August 31, 2005 — Le Protecteur du citoyen

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Brief by the Protecteur du citoyen on Bill 86, an Act to amend the Act respecting Access to documents held by public bodies and the Protection of personal information and other legislative provisions

Presented to the Committee on Culture

Summary

August 2005

Bill 86 puts forward major amendments to two aspects of the Act respecting Access, a preemptive statute.

First, in terms of access to documents, its introduction of a proactive approach that would see information released automatically meets with the ready approval of the Protecteur du citoyen, because this would improve access to documents produced and held by public bodies.

Second, concerning the major changes it proposes with respect to the protection of personal information, the Protecteur du citoyen has reservations as to the guarantees that will remain in place to ensure transparency, predictability, and accountability in this area. Sections 25, 28, 29, 31, 33, and 38, for example, introduce major changes. From what we can see, adoption of these provisions would drastically change the rules governing the collection, use, and conveyance of personal information, to the point that the main purpose thereof—that the information is needed to run the organization—could become a purely secondary consideration. It could henceforth no longer be possible to know with even relative precision for what purposes and by whom information is collected and used. Given that, the Protecteur du citoyen questions what aim is being sought that cannot already be met with the current law. What problems are we seeking to solve and what guarantees, besides the security measures proposed, will be provided to protect privacy? The Protecteur du citoyen holds that the use of personal information for the purposes for which it is collected must remain the rule and that Bill 86 should follow this logic.

Third, provisions affecting Commission d’accès à l’information (CAI) elicit the following comments. The proposed modification to the CAI structure would seem to preserve all appearances of impartiality as well as the overall expertise of CAI, a fact that meets with the Protecteur du citoyen’s approval. The adoption of rules of professional conduct for commissioners is good news, but it does not make up for the absence of recourse for citizens who wish to dispute their work or attitude. The Protecteur du citoyen therefore deems that the bill should go further and make provision for a control mechanism to address this shortcoming. The explicit recognition of CAI’s power to act in mediation should be accompanied by measures to ensure that recourse to this option does not lead to undue delays in case of failure. In this respect, the bill does not seem sufficiently clear in the eyes of the Protecteur du citoyen. Finally, the idea of entrusting the minister with the responsibility of producing an independent five-year report on the application of the Act respecting Access could allow a critical, independent look at the entire situation. That being said, the Protecteur du citoyen recommends that this report be submitted to CAI for its comments—without which the report would not be complete—before being submitted to the National Assembly.

In conclusion, the Protecteur du citoyen commends certain initiatives regarding access to documents and CAI, but seriously questions the changes put forward regarding the protection of personal information. It would seem especially important to maintain certain rules and guarantees, given the fact that prevention alone is effective.

Consequently, the Protector recommends that:

The use of personal information for the purposes for which it is gathered remain the rule and not the exception, and that the bill be reworded to this effect.
Section 24 of the Act to establish a legal framework for information technology and section 55 of the Act respecting Access be harmonized by keeping purpose in mind as a criteria for restricting access to public information.
The inventory referred to in section 44 of the bill be accessible on the websites of organizations subject to the Act respecting Access that have such websites.
CAI commissioners be subject to the authority of Conseil de la justice administrative [L.R.Q., ch. J-3, art. 167] in the performance of judicial functions, with the appropriate amendments required to enforce the National Assembly’s jurisdiction.
The bill ensure that recourse to mediation does not delay the processing of review requests.
The report on the implementation of the Act respecting Access be submitted to CAI and include its comments before being submitted to the National Assembly.

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