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On the other hand, because personal privacy is cast as an exception to the right of access to government information, it must be interpreted narrowly — or so, at least, logic would suggest. The challenge for courts is to give equal protection to both rights. Footnote 18 Yet in reality, choices must sometimes be made.
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Those who administer the Acts, and the courts that review their operation, continue to wrestle with this problem. The Supreme Court agreed with the Information Commissioner, deciding that, although this was indeed personal information, it was associated with the general characteristics of a federal employee position, such that it might figure in a job-posting, and that it should be disclosed. It was, in effect, information about the position , not about the person. Information on the competence or characteristics of an individual employee, on the other hand, would be protected from disclosure for privacy reasons.
In this way the Court was able to draw a line between government employee information which may be accessed by the public, and employee information which should be withheld in the interests of privacy. Balancing is also required from time to time between access to information and countervailing public interests, such as cabinet privilege, public interest privilege and security concerns. For example, the Act allows the government to refuse to disclose any information that could harm the defence of our country Footnote 19 or threaten the safety of individuals.
Footnote 20 As well, information subject to certain forms of privilege, such as solicitor-client, are exempted from disclosure. In the first instance, much of the exercise of balancing falls to the parties involved and the Commissioners. Courts, when called on, may give guidance in the balancing. What results is a multi-layered dialogue within government agencies, in the offices of the Information and Privacy Commissioners, and in courtrooms.
From their different vantage points, the institutional actors on the information and privacy stage play their parts in maintaining a viable balance between government accountability and conflicting rights and interests, for the greater benefit of Canadian democracy. A second challenge in the interpretation and application of the Acts is the need to cope with changing technology. The quarter century since the Acts were passed has seen vast technological change. We have gone from a day when government records were kept on paper, to the age of electronics and host of new document forms — recordings, computers, blackberries, digital video files, and the internet, to name but some.
These changes have vastly multiplied the amount of data in the hands of government, and at the same time created new problems of how to save and access it. These changes impact both the right to privacy and the right of access to information.
The Privacy Commissioner, commenting on the changes since when the Privacy Act was enacted, put it this way:. Times have changed — so too has the privacy environment. Technology has created new and complex privacy issues.
Other technological changes impact directly on access to information. The goal — indeed, the fundamental purpose — of the Access to Information Act — is to inform the press and the Canadian people about the workings of the government. The question this poses is whether modern digital ways of conducting government business have effectively undercut the goal of Parliament in of informing the electorate on the workings of government? It may be that at great expense and effort, the lost information could be retrieved.
Yet the problems of e-discovery, as it is known, are legion. Great effort, expense and technical expertise are required to ensure that all documents have been found and reproduced. All this takes time, delaying proceedings. How is a public access to information system, with limited funds and commitment to prompt — or at least relatively prompt — disclosure, to meet this challenge? A related challenge relates to the decline in the culture of record-keeping that has accompanied the digitalization of our world, coupled with the ubiquitous shredder.
I recently visited the Archives of Canada building and was given a tour of its facilities. I viewed record after record from the past, meticulously kept in beautiful handwriting. There, beneath the glass, I viewed daily attendance records of first nations children of residential schools, taken a century or so ago. But I found myself asking, would these records have been kept today? If so, would they have been shredded at some point along the years that have intervened?
Indeed, some suggest that the very existence of access to information legislation may deter government officials, agents and agencies from making and keeping complete records. If we truly believe, as evidently did in , that democracy depends on the people and the press having access to information, I believe we must examine these issues. We are faced with a choice. Either we meet the challenge of keeping our legislation relevant in the 21 st century, or we abandon our goal of access to information and privacy. A final challenge in interpreting the Access to Information and Privacy Acts is claims of national security.
This responsibility sometimes involves claims of national security. Both the Access to Information and Privacy Acts recognize national security as a valid ground for the government to exempt information from disclosure. With respect to access to information, there is a danger that claims of national security may unduly limit the openness and transparency needed in a democratic society.
With respect to privacy, the Privacy Commissioner has raised the concern that there is a risk that increased powers of surveillance given to law enforcement and national security agencies may unduly invade personal privacy. However, in response to the need to ensure that claims of national security do not overwhelm other fundamental societal interests, the courts have required, in a variety of different contexts, measures to ensure that people are treated with procedural fairness.
These are real concerns that face not only the courts, but all government employees who deal with issues of access to information and privacy. Ultimately, they are concerns of fundamental importance to the Canadian people. And they are not going to go away. We must, at the risk of undermining access to information and privacy, face them.
We should also be proud of the concerted efforts we have made over the last quarter century to ensure that these rights are not merely theoretical, but have significance for Canadian women and men. Most importantly, we have reason to take pride in the fact that we have developed a culture that accepts information as the norm and that places a prime on transparency and accountability in government operations — a culture that at the same time values privacy and takes account of countervailing public interests.
But we should not take these accomplishments for granted. The temptation of greater secrecy is ever present; the technological and security challenges to individual privacy ever advancing. These realities complicate the task of meeting the underlying challenge of finding the right balance between access to information and countervailing public and private interests, on a case-to-case basis.
I congratulate you, who struggle to achieve that right balance, whether it be in government, the bar, or the media, on your contributions to the development of this field over the past 25 years, and wish you success in the times that lie ahead. Return to footnote 1 referrer. Return to footnote 2 referrer. Pierre Elliott Trudeau, quoted by G. Baldwin, M. Ottawa: Canadian Bar Association, Return to footnote 3 referrer. Letter from James Madison to W.
Barry, August 4, , cited in Rankin, supra at p. Return to footnote 4 referrer.