Information & Ethics Committee on Oct. 2nd, 2006

[Jason Kenney, Conservative, Calgary Southeast, AB]

Okay, thank you.

Mr. Leadbeater, you presented some interesting information about what would appear to be an ongoing practice in the original article that led to this hearing. I want to quote from a statement that was attributed to you; you can let us know if it's accurate. I think it seems to be consistent with what you just testified to.

You're quoted in an article in CanWest papers on September 20, saying:

We see situations where representatives from the minister's office will meet on a regular basis, sometimes weekly, with the access to information people to find out what access requests have been received and what material is being released, and in the course of those meetings there is a tendency to share with the minister's staff the identities of the requesters.

Is that accurate?

[J. Alan Leadbeater]

Yes, it is.

[Jason Kenney, Conservative, Calgary Southeast, AB]

You sort of embellished this view today, saying that this practice has led to threats and bullying and intimidation in the past, and you've identified ways these names have been passed on, ways you characterized as more devious methods, like post-it notes that aren't on formal paperwork. Are you able to quantify this practice and say how frequent or common it is, and in what percentage of files this may have occurred?

[J. Alan Leadbeater]

No, I'm not. I'm not sure of the degree to which the ongoing investigation will get into that, but I think it would be both very difficult to determine and very interesting to know. We do find, though, that when we do uncover it, it's not easy to get departments to change the practice. It's very quickly changed, which makes me think that perhaps it's public servants who sometimes don't do their job in telling ministers' staff that they're not entitled to that information.

I don't blame exempt staff for asking for it, because they're not educated in these matters in the way public servants are. It's really up to the public servants to say that they can understand you may want that, but you are not going to get it, and they cannot give it to you. When we point that out to public servants, they'll take a little bit of courage from our support and they'll stop doing it.

[Jason Kenney, Conservative, Calgary Southeast, AB]

In particular, I'd like to draw your attention to the 1999-2000 annual report with respect to the Department of National Defence. On page 67, it says the Information Commissioner concluded that the special assistant did have access to the names and identities of all requesters and that on occasion he also informed members of the minister's office of the identities of requesters. This occurred particularly when requests came from the media or members of Parliament.

So clearly we have a specific case identified here, amongst others, where the Privacy Act seems to have been violated. Did you find any other cases in other government departments or agencies where similar practices were took place since 1999-2000?

[J. Alan Leadbeater]

Yes, we have.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Did you identify them in your reports?

[J. Alan Leadbeater]

I haven't gone through every one of the reports, but that's one of the difficulties. The statute says that the Information Commissioner, or anyone working for the Information Commissioner, shall not disclose any information learned during an investigation, except in reports under the act. So I'm happy to keep my testimony to the reports that we've issued.

But we issue many to individuals, and if they don't come forward and put them in the public domain, then it's something I'm prohibited from putting in the public domain. We have issued reports in the past to individuals who have had concerns about their identities being disclosed, and we've always had corrective action taken by the department.

[Jason Kenney, Conservative, Calgary Southeast, AB]

As well, on September 20, CBC News reported, and I quote: “One former Liberal staffer told CBC News that the names of individuals who had made access requests were routinely obtained during the Jean Chrétien government”. Does this statement have the ring of veracity to it, the ring of truth to it, or would you contest this?

[J. Alan Leadbeater]

I'd like to stay away from adjectives. I know what road you're trying to take me down, but it happened too frequently. I've served in this business under five prime ministers, and in the terms of five prime ministers, it's happened too frequently in every one of them.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I have a memo that was furnished to the government with respect to the current issue, presumably before the Privacy Commissioner. This is a memo, which I'll read in full. There was a matter of some controversy from Dale Eisler, assistant secretary to cabinet at the Bureau du Conseil Privé. He says that with respect to the Bronskill matter:

There was no knowledge of an ATI request by any specific reporter. We are never privy to that information. In this case, there was a discussion about ATI files that were being released on the issue of alleged CIA overflights.

It was well known that Mr. Bronskill had already written several stories on the matter, and had been calling Public Safety and other agencies for comments and clarification. In this case, the assumption was that, given his particular interest in the subject, he would be writing another story.

In retrospect, it was inappropriate that any such assumption was made.

This was a discussion only among officials. There was no involvement by political staff and the summary report of the discussion by officials was a practice that predated this government. These type of summary reports were regularly shared with members of the previous government's Prime Minister's communications office.

So here we have a top PCO official basically describing public officials speculating on a name and then including it in the routine minutes of their meeting, which was distributed to political staff as well. Do you think this is evidence of prima facie and deliberate violation of the law by political staff? Either of you can comment on this.

[A voice]

You're saving the long discussion for the last.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Sorry.

[The Vice-Chair, NDP, Pat Martin]

Please answer very briefly, because Mr. Kenney was well over his time.

[J. Alan Leadbeater]

I just don't have enough facts to know. That would be part of the investigation, I assume.

[The Vice-Chair, NDP, Pat Martin]

I anticipate a similar answer--

[Wayne Watson]

The investigation has just started, and it would be highly inappropriate for us to make any comments right now. But to be honest with you, we don't know right now.

[The Vice-Chair, NDP, Pat Martin]

Thank you.

We're going to go to a second five-minute round, and Mr. Owen is on again.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Very quickly, Mr. Leadbeater, perhaps you could confirm that the five prime ministers you served under when you observed this request included three Conservative prime ministers and two Liberal prime ministers.

[J. Alan Leadbeater]

That would be correct, yes.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I believe, Mr. Chair, that what Mr. Kenney was just quoting from is the PCO official's statement that was read in the House by Mr. Kenney, and I believe he expressed some regret after having quoted that in the House for perhaps having misled the House into suggesting that the names of people rather than the circumstances or the issue being discussed were circulated.

So my question gets back to this point, and Mr. Watson last time didn't have a chance to answer this for me. When we're looking at past practice, in what proportion are we talking about people sharing information about the nature of requests that are going to lead to disclosure or whether they're actually identifying the people? I think that was the issue in the PCO document that was at least misunderstood from Mr. Kenney's answer in the House.

[Wayne Watson]

I'm not sure, Mr. Chair, I understand your question. If you're asking me if it's under our act, if we're talking about generalities, I would say no. A person's name is personal information, and unless it's personal information, our office would not be involved. I don't know if that answers your question.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Perhaps I'll go forward another way.

We had a progression from 1999 when there was this issue with the Department of Defence, as I gather, the minister's office, as well as the issue with Mr. Rowat. There was obviously some confusion before that time, because Treasury Board guidelines at that point were issued and people were regularly given knowledge of it and, I gather, dealt with if since then it had been infringed or it was found out that it was infringed.

I'm just trying to get a sense, and maybe Mr. Leadbeater can answer, of the frequency of this and the division between simply the circulation of information, which you've described as not being in violation of either act, and the actual identification of people.

[J. Alan Leadbeater]

In our office we only see things that go wrong, because we get complaints, so it seems to me as if it's frequent and too frequent. But I can't put that in the context of all the access requests that we never get a complaint about. The system gets 25,000 requests a year and we get 1,500 complaints, so I have a little window onto what really goes wrong.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

But I'm really interested in the window. How big is the window, and when was the last time it was mentioned as a problem in a commissioner's report, either privacy or information, that names were being disclosed contrary to law?