Public Accounts Committee on June 18th, 2009

[The Chair, Liberal, Shawn Murphy]

That's a fair request.

Mr. Saxton.

[Andrew Saxton, Conservative, North Vancouver, BC]

Mr. Chair, they already supplied us with a written letter on June 15 explaining what took place. How would you write a different letter in the future?

[The Chair, Liberal, Shawn Murphy]

We'll let them respond to that, Mr. Saxton. If they want to say that it's their final statement, that's fine.

Mr. Young.

[Terence Young, Conservative, Oakville, ON]

On a point of order, Mr. Chair, Public Works Canada sent out these CDs to all the members of the committee. I'm wondering if this isn't just some kind of technical error. Perhaps in Madam Faille's CDs, when they made them up, there was a mistake, or something didn't work in the equipment correctly or something.

[The Chair, Liberal, Shawn Murphy]

We don't know that.

Order.

[Terence Young, Conservative, Oakville, ON]

We're not going to get any further on it.

[The Chair, Liberal, Shawn Murphy]

Members, we're going to move on.

Mr. Christopherson, five minutes.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much, Chair.

First of all, I want to congratulate and thank Madam Faille. I had a chance to meet with her earlier to review her documents, they were so lengthy. I've never seen anything like this. I don't know about colleagues, but I've never seen anybody undertake as much effort as has happened here.

So regardless of where we end up, thanks to Madam Faille for setting a very high standard for what it means to be an MP and to follow up tenaciously on an issue.

Regardless of whether there are big gaps or little gaps, we know there are some gaps. The principle is still the same. We'll deal with the volume and whether there is more to be dealt with in a different venue, but we do know that you've deleted the names.

Correct? Yes.

You do know that you were requested to provide unaltered documents, or unaltered material. As I understand from your presentation today, upon “legal advice” the decision was made. I think I can see where the legal advice came from, but who is responsible for making the decision following advice given?

[Daphne Meredith]

The deputy minister is. I'm the associate, so it would be me in his absence.

[David Christopherson, NDP, Hamilton Centre, ON]

Okay.

Now, here's our problem. All along you have claimed that the Privacy Act is paramount to you. You're acting in that regard, ignoring our requests. I mean, you've decided that this supercedes anything we have to ask.

As soon as that happened, we did what anyone would do: we went and saw our lawyer, who happens to be the parliamentary law clerk, the top lawyer in the whole outfit.

His June 3 letter to us, which I think you may have in front of you, reads, in part, “In my view, the Department need not be concerned about proceedings against it under the Privacy Act.”

Number one, then, the legal advice is that since it's Parliament asking for it, any concerns that you might have about Privacy Act matters affecting this we take responsibility for by virtue of us asking for it.

So the first issue is taking it upon yourselves, as a department, to deny a standing committee of Parliament material that it's asked for.

Secondly, the response to that concern is very clear right here. I'd like to know how it is a departmental lawyer's advice supercedes the authority of this committee and the advice of the parliamentary law clerk.

[Daphne Meredith]

Thanks for the question.

Mr. Chair, I think it probably comes down to a difference of view on the application of the Privacy Act.

I do have Mr. Walsh's letter in front of me, and--

[David Christopherson, NDP, Hamilton Centre, ON]

Is he wrong?

[Daphne Meredith]

Well, he says that the department “is concerned that providing the recordings to the Committee would put it in breach of the Privacy Act and liable to proceedings being brought against it under this Act”.

As I understand it, he says that since there is no danger of proceedings being brought against us under this act, therefore we shouldn't be concerned. As I understand it--I'll turn to my colleague from the Department of Justice--the Government of Canada's obligation to respect the Privacy Act is sort of an absolute obligation. It's not material to us whether there would be liability proceedings against us.

[David Christopherson, NDP, Hamilton Centre, ON]

I'm short on time. Let's hear the legal thing, and then we'll hear from our legal beagle.

[Ellen Stensholt, Senior General Counsel, Legal Services Branch, Department of Public Works and Government Services]

On whether or not Public Works would be liable, based on what we have said in these proceedings, Mr. Walsh is right. The precedent on that, the case law on that, is perfectly clear. The Gagliano case is the most recent.

However, as Ms. Meredith has said, Justice advises its client departments to comply with the law based not on whether we could be sued but on what we interpret the law to be. We don't act just because we think we can't be sued. We don't violate statutes. We don't recommend violating statutes. That is simply not a basis for principled advice, in our view. That explains the difference of view.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Walsh, please, if you would, sir.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

If I understand the comments of counsel and the assistant deputy minister at the same time, it appears to be that how the Department of Justice gives advice determines the rights of this committee, that the parliamentary rights of this committee, as a matter of constitutional law, are governed by how the Department of Justice sees its role as a legal adviser.

Mr. Chairman, I just find that the two don't connect. Clearly, this committee has constitutional status. The law of parliamentary privilege is clearly part of the constitutional law of the country. These committees are entitled to receive the information they ask for. If the practice of a given department, whether a legal practice or administrative, can trump this committee in its access to information, then Parliament becomes a joke. It's that simple.

There is some misconception here on the part of our witnesses to think that the role of Justice, as adviser to the government, somehow takes priority over the rights of a parliamentary committee, which ostensibly and legally is serving the public interest in its pursuit of information. I simply have to speak, and I don't mean to be disrespectful to our witness, Mr. Chairman, but it really is that simple. This committee is a constitutional body.

The proposition was stated in the presentation that no provision of subsection 8(2) of the act applies. Now, even if we for a moment academically suppose the act applies here, which it doesn't, subsection 8(2) has a provision that allows for disclosure pursuant to an “order made by a court, person, or body with jurisdiction to compel the production of information”. This body, on a report to the House, can compel production of information. This body, in my view, fits within paragraph 8(2)(c). We're not a court of law, and maybe the government officials are accustomed to thinking in terms of courts of law and their subpoenas and court orders. But this body, when it sends its report to the House with a report that its requirement for documents has been refused, can get an order of the House compelling production.

There cannot be any question about that, in my view, as a matter of law. I have to speak in these terms, not with any disrespect to my colleagues from the Department of Justice, but only because this is a point that comes up from time to time. There is unnecessary confusion about it. For example, this committee, not for the first time, is taking up time dealing with an issue in respect of which, in my view, there shouldn't be any confusion. The committee asks for information. It gets it.

The committee might think twice about some of the information it's asking for, but that is the committee's call. The committee might decide not to pursue certain information out of the interest of privacy. That is the committee's call. That is not the call of any official to tell the committee it can't have information because they think better of giving it to the committee. That is fundamental as a legal matter. I'm not speaking politically or entering a debate. I'm speaking legally. That is fundamental to the constitutional status of committees of the House, and of the House itself, of course.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Mr. Walsh.

Thank you, Mr. Chair. My time is up.

[The Chair, Liberal, Shawn Murphy]

Yes, your time is up, Mr. Christopherson.

Mr. Saxton, for five minutes.

[Andrew Saxton, Conservative, North Vancouver, BC]

Thank you, Mr. Chair.

I just want to follow up on Mr. Walsh's answer. The department seems to be in a difficult situation here because they are following the advice of their legal counsel. How can they go against the advice of their legal counsel? There has to be some kind of a remedy in place that doesn't exist right now to resolve this issue, because I can't possibly see how a department can go against the advice of its own legal counsel.

[Rob Walsh]

Mr. Chairman, the remedy, if you like, the way of resolving this, in theory, is that the committee would call in the minister of the department and hold the minister to account and say, “Minister, your officials are not giving us the information we are entitled to.” Now, if the minister himself or herself likewise refused to give it, then you'd report to the House, and the House then would have an issue with the minister in the House as a matter of confidence. Do you know what I mean? That is the theory of how it works, but that doesn't take away from the principle.

The principle is as a matter of law that the committee is entitled to the information it seeks. But you are right, it can be difficult. The difficulty is the problem of enforcement. Yes, witnesses, departments of governments, agencies, whoever, private citizens could be in difficult circumstances where they have one principle of law telling them not to and the committee is telling them “Never mind, give it to us.” That can be a difficult situation.

[Andrew Saxton, Conservative, North Vancouver, BC]

Right, so it's difficult to blame the department in a situation like this because it's just following the advice of its own legal counsel.

I'd like to echo the words of my colleague Mr. Kramp that the business case of GENS has been studied at the government operations committee. That's not the purpose of this committee. The purpose of this committee is simply to look at these audio recordings and to address Madame Faille's concerns regarding the audio recordings themselves.

Now I'd like to ask the witnesses a question. First of all, thank you all for coming here today and presenting your case. What are the steps the department took to seek the consent of the participants?

[Daphne Meredith]

Thanks for the question. As I mentioned, 141 participants registered in these consultations, so our approach--and I'll let Caroline speak to the detail--was to determine, first of all, whether the personal information relating to these people was publicly available. The personal information was their name attached to their company name. Through legal analysis, that was determined to be the personal information we felt we could not divulge without their consent.

Based on using Google and the Internet, we determined that about 125, I think, individuals' names, plus company affiliation, were publicly available on the Internet and therefore we could release them without getting their consent. Therefore, 16 individuals remained from whom we felt an obligation to get consent, and to that end we called them and asked them. In most cases we received it. I think we received their consent in nine cases; in two cases we could not reach the people, and in five they declined to give us consent; they did not want their names released. Those were the steps we took.

We then had to technically excise those names from the audio recordings, which in itself was a serious technical challenge for us. We didn't have the equipment to do it in-house. We had to go to DND and use its equipment. It meant putting our audio recordings on a special and secure file it had and then going through the redaction process where you tried to zero in on the name precisely without getting any more information except the name, and that strained us, frankly, in terms of technical precision, to get the names out.

Mr. Chairman, we did go to a considerable length to focus on the personal information we felt we had a duty not to disclose.

[Andrew Saxton, Conservative, North Vancouver, BC]

It's clear the department has gone to a great extent to make sure you did what you felt was necessary in this case.

Did those people know they were being recorded?

[Daphne Meredith]

They knew they were being recorded because at the outset of the consultation participants were told these proceedings were going to be recorded because we wanted to use their comments in writing our report. They were not told that the consultations were public. If they had been told that, we wouldn't have had the privacy issue that we had in this case.

Obviously, our department would get, as many departments do, many access to information requests a year. We don't consider this an access to information request per se. You're a parliamentary committee; we recognize the need to provide you with timely information. Nevertheless, information we hold that gets shared with others we treat carefully and systematically, and that's why we zeroed in on the issue of personal information that could be contained in these recordings.