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

[The Chair, Conservative, Joe Preston]

I call the meeting to order.

Good morning. We will begin again, and hopefully we can get through this hour without any further interruptions.

I apologize to our witnesses for some votes and such in the House that have caused us to have to do this a different way. It may not be as productive as it might have been the other way, but we will see what we can do.

We have Madame Legault, the Information Commissioner, and Monsieur Drapeau. We did have you as two separate panels, but we are going to try to put it together and we'll see what we get. If we need more of your time, we may ask that of you.

Madame Legault, I will ask you to start. You have an opening statement for us.

Monsieur Drapeau, do you have an opening statement?

[A voice]

I do.

[The Chair, Conservative, Joe Preston]

Madame Legault, please also introduce the associate you've brought with you. After opening statements, we will go to questions by members.

Please go ahead.

[Suzanne Legault, Information Commissioner of Canada, Office of the Information Commissioner of Canada]

Thank you, Mr. Chair.

I'm accompanied today by Ms. Emily McCarthy. She is the Assistant Information Commissioner of Canada. Thank you for asking me to appear before you today. I've been following the committee's work on this matter, as I was notified of the application to the Federal Court that triggered the study before your committee, so I welcome this opportunity to provide information about the Access to Information Act.

Mr. Chair, how access to information rights intersect with parliamentary privilege is a complex matter, and I certainly do not purport to be an expert in the field of constitutional law or parliamentary privilege. Our representations are drawn from my perspective as the independent oversight on disclosure decisions of government institutions that are covered under the Access to Information Act.

As Information Commissioner, I have a statutory duty to investigate any complaint made in relation to requesting or obtaining access to records under the Access to Information Act.

The act contains a number of exemptions and exclusions upon which disclosure may or, in some instances, must be refused. These include exemptions for personal information, for information that could reasonably be expected to threaten the safety of individuals, information that is an account of consultations or deliberations involving government employees, and information protected by solicitor-client privilege.

However, there is not currently an exemption or exclusion in the act addressing explicitly parliamentary privilege.

The act also provides that a request must be responded to within 30 days. This period may be extended for a reasonable period of time to consult other government institutions or third parties in two circumstances.

First, an institution may consult a third party if consultations are necessary to comply with the request. The validity of such extensions, including the reasonableness of the length of time and the necessity of the consultation, is considered on a case-by-case basis by my office. When such consultations are conducted, there is no recourse set out in the act should the institution disagree with the recommendations made by the consulted third party.

Second, a government institution may extend the 30-day response period to consult a third party when the record at issue may contain third party information that is confidential commercial, technical, or financial information or when the disclosure of the information could result in injury to contractual negotiations or the competitive position of a third party. The third party consultation process set out in the act in these circumstances has strict statutory timelines and provides a specific judicial recourse should the institution not agree with the response of the third party to the consultation.

As an aside, it is not readily apparent to me that the type of information that may be protected by parliamentary privilege would qualify as the type of primarily commercial information that is protected under section 20 of the Access to Information Act.

I mention this specifically, Mr. Chair, because this seems to have been the process that was followed in the case with the Office of the Auditor General, but it's really not clear to me how that process was actually appropriate under the act.

Given that the act is silent with respect to parliamentary privilege, its intersection with access to information rights raises a number of pragmatic issues. The list of examples I am providing you with today is certainly not exhaustive.

For instance, in the absence of a specific statutory provision for parliamentary privilege under the act, there is currently no obligation for government institutions to consult Parliament prior to making a disclosure decision.

This means that there is no way for Parliament to know whether information that could be protected under parliamentary privilege is being identified as such or released by government institutions. There is no process for government institutions to determine who has the authority to invoke or wave parliamentary privilege. It appears that, in the few cases Mr. Bosc brought up before this committee during his testimony, representations were made concerning the existence of parliamentary privilege by individuals other than the Speaker of the House.

I am not an expert on parliamentary privilege or parliamentary procedure. That is why all of you here may correct me if I am wrong, but, according to my readings, the Speaker of the House is the only person with the jurisdiction to make a prima facie determination of what constitutes an issue of parliamentary privilege. When he is unable to determine whether the issue is a prima facie parliamentary privilege, that question or decision must be transferred to the House of Commons.

In the face of an assertion of parliamentary privilege, government institutions are faced with a dilemma because there are no specific exemptions or exclusions dealing with parliamentary privilege under the act. However, such a decision affects third parties that submit requests to institutions covered by the act.

If the assertion of parliamentary privilege is the basis for not releasing information to a requester, is the decision to refuse disclosure by a government institution a valid one under the Access to Information Act?

If the assertion of parliamentary privilege is the basis for not releasing information to a requester but the government institution listening to an assertion made by someone who works in the House of Commons or the Senate uses other exemptions or exclusions to withhold the information, notwithstanding that no exemption or exclusion under the act applies directly, what is the impact on requesters' rights when they are provided with, in effect, a false reason or a misleading reason to refuse disclosure?

Would this information have been provided to the requester in the absence of this assertion of parliamentary privilege?

What is the impact on transparency in the process, and further on the ability of my office to effectively review a government decision to withhold information when a false pretence might have been used?

These are only a few of the questions, Mr. Chair, that actually come to mind when one considers some of the instances that have been referred to this committee in its review of this issue. In my view, the best way to protect requesters' rights and to ensure transparency, accountability, and effective oversight would be to amend the act to cover the administrative records under the control of Parliament, while adding a specific exemption to deal with parliamentary privilege.

This amendment should also clarify who has authority to assert the privilege for purposes of the act. Both the Standing Committee on Justice in 1986 and the access to information review task force in 2002 have made this recommendation.

Internationally—and I believe I've provided the committee with a table with a short international benchmarking—two Westminster jurisdictions have actually addressed this issue specifically in their freedom of information legislation. The U.K. legislation applies to Parliament and exempts records if their disclosure would infringe the privileges of Parliament. In Australia, the Freedom of Information Act specifically addresses the question of parliamentary privilege as well.

Within Canada the provinces of Alberta, Prince Edward Island, and Newfoundland and Labrador have an exemption for parliamentary privilege. In addition, other jurisdictions cover, in one form or another, the parliamentary institutions. Quebec and Ontario, for example, cover some specific records.

Thank you, Mr. Chair.

I will now yield the floor to Mr. Drapeau.

I would be happy to answer your questions.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Go ahead, Monsieur Drapeau.

[Colonel, Retired) Michel W. Drapeau (Professor, Faculty of Law, University of Ottawa]

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.

[The Chair, Conservative, Joe Preston]

Super. Thank you very much for your comments.

We'll go to questions so that we can get in as many as we can.

Mr. Lukiwski, let's try five minutes.

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

Thank you very much, Mr. Chair.

Thank you, Madame Legault and Monsieur Drapeau, for appearing before us.

Thank you, Madame Legault, for your letter, which prompted the invitation to both of you here, although it perhaps raises more questions than it provides answers. I think it's a very worthwhile discussion we're having.

The difficulty, obviously, is the fact that the act doesn't have any reference made to parliamentary privilege, but the Constitution certainly does. From a legal perspective versus a constitutional perspective, that's where we get into almost competing interests. What we're trying to do here as a committee is provide clarity so that we don't end up in court the next time a situation similar to what we've seen in months past occurs again.

I expect, Madame Legault, that it's even more problematic for you, inasmuch as not only do you have to, in your position, respect and almost defend the act, but as an officer of Parliament you also have to respect and uphold the Constitution, so within your decision-making purview you have a bit of a conflict there, I would suggest.

I find it interesting that both of you have recommended that the way to get out of this quandary we find ourselves in is to amend the act itself.

I also note that in your presentation, Madame Legault, you said there had been two recommendations in the past, one in 1986 from the Department of Justice and one in 2002, to do exactly that.

I am not sure, frankly, because that was before my time, why Parliament didn't act on those recommendations. Can you provide us with a little recommendation or a little insight perhaps, if you have that information, as to what specifically those recommendations might have been?

It's one thing to say, yes, you can amend the act, but although Monsieur Drapeau made some reference to it under section 13, what specifically—and I'd like to hear from both of you—would you suggest in terms of clarity of words, precision of words, might we want to consider if we chose to make a recommendation to amend the act?

[Suzanne Legault]

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.

[The Chair, Conservative, Joe Preston]

Thank you very much.

I'm sorry, Tom, but you're well over.

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

That's fine. Are we going to be able to hear a response from Monsieur Drapeau?

[The Chair, Conservative, Joe Preston]

Well, we hope that through others' questions we're going to get there. I would bet that Mr. Scott's going to help you out with that right now.

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

Mr. Drapeau, could you continue, please?

[Col Michel W. Drapeau]

If I can answer the question, I agree fully with Mrs. Legault that at the moment if this were to go to court, Parliament would lose. There's no other way I can say it, and none of us wants that.

Therefore, if you want to impose and assert parliamentary privilege, the act has to be amended. My recommendation, after consideration, was that it be mandatory exemption, so that there's no if or but and no political debate every time over whether or not it ought to be. Then when that information, the fractionary information, was provided to a government institution, it would come under their control, and it would be well known that this information was protected and was excluded under access or privacy.

That's my recommendation on it.

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

If I could follow up on that point, one of the areas parliamentary privilege applies to, at least from the parliamentary privilege expertise side of things, is documents prepared for a House committee but never actually submitted. At least at the moment, it's one view that parliamentary privilege would attach to such documents. If we had a mandatory exclusion, I would worry that even if we, as Parliament, had no objection to those being disclosed, would your solution not actually prevent that from being disclosed?

[Col Michel W. Drapeau]

It wouldn't prevent Parliament, in specific instances, from consenting to disclosure.

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

You'd have that exception.

[Col Michel W. Drapeau]

Otherwise, unless such a consent were to be made in a positive sense on each and every occasion for specific documents, an exclusion would apply. “Make it simple” is what I would say, so that there isn't a debate every time on whether discretion was applied properly.

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

This is for both of you, Madame Legault and Colonel Drapeau.

On the whole question of invoking a ground in the act to deny disclosure where somewhere behind it there's been representation made that parliamentary privilege has been engaged, you have expressed very well why that would be of concern. Nonetheless, there is potentially some overlap in the grounds of exemption under the act and some of the reasons for parliamentary privilege.

Do you have a sense of how much of an overlap there is? If government institutions were very clear that they were exempting this, that they were not disclosing it because of this reason and that they had received some representations related to parliamentary privilege and this was the reason, would that clean it up at all?

[Suzanne Legault]

Well, certainly there is overlap. There's no question about it. There could be information under the control of the institution being exchanged between a parliamentary committee and a government institution. It may deal with personal information or deal with other types of exemptions under the act. If that's the case and those are the exemptions being applied, that's not an issue.

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

So it's section 19 kicking over to section 3 of the Privacy Act. That would be one of the main ones.

[Suzanne Legault]

Of course, and that I have no issue with.

The question you raise is the question of notice to the requester. I'm quite sure that if a requester saw this, and then saw also that we basically applied parliamentary privilege after consulting with Parliament, that again would raise the other issues I was raising. The question would be who made this assertion, because that's the basis of making a claim of parliamentary privilege. There are rules that apply in terms of what is parliamentary privilege. The Vaid case actually made it very clear that if parliamentary privilege is asserted and has an impact on third parties, the court will give this claim of parliamentary privilege a lot more scrutiny.

That's the situation we're in, if that is the case. Frankly, I would think that would lead to litigation.

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

I'll ask my final question and then colleagues will perhaps allow answers to continue.

I recognize, Madame Legault, that you've not asserted expertise in constitutional matters as such. Monsieur Drapeau, public law is a broader area of expertise for you, though.

We have general principles of law that guide how statutory regimes interact. We have a constitutional basis for parliamentary privilege, but it's also stated as part of general law by the Parliament of Canada Act. At all levels, we have the sense that it's definitely part of our legal fabric.

Do you have any advice for us, from just public law principles, on whether a government institution might have latitude outside of the specific terms of the act, or by reading into the act the powers that are not explicitly there? Is there any basis for saying that everything being done here is clearly a breach of the act, or is there some room for creating compatibility so that government institutions can do what they've done?

[The Chair, Conservative, Joe Preston]

Thank you very much.

I'm going to move on to Mr. Casey. I know he wants to hear the answer to that question.

[Sean Casey, Liberal, Charlottetown, PE]

You're absolutely right, Mr. Chair. I thought that question was very well put and I'm looking forward to the answer. Please go ahead.