Observations reçues par le Groupe d'étude

Soumission complète

(Soumis en anglais seulement.)

Auteur : André Marin, ombudsman, Défense national et Forces canadiennes
Envoyé : le 12 juin 2001

Dear Ms. Delagrave:

I am writing to you to outline my Office's experiences and concerns in relation to the application of the Access to Information Act to the Ombudsman's Office and to stress the need for an exemption from Access to Information legislation in order to protect the confidentiality of Ombudsman records. I welcome the opportunity to present this submission to you, particularly in light of the fact that my Office did not receive an invitation to attend the round table discussions which were held to obtain views from government departments and stakeholders in the ATIP community.

As you may be aware, my Office was created by the Minister of National Defence in June 1998 in response to recommendations arising from the Somalia Commission of Inquiry. The Office was established to function outside of the CF chain of command as a confidential and independent sounding board, mediator and reporter to the Minister on issues arising within the Canadian Forces and the Department. After lengthy negotiations with the Department of National Defence, the Office was also afforded the power to investigate complaints with the ability to make recommendations up to the Minister of National Defence and ultimately to issue public reports. The Office's authority has been established through a directive issued by the Minister of National Defence. All employees of the Department of National Defence and members of the Canadian Forces are required, through a Defence Administrative Order and Directive, to co-operate with the Office and to produce information.

In my January 1999 report to the Minister of National Defence entitled "The Way Forward: Action Plan for the Office of the Ombudsman" I recommended that the necessary steps be taken in order to exempt the Ombudsman's Office from the application of the Access to Information and Privacy Acts in order to ensure protection of the information which the Office collects in its complaints files and during its investigations. A copy of this report is provided as part of this submission for your assistance. Pages 96 through 104 of the report deal specifically with the issue of confidentiality. The need for an exemption from ATIP legislation to protect complaint information is also dealt with at pages 111-119. The report also specifically addresses the inadequacy of the existing exemptions contained in ATIP legislation to assure sufficient protection of Ombudsman complaint files. My Office's first 2 annual reports to Parliament on the administration of the Access to Information and Privacy Acts have also stressed the continuing need for such an exemption. The concerns which I have expressed apply equally to the application of the Privacy Act, as well as Access to Information legislation.

The Minister of National Defence's response to my recommendation contained in The Way Forward was to indicate that although the Department supported the Office's need for confidentiality and to protect its complaints information, an exemption from ATIP legislation was beyond the direct purview of the Minister.

I also recommended in the The Way Forward that the Office have its own Access to Information and Privacy Coordinator until such time as an exemption from the disclosure requirements of ATIP legislation was attained. This recommendation was accepted by the Minister of National Defence and the Office has functioned with a separate ATIP coordinator delegated by the Minister since June, 1999. The advantage of operating with a separate ATIP coordinator has been that individuals within the Department of National Defence and Canadian Forces do not have access to the Ombudsman's complaint files for the purpose of applying the ATIP legislation. Having a separate coordinator does not however provide adequate assurances of confidentiality for Ombudsman complaint files. Individuals may still request access to Ombudsman complaint files both under the Access to Information Act and the Privacy Act and in light of the nature of the information collected by the Ombudsman's Office, there exists a high risk of disclosure of personal information which will lead to a breach of the office's confidentiality obligations.

There is a real risk particularly in the CF community, which is based on the chain of command structure, that the editing of names and other personal identifiers from the records of complainants and witness statements will not be sufficient to protect their identity. Many complainants and witnesses have indicated to us that their immediate chain of command is likely sufficiently familiar with them and their situation, that they will be able to identify the complainant based solely on the content of the their complaint.

This high risk of disclosure of personal information which would serve to reveal the identity of witnesses and complainants who come forward has in some instances created a chilling effect during Ombudsman's investigations. In some instances, although required to co-operate with the Office, witnesses have expressed a reluctance to share information and have admitted to not being completely forthcoming out of fear that the information which they have provided to the Office could be accessed and reprisals or retaliation may ensue. In other instances persons who have come forward with complaints to the office have refused to give their names or any other identifying information out of fear that this may be disclosed. Consequently the Office was unable to fully investigate their complaints. The chilling effect which this risk of disclosure of information also has on potential complainants and would-be whistleblowers is difficult to measure.

The chilling effect of the risk of disclosure of personal information and the inadequacy of the existing topical exemptions in current ATIP legislation is not based upon mere speculation but is corroborated by firsthand evidence. During the set up phase of the Ombudsman's Office, extensive consultations were held with the stakeholders and potential constituents of the Office ie; current and former CF members and DND civilian employees and their families. During consultations they related to us first hand that confidentiality was of paramount concern to them and that there were high fears of retaliation and reprisal if the Office's complaint files were accessible under ATIP legislation.

The impact of the potential risk of disclosure of personal information created by the existing ATIP legislation, also needs to be viewed within the specific context of an Ombudsman's office, which is designed to serve as a confidential forum for whistleblowers. The high public interest in this function has been recognized for many years and has fostered a strong tradition which has lead to the establishment of a number of bodies within the Federal government which perform this type of oversight function, including the Access to Information and Privacy Commissioners.

Confidentiality is a driving force of any office which serves an Ombud or oversight type function, as it allows persons to bring forward complaints and for both complainants and witnesses to fully discuss all of the details and potential causes of such problems with the Ombudsman without fear of repercussions. Such frank and open discussion is required to allow the Ombudsman to identify options to resolve problems by mediating and negotiating resolutions, to identify instances of serious misconduct and to also investigate and identify systemic issues which need to be remedied. It is for this reason that Canada's provincial Ombudsman's Offices are exempted from the application of provincial Freedom Of Information legislation in their respective provinces. The lesser degree of confidentiality which can be afforded to military members who bring forward their concerns to the Ombudsman specifically established to serve them clearly seems inequitable.

In conclusion, it is my submission that the task force recommend that an exemption to ATI legislation be created to protect complaint files maintained by Ombudsman from disclosure. Such an exemption is justified both by the high public interest function which is fulfilled by the Ombudsman role and the need to be able to offer adequate protection of complaint files from disclosure, so as to convince would-be whistleblowers and complainants that they can bring their complaints forwards in confidence and without fear of reprisal and retaliation.

I hope that this submission will prove helpful to you during your review and that it has served to establish for you the importance of creating an exemption to existing ATIP legislation to protect the confidentiality of Ombudsman records. I would also like to assure you that I have no objection to this submission being made available on your website. If I can provide any further information which will be of assistance to you, please do not hesitate to contact me at any time.

Yours truly,

Andre Marin
Ombudsman

Observations reçues par le Groupe d'étude