Procedure and House Affairs Committee on Nov. 21st, 2013

[The Chair, Conservative, Joe Preston]

Good morning to everyone.

We're here with the order of reference of Monday, October 21, on the review of the Board of Internal Economy.

Welcome to all today.

Madam Legault, it's great to have you here with us again. We're going to let you make an opening statement, and then we'll ask you questions.

Please go ahead.

[Suzanne Legault, Information Commissioner of Canada, Office of the Information Commissioner of Canada]

Good morning, Mr. Chair.

I am here this morning with Nancy Bélanger. She is the general counsel at the Office of the Information Commissioner.

Mr. Chair, my remarks will be very brief this morning.

I really welcome the opportunity to provide my views to the committee on the motion to increase the transparency and accountability of the House of Commons. I will limit my comments this morning to whether there should be modifications to existing laws to ensure greater transparency and accountability. You will not be surprised to hear that I am advocating this morning in favour of extending the coverage of the Access to Information Act to the administration of Parliament.

Access to information legislation gives citizens a legal framework to seek and get answers about how the institutions that govern them spend their tax dollars. The legislation also sets out the limitations to that right—as it is not an absolute right—and the independent review of disclosure decisions.

In my view, the only way to ensure transparency, accountability and effective oversight is for parliamentary institutions to be covered by the Access to Information Act.

Both the Standing Committee on Justice, in 1986-87, and the Access to Information Review Task Force, in 2002, made similar recommendations.

Internationally, the UK Freedom of Information legislation applies to the administration of Parliament but it exempts records if their disclosure would infringe the privileges of Parliament. Discussions with my colleagues at the Information Commissioner's Office of Great Britain led me to believe that these provisions are working fairly well. It is my understanding that that is what the committee was told by IPSA during its review. Obviously, IPSA is subject to Britain's access to information legislation.

During the hearings thus far, there has been a lot of discussion on proactive disclosure and whether or not the new rules set out by the Board of Internal Economy are sufficient.

In my view, proactive disclosure of expenses is a necessary step to making detailed information available to the public. Consistent proactive disclosure across the board for all institutions of Parliament can be done in a detailed way, in an open, accessible, and reusable format, on a regular cycle, and in a timeframe that preserves the relevance of the information.

So proactive disclosure is a good thing, and the more of it, the better. However, it isn't enough. In order to promote public trust in public institutions, there is a need not only to increase the availability and the quality of information but also to ensure access to that information. Citizens want to be able to validate the information that is provided to them or to obtain more details about an issue of interest, or simply know that the right is there for them to exercise when needed, which allows them, really, to determine the legitimacy of the spending and not just its legality.

In my view, bringing Parliament under the Access to Information Act, with appropriate safeguards, would guarantee that right of Canadians.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

We will go to questioning. We'll start the seven-minute round.

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you very much.

Thank you, Madam Legault, for being here.

Thank you, Madam Bélanger, for being here as well.

As you know, the real purpose of this committee is to determine whether or not the Board of Internal Economy should be replaced with an outside independent agency. You may have some comments on that, but I understand from your opening statement that you really want to concentrate your comments on access to information and how it applies both to Parliament and, I assume, to individual members of Parliament as well.

You speak of proactive disclosure and the need for that. As I'm sure you are aware, two of the three recognized parties in Parliament, the Liberal and the Conservative parties, have undertaken to proactively post hospitality and travel expenses from their members of Parliament. The NDP has refused so far to do so. I don't know why, but I'm sure they will have some explaining to do about that.

Specifically, I want to get into how members could or should post their expenses online because there is always going to have to be that balance between access to information and privacy concerns. We have heard, at least in a written submission from the Privacy Commissioner, a cautioning to members about some of the infringements on privacy when posting some of the information of their expenses online. So that's where I'd like to ask you how you see that balance should be and perhaps could be affected.

I'll give you, perhaps for a point of reference and context, a specific example, because it was mentioned in the Privacy Commissioner's written submission. If there were, say, a group of constituents who came to Ottawa to meet with a member of Parliament, and the member of Parliament then subsequently took them out for dinner and posted that expense online, what level of detail do you believe should be on that web posting?

The Privacy Commissioner is cautioning us about naming names. The commissioner suggests perhaps the affiliation or the organization that the constituent or the individual represents rather than the name. But if constituents are coming down on a personal visitation as opposed to a corporate or organizational visitation, would it be sufficient, then, in your estimation, for a member to post that hospitality line as “dinner with constituent” or “dinner with stakeholders”, and the amount? Or do you think there needs to be more information than that? If you do, how does that balance off against the concerns that the Privacy Commissioner has?

[Suzanne Legault]

Let me take us back to more generic principles, because I think we're losing ourselves in the details of one specific meal.

Let me explain where I'm coming from, because my understanding is that the motion that is before the committee is also going to look at whether amendments need to be made to any other acts in order to promote the desired level of transparency and accountability.

In preparing today, it's fine and dandy to say that we're going to disclose more detailed expenses or we're going to decide whether we're going to scan receipts and post receipts. But at the end of the day, Mr. Chairman, the House of Commons, the Senate, the Library of Parliament, the Office of the Conflict of Interest and Ethics Commissioner, and the Senate Ethics Officer all together account for roughly $500 million of taxpayers' dollars. None of that is subject to access rights for Canadians. Ministers' offices are not subject to access rights for Canadians.

I think that when the committee looks at the level of transparency and accountability we have for Parliament, parliamentarians have to decide what level of accountability Canadians deserve in 2013 and specifically in the context of the recent events that we've been living through in Ottawa. In terms of what should be posted publicly, there are various levels of disclosure, and various levels of disclosure are being proposed, and as far as I can tell, we have been discussing MPs' expenses.

In preparing for this, I've also looked at the bylaws of the Board of Internal Economy. There are also budgets allocated to members responsible for national caucus research offices. These are not disclosed anywhere, as far as I can tell, nor is there any level of granularity afforded to those kinds of expenses. There are House officers, including the Speaker's office, that receive a separate budget. In fact, they are specifically exempted from disclosure under the bylaws of the Board of Internal Economy. No documents, nothing that's being tabled before the Board of Internal Economy or being discussed before the Board of Internal Economy, is actually disclosed or disclosable. In fact, under the Parliament of Canada Act, the members of that board have to swear to secrecy.

That's the legislation that the committee will have to look at, in my view, in changing the rules that would apply to the Board of Internal Economy.

So really to answer the honourable member's question, Mr. Chairman, yes, obviously if anything is disclosed one has to always be mindful of interests of privacy, of interests of constituents, of interests of parliamentary privilege, of interests of solicitor-client privilege. All of these are properly protected under the Access to Information Act.

When one looks at deciding what level of disclosure is required, I think that the U.K. model in that respect is interesting, because Parliament is actually subject to the access act. IPSA is subject to the access act. Our conversation with the assistant commissioner in the U.K. basically reveals that the more disclosure there is, the fewer access requests to Parliament there are. They in fact have very few complaints. In terms of the specific level of details on receipts, I understand that there is presently a case in court in the U.K. on that issue. So it is an issue that is not decided.

From my perspective, that's the only thing I can say. The more proactive disclosure there is going to be, fine, but it still doesn't give people the right to make access requests and find about these kinds of receipts and about the actual events surrounding those expenses. There is no way to properly protect full privacy, parliamentary privilege, and solicitor-client privilege unless you have a proper legislative framework surrounding it.

[The Chair, Conservative, Joe Preston]

Thank you.

Thank you, Mr. Lukiwski.

Yes, you're over time already. I know; it's incredible.

Mr. Julian, we have seven minutes for you, please. And it too will go fast.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you, Mr. Chair.

And thank you, Madame Legault and Madame Bélanger for your presence here today.

I was quite amused by Mr. Lukiwski. After all the Senate scandals with the Conservative and Liberal senators, he's now promising to do better but in the same breath also seemed to hedge on the whole issue of what we've been mandated to do by Parliament, which is replace the Board of Internal Economy with an independent oversight body—not to study the question, but to do it. Mr. Lukiwski will have the opportunity, of course, Mr. Chair, in the coming days to prove that Conservatives will do better, after all of these repeated scandals and all these problems with transparency.

As you know, Madame Legault, the NDP is a strong ally of yours. We had Pat Martin just last week calling for a complete reform of what is a broken Access to Information Act. I know you've been a strong advocate for that. The NDP is your strong ally on it. Liberal and Conservative governments have broken the act, and the principle is that when taxpayers' money is being used, Canadians should have access to that information.

We also fully support your call to have the Access to Information Act apply to the administration of Parliament. I don't understand why the other parties seem to object to that; it's just common sense. And you said it so eloquently: we're talking about hundreds of millions of dollars of taxpayers' money that the Conservative government just seems to want to keep beyond what citizens should be able to access.

So we're strong allies.

What I wanted to do to start off was ask you, in terms of the issue that is in front of us—the whole question of independent oversight.... We've had the Auditor General say very clearly that there needs to be an independent organization that is responsible for MPs' expenses. We support that fully. That's what the motion says that was adopted by Parliament.

You've referred to IPSA as well, to IPSA's process, which also allows for access to information at the same time as it applies the independent oversight that the Auditor General was so strong on just a few days ago.

My question to you is, do you agree with the idea of independent oversight of MPs' expenses, and do you agree with the approach that IPSA has taken, both in terms of MPs' expenses and independent oversight and in terms of access to information?

[Suzanne Legault]

Mr. Chair, again it's a very complex question. I'm not an expert in how IPSA works versus the Board of Internal Economy. I really think that the Clerk of the House is the best person to put these kinds of questions to.

Personally speaking, in terms of administrative efficiency it seems to me, from what we have heard and seen so far, that the Board of Internal Economy administers the House of Commons well, and it has a whole slew of officers—an administrative officer, a financial officer, and all of these things—who seem to be working very well. What is lacking is the independent oversight.

Now, the committee can decide to recommend to create another body that would be an independent oversight body, but if that body is still not subject to access to information or if that body is hired through the administration of the House, there has to be some reporting that is done to the Board of Internal Economy, to the Speaker. So I'm not sure that solves the issue the committee seems to be trying to address, which is to get out of the self-supervision that seems to be at issue.

It seems to me that the Office of the Auditor General provides independent oversight, and if the House administration were subject to the Access to Information Act, there would also be independent oversight through complaints to my office and through Canadians being able to make access requests. So if one wants to look at the economic administration of it, or the efficiencies related to it, you already have two independent officers of Parliament who are independent from the administration of the House.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Yes, we appreciate that, and you're calling for changes to the Access to Information Act. I should mention to you that when the Auditor General appeared before us, he said that because of the cutbacks we've seen under this Conservative government in the Auditor General's department, he could undertake comprehensive audits of MPs' expenses, but it would cost Canadians, because he'd have to cut back on important audits elsewhere. As we have seen with the F-35s and military procurement, there is a whole range of issues on which the Conservative government has been appallingly irresponsible when it comes to managing public finances.

So the Auditor General's scope needs to be expanded. What he said is that he needs those resources in order to undertake a comprehensive audit of MPs' expenses at the same time as he does the valuable work of looking over all of the various instances of misspending that we're seeing from this current government.

In your case, you are saying that IPSA is a model. But do you have any specific suggestions, beyond having the Access to Information Act apply as well to the administration of Parliament, that would create an IPSA-like model?

Now we're getting into the details of how we transition to an IPSA-like model. Do you have any specific recommendations that you could make about how we can undertake that transition and assure access to information for the taxpayers who pay our salaries and who should know where that money is being spent?

Do you have any specific additions to what you had in your statement?

[Suzanne Legault]

First of all, I didn't say that IPSA was the model. I basically said that IPSA is subject to the Access to Information Act.

Whether the Board of Internal Economy.... If the whole administration of the House is subject to the Access to Information Act, whether you actually need to create another body is for the committee to determine. In looking at the costs of being subject to access to information, I did a brief basic estimate, looking at the overall amount of money that's being spent in the government and the amount that is usually spent on access to information—which is 0.06%, by the way. So of the total cost of the whole of government, how much money is allocated to access to information in the whole federal system? It is 0.06%. If you apply that to the budget of the House of Commons, it is about $400,000 that it would cost to subject the House to an access to information regime.

Whether my office could sustain an increase in complaints.... As I testified before the ethics committee in the last Parliament, my office is basically submerged with complaints at this time.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

And this is a concern with other independent parliamentary bodies. We're seeing those bodies starved of resources.

You are saying that you need more resources to adequately protect the taxpayers' interests.

[Suzanne Legault]

Oh, for sure.

[The Chair, Conservative, Joe Preston]

We'll now go to Mr. Lamoureux for seven minutes.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chairperson.

In listening to your presentation, Ms. Legault, my ears perked up when you indicated that proactive disclosure is a good thing. I think that we and the vast majority of Canadians, if not all, would agree that proactive disclosure is a good thing. I notice that Mr. Lukiwski also picked up on that particular point. It is something on which, even though there are two parties in agreement about progressing, we have already taken the next step. We are saying that Liberal MPs and Liberal senators have to participate in proactive disclosure.

The issue, of course, is that it has that much more meaning if in fact it is administered to all political parties and is done through the administration. We hope to be able to achieve that. It's been difficult, because the NDP do not want to participate in proactive disclosure, but we'll continue to try to get those reforms brought in.

That was more of a political statement than anything else. I will get to my question.

You also made the comment that “in order to promote trust in public institutions...”. Well, we have made other suggestions, such as having performance audits conducted on expenditures on a more regular basis.

I'm interested in knowing your thoughts about the value of having performance audits be conducted by Canada's Auditor General.

[Suzanne Legault]

I think that's something you could ask the Office of the Auditor General. Mr. Ferguson was here, and I think he's the best person to determine the value of the audits.

I think what I've read is that the audits they are proposing to do are going to be completed in a period of 18 months. When institutions are subject to the Access to Information Act, there is an obligation to respond within 30 days. So the accountability that the two mechanisms provide is different. When you conduct an audit, then you determine whether the rules are being complied with and whether the rules lead to efficiency in administration of the program. When you make an access to information request, taxpayers can also determine for themselves whether they consider that the rules are legitimate, whether the spending under the rules is legitimate, or whether they consider it to be illegitimate.

I think the simplest example of a public outcry was when we had disclosure of the $16 orange juice. That was in compliance with the rules; it was an available expense. I think people who have a hard time making ends meet at the end of the week consider that it is not appropriate or legitimate for people who spend public money to incur those kinds of expenses. That's the difference between being able to have an access to information request answered and having an audit answered. They are two different types of accountability mechanisms that exist in Canadian law at this time. The question is, when Parliament spends all of this money that belongs to Canadians, what level of disclosure and what accountability mechanisms are appropriate?

I think parliamentarians have to lead by example. They are accountable to Canadians and they have to lead by example in terms of what mechanisms they will decide are appropriate to supervise their activities.

I actually went on the websites before coming here. The Library of Parliament has no disclosure of anything that the Librarian, whom I know very well, does, whereas the Parliamentary Budget Officer has disclosure. The Senate Ethics Officer.... It's impossible for Canadians to actually determine properly what money is being spent and where, except in aggregated format as part of the public accounts or the public proactive disclosure of MPs' expenses.

What I'm saying today is—

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I guess, Ms. Legault, what I am getting to is that, whether it's a question of more detailed reports coming from the Auditor General or of putting in a mandate under which they are doing these audits every three years, it actually complements that process to see forward movement on access to information, so that the two of them, hand in hand, can ensure more accountability and transparency.

Would you not agree to that?

[Suzanne Legault]

Yes.

If you conduct performance audits, you will have more accountability and transparency every third year for something that happened in years prior. That's the problem: you're basically looking at the past all the time, so that your accountability will be dealing with something that occurred in the past. It's something that is not available during election time; it is something that is not available during prorogation of Parliament. The House administration, the Senate administration, the Library of Parliament, all of these things continue to operate. They continue to enter into service contracts; they continue to spend money; they continue to manage people. All of these things deserve accountability and transparency. If you do something every third year, it's not sufficient.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

In an ideal world, let's say I meet with a senior on pension because he's having issues with the Canada Pension Plan, and I meet him over at McDonald's for lunch. What should I state on the form?

[Suzanne Legault]

That's what's going to have to be determined, if people are proactively disclosing specific receipts: how the parliamentary function aspect versus the partisan function aspect and the constituency work are being protected.

You're going to have to look at what is within the definition of “parliamentary function” under the bylaws of the Board of Internal Economy; that is the extent of what is going to need to be disclosed in order to make a determination on whether that expense is valid.

[The Chair, Conservative, Joe Preston]

You have 30 seconds left. I should take it away from you for eating lunch at McDonald's, but go ahead.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

If we look at that specific example, should I be putting in the constituent's name? Whether it is disclosed or not, should I be putting that constituent's name on the receipt, saying “I met with John Doe over lunch”?

[Suzanne Legault]

Let me answer from the perspective of an access to information commissioner. If I were to look at something like that; if, for instance, you were subject to access to information and that information were being requested, I would have to look at whether or not this information is personal information of your constituents. That is how I would look at it: whether that information is personal information to your constituent. Then I would look at whether or not there is an overriding public interest in disclosure.

That's how I would look at it.

[The Chair, Conservative, Joe Preston]

Thank you very much.

We will move back to Mr. Lukiwski, for four minutes this time.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you.

Before I get into a couple of questions, Madame Legault, again I want to correct the record. My colleague Mr. Julian has a habit of introducing revisionist history in this committee. He mentioned earlier that this committee has a mandate to replace the Board of Internal Economy. It most certainly does not. We are conducting studies to determine whether or not there could be an independent oversight review body, but certainly there is no mandate for this committee to do so.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

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