The Privacy and Access Council of Canada

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Whistleblowing

Computerization has provided never before imagined efficiencies. But, unlike paper and microfiche records, digital records are often more difficult to access precisely because they are locked away in computer systems. In addition, governments across Canada that profess to subscribe to openness and accountability have increasingly relied — rightly or wrongly — on legislated exemptions to deny access. Decisions by Commissioners and courts points to many shortcomings of freedom of information and access.

As the Federal Court noted in Canada (Information Commissioner) v. Canada (Attorney General), 2015 FC 405, “Over the years there has been a shift from records which were solely paper based to electronic records, although hard copy versions may also exist. Personal computers, laptops and tablets are now widely used in the government workplace.”

Digital technologies now in use had not yet been commercialized, and many had not yet been envisioned when most of the country’s privacy and access laws were enacted — before the World Wide Web became a reality, when fax machines were in development, and when computers were not in commonplace use in offices. Perhaps that’s why access laws in some jurisdictions speak of access to “records”, but not to “information”.

It would be absurd to believe that the authors of any FOIP law intended to limit “records” to the few forms enumerated in the legislation or Regulations. If indeed that were the case, increased reliance on digital technology would result in the vast majority of public records — which are now created, transmitted and stored in digital format alone — being shielded from public requests for access, in clear opposition to the intent of the law.

As former Saskatchewan Information and Privacy Commissioner Gary Dickson, noted, “FOIP, or freedom of information, is the most expensive, the most cumbersome, the most time-intensive way anybody could imagine to provide citizens with information about their public bodies.”

Commissioners have acknowledged the inadequacy of current access legislation and, like Federal Information Commissioner Suzanne Legault has noted in repeated reports to parliament, FOI legislation often is used as a shield to guard against access — and is an affront to accountability and due process. The federal government enacted the Public Servants Disclosure Protection Act (PSDPA) to protect and encourage whistleblowing, and many provinces have whistleblower legislation that generally protects public sector employees — leaving contractors and private sector employees, who often see the dark underbelly of client organizations, without any recourse. Perhaps that is why so many insiders take the remarkable step of blowing the whistle on their employers, and so many reputable media organizations have developed mechanisms to enable whistleblowers to shine a light on corruption, wrongdoing, and unethical behavior.

Whistleblowers