If anybody walked into Ted's office, I don't think they'd be yelling at him. It's quite all right.
The first point is just to reiterate the question about whether there is in fact an issue of privilege to be dealt with.
My view upon reading the section immediately following the portion you quoted from Bosc and Gagnon is that because the committee has the ability to deal with this grievance or issue in another way—namely by reaching out to the government and saying we're not satisfied and that we can do this a different way—I think we have the ability to deal with it that way. It would make it not a point of privilege but instead an ordinary motion of the committee or a point of debate or grievance, which would negate the possibility of this committee's hearing a point of privilege.
If, however, I am incorrect on that particular issue, I don't view this to be a violation of the committee's privilege. There may be issues concerning the disclosure of documents we want to prod further into, but following the adoption of the motion in July at finance committee, the motion gained—to speak to Mr. Julian's point—significant support from all parties. Public servants got together to work really hard to gather relevant documents. They provided the committee with literally thousands of pages.
The motion adopted by the committee stipulated:
that matters of Cabinet confidence and national security be excluded from the request; and that any redactions necessary, including to protect the privacy of Canadian citizens and permanent residents whose names and personal information may be included in the documents, as well as public servants who have been providing assistance on this matter, be made by the Office of the Law Clerk and Parliamentary Counsel of the House of Commons.
Later I'll get into who was responsible for dealing with which aspect.
Exemptions were, in this instance, applied by our professional and non-partisan public service. The deputies at ESDC stated in their transmittal letter that the approach adopted was to disclose as much information as possible within the scope of the committee's motion.
No exclusions were made on the grounds of national security. A substantial amount of information that would normally fall under cabinet confidence was provided to the committee in keeping with public disclosures made by members of the Queen's Privy Council of Canada. Information that would fall under cabinet confidence but that was not related to the Canada student service grant request and, therefore, was not relevant to the committee study was in fact withheld. This was reiterated in the transmittal letter sent to the committee by relevant deputy ministers.
The motion clearly states that cabinet confidence should be excluded from the request. That's as clear as day in the way it's written. When I read the motion as it is written, it doesn't say that those particular exemptions should be made by the Law Clerk and Parliamentary Counsel of the House of Commons. Cabinet confidences were never in fact requested by this committee, so there would have been no duty upon the government to disclose them—which is obvious: I think we all want to protect cabinet confidences.
As outlined in the other transmittal letters to this committee, departments are obliged to protect personal information under the Privacy Act, unless the individuals to whom that information relates consent to its disclosure or disclosures otherwise authorized in certain specified circumstances, or the public interest in disclosure clearly outweighs any resulting invasion of privacy.
Information that would have constituted personal information was released in certain instances when these documents were disclosed, wherever it was determined, including by the Clerk of the Privy Council, that the public interest outweighed the invasion of privacy.
The clerk also made the decision, as was communicated in his transmittal letter, that for personal information in certain instances, such as the names of a public servant's family members and the phone numbers of employees at WE who were not Craig or Marc Kielburger, the public interest did not in fact outweigh the invasion of privacy in those circumstances.
The deputy minister of finance, for his part, noted, “The type of personal information that remains protected consists of the identity of unrelated third parties where their opinion or view relates to an unrelated matter to this inquiry, as well as personal e-mail addresses and phone numbers.”
The deputy minister went on to note with respect to page 190 and pages 194 through 213:
...further to consultation with the originating stakeholder, authorization to disclose this information was not given as it constitutes personal information as defined under Privacy Act. Furthermore this information is considered proprietary to the third party. The contents of this information is not relevant to the funding agreement or the Student Grant Program therefore, it has been severed in its entirety.
Additionally, the transmittal letters from the Clerk of the Privy Council and the Department of Employment and Social Development note that a limited waiver of solicitor-client privilege was issued because they believed it was in the public interest to do so.
The question of parliamentary privilege is not a black and white question. Committees no doubt can request what documents they wish, but they can't compel their disclosure. The public servants who have custody of these documents have a duty to hold in confidence some of the information that comes into their possession in the course of their duties. There is legislation that binds them.
As outlined in the document “Open and Accountable Government”, a natural “tension” exists “between that obligation and the request of parliamentarians for disclosure of that same information” that the public service feels the need to protect. They further note in that document that, “In practice, officials should endeavour to work with Members of Parliament...to find ways to respond to legitimate requests for information...within the limitations placed on them.” This comes back to my earlier point that I think we can engage in a conversation with government, rather than jump to a question of privilege before the House.
Members of the committee should also note that in 2010, the previous government reaffirmed the long-standing principle from 1973 governing the production of documents as part of their response to a report to the public accounts committee at the time. Those principles include criteria under which documents should be exempt from production, which, of course, include cabinet documents and those that include Privy Council confidence. Cabinet confidentiality, for what it's worth, is not some label you stick on something to prevent disclosure of documents. It's fundamental to our system of parliamentary democracy. It allows ministers to have candid conversations and, when appropriate, to shift their minds and be persuaded by others. It's essential that these deliberations remain private. That's recognized by the privy councillors oath. The Supreme Court of Canada has affirmed the importance of cabinet confidentiality. In fact, the court noted that judicial independence, parliamentary privilege and cabinet confidentiality all contribute to the ability of each branch of government to perform its respective role without undue influence. It's a natural tension.
On personal information, while parliamentarians are not subject to the Privacy Act restrictions, it does apply to the government institutions from which the committee sought information. This also creates tension. Providing unredacted personal information, even to the law clerk, would consist of a disclosure under the relevant legislation. As such, it requires the care and attention afforded to it by public servants. This personal information might lawfully be disclosed under certain scenarios, including when the individual at issue authorizes the release of the information and when the public interest clearly outweighs the privacy implications, as was the case, as referenced previously, in this instance.
Additionally, the information could be released for the purpose of complying with an order by a body with the jurisdiction to compel that information, but we made it pretty clear previously, as I think everybody would agree, that a House committee doesn't have such jurisdiction, so it doesn't fall under that scenario.
With all of this in mind, I find it important to note that the committee's motion asks the law clerk to make redactions in relation to information about public servants above and beyond what the government, in fact, made. These are redactions that officials did not make and would not have made in accordance with the Access to Information Act. Despite what's being suggested, this isn't a breach of our privileges as committee members.
The opposition seems to be claiming that the only option in front of this committee right now is to report the matter to the House. With great respect, I don't view that to be correct. The committee has not yet asked the government for the information that public servants applied exemptions to—and that are outlined above, in the remarks I just gave—under very narrow and specific grounds. For example, if members of the committee want information pertaining to family members of public servants, they could ask, but we haven't done that as a committee. Parliamentary privilege in no way, shape or form absolves the government of its obligations to protect personal information and cabinet confidences. In fact, the motion we put forward specifically excluded a request for cabinet documents. Despite this, the public service made a serious effort, and I would say a sincere effort, to provide as much information as possible.
In light of this information and the examples I've used, this doesn't appear to be a breach of privilege, let alone raise a matter of privilege at all.
Thank you, Mr. Chair.
