BarTalk August 2001
Volume 13, Number 4

BarTalk meets BC’s Privacy Commissioner

In August 1999, David Loukidelis was appointed Information and Privacy Commissioner for BC for a six-year non-renewable term ending in 2005. Stuart Rennie, CBABC Legislation and Law Reform Officer, interviewed Mr. Loukidelis this summer for BarTalk.

BarTalk: What do you see as your primary role as Information and Privacy Commissioner?
I am an officer of the Legislature and independent of government. Under the Freedom of Information and Protection of Privacy Act, my role is to be generally responsible for monitoring the access to information and protection of privacy practices of public bodies in BC. My role includes ensuring that the purposes of the legislation are met. I adjudicate reviews and complaints, conduct investigations and audits to ensure compliance, hear appeals from refusals from public bodies on information requests and comment on and inform the public about privacy and information matters.

I see my role as balancing the adjudicative responsibility laid down by the legislation and also providing outreach and education to public bodies and the public. The adjudicative function takes primacy because the legislation requires that appeals from information requests have to be given priority if not settled in mediation.

I am proud that my office has settled in mediation 92 per cent of cases coming to us, which I believe is the highest settlement rate for information and privacy cases in Canada. I have a staff of well-trained and dedicated professionals that conduct the mediation very successfully. I find that our role in using mediation is cost-efficient and provides a timely resolution to cases.

BarTalk: What are you hoping to accomplish during your six-year term which will end in 2005?
On the freedom of information side, I hope to encourage public bodies to look to routine disclosure of information instead of having applicants make information requests. I believe the legislation represents the floor not the ceiling. Routine disclosure of information promotes the legislation’s objectives and is effective and cost-efficient for public bodies working to comply with the legislation.

On the privacy side, I hope to encourage public bodies to design privacy into their programs and services to not only achieve efficiencies and cost-effectiveness but to comply with the legislation’s privacy mandate. I also want to ensure that privacy goes beyond the floor set by the legislation. I have worked with public bodies in meetings, conferences that my office presents and provided information via our Web site to do this. One important tool we have for use by public bodies is the privacy impact assessment, which determines actual or potential effects a proposed activity or proposal may have on privacy, and ways that any adverse effects may be avoided, if at all possible, or mitigated.

BarTalk: What do you think is the biggest challenge facing your office right now?
Our work continues to multiply in terms of quantity and in terms of complexity of the issues we face, especially on the policy side. For example, we are seeing developments in electronic records systems and in the area of electronic health records that have significant implications for individual privacy.

I want to move away from order-based processes and to encourage public bodies to be proactive in meeting the goals of the legislation. I want to do this within the legislation and not impose undue costs within the public sector.

BarTalk: In your most recent Annual Report to the Legislature you reported that delays with some public bodies threaten to become a systemic barrier to the right of access. How do you see reducing delays to ensure that there is a right of public access to needed government information?
There are a number of approaches to reduce delays. One approach could see public bodies introducing electronic reading rooms on the Internet where routine information could be posted for access by the public. Another approach could see public bodies using their Web sites on the Internet to provide and receive information, not just existing records, to the public. Still another approach would be to streamline processes by reducing unnecessary sign-offs by senior executives for records to be disclosed.

BarTalk: You have recommended that the BC government enact modern records management legislation. Why is this legislation needed?
There are two main reasons for modern electronic records management legislation. The first is to address the fact that the rise of electronic records used in government has not kept pace with modern records management. As a result, there is a real risk that records are being lost. In addition to lost records, there is a concern that with lost records comes the loss of reasons why a particular decision or policy was made. That can be important for not only access to government records but for historical and governance reasons as well.

The second reason is that, without a modern records system in place, there are huge implications for access to information. If there are problems with lost records, or records cannot be easily found or accessed readily, that defeats the goals of the legislation for openness and accountability. In addition, on the positive side, an efficient records management system reduces costs of compliance for public bodies.

BarTalk: You have recommended to government that public bodies be required to report annually on their compliance with the Act. What are the benefits of this?
It would be helpful to us to have statistical reports from public bodies for a number of reasons. First, we can track at a general level the public bodies’ annual performance. We can track trends. We can help to identify who is using the legislation and for what purposes. This we can use to help public bodies comply with the legislation.

BarTalk: Any final thoughts?
Access to information provisions in the legislation have obviously important goals: openness and accountability. But with the proliferation of electronic systems, including surveillance systems, the privacy brief is becoming increasingly important to government, the public and the Bar. I would urge the Bar to keep abreast of changes in technology and related policy or legislation and participate in the privacy and other civil liberties debates raised by these developments. I would urge members of the Bar, in other words, to fulfill their traditional role in being advocates for appropriate approaches to these information and privacy issues.

Private Facts
Prior to his appointment as Privacy Commissioner, Mr. Loukidelis practised law with a Vancouver law firm that restricts its practice to representation of BC’s local governments and other public bodies. He was a founding member, director and president of the BC Freedom of Information and Privacy Association and he played a key role in the enactment of BC’s Freedom of Information and Protection of Privacy Act. Mr. Loukidelis has written and presented numerous speeches and papers on information and privacy matters across Canada.

This article was published in the August 2001 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.