Mr. Chairman, I was literally brought into this file only a few days ago. The document that was handed to me was a copy of a letter addressed by departmental officials on behalf of the Deputy Minister of Public Works and Government Services to your clerk. The operative paragraph in that letter is as follows:
I am pleased to provide the attached Government Enterprise Network Services (GENS) Business Rationale as well as the Report on Industry Consultations. Madame Faille had also requested a copy of the audio cassettes of the GENS consultations. In accordance with the Access to Information Act and the Privacy Act, we will seek the consent of the participants before releasing the audio cassettes. As soon as we have received the participants' consent we will forward them to the Committee. Should some participants not provide their consent, their personal information will be removed.
I was asked to analyze the legal validity of that argument. I looked at the statutes that were invoked and then arranged a telephone consultation between the clerk and me on one side and what turned out to be a plethora of PWGSC officials on the other side. I don't want to say we argued, but we discussed back and forth the merits of their reasoning, and we came up with the following results.
First of all, I asked for the details of how the GENS consultation had occurred. I was told it was one series of consultations over several days in which a number of corporate entities appeared altogether in front of each other and before the officials of PWGSC. In effect, it was public. It was not public in the sense of being open to the world at large, but public amongst the companies vis-à-vis each other.
On that basis I expressed the view to PWGSC officials that their reasoning for invoking the Access to Information Act really fell by the wayside. I invoked for them section 68 of the Access to Information Act, which effectively says that if something is in the public domain, then the act doesn't apply. Their very quick response to that was, “Well, yes, you're right, the Access to Information Act should not be taken as applicable to this process.”
We then went on to discuss the Privacy Act, and I expressed to them my point of view, based solely on the text of the act, that the privacy legislation is designed to ensure the privacy of individuals only and not of corporate entities. And they agreed with that. I said that the information was in the public domain, as it was discussed in the manner I explained to you, with a large number of companies facing each other and in the presence of PWGSC officials. Therefore, it could not be qualified as being private in nature. Again, there was some grudging consent.
Finally, I said to them that in those circumstances it was very difficult to qualify any particular information as being private, because everybody knew who everybody else was and the companies were not there on an anonymous basis. The company directors, in particular, or the managers who participated in the consultation, were not there on a confidential basis.
That caused a bit of hesitation on their part, but ultimately it didn't induce any change of heart. They offered that the clerk and I ask Madame Faille whether she would accept the report on industry consultation, the business rationale, as sufficient evidence of what had transpired. The clerk's answer was no, that she had already verified with the member and that was not sufficient.
Finally, they said they had already started the process of consulting these companies. This will presumably last until July. I said that was of absolutely no help to the committee because that puts us squarely in the middle of the summer recess. Their answer was that those are the facts.
So, in effect, we came to a draw, and that's as much as I was able to accomplish with them.
