Mr. Chair, thank you for inviting me to speak on this particular subject.
I am certainly not an expert in parliamentary privilege. I do claim an expertise in access to information and privacy. I make the point also that the comments I am about to make apply equally to the Privacy Act. The two acts were enacted together. They are basically a mirror image of one another. Whatever we may want to do in amending the Access to Information Act, the same commentary would be made for the Privacy Act.
In the interest of time, let me present my commentary in six rapid-fire points.
First, the House of Commons or its members are currently not subject to the Access to Information Act or the Privacy Act because the House of Commons is not considered to be a government institution.
Second, records from the House of Commons or members of Parliament received and stored by a government institution are deemed to be under the control of that government institution, and therefore subject to the act.
Actually, there is a difference in the terminology used in section 2. The English version states the following:
under the control of a government institution
However, that part is absent from the French version, which mentions federal administration documents. The nuance is significant.
Third, because the purpose of the Access to Information Act and the Privacy Act is to provide a right of access to information in records under the control of a government institution, unless these records are excluded or exempted, they are accessible. The Access to Information Act excludes a small number of records from either of these two acts. Examples of these exclusions are cabinet confidences, published materials, and materials that are before the library or the museum. These exclusions indicate that these records don't come under the ambit of the act, but there is no exclusion for parliamentary privileges.
My fifth point is that the Access to Information Act also provides for 13 exemptions. Some of those are the personal information of an individual, client-solicitor privileges, and third party information. Again, there is no exemption in the act at the moment, as the commissioner said, that provides an exemption for parliamentary privileges. I find it odd that the code inside the act, which covers third party information, has been used as a way to provide notice to Parliament that some information has been requested, and hence engage and start the notification process. That's not the purpose of section 20. Section 20 specifically identifies commercial, scientific, and financial information that operates within a commerce function and not a parliamentary function. At the moment, there is no exemption and no solution.
Sixth, there is no obligation on the part of an institution that is faced with a request asking to disclose records under the Privacy Act or the Access to Information Act to consult with Parliament—none whatsoever. It might have been a conduit or a facile method to alert Parliament that these records may be disclosed, but there is absolutely no provision for it.
If a requester were not to be provided with his rights under the act, either because of a delay or because of an extension of the delay, or simply not provided with a complaint, in my opinion, should that individual make a complaint to the Privacy Commissioner or the Information Commissioner, his complaint will be withheld. If it were not withheld, then this complainant will probably have a very valid case. I would probably advise him that if he were to take it to the Federal Court on judicial review, the Federal Court would likely, in my opinion, provide him with a win in that circumstance.
What should be done if parliamentary privilege is something that ought to be taken into consideration by a government institution? You have to amend the act. How do you amend the act? My proposition would be under section 13. What is section 13? It's information obtained in confidence from a government. At the moment, you can do so from an aboriginal government, international government, or a province. For some reason, the House of Commons is not covered in it. That would provide a way whereby the information would be excluded or exempted, if that were to be your wish.
That concludes my comments, Mr. Chair.