Privacy commissioner wants to put brakes on info czar’s planned new power

OTTAWA – The privacy commissioner wants to limit planned new powers for the federal information czar, fearful the changes could upset a “delicate balance” concerning Canadians’ sensitive data.

Daniel Therrien says proposed authority for information commissioner Suzanne Legault to order the release of information should not include files that deal with personal details.

In a brief to a Commons committee studying the Access to Information Act, Therrien says the matter should only be discussed two years from now, when the government does a full-scale review of the access law.

The delay would provide time to think through the “full implications” of allowing the information commissioner to order disclosure of material that a federal agency deems to be personal data, Therrien says.

The Access to Information Act allows requesters who pay $5 to seek a range of federal files — from correspondence and briefing notes to expense reports and meeting minutes. However, agencies can withhold information on the basis its release would compromise matters such as national security, solicitor-client privilege or personal privacy.

Currently, the information commissioner serves as an ombudsman who can only recommend to a government agency that files be disclosed when a dispute arises about whether they are exempt from release. She cannot force an agency to do so and must go to court to pursue the matter further.

During last year’s election campaign, the Liberals promised changes to the access regime, including new authority for the information commissioner to issue “binding orders” for disclosure.

It means she would be able to overrule an agency that wanted to keep documents under wraps on grounds they fall under the personal-information exemption.

The Correctional Service of Canada and the Canada Border Services Agency have been criticized recently for citing privacy law as the reason for refusing to release information about people who die in custody.

In his brief, Therrien says there is a long line of Canadian jurisprudence “that illustrates the healthy tension between opposing interpretations” of what is covered by the definition of personal information under the law — a balance that must be considered before granting the information commissioner new powers.

The privacy commissioner’s call represents just the latest suggestion that Legault’s planned order-making power — to be introduced in legislation late this year or early next — should be watered down.

In a consultation survey last month, the Liberal government floated the idea of a ministerial veto over the information commissioner’s orders — meaning cabinet would be able to block the release of a document.

Legault recently spoke out against such a measure.

In its brief to the committee, the Assembly of First Nations also opposes a veto, saying it would potentially place ministers in a conflict of interest due to the Crown’s fiduciary duty to act in the best interests of indigenous communities.

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