Information & Ethics Committee on Oct. 2nd, 2006

[J. Alan Leadbeater]

We advocate with departments what we call the default system. Under that system, every part of the organization, including the minister's office, that wants to be informed of what goes out under access will be given two or whatever number of days there are in the process to see the material in order to still meet the 30 days.

And by default, if that two days goes by and the minister's office hasn't looked at it or hasn't commented on it, by default the answer goes out. It doesn't matter. Some of the major departments use the default system and they're pretty courageous about it, and some of them don't. Some of them still say to the coordinator that when the minister's staff get to it, they'll let you know, and you can't give that out until they let you know.Those are the abuse cases.

I think there are ways of running a system so that ministers get appropriately informed about what's happening in their department without contravening the rights of the access requester.

[Jim Peterson, Liberal, Willowdale, ON]

A minister will be in the hands of his officials as to whether they're going to bring it to his chief of staff's attention or to the minister's attention as being something that does require an urgent response, and a lot of that would depend on the relationship the minister has with his public officials.

But your concept of best practices being pursued by every department, I think, is a good one.

[J. Alan Leadbeater]

I don't like to say generalized negative things, but exempt staff in ministers' offices sometimes aren't well enough educated about what their role is. They feel that in order to properly put wings and a halo on their minister, they need to know everything that might go out. But when they get it, they never read it, and they don't know what to do with it in the first place.

And the minister isn't helped at all. The minister is killed with kindness, because then we arrive on the doorstep and ask him why he is holding everything up in his office, and the minister replies that he didn't know he was holding everything up in his office, but that there's a keener down there who is just out of university who seems to be enjoying reading all those access papers, although he himself is not.

Yes, I think there is education that has to happen, and we'd be happy to meet with all the exempt staff of ministers whenever they change and just get them the facts of life. There's a law here, and if they want to get on board, well, get on board in a default system. If you don't read the records--

[The Vice-Chair, NDP, Pat Martin]

Are you finished, Mr. Peterson? Okay, thank you.

Mr. Kenney.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Thanks, Mr. Chairman.

We're doing this study based on a motion that asks us to review and report on the alleged disclosure of names of ATI requesters to political staff under the current and previous governments. That's the specific mandate we have.

We've heard from both offices that the release of these names to political staff is apparently a practice that has occurred--let's put it that way--at least in several instances, but we seem to lack specific, concrete cases and evidence that we can look at. This is a problem for the committee, I would say, with one exception being the Information Commissioner's report in 1998-99 on the receipt of these names by political staff in former Minister Eggleton's office. And then there's the Rowat case, but he was an official, not political staff. I gather that Mr. Rowat was a deputy minister seconded to the Newfoundland government.

So I'd like to take another run at this. The privacy office has said there haven't been complaints about these kinds of apparent breaches for a long time; that there have been a few, and some were rejected and some were accepted. Could you please provide this committee with a summary of those instances where complaints were accepted by your office in the past so we can look at concrete, specific instances?

[Wayne Watson]

Mr. Chair, the problem is that the investigation as well as the findings are confidential. If the individual who made the complaint and receives the findings agrees that he's willing to disclose the results of the investigation, that's a right he has, but our office cannot do that.

I'd like to tell you that they're in the annual report of such-and-such a year, but I really don't know if it's the case.

[Jan Peszat, Manager, Investigation and Inquiries Branch, Office of the Privacy Commissioner of Canada]

I can't recall any being in the annual report. The cases that we had are quite old. All of those files we have archived some time ago, so we don't have them at our fingertips, although we can get them.

I don't recall that we've put anything in the annual report since I've been there. We would have to look at the individual cases, which we may be able to dig up.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I hope without disclosing a confidential conversation, the President of the Treasury Board told me that in his conversation with Commissioner Stoddart, she identified two cases that had been accepted, both in the 1990s--I think 1994 and 1996 or 1997--or something like that. Can you at least provide us with that generic information?

[Jan Peszat]

That could very well be, and again, the files would be in archives. We could dig them up. We can't tie the specifics to the individual because of their identity, etc.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Understood. Perhaps I could just pose the same question to our officials from the Information Commissioner's office. We have the one case that I referred to, with Minister Eggleton's office in 1999-2000. You seem to have a lot of information about this happening, but can you help us with more concrete, specific cases?

[J. Alan Leadbeater]

If it's the will of this committee, I'm certainly happy to go back through our public reports and try to pull out anything we have on that. If there are reports that have been made public in the annual report and the individual complainants haven't made them public, then that's the best I can do, but I'm certainly willing to do it if that's the will of the committee.

I also want to say that people don't complain about this kind of thing because they don't know it happens. When we get a complaint, say, of a delay, we'll go and ask the department to give us the processing file for that delay complaint so we can determine where it went off the rails. It's in that context that we often see, “And by the way, this file retained the name of the requester all the way up through the chain”. So that's how we find out about it, not through the complaints.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I'd like to quickly ask one last question. I'm running out of time. I would like to try to reframe the question I asked in the first round.

PCO tells the government that the case before us was effectively government officials drawing inferences, making assumptions, and not deliberately circulating the name of a requester of information. Putting that case aside, hypothetically, if officials make such an assumption, if they make an inference about who the requester of information is and pass that along, but it's not actually a breach, would that constitute a breach of the law? They're not actually carrying the name forward from the application. They're just looking at a pattern. This is an issue that somebody has consistently requested on; therefore, they assume this is the requester.

Would that constitute, in your judgment, a breach of the law?

[J. Alan Leadbeater]

It depends on what action they took as a result of the inference. If they make an inference and then as a result change how they're going to process that request, that would all have to go into the mix.

[Wayne Watson]

The circumstances would dictate whether or not there was a breach. It's based on what, that they used this person's name? I take it there would be no consent, but we'd have to look at the circumstances. But it could very well be. It's a very good question.

[The Vice-Chair, NDP, Pat Martin]

You pose a very good question. Thanks, Jason, and thank you to our witnesses.

There are two matters dealing with this study that we'd like the committee to deal with before we adjourn. We'll thank and excuse our witnesses, then.

Thank you, Mr. Watson.

There are two things about the study. It would help us if we all started from the same base level of information, and that means I would like to have in my hands, and I think we should distribute to the committee, the actual access to information request that triggered this investigation, where the name of Jim Bronskill appears on the request. We know a little bit about it, but we haven't seen the actual document. So with your permission, I think we should ask the clerk to--

[Jason Kenney, Conservative, Calgary Southeast, AB]

On a point of order, Mr. Chairman, I don't object in principle to that, but I am just wondering if that in fact would be a breach of the law on our part.

[The Vice-Chair, NDP, Pat Martin]

It was released. It's out there and the access act is such that once it's been released to one applicant within a period of days it's available to anyone else who may seek it, and they asked for it.

[Jason Kenney, Conservative, Calgary Southeast, AB]

If I could then make a constructive--

[The Vice-Chair, NDP, Pat Martin]

If in fact we find that a breach of the law took place, we may be taking part in that breach of the law if we circulate it and publish it further. Is that what you're saying? That's an interesting point.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I'll let you consider that, Chair.

In the same vein, in terms of our all having access to the same information, I suggest that perhaps the clerk should circulate this e-mail, which was dated March 5, from Gregory Jack in the Ministry of Public Security.

Do you already have this?

[The Vice-Chair, NDP, Pat Martin]

I'm certainly aware of it. I'd love to see it.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I would be happy to table it, if you like, so you can circulate it.

[The Vice-Chair, NDP, Pat Martin]

Thank you.

The second point I'd like to raise is that next week is a break week, and I think on Wednesday of this week there are witnesses scheduled already. So maybe we should have a deadline for witnesses so that this study has some form and we're not adding witnesses as we go. I find it useful to have a deadline to submit names for witnesses, and that would give the clerk the break week to schedule them and coordinate who in fact will be witnesses.

Does that sound reasonable?

[Some hon. members]

Agreed.

[The Vice-Chair, NDP, Pat Martin]

Then on Friday we should all submit our suggested names of witnesses to the clerk.

That's all I have. Unless there's any other business, we'll call it a wrap.

The meeting is adjourned. Thank you.