Procedure and House Affairs Committee on Nov. 22nd, 2012

[Col Michel W. Drapeau]

At the moment, the breach is that all of a sudden, there is a sensitivity by some access to information coordinators in some departments that some information under their control has originated from Parliament, at whichever source, and in some cases they have a sensitivity to the point that they have sought advice and given notice, and probably acted on such advice, not to disclose.

My point is if that had come to the knowledge or suspicion of the requester, the requester could complain. His complaint probably would have been withheld and it would have gone to court, and so on.

The status quo is that if you have enjoyed some formal notice, this is going to disappear very quickly because you have no right to it, as matters now stand. You can stop the flow so there's no longer any information shared with government institutions, knowing that if it is shared, then it comes under their control. That’s one way you may want to go; it would probably be unlikely, because there is communication that takes place, and if it does, how do you protect that?

You can also go against the grain, against the grain the purpose of the act itself, which as a quasi-constitutional statute is to enlarge—I'm citing—the “access to information under the control of government”. You can exclude it and say that not unlike the client-solicitor privilege, not unlike other privilege that applies, we will simply not release anything that bears a stamp, or is identified, or is authored by Parliament. It's excluded. If it is, then the decision is simple: we simply don't release it. It doesn't come under the ambit of the act.

Another way is that you could exempt it. An exemption could be discretionary, as Mrs. Legault said, or mandatory, as I say. You try to reduce the debates that would take place each time such information comes to be reviewed for disclosure, but unless you go through an exclusion or an exemption, the problem will remain.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Drapeau, you said a couple of times that if the decision had been challenged, it would likely have been upheld on judicial review in court.

I'd like to refer you to the Quebec Court of Appeal decision in 1991, National Assembly v. Bayle. I hope that you're familiar with that, because I would be interested in your comment on it, given what you said about a potential challenge here.

In Bayle, as you know, the court upheld the rights of the National Assembly to their claim of privilege to withhold it. Is it that distinguishable? Is the legislation that distinguishable? Have you any comment with respect to that case and what application it has, even the reasoning, to the matters that gave rise to this inquiry?

[Col Michel W. Drapeau]

You're giving me too much credit for remembering the details of that particular case. I don't. I would answer to you with that the famous lawyer's phrase that “it depends”. It depends on the situation, depends how it is framed, and I would have to go back and see whether there is an analogy to the current circumstances.

[Suzanne Legault]

In the case of the Bayle situation, it was done under the Quebec access to information act, and under that act, the National Assembly is actually covered by the legislation. It is considered to be a public body under their legislation; therefore, it is subject to the act. There is a specific section in that legislation that addresses the discretion of parliamentarians to refuse disclosure.

This is what the court said in that case, as far as I understand it. First of all, the request in that case was made to someone at the National Assembly who was their access to information coordinator for the assembly, so it was a direct request to the National Assembly. The court stated that the Commission d'accès, because the National Assembly is covered by the act, had the right to review that decision—which I think would be challenged by the law clerk if I were to review a decision on parliamentary privilege, but we'll see when we come to that—but once there is a determination that something is parliamentary privilege, the Commission did not have the right to basically go under that claim and determine whether or not that claim is appropriate. That's how that case is different.

Here, the situation we have is that Parliament, in its omniscient capacity, has decided to give government institutions a scheme, and a completely controlled scheme, to determine how they're supposed to disclose information under their control. They really don't have this discretion. The parliamentary privilege belongs to the House of Commons and the Senate. It belongs to Parliament. The institutions that are covered by the act are functioning under a clear, determined, defined statutory scheme that determines their decisions on disclosure. That's the issue. Parliamentary privilege belongs to Parliament.

As a result, if Parliament does not want disclosure on the basis of parliamentary privilege, it certainly puts this entire self-contained scheme of disclosure under extraordinary pressure. What you will find, if you have a clear case where there's no other exemption in the act and there's an assertion of parliamentary privilege, is that there's going to be a complaint to my office. I'm going to review that, and I'm going to basically have to say that I think I have jurisdiction to take the matter to Federal Court if I think the claim is not appropriate. You would also have the House of Commons taking this matter to court to prevent disclosure. They would be different schemes under the federal Access to Information Act in terms of judicial review by the Federal Court: you would probably have the House of Commons going under section 18.1 of the Federal Courts Act.

It's a bit of a potential mess, frankly, and it could be fixed, and in my view it needs to be fixed.

[The Chair, Conservative, Joe Preston]

Thank you.

We've given an extra minute to everybody, so we may not get everybody in.

Let's go, Tom, for four minutes.

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

I know that there are probably many more questions than we have time to get answers to, but it strikes me that in most cases when we're trying to resolve a situation, we should go back to the basics and ask what the spirit of the act was to begin with. What was Parliament trying to do? What was our government attempting to do when we established your office?

It would appear to me the spirit is, if you had to balance the scale, to weigh in favour of transparency. That's what the intent is here: to allow individuals who want to find out more about the inner workings of government and have specific questions about particular cases to have the ability to do that through ATIs. I think that should be our guiding light in any considerations we have, and I hope you agree.

Honestly, the more I hear you both speak and the more I hear the interventions from my colleagues opposite, I can't see any other true resolution unless we do make amendments to the act. I share your views on that. I think the challenge for our committee, if we want to provide clarity to the highest degree possible, is to determine exactly how those amendments are brought forward. The precision of wording will obviously be a part of that, but what do we need to do in order to amend the act to satisfy both the requesters' rights and the rights of Parliament? That's a great premise to begin, but I haven't got an answer just yet. I was looking for a little guidance.

I'd like a couple of comments on whether you think we're perhaps going on the right track.

[Col Michel W. Drapeau]

You're very right. The aim of the act is transparency and accountability, and it has been said over and over again by the court. In some ways you're going against the principle of the act itself. You are also going against a trend. The British House of Commons is now subject to the act.

If you want to retrench from that and say we're going to be having an exclusion or an exemption, you want to do it with some measure of caution, because from a political standpoint, with respect to transparency, you want to make it a little less transparent than what it actually is at the moment.

Whether or not you use a more cautionary approach for documents that are being released to government institutions, with the knowledge that some but not all of those documents may be accessible without having to submit a request, if it does happen, then you no longer should be able to count on getting notice, because you really are not entitled to such notice. Once the access to information coordinators have these records, they will process them as they do with all other records and probably will make them available to the individuals who have requested them.

The final analysis is whether or not the risk to the parliamentary privilege—and really that's what it boils down to—is such that you cannot take any risk of having any of it being disclosed, and by so doing, then you have to go to an exclusion or an exception.

[The Chair, Conservative, Joe Preston]

We'll have Madame Legault on that topic.

[Suzanne Legault]

Essentially, if there were consideration for an amendment, I think one would have to determine the exemption of parliamentary privilege. I really am not supportive of exclusions. I'm not supportive of mandatory class exemptions. I think it should be discretionary.

Second, I think you have to deal with the process for institutions to consult Parliament and therefore the timelines and whether or not it's a mandatory consultation with Parliament.

Third, you have to provide for a process within Parliament to answer to the government institutions, as they have, I believe, in the U.K. or Australia, where they have a certification process within Parliament to determine whether it's a parliamentary privilege matter or not.

I think if you did that, you probably then get very close to the Bayle decision, wherein the court basically says once there's an assertion of parliamentary privilege, they're not going to lift the parliamentary veil, if you wish, if I was going to make a parallel with the corporate veil.

To me, those would be the components that the legislator would have to look to.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Cullen is next.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I have two quick questions following up on my friend's comment about Parliament maybe being exposed to losing a case in court around this particular topic.

With so many interested groups around the country engaged in access to information, do you have any ideas as to why this hasn't been tried if the act is so potentially in conflict?

Second, there was an assertion made that government departments would also be broadly covered, if I'm understanding this correctly, by this parliamentary privilege component. Have we seen evidence of that? I may have missed that in your testimony. Am I misreading what you said earlier?

[Suzanne Legault]

Perhaps I didn't express myself properly. I haven't had a case as a complaint in which this issue has arisen.

As I expressed before, my concern is that it may be occurring, but it's not being disclosed either to the requester or to my office through a complaints process that the real reason for not disclosing is that the House has asserted the parliamentary privilege. I haven't seen that. It is disquieting.

I'll give you an example within my own office of an issue that arises from time to time. When I prepare report cards, the report cards are always tabled in Parliament as a special report to Parliament under my legislation, which is very specific in terms of how I give special reports to Parliament.

Before the report cards are finalized, I send them to the institutions that are the subject of these report cards for them to review and to check for accuracy of facts and so on, and make some corrections of factual information if need be. It has occurred that someone, an institution, has said we have had a request for this information. I say that it's protected by parliamentary privilege, that it's a report I'm preparing for Parliament and I'm an agent of Parliament. However, it's very awkward, because there is no such thing.

Probably in the future I'll have to do these report cards under a formal investigative process to avoid this issue occurring. It shouldn't be. There should be a provision for that so that Parliament tells institutions, should you have information under your control, that the House or the Senate somehow has been certified to be protected by parliamentary privilege, and you have the right under this scheme to refuse disclosure. That's what we are looking at.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I know that Mr. Drapeau has some answers. I also want to make some time available for Mr. Scott to ask a question at the end.

[Col Michel W. Drapeau]

About 4% of the requests lead to a complaint, so it's not surprising that even over the past 30 years, this hasn't surfaced yet. Perhaps, given the publicity this is given, it might, and sooner than we'd want it to. I'm not surprised by it.

[Craig Scott, NDP, Toronto—Danforth, ON]

I just wanted to clarify one thing.

It's great that this discussion has led us to the point where we're thinking about an amendment to the act. I just wanted to be clear about one thing.

Some of the recommendations you referred to, Madame Legault, did not simply list parliamentary privilege so that a third-party process could tap into that exemption; they recommended listing Parliament in schedule 1, as is done in Quebec and in some other Westminster jurisdictions.

Do you have a view on that issue?

[Suzanne Legault]

I am of the view that public institutions that receive public funding and that spend public funding should be covered by the Access to Information Act—that is, requesters should have the right to make an access to information request.

I think that as far as the administration of Parliament is concerned, as far as its administration of public funds is concerned—I'm not talking about political information—it should be subject to the Access to Information Act. That's what they have in the U.K. That's what they did in Newfoundland. I think it is appropriate, and yes, that would be my recommendation as well.

[Col Michel W. Drapeau]

If I can echo that, I'm in fact on the record as having said that on a number of occasions, starting in the book you have before you. I would certainly have the House of Commons, the Senate, the Governor General, and the court administration subject to the act, with no exceptions. Make the act universal.

[The Chair, Conservative, Joe Preston]

I have no one else on my list.

Everything you've said brings another question to mind, but there is not going to be time today to answer all of them. I'll entertain a couple more one-off kinds of questions.

We'll go to Mr. Lukiwski for a minute or two.

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

Madame Legault, I assume, perhaps incorrectly, but I hope I'm correct in my assumption, that you have examined some of the provincial access to information acts and how they deal with privilege. You've cited Quebec, of course.

In your examination of the provincial legislation, is there anything that would be problematic if we tried to replicate some of the provincial legislation? Clearly there are differences between the federal and provincial legislatures on a number of different levels, but specifically on this point, do you see anything that would be problematic? I believe that if we're going to do any kind of examination, we're going to have to take a look at what the provinces do.

[Suzanne Legault]

Well, I have an issue with the Quebec legislation. Even though the National Assembly is covered, parliamentarians have full discretion without any parameters on how that discretion is exercised in terms of what can be disclosed. I certainly have an issue with that model.

I'd have to look at the different jurisdictions a lot more closely. I'd probably look at the Alberta one, because P.E.I. is essentially a model of Alberta.

I'd like to speak to my colleagues in Australia and the U.K., actually. That's where I would like to go. I do look at provincial legislation, but I like to look at national legislation because there are different considerations for nations as a whole versus provinces.

I would like to come back to the committee, should you wish to have a more in-depth study.

[The Chair, Conservative, Joe Preston]

All right. We will keep that in mind, and as you gather information, we'll find a way to transfer that back and forth.

Monsieur Drapeau, do you have something on that piece?

[Col Michel W. Drapeau]

Yes.

Mrs. Legault and I agree. I don't think Quebec would be the model I would go to, unless you wanted to have the House of Commons added to schedule 1. That is, it would be subject to the act. This is not what we're discussing here today. If it is to look at parliamentary privilege information being disclosed by federal institutions as we know them now, I would not use this as a model. I'd rather look at what the U.K. and Australia and perhaps some other provinces have done.

[The Chair, Conservative, Joe Preston]

Mr. Williamson, you can have a short question.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Ms. Legault, I might have misunderstood, so I thought I should ask again.

You were saying, and I don't want to put words in your mouth, that when you prepare these report cards, if the raw documents were requested, they're protected by parliamentary....

[Suzanne Legault]

As Information Commissioner, as an agent of Parliament, if I prepare a special report to Parliament and it's disclosed when it's sent to an institution for comments, that would cause me personal embarrassment vis-à-vis Parliament, because this is something I'm preparing for parliamentarians. Since there's no such exemption in the act, I've reconsidered how I will conduct these report cards. If I do them under a formal investigation, then they're protected by the confidentiality provisions for investigations under the act. That would not be my preferred route, but it's another example of what people are now having to do in certain circumstances in order to ensure that matters you would expect to be protected by parliamentary privilege are actually protected.

In the meantime, given that this is the situation when information is shared between Parliament and institutions, perhaps before information is shared there should be a consideration in Parliament as to whether or not this could be an issue if it were disclosed by the federal institutions covered under the act. Once it leaks, there could be an argument for a presumption, akin to solicitor-client confidentiality, that there is a waiver of privilege at that time.