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

[Marc Bosc]

Certainly, I can try and answer the question.

I would start by saying, though, that it isn't only for times when the House is not sitting. It really would help at any time, when faced with these kinds of requests. I think the trick is to develop criteria and perhaps categorize the types of documents in the possession of committees and of witnesses that could be considered okay to release via a third party request versus those that a committee would not want to release. For instance, the committee might say that as part of its criteria anything to do with in camera proceedings cannot under any circumstance be released.

The idea of a process is to have something in place so that whether the House is sitting or not, a committee seized of a situation has something to work with to make a decision and it doesn't have to go back to the House. I think the idea is to avoid having to go back to the House each time, because it is not a good use of the House's time to be dealing with these requests each and every time if, indeed, there is a trend on the upswing for these kinds of requests.

There's no evidence of that. There are a few cases we have and, as Richard pointed out, they've been dealt with efficiently and quickly and the departments have accepted the House's arguments. But it's for those cases like this one where that hasn't happened that the problem arises. It really becomes a question of whether it is a good idea to develop those criteria, that procedure, that kind of blanket approach.

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

I agree. I think the obvious one that you pointed out is in camera proceedings. I think we can all agree with that, but if you're talking about exceptions, those which will never be allowed and those which may be allowed, it's going to be somewhat difficult for this committee to do it without some assistance from an expert panel, shall we say, or at least some people from your perspective assisting us.

Would it be appropriate for us, if we wished to do so, to ask perhaps Monsieur Denis to give us a proposed list of the criteria which you may think we would want to consider to be exempt?

[Marc Bosc]

Before Richard answers, at the outset I would say to the committee that both Richard's team and the Committees Directorate management team are at the disposal of the committee to work with your researchers to flesh some of that out. They're absolutely at your disposal to do that.

Whether it's effective to do it in a public meeting is an open question, I would say, but I think they're available—

[The Chair, Conservative, Joe Preston]

Someone may want that information—

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

There is a conundrum here.

Mr. Lukiwski, your time is up.

Mr. Richard, go ahead.

[Richard Denis]

We have already started looking at the types of documents, and I think categorizing is the way to go. Of course, as you know, it's when you get into the middle, the grey zone, that things are difficult to assess.

Specific to your question about when the House is not sitting, as Marc was saying, the request is made to the committee, so there would have to be a way for the committee, or the committee chair or some committee members, using the developed list, to assess the nature of the documents received, and based on the criteria, to make a decision, as opposed to the House administration itself making a decision. You're looking at waiving the House's privilege, so members in a way should be involved, but of course when the House is not sitting, there has to be a quick, easy way for committee clerks to know whom to talk to—probably their committee chairs and maybe the members—to deal with the issue.

In terms of developing criteria, we see that as probably the best way. Then we'll be able to list the types of requests and give you suggestions as to how they could be handled.

[The Chair, Conservative, Joe Preston]

Okay.

Mr. Toone.

We've gone over on those questions, but now I see a lot more people wanting to get on the list, so let's tighten it up if we can.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Starting with me?

[The Chair, Conservative, Joe Preston]

Well, it depends which side you're sitting on.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

Go ahead.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Seeing as I am sitting on this side, I'm forced to ask the question about the timeline.

I'm still a little unclear. What was the urgency over the summer that it had to be answered? I think the law actually provides for a certain delay, and maybe that was the reason. I just want you to explain why that decision had to be taken so quickly.

I'd like to point out that since 2006, I think, the actual time it takes to get a response for an ATIP request has extended dramatically. I was wondering if you have any sense of how long it takes to get an acceptance or a rejection from ATIP generally. If I'm not mistaken, the law calls for 30 days.

Maybe that's why you wanted to make a decision, but you may in fact be the only department I know of that answers within 30 days. Was that the reason it was answered so quickly?

[Richard Denis]

Let's be clear. The House is not a department. The House is not a government institution. The House is not covered by the Access to Information Act.

The reason we are consulted is as a third party. Someone is requesting information from the department, and the information that's requested touches on or relates to the House of Commons. That's why we are consulted.

In terms of the delays specifically, Mr. Toone, once the decision by the Auditor General was made to release the document, we were informed on August 21. Then, according to section 44, there were 20 days to ask for a review of that decision. That's a strict delay of 20 days from August 21, and that took us to September 10, a time when the House was not sitting. That's why time was of the essence. That's why we had to get instructions about doing something.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you.

[The Chair, Conservative, Joe Preston]

Madam Latendresse, do you want to take the rest?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Thank you, Mr. Chair.

In short, if I have understood correctly, a balance must be established between communicating information openly and transparently, and protecting our parliamentary privileges.

It was easy to see the difference with your example, which was very simple. No one would object to disclosing material that has already been made public or to providing information after the fact. Conversely, we really want to protect parliamentary privilege when it comes to in camera debates.

Regarding the grey area—somewhere in the between—I agree with Mr. Lukiwski. We would be glad to get your help in drawing a line between what is accessible and what is not. That would be something of a guide. It could be very useful to get your opinion on that issue. I don't know whether it would be simpler to consider that matter in a subcommittee. We could suggest it.

[Marc Bosc]

As I said earlier, Ms. Latendresse, the staff of the Committees Directorate and Richard's team can help you do that work. They are readily available to you. This is not always easy to do, but we think it's possible to develop criteria and categorize documents.

[The Chair, Conservative, Joe Preston]

Mr. Armstrong.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Mr. Bosc, first of all, I was wondering if this issue has come up in other Westminster-type democracies. A lot of countries have access to information policies now. Have you been aware of other issues where a situation like this came up, and if you are, how did they deal with it in other countries?

[Marc Bosc]

In terms of other jurisdictions, there are variations in what I would call Westminster-style parliaments. The regimes in each of the countries that you consider—United Kingdom, Australia, New Zealand—all vary. In the United Kingdom the House of Commons is subject to access to information legislation. I know of a court case going on right now in New Zealand over an access to information request, where the New Zealand House is taking a position similar to the one taken in our House.

Richard may have more to say about the legal regimes in other countries but that's just an example of the variation that exists. It's very difficult to compare directly.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

What we are seeing is this balance of access to information and parliamentary privileges. This is not just a Canadian issue right now. It is reflective of the way information is moving more quickly and more openly now than we've seen in previous generations and previous parliaments.

[Marc Bosc]

I'll just say, in fact, that's why this committee a few years ago did the revised Speaker's permission. It's to keep up with trends.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

On this particular case we got over the hurdle because we gave unanimous consent. Do you need unanimous consent of all members of Parliament in the future? If we don't get this change right away, what would happen if one member of Parliament, say, an independent member who wasn't related to any party, was doing it maybe just to cause trouble or throw a wrench in the system? Would a member have the ability to cause that trouble?

[Marc Bosc]

As I said earlier, there is no requirement for unanimous consent. It can be done by majority decision of the House. Obviously, that involves more use of House time.