the second model includes an office exclusively devoted to both privacy and access. Unlike the first model, however, commissioners[58] in the second model have no order-making power and can only make recommendations as to remedial measures.[59] This model is used in Saskatchewan, Nova Scotia, Newfoundland and Labrador, the Northwest Territories, and Nunavut. As in the federal scheme, appeals of governmental decisions can be made to the courts.

In the third model, adopted by Manitoba, New Brunswick, and the Yukon Territory, the ombudsman is charged with overseeing access and privacy legislation.[60] Consistent with the conventional ombudsman role, in these jurisdictions the ombudsman is limited to making recommendations; the power to issue binding orders is reserved for the courts.

Internationally, the picture is somewhat different. In most nations with analogous[61] privacy and access legislation, oversight responsibility is assigned to separate agencies. This is the case, for example, in Australia,[62] New Zealand,[63] France,[64] Ireland,[65] and Sweden.[66] The United Kingdom[67] and Germany,[68] however, have recently established unified offices responsible for supervising both privacy and access legislation.


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