There are a lot of questions there, sir.
I think, first of all, we really did not look into specific amendments or specific language. At first glance I would not recommend doing it in section 13, because it's a mandatory exemption. I think it should be a discretionary exemption, which would actually give Parliament the option, in its discretion, to disclose information nonetheless—to waive its privilege, basically. I think we should keep that option open.
The task force in 2002, which is the text I have before me, sir, recommended that:
the Act apply to the House of Commons, the Senate, and the Library of Parliament;
the Act exclude information protected by parliamentary privilege, political parties' records and the personal, political and constituency records of individual Senators and Members of the House of Commons; and
Parliament consider whether the appropriate second tier of the redress process is judicial review following a complaint investigation by the Information Commissioner, or some type of review by Parliament itself.
Again, the task force in 1986.... I have the text on my BlackBerry, but I can forward that to the committee.
Essentially, I think what the committee is grappling with is what you posited in starting your question, sir. We have the Access to Information Act and we have these constitutionally protected rights of Parliament—fair enough. I think if you had several constitutional scholars and several scholars in terms of House of Commons procedures, you could have quite a lot of arguments in relation to the interaction between these two statutes. I don't think I can try to give you a definite answer on that. I don't think I have the expertise to do that.
What I'm trying to explain to the committee is that regardless of how you determine that question, the way the act is silent right now is going to lead us to court if we don't amend the act to actually clarify the protection of the privilege and the process by which this privilege is asserted.
I am extremely concerned from what I heard was presented before the committee: that some form of informal process seems to have developed among government institutions and parliamentary representatives whereby someone—and I don't know who and I don't know under what authority—asserts that information is protected by parliamentary privilege, and that government institutions are actually refusing disclosure to requesters using the exemptions in the act, when in fact they're refusing disclosure because someone has asserted a claim of parliamentary privilege.
This means that the requesters are actually not apprised of the real reasons that they're being denied disclosure, and if they complain to my office, I will have very little means to know this is actually what has occurred unless there is some note in the processing file in the government institution that states that's what happened.
So I'm very concerned. Regardless of how we decide the constitutional issue here about what is happening to requesters' rights and how it affects my ability to review and provide oversight of government decisions on disclosure, that's really my concern, sir.
In terms of how we specifically amend it, I think we should look to what's done in other jurisdictions in Canada and what's done in the U.K. or Australia. Frankly, I have not had the opportunity to speak with my colleagues in the U.K. and Australia, but I think it's quite instructive that two other Westminster parliamentary democracies have found it necessary to actually provide for the issue of parliamentary privilege specifically in the access to information legislation, and really it's to avoid the type of issue that we're now faced with.