Dear Justice Gomery,

I appreciate the opportunity to offer my views with respect to some of the matters falling within your mandate.

Professional Records Management

The first observation I would like to share with you is that good, accountable governance is not possible without the underpinning of a deeply entrenched professionalism with respect to the management of government records.  The principles of professional records management are well known and require:  1) that appropriate records be created; 2) that records be indexed and filed so as to be effectively and efficiently retrievable; 3) that records be preserved for periods of time appropriate to subject matter, audit and exercise of access rights; and 4) that records only be disposed of according to approved archival schedules and, even then, never to thwart legal rights or to impede contemplated audits, judicial inquiries or inquiries by Parliamentary committees.

It is the experience of this office that the management of government records is not professional according to this standard.  A deeply entrenched oral culture exists, tolerated if not encouraged, at the most senior levels of government.  The government’s policy on the management of government information holdings (which is a good policy) is largely ignored in practice and accountability for its enforcement/implementation is so diffuse as to be non-existent.  Auditors General, Information Commissioners and National Archivists have, over the years, repeated this warning:  The quality of decision-making in government, the effectiveness of internal and external audits, the adequacy of the country’s historical record and the vibrancy of the right of access to information, are all being undermined by poor records management in the government of Canada.

In my recently proposed amendments to the Access to Information Act (see attachment A), I include a duty on public officials to keep records and a penalty for failing in that duty.  I urge you to support that recommendation and to go further, to recommend that professional information standards and obligations be enshrined in statute.  In my 2002-2003 Annual Report to Parliament, I suggested that a new record keeping law might include the following elements:

• Identify basic information management principles, values and objectives regarding government integrity, security, effectiveness, accountability, asset management, etc.;
• Require ministers and agency heads to ensure that records are created, acquired and maintained that adequately document key organization functions, activities, decisions, policies and transactions;
• Require that a records and information management program be established within each department/agency and appropriately resourced;
• Require that a senior executive be designated within each department with overall responsibility for information management;
• Require that the program include standards, procedures and training related to documenting business activities, identifying and organizing records, storing and protecting records, providing access to records; and retaining and disposing of records (all of these in conformity with other laws and standards);
• Require that all government programs and operations adhere to the above standards and practices in the management of recorded information;
• Require that certain types of organizations doing business with the federal government or receiving substantial federal funds have in place adequate  records management;
• Require that technology-dependent records be kept accessible for the duration of their authorized retention periods;
• Provide for the monitoring, evaluation and reporting on the records and information management program (and of the performance of related officials);
• Establish consequences for failing to meet the requirements of the Act (and identify the circumstances under which they might apply). [page 40]

Some of these are included in the Treasury Board MGI (Management of Government Information) policy, available on TBS’ website (www.tbs-sct.gc.ca).

Strengthening the Right of Access

The second observation I would like to make is that many of our democratic freedoms and institutions presuppose an informed, rather than propagandized (if there be such a word), citizenry.  Access to information about what governments are up to is the sine qua non of a healthy democracy where those who wield power are accountable in a meaningful way.

Consequently, I urge you to call for a strengthening of Canada’s Access to Information Act to include (in addition to the previously mentioned duty to create records):

• Coverage of a comprehensive set of institutions of governance;
• Independent review of claims of Cabinet confidentiality; and
• Narrowing of exemptions from the right of access by making exemptions discretionary, subject to an injury test and subject to a public interest override.

Transparency and Whistleblower Protection

 The third matter on which I would like to offer comment relates to Bill C-11 (Public Servants Disclosure Protection Act) passed by the House of Commons on October 4, 2005, and now awaiting Senate consideration and approval.  I am profoundly concerned about the negative effect section 55 of that Bill will have on the public disclosure of wrongdoing in the future.  Over objections I and public service unions made, the government has given itself, by amending section 16 of the Access to Information Act, the power to cloak in secrecy for five years the details of wrongdoing reported under the Public Servants Disclosure Protection Act.  (Originally, the period of secrecy proposed was 20 years, amended in Committee to five years).  My concerns were set out in my 2004-2005 Annual Report to Parliament as follows:

Bill C-11

“Nothing demonstrates the distrust of the access law, and the ignorance of its effect, more than the amendments to it proposed in the so-called “whistleblowing” bill.

In what the government insists was a well-intentioned effort to give assurances of confidentiality to potential whistleblowers, it decided that all information collected or compiled as a result of a whistleblower’s report, should be kept secret for up to 20 years.  To accomplish this, it proposes to amend the Access to Information Act to include the following provision:

55. Section 16 of the Access to Information Act is amended by adding the following after subsection (1):

(1.1) The head of a government institution may refuse to disclose any record requested under this Act that contains information obtained or prepared by the President of the Public Service Commission under the Public Servants Disclosure Protection Act, by a senior officer designated under subsection 10(2) of that Act or by a supervisor to whom a public servant has disclosed a wrongdoing under section 12 of that Act and that is in relation to a disclosure made or an investigation carried out under that Act if the record came into existence less than 20 years prior to the request.

The effect of this provision is to enable government to cloak in secrecy for 20 years a great deal of information including:

• identities of whistleblowers;
• identities of accused persons;
• the details of the allegations of wrongdoing;
• the details of actions taken to investigate the allegations
• the details of remedial actions taken to prevent future wrongdoings;
• the details of disciplinary action taken against wrongdoers;
• the details of disciplinary action taken against whistleblowers;
• the details of retaliation actions or retribution against whistleblowers.

The government has given no explanation as to why it needs to keep the details of alleged wrongdoing secret for 20 years.  Intended or not, the only purpose of a new exemption of this breadth is to offer the government legal means to engage in cover-up and damage control.  Public Service unions and those whistleblowers who have come forward do not want a secret system for investigating disclosures of wrongdoing – they want protection from retaliation.  They see a strong right of access to be one such protection.

To compound the insult to accountability, the government also proposes in Bill C-11 to amend the Privacy Act to put an end (in whistleblowing situations) to the long-standing, quasi-constitutional right of an individual to have access to his or her own personal information (subject to limited, specific exemptions), to request correction if necessary, and to know what opinions or views others expressed about him or her.  That provision in Bill C-11 is as follows:

58. Section 22 of the Privacy Act is amended by adding the following after subsection (1):

(1.1)The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that was obtained or prepared by the President of the Public Service Commission under the Public Servants Disclosure Protection Act, by a senior officer designated under subsection 10(2) of that Act or by a supervisor to whom a public servant has disclosed a wrongdoing under section 12 of that Act and that is in relation to a disclosure made or an investigation carried out under that Act if the information came into existence less than 20 years prior to the request.

The effect of this provision is that both whistleblowers and accused persons will lose, for 20 years, their rights of access and correction with respect to their own personal information collected or compiled pursuant to Bill C-11.

Again, the government states that its only reason for introducing this amendment to the Privacy Act is to protect the identities of whistleblowers.  Of course, this explanation begs the questions:  Why take away the privacy rights (of access and correction) from the whistleblower?  How does this serve to encourage whistleblowers to come forward?  How do whistleblowers go about getting the evidence that their complaints have been taken seriously or that they have been the victims of retaliation?

Finally, the most astounding feature of this proposed amendment to the Privacy Act is that it removes, in the whistleblowing context, the fundamental right we all have to know who is making allegations against us and the nature of those allegations.  Heretofore, this principle has only been abrogated for confidential police informants and in national security cases.  Indeed, the government patterned ss. 55, 57 & 58 of Bill C-11 on the 20-year secrecy authority given by the Access and Privacy Acts to law enforcement agencies.

This long-standing rule against anonymous accusations has been a hallmark of our civilized society built on respect for the integrity of the person.  Former Privacy Commissioner John Grace appeared before the Public Accounts Committee in 1989 to object to the then Auditor General’s proposal to set up a fraud and waste hotline where anonymity would be guaranteed.  He insisted that making the public service of Canada into an informer society, where faceless accusers were encouraged, would undermine a key privacy right and be inconsistent with Canadian values.  The Public Accounts Committee agreed, and the anonymous fraud and waste hotline did not go ahead.

Dr. Grace’s successor, Bruce Phillips, too, went to battle in defence of the privacy right of an individual to have access to opinions and views others express about him or her.  His battle was against the government’s proposal to allow employees to provide anonymous performance appraisals of their supervisors.  This “reverse appraisal” proposal was seen by government as necessary to ensure that employees had a voice in evaluating their managers.  Commissioner Phillips strongly insisted that a “flavour-of-the-month” initiative of this sort should not take precedence over the quasi-constitutional right each of us has to know what others are saying about us (when recorded in government records) and who expressed those views.

It must be emphasized that preservation of the right of individuals to know what others say about them, does not mean (under either the Access or Privacy Acts) that there are no circumstances in which the identity of a whistleblower can be kept from the accused wrongdoer.  For example, both the Privacy Act and the Access to Information Act would allow identities of accused persons and whistleblowers to be kept secret during investigations and otherwise, if disclosure could reasonably be expected to be injurious to investigations or law enforcement.  Moreover, both Acts would protect the identities of both whistleblowers and accused persons from being disclosed to anyone else.  In other words, the media or the public at large, cannot now obtain access to the personal information of individuals (including their identities as whistleblowers or accused persons).  No amendment of either Act is necessary to accomplish this result.

Bill C-11 is a classic case study of the depth of misinformed distrust of the ability of the Access to Information Act to protect sensitive information and to draw an appropriate balance among justifiable secrecy, the public interest in accountability and the individual’s privacy right of access and correction with respect to their own personal information.”

 I urge you to recommend that the five-year blanket of secrecy contained in Bill C-11 be removed.  [The Federal Court of Appeal decided that accusers should not be anonymous, in the case of The Information Commissioner of Canada v. The Minister of Citizenship and Immigration (C.A.) [2003] 1 F.C.29 at paras. 28-37.] 

I am convinced, as is the whistleblower in the matter which is the subject of your inquiry (Mr. Cutler), that the sponsorship scandal would not have come to light if government had had the benefit of s. 55 of Bill C-11 as a justification for denying access to the early sponsorship audits.

Final Thoughts

Throughout the 22 years of its existence, the office of the Information Commissioner has had a front row seat on most instances of scandal, wrongdoing, excess and blunder in government.  The wrestling matches between those who want to expose problems and government institutions wishing to cloak such matters in secrecy, are fought out in this forum.  There are some lessons to be drawn from this experience.  First, loyalty to superiors is more valued and rewarded than is loyalty to law or the public interest.  Second, senior level response to instances of wrongdoing is too often designed to reinforce the value of loyalty by ensuring that superiors survive and subordinates suffer consequences.  Third, in most cases of wrongdoing those responsible for addressing the matter are informed in a timely manner but do nothing until the matter becomes public.

All of this brings me back to where I started; in a system which values loyalty to superiors, reinforced by the oaths taken by civil servants, an essential ingredient to a workable régime of public accountability is openness.  Webs of intrigue cannot be easily woven in the light.

In closing, may I offer the assistance of my office should there be any matter you wish to explore further.  I wish you well in your deliberations.

Yours sincerely,

The Hon. John M. Reid, P.C.

Attach.