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

Part III: Challenges of the Current Model (continued)

Legislative Reforms (continued)

Education and Research

Just as there is a need to inculcate access and privacy norms in government, it is also necessary to educate the public about their access and privacy rights and inform them of the threats posed to these rights by various technological, social, and legislative developments. As mentioned, the federal Access and Privacy Commissioners (along with their provincial counterparts) have made it their practice to actively engage in such endeavours. Recent examples include the federal Privacy Commissioner's report on Quebec's private sector privacy legislation[122] and the British Columbia Information and Privacy Commissioner's report on the impact of the USA Patriot Act on public sector information outsourcing.[123] Research of this nature, in my view, is especially important to the work of the Privacy Commissioner as the privacy landscape is prone to rapid and unpredictable change.

However, unlike PIPEDA[124] and many of the provincial statutes,[125] neither the Access to Information Act nor the Privacy Act specifically empowers the commissioner to conduct public education and research. I therefore join with the Access to Information Review Task Force and Privacy Commissioner Stoddart in recommending that the Access to Information Act and the Privacy Act be amended to recognize the role of the commissioners in educating the public and conducting research relevant to their mandates.[126]

The Commissioners' Role in the Complaint Resolution Process

One of the starkest differences between the federal legislation and that in the largest provinces relates to whether the commissioner has the power to issue final decisions settling disputes about complaints (subject to judicial review). As mentioned, the federal commissioners lack this power, which is granted to the commissioners in Quebec, Ontario, British Columbia, and Alberta (as well as Prince Edward Island).[127] Commissioners in most of these provinces use this power sparingly, preferring whenever possible to resolve complaints through conciliation, mediation, and other informal means. They nonetheless consider the existence of this power, which provides a strong incentive to the parties to settle on reasonable terms, to be essential to their effectiveness.[128] In practice, this model could be described as an "ombudsman with a stick." By and large, claims are settled in a manner satisfactory to all parties.

The apparent success of this model raises the question whether similar powers should be afforded to the federal commissioners. The Access to Information Review Task Force recommended that the idea be given serious consideration, concluding that it is "the model most conducive to achieving consistent compliance and a robust culture of access."[129] The Task Force summarized the advantages of the order-making power as follows:

Many users would argue that a Commissioner with order-making powers would provide a more effective avenue of redress for complainants. Under the current system, a complainant who is not satisfied with a recommendation by the Commissioner or the government's response must apply for review by the Federal Court. This is both time-consuming and expensive.

Under the full order-making model, the requester receives a more immediate determination. It is more rules-based and less ad hoc than the ombudsman model. Commissioners with order-making powers are tribunals. They issue public decisions, with supporting reasons. This results in a consistent body of jurisprudence that assists both institutions and requesters in determining how the Act should be interpreted and applied. As administrative tribunals, under the scrutiny of courts, they are subject to high standards of rigour in their reasons and procedural fairness.[130]

Professor Alasdair Roberts has outlined the following additional advantages of the model:

Adversarialism may be an inevitable consequence of a statutory scheme that puts great weight on "moral suasion" rather than adjudication. An adjudicator must carefully restrain her comments on the conduct of government institutions, in order to avoid claims of bias in the application of the law. On the other hand, an ombudsman is free, and indeed expected, to define her function as one of advocating vigorously on behalf of the principle of transparency. In doing this, however, a commissioner also liberates officials to define their own role as one defending legitimate interests from harm by disclosure of information. [Office of the Information Commissioner] staff and senior officials may develop narrow and antagonistic conceptions of their roles, each justified by an appeal to legitimate interests and rationalized by the presence of a countervailing role fulfilled by another organization.[131]

There has been some hesitation about adopting this model at the federal level, however. The Government does not currently favour the option,[132] Information Commissioner Reid opposes the idea, and Privacy Commissioner Stoddart has also expressed reservations.[33] There is a danger that a quasi-judicial, order making-model could become too formalized, resulting in a process that is nearly as expensive and time-consuming as court proceedings. It is also arguable that the absence of an order-making power allows the conventional ombudsman to adopt a stronger posture in relation to government than a quasi-judicial decision-maker. There is also some virtue in having contentious access and privacy issues settled by the courts, where proceedings are generally open to the public. The ability of both the commissioners and complainants to resort to the courts may well be seen to be a sufficient sanction for non-compliance, particularly in relation to some of the more sensitive issues arising at the federal level. As well, it must be noted that in each case, the order-making power in the provinces is wielded by a single "Information and Privacy" commissioner or tribunal. If order-making powers were given to the federal commissioners, mechanisms would have to be developed to preclude forum shopping in those few cases involving a potential conflict between access and privacy.[134]

Despite these drawbacks, the option of granting order making powers to the Information and Privacy Commissioners is worthy of further study. In most of the provinces that have adopted this model, the process has not become overly formalized, and the commissioners have been able to attain very high settlement rates.[135] Provided that the unique features of the federal scheme can be accommodated, the order-making model may prove to be a more effective way of vindicating the principles undergirding the Access to Information Act, the Privacy Act, and PIPEDA. Of course, the advantages and disadvantages of the order-making model would have to be assessed separately in relation to each of these statutes. What is appropriate for access may not be appropriate for privacy (and vice versa); and what is effective in protecting privacy in government may not be appropriate for the private sector.

Finally, Information and Privacy Commissioners in Canada, whether empowered to issue orders or not, attempt to resolve complaints informally through conciliation, mediation and other types of dispute resolution. Experience has shown that these mechanisms can be very effective in reducing backlogs and achieving settlements that are acceptable to all parties.[136] But while PIPEDA expressly recognizes the Commissioner's role in mediation, the Access to Information Act and the Privacy Act do not.[137] I therefore recommend that these statutes be amended to specifically empower the commissioners to engage in mediation and conciliation.[138]

Conclusions

The primary mission of this Report, as I have stressed, has been to evaluate the merits of consolidating the operations of the offices of the Information and Privacy Commissioners of Canada. My mandate has also required me to assess the challenges posed to the current models, and in this Part of the Report I have briefly described some of the options for reform that I believe are worthy of consideration by the Government of Canada. A number of these proposals have been adopted in the provinces, and they appear to contribute significantly to the effectiveness of their commissions. In my view, the proposals mentioned above should achieve a significant improvement in the federal offices with or without a merger of the two. Their successful implementation will require a significant infusion of financial resources, but from what I have been able to surmise this would appear to be required in any event.


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