The Hill Times, July 11th, 2005
OPEN GOVERNMENT
By Ken Rubin

Next Access Commissioner's mandate hijacked by government

The PMO recently extended John Reid's term by three months, but it's now looking at joining the Access and Privacy Commissioner Offices and it's all shrouded in deep secrecy.

The Paul Martin government is hijacking the appointment and the mandate of the upcoming new Information Commissioner of Canada and the entire process of appointing the next commissioner is still shrouded in secrecy.

The Prime Minister's Office is insisting on tightly controlling who gets to be the next occupant of this key Parliamentary agent's seven-year position.  As well, the PMO wants to shape the office and its personnel in the future which means a weaker and more complacent Information Commissioner's Office.

That's instead of both a progressive and a very public debate on the Access to Information Commissioner's mandate and a very competitive process being conducted for this key position by Parliament for a new candidate.

The PMO waited until the last day of current Access to Information Commissioner John Reid's seven-year term of office on June 30, at 4:34 p.m., the day before Canada Day, to issue a statement extending Reid's term by three more months.  That ignored a recent House of Commons vote of 277 to two to give Reid an extra year.

But the PMO should have announced months ago that it would give Parliament control over how it will select the next Information Commissioner.

Reid's 90-day order-in-council extension wasn't done for him.  It was so that the PMO, not Parliament or its Access to Information Standing Committee, could hire, through sole source fashion, an expert who is to their liking to do a very quick "review" of a recycled insider idea to decide whether to combine the offices of the Information Commissioner and the Privacy Commissioner.

The most important aspect not to be missed in the PMO announcement is the chosen expert who will also be mandated over the summer months to report about what kind of commissioner is wanted, which is separate from any process for "reforming" the Access to Information and Privacy Act.  Nothing is mentioned in the PMO release about public consultations or that the insider PCO-inspired Access Task Force already spent public money doing the very same thing.

The expert's terms of reference and pay are, for now, being kept hidden.  But the PMO release says the "expert" will be on board at some point in July (usually, contract work in Ottawa gets underway before the contract is officially signed).

Marc Roy, a PMO communications spokesperson, said last Thursday that no official appointment has been made yet and that perhaps some details of what the expert will be doing and payments may come out at the time of the appointment.

But this total hijacking of the appointment process by the PMO, which has also found a way to try and change the very nature and powers of the Information Commissioner, is an affront to Parliament and to the public.

Just think of the PMO trying to do the same for the 10-year appointment of the Auditor General of Canada's mandate and Parliamentary agent appointment.

Senior mandarins have for a long time wanted to lessen the powers of the Access to Information Commissioner's Office.  They have not taken kindly to any Information Commissioner who wants to loosen their hold on Cabinet secrecy and power, let alone believes they can review PM and Cabinet agendas.

Coincidentally, Justice Minister Irwin Cotler, following his discussion paper chock full of new secrecy practices, has recently indicated that he will introduce what can be read as a none-too-progressive revision of the Access to Information Act in the fall.

And the PMO-appointed expert, the PMO release states, will give his report in September on the Information Commissioner to the Minister of Justice in the fall.  The PMO release made no statement on whether the expert's full report and background notes, interviews and communications will be immediately made public.

The opportunity to weaken and merge the Information and Privacy Commissioners' Offices is exciting to those whose passion is less accountability and more administrative "efficiencies."  It will be hard enough for Justice Minister Cotler to convince a minority Parliament to pass amendments that enhance secrecy provisions for everybody, including incoming Crown corporations like Canada Post.

So a mini one-person task force, which insiders may be counting on, helps to prepare the way further to subvert one of the Access Act's main principles: the right to independent review of government secrecy decisions.

In addition, the very words of the two Johns--John Reid and John Grace, as Information Commissioners, who both at one point endorsed merging the privacy commissioner under them (of course), will now be used.

The merger of the two offices would water down and overload a super information/privacy czar.  It's different to have the offices together provincially where the tensions and conflicts between the rights of the public to know against the right to personal privacy are not as pronounced.  The losers, federally, will be those who want something done versus the government's increasing intrusive powers on the privacy side and the escalating secretive ways on the access side.

The unsaid thing in the developments surrounding the Information Commissioner is that there are strong personalities and dislikes involved.  That's to be expected when there are disagreements on secrecy matters.

But what's cause for concern is the appearance that unhappy senior mandarins at this convenient point between Information Commissioner appointments may want to use the merger of offices or a revised mandate exercise as a means to get rid of senior Information Commission staff.  That there is pressure and a desire to have senior Commissioner staff set aside has come from several sources.

Mixing personalities with the functions and actions of the Information Commissioner, especially at this hiatus point between the Commissioner is a very dangerous game.

What's for sure needed is greater accountability and transparency and better operations at the Information Commission (and the revamped but quiet and low-key Privacy Commission) just as it should be for any publicly supported body.

What we are witnessing is a power struggle complete with short term reviews and extensions.  We are witnessing Ottawa's aversion to the public's right to know and an reaction to strengthening the appeal rights the public has for information denials.

Parliament went through Bruce Phillips' partisan Privacy Commissioner appointee debate and Radwanski's messy departure from the Privacy Commissioner's role.

To now expect Parliament to go to sleep on the games going on with the selection of the next Information Commissioner and the rearranging of that office's oversight mandate is hopefully not going to transpire.

If the Information Commissioner's Office is weakened then don't expect Parliament's oversight role to pick up either.  The chronic problems with the Access Act just got a whole lot more messier.

Ken Rubin is an access to information advocate.
[email protected]