Procedure and House Affairs Committee on Oct. 16th, 2012

[Richard Denis]

Mr. Chair, if I may, I could give you a bit of a timeline of the event, just to have that on the record, as Mr. Lukiwski said.

The original five requests came in between June 19 and June 21 of this year to the five committee clerks. I think the House adjourned on June 18 or something like that, and it was just after the House adjourned.

Discussions ensued. On June 28 our office provided written representation to the ATIP coordinator at the AG's office about our position regarding the emails, specifically that in our opinion they were protected by parliamentary privilege.

There was a meeting of counsel on July 19 to discuss the matter further.

On August 14, we provided the Auditor General with more representations, again as to why we felt the specific emails were protected by parliamentary privilege.

On August 21, a few days later, the Office of the Auditor General issued their decision. They did not accept our position regarding the fact that the emails were protected by privilege and therefore they would release the documents.

When a third party is advised that the documents will be released, at that point the third party, in this case the House, has the option under section 44 of the Access to Information Act to ask for a judicial review of the decision. This means we could ask the Federal Court for its opinion about whether or not the emails are protected by parliamentary privilege and whether they should be released.

At that time, as you know, the House was not sitting. The House was scheduled to resume on September 17. We asked the Auditor General for an extension, but we were not provided with one. Once the trigger of section 44—20 days to request a judicial review—starts to run, there are no changes to that. That's a strict deadline.

Ultimately, the deadline for the judicial review application was September 10 and the House was coming back on September 17. Based on these circumstances, we advised the Clerk to get authorization to go in front of the Federal Court for review of the decision.

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

I don't know if it would be correct to classify this as a one-off, but can you tell me whether this kind of situation has occurred in the past? Is this the first time you have encountered something like this?

[Richard Denis]

This is the first time we've met this situation. We normally receive third party requests for information. In this particular case we are dealing with information that is covered by parliamentary privilege, but we often get third party requests for information, for example, somebody requesting information from a department. For example, there is a request that was made to the Department of Public Works relating to a situation, an event that touches on the House administration or the House of Commons itself, something related to the long-term planning program.

In this case, there are exceptions that are provided for in the act. Depending on the situation, the House will agree or not to the release of the documentation.

We've had a few issues in the past from four or five different departments, I'm told, and when we have raised the issue that the documents were protected by parliamentary privilege, that was accepted by the departments.

In the case of this request for these emails, the Auditor General did not accept the position that privilege applied to the documents. I am not speaking for them, but the way we were told they were interpreting the act is that there is nothing in the act providing for privilege as an exception for not releasing the documents. Therefore, they felt they had no choice but to say we don't have an exception in our act for privilege and therefore we will release the documents. We said that these documents, according to practice, are covered by privilege, and therefore we have to follow the provisions of the act.

[The Chair, Conservative, Joe Preston]

Okay.

Your time is up, Mr. Lukiwski, but it appears that we may have time to come back.

Madame Turmel, seven minutes.

[Nycole Turmel, NDP, Hull—Aylmer, QC]

Thank you, Mr. Chair.

I think I have understood the order of events and the information on privilege protection.

The Access to Information Act greatly restricts the information provided, since individuals cannot be mentioned without authorization. You make a number of recommendations in your presentation. You explain that we should watch out for certain incidents that could arise or for potential consequences.

Could you provide us with an example? If the committee is to establish a procedure or make a recommendation, we should have an idea of what could and could not be disclosed.

[Marc Bosc]

It is difficult to describe a truly hypothetical situation, but I can tell you that, even today, certain requests that are submitted to a department or an institution have to do with documents that are already accessible. There are actually situations where people who don't know which information is available on the Web or on the website of the House of Commons make a request to a department or an institution regarding committee proceedings on a given topic. That is an example of requests that can really be accessed without difficulty, since the documents are public. A person can, for instance, ask an institution to provide them with a statement that institution made publically, before the committee. In that case, the information is already available to the public.

Mr. Denis would perhaps like to add something.

[Richard Denis]

Thank you, Mr. Chair. I will complete that answer.

You are looking for or would like to explore potential solutions. We are currently considering the idea whereby the committee, and ultimately the House, could set criteria based on the type of information requested from us.

Despite the fact that the protection of parliamentary privileges must be maintained, those criteria would allow certain documents to be made public, depending on the type of information requested. The Deputy Clerk just gave an example of documents that are already public. As it moves forward in its study, the committee could perhaps analyze the type of information for which we receive requests and decide, based on the most objective and transparent criteria, how to make them public or not.

[Nycole Turmel, NDP, Hull—Aylmer, QC]

If I have understood correctly, you are recommending that we not go beyond that stage. What is public could be disclosed, and we would maintain the principle according to which a document is public because it has been made public as part of a committee. No additional confidential information would result in a failure to protect parliamentary privilege.

I wanted to go a little bit further. Some documents are public, yes, but I also keep in mind that we are accountable to Canadians when it comes to our work as members of Parliament. Some public documents can be easily accessed through the website or another source, but do you have anything else in mind?

[Marc Bosc]

Perhaps an example would help.

In 2009, this committee submitted a report to the House, following hearings. The clerk and the law clerk actually appeared at that time. The topic was copyright related to the use of House of Commons debates.

As you know, on the last page is a statement regarding the Speaker's permission. In short, it says that House of Commons debates are privileged documents and the property of the House, but that they can be used, under certain conditions. The protection is maintained. However, the House allows users, educators and others, to use some of those documents without having to ask the House for permission every time.

That is the direction we are encouraging you to move in. Other types of documents could fall into those categories. The House could approve a report produced and submitted to it by this committee, which would set out the criteria a committee should follow before granting such a request. In other words, if a request meets the criteria outlined, the committee would pre-emptively have the permission of the House to share those documents as another party. If I have expressed my thoughts properly, I believe that is the direction you want to move in. You want to define the criteria that would make that possible.

[The Chair, Conservative, Joe Preston]

Mr. Garneau, go ahead.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

Mr. Bosc, thank you for your presentation. It was very clear, and so were the answers to our questions.

Most of my questions have already been asked, but I just wanted to make sure I have understood correctly.

If I understand it correctly, there have been five or six instances in the past where requests were made for information, such as happened in this specific incident, where you did your job in saying that this was protected by parliamentary privilege and that it was therefore not accessible. This was not contested, if I'm correct.

I believe this is the first instance you did your interpretation but the House decided to waive its privilege. Am I correct in saying that this is the first instance of this happening?

[Marc Bosc]

To our knowledge, yes.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I'm going to ask you to use your crystal ball. Do you think with the use of access to information as it exists today there may be a flood of these things in the future, or do you think there will be isolated incidents and in most cases saying that it's protected by parliamentary privilege will suffice? Are you expecting more challenges in the future?

[Marc Bosc]

These cases are all relatively recent, and so it's hard to say if this is a trend or if these are just coincidental requests that have come in. We have no way of knowing.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

The five or six incidents that have occurred, when did they start and how recent are they?

[Richard Denis]

All have occurred over the last two years, since 2011. That's where we've seen a bit of an increase. It's hard to tell if this will create a flood or not, but essentially the answer will remain the same. In other words, the privileges of the House and its members individually are there. They're recognized constitutionally, and will continue to exist. Whether there are more requests or not, the way we handle them will not change.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

[The Chair, Conservative, Joe Preston]

I would like to ask one question, and then we'll go to Mr. Lukiwski next.

You mentioned the fact that we weren't sitting. The 20-day countdown started in the summertime. Had the House been sitting, what action would have taken place?

[Richard Denis]

The same thing would have happened because it's not for House officials, the Clerk, or the Speaker to make a decision regarding the House's privilege. It's only for the House itself. It made things more difficult in the summer, in August, when only a few of us were in the office and no members were sitting.

If the House had been sitting, I think maybe consultations would have taken place earlier, more easily. But I suspect that, based on the fact that this was the first time we were in the position of applying the privilege to specific documents, the process would have been the same.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Lukiwski.

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

I want to thank you, Mr. Chair, for stepping on the question I was about to ask.

To expand on what the chair was saying, it appears to me that had the House been sitting at the time, we could have dealt with this fairly expeditiously since the House granted unanimous consent to waive its privilege. Of course, the House doesn't sit 12 months a year, and that's the problem we have. Access to information requests come in throughout the year and the House only sits a portion, nine months or so, of the year.

I have a couple of questions.

First, from a procedural standpoint, for the House to waive its privilege, does it require unanimous consent?

[Marc Bosc]

No, it could be done by way of a motion, debated and decided.

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

A majority of the House could agree to waive this privilege.

[Marc Bosc]

Correct.

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

All right.

I think we all understand the very necessary concept of parliamentary privilege. You've outlined in your written submission, I think very effectively, some of the pitfalls we could see if we rushed into this and tried to give a blanket exemption or something like that. I think we have to be very careful.

Based on the fact there has only been one documented example that has proven to be problematic, the one we're discussing today, but also given the fact there appears to be more and more access to information requests coming in from third parties, we may have to deal with this and try to find some procedural way in which we can cover off requests that may come in at times when Parliament is not sitting. I'm not sure if that's possible.

I know you're somewhat hesitant to offer any opinions in a hypothetical context, and I appreciate that, but it appears to me that it would be a very difficult, if not outright impossible, solution to a problem that hasn't occurred much in the past but may start to occur in the future. I don't think we want to start tinkering with the parliamentary privileges of this place for obvious reasons, some of which you've presented in your brief.

To me, the obvious solution is that when Parliament is sitting we can deal with it on a one-to-one basis. If Parliament determined unanimously, as in this case, that it was willing to waive its privilege, we would be satisfying everyone involved.

I think what you're suggesting is that we try to find a solution to deal with these types of situations that might occur when Parliament is not sitting, so that you and the Speaker's office have the ability to respond according to the wishes of the House.

That's where I think we're going to need a little bit of assistance, Mr. Bosc and Mr. Denis, to try and help us come up with a potential solution. Based on what you've seen and what you know, have you any suggestions that we may want to consider? I don't want to put you in a difficult situation. I'm honestly asking if you have any thoughts on the matter that might help us try to resolve a situation that is somewhat problematic.