Public Accounts Committee on June 18th, 2009

[The Chair, Liberal, Shawn Murphy]

I call the meeting to order.

On behalf of all members of the committee, I want to extend to everyone a very warm welcome. This meeting is going to be in two parts. The first part is to deal with an ongoing issue that we're dealing with regarding a motion adopted by the committee on Tuesday, May 12 concerning audio recordings relating to the study of chapter 3, “Contracting for Professional Services--Public Works and Government Services Canada”. It relates to the committee's request for the production of 18 audio cassettes, or tape cassettes, in their unaltered state. It was originally agreed to, and then it is my understanding of the process that the agreement was denied because it was felt to be an access to information request. Then when that was resolved, the answer came back that it was a Privacy Act situation, and it would have to be altered to satisfy the provisions of the Privacy Act.

It's certainly my opinion--and it is one shared by many others in the parliamentary world--that statutes of general application do not affect the powers or the privileges of Parliament, and that Parliament, and of course committees of Parliament, are entitled to seek the production of persons, papers, or records, and that would be in their unaltered state. Now there will always be issues of confidentiality. There are issues of state secrets. There is the issue of it not being appropriate for us to receive them, or if we do receive them that we receive them in secret, or in camera, but I don't see that being the case here. We've had a number of legal opinions given to the committee, but before we went any further on this particular issue, we thought it would be appropriate and prudent for us to hear from the solicitors advising the Department of Public Works and Government Services as to the basis of their opinion, and also the precedent that they're relying on to deny Parliament its request for the documents or the paper of the records in question.

First of all, I'll introduce the witnesses. I understand the opening comments are going to be delivered by the associate deputy minister. We again welcome Daphne Meredith, associate deputy minister, Public Works and Government Services. She's accompanied by Caroline Weber, assistant deputy minister, corporate services, policy and communications branch; Ellen Stensholt, senior general counsel; and Christine Payant, director general, product management. Thank you again for coming.

Madame Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Chair, I would like to inform the committee members that, for the past three weeks, I have been analyzing all of the audio tapes that were given to us, and I am now finished. That is the kind of job that I would not wish on my worst enemy.

What I found was pretty interesting. I would like to tell the committee members about a report that I prepared. It summarizes the parts of the recordings that I think need to be pointed out. I also wanted to specify for committee members which sections were not part of the recordings, something that I was able to confirm because the agenda for consultations was made public. So we knew who was supposed to speak and when, which allowed us to determine who was not on these tapes.

I was wondering if I could have five or six minutes of the committee's time at some point to talk a little bit about my findings, but we could still discuss and debate the report's content in the fall. I wanted the committee to know about the work I had done, and that I was ready to table my report.

[The Chair, Liberal, Shawn Murphy]

Sure.

Why don't we do it this way: if it's the consensus of the committee, I'd like to have the opening statement first; then I'll give you the floor for, let's say, seven minutes, Madam Faille. Is that fine?

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Oui.

[The Chair, Liberal, Shawn Murphy]

Ms. Meredith, your opening comments, please.

[Daphne Meredith, Associate Deputy Minister, Department of Public Works and Government Services]

Thank you very much, Mr. Chair. I also want to thank you for introducing my colleagues who are with me today.

Thank you for the opportunity to explain PWGSC's actions regarding the audio recordings of our industry consultations on the Government Enterprise Network Services.

By way of background, let me begin by outlining the origins of these consultations on which the audio recordings in question are based.

On June 17, 2008, PWGSC committed to formally consult with industry on the implementation of IT shared services and government enterprise network services, or GENS. This commitment was in response to concerns raised by members of the IT industry before the Standing Committee on Government Operations and Estimates with regard to the government's bundling of procurement of IT products and services.

Accordingly, three separate consultation sessions were held between December 2008 and February 2009, with 141 company representatives confirming their attendance. We prepared an extensive report on these consultations. This was then sent to the committee on operations and estimates, as well as to your public accounts committee, on May 7. The report was released publicly that same day, with a communiqué that also noted the favourable response of many members of the industry to the consultation process and its results.

On March 24, the committee asked us to provide as well the audio recordings of our consultations. We have worked diligently to comply with this request.

As part of the consultation process, I should note that we advised the participants that we would record the proceedings to help us prepare a summary report on the industry consultations, which, in turn, would be made available to the public. It was never the department's intent to make the recordings public.

After this committee requested the recordings, Department of Justice lawyers advised that the names of the industry participants, in combination with the names of the company they represented, is considered personal information within the meaning of section 3 of the Privacy Act. Under this interpretation, as per subsection 8(1) of the act, participants' names cannot be disclosed without their consent, except where the information is publicly available or in accordance with subsection 8(2). None of the provisions under subsection 8(2) would appear to apply in this case.

Following a review of 31 hours of recordings, stored on 18 compact disks, it was determined that consent would need to be obtained from 16 of the consultation participants. The names of the other industry representatives were found to be publicly available.

On May 15, the department sent letters to the 16 individuals requesting a reply by May 22. Five individuals declined to grant consent, one could not be located, and one was away and could not be reached. As a result, on May 26, PWGSC provided the committee with 12 of the 18 CDs in their entirety. The remaining six disks were provided to the committee on May 29, after the department had deleted the names of the five individuals who declined to provide consent.

Unfortunately, during the editing and removal of the names some errors were made. A new, complete set of CDs was delivered to the committee on June 15, with the errors rectified.

We want to stress to the committee that the seven participants' names are the only information missing from these recordings and that these were removed for the sole purpose of allowing us to meet our obligations under the Privacy Act. In all, about 12 seconds of recording time have been redacted from a total length, as I mentioned, of 31 hours.

We have acted in a manner consistent with our legal advice to uphold the act to protect the rights of individuals whose personal information is held by the government.

To conclude, Mr. Chair, I would like to underscore again that, in all of its actions, PWGSC has worked diligently to respond to the committee's request, while at the same time respecting our statutory obligations under the Privacy Act.

I'm happy to take your questions.

[The Chair, Liberal, Shawn Murphy]

We'll allow you up to seven minutes, Madame Faille, to make whatever presentation you want to make.

[Terence Young, Conservative, Oakville, ON]

On a point of order, Chair, my concern is that we've now heard that nothing's missing but a few names and that we're in danger of offending or breaching the Privacy Act.

I just want make sure that in Madame Faille's presentation, the names aren't revealed inadvertently or advertently.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I do not have any names.

[Terence Young, Conservative, Oakville, ON]

Thank you.

[The Chair, Liberal, Shawn Murphy]

Go ahead, Madame Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I would like to thank the committee for giving me the chance to table my report. We had an opportunity to receive documents from Public Works and Government Services Canada (PWGSC), namely, a report and recordings of consultations with industry representatives concerning large information technology (IT) projects on shared networks and Pillar 1, Government-wide Enterprise Network Services.

Through its deputy minister, François Guimont, PWGSC promised a business case and recordings of the public consultations. The committee has received an operational justification that does not constitute a business case and recordings from which portions have been deleted without explanation.

First, I would like to remind you that the Standing Committee on Public Accounts has conducted a number of reviews of IT projects and, more recently, of the associated professional services. That is why we are currently reviewing the professional service contracts.

The Auditor General has been submitting reports on large IT projects since 1995. So the committee has 14 years of experience in this area. At its meeting on March 24, PWGSC undertook to provide the committee with a business case and videocassettes from the consultations that took place.

Before I go into the business case, I want to remind you of the committee's positions. I would like to spend a bit of time on the recordings of consultations, which can be found on page 2 or 3, depending on whether you have the English or the French version.

PWGSC was to provide transcripts of the videocassettes of the public consultations. After a series of discussions, PWGSC officials agreed to supply the recordings of these consultations. In the May 26 letter, the deputy minister informed us that some cassettes would be altered, that the discs were being reviewed and that the names of individuals who did not consent to disclosure would be deleted, in accordance with the Privacy Act. That is what the deputy minister has just confirmed.

However, what I read of the content of the recordings was not the same as what the department read. In my report, I talk very frankly about what I did not find, and I have questions about why these sections of the presentations were deleted. I refer to what we were told here. I have the corrections. I still found sections that were deleted on the cassettes. We have the agenda, so you can do the same thing I did and come to the same conclusion.

Accordingly, the entire morning of January 15 is missing. On disc PM1, on the afternoon of January 15, at 2 min 16, presentations are missing. On disc PM1, a portion of a presentation is missing on the afternoon of January 15, from 16 min 40 to 17 min 07. I list the missing presentations in my report, so I will spare you the details of what was deleted. But, on the afternoon of February 5, on disc PM2, around 20 minutes of presentation are missing. The same goes for the morning of February 6 on disc 3. The list is in the report. I invite you to watch the tapes. I will probably have questions for you about what exactly you deleted from those tapes.

I also contacted some representatives of organizations whose presentations were deleted. That enabled me to verify that these people were not contacted, and that the deletions from their presentations were not made to protect their identities, but rather for other reasons of which I am not aware.

Given the length of the deletions, I take issue with the deputy minister's report. Approximately seven hours of presentations are missing. I want PWGSC to supply a list of the individuals with whom the department corresponded or who confirmed their willingness to be identified, how they were contacted, who made the deletions from the recordings, and the reasons for those deletions.

More than once, PWGSC officials told us that they were going to make the recordings available. In our conflict of interest study, we examined the control that departments have over the terms of a contract, the scope of the work to be carried out, the costs and the business cases.

In the recordings made available for the afternoon of January 15, Public Works said that it was looking for two firms to qualify to do the work and that when those firms were known, Public Works would begin assessing the costs and doing a business case. I would say that that goes against the committee's positions, and that it is unacceptable.

What I can say right now about the content of the recordings is that there were clearly no specific or measurable objectives during the consultations, nor were there any potential cost-benefit estimates. And the risks associated with this new approach to supply the technology sector were not identified. The possible offshoring of jobs was not ruled out, and there was no mention of the impact on small and medium-sized enterprises. So, without matching up statements, I know that the committee could study the entire file. But I have questions about why the department is hindering our work and not sending us information.

Do I have two minutes left for my conclusion?

[The Chair, Liberal, Shawn Murphy]

You're pretty well out of time.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Fine. You will find the rest in my report. I end with a few recommendations for the committee.

[The Chair, Liberal, Shawn Murphy]

Okay.

Thank you very much for your work. I make the assumption that you're probably the only person on the committee who listened to the tapes, so thank you for that, and thank you for your report.

I want to remind members of the committee that there are two issues here. One issue is that our legal counsel, certainly, is of the view that the Privacy Act does not apply at all to this discussion. Madame Faille raises another issue that there are two conflicting versions of how much of these tapes have been deleted and what deletions have been made, which is relevant, but it's unrelated to the first issue.

What I'm going to do is to have one round of five minutes, first of all, to see how we get along.

Who is to speak on the Liberal side?

Ms. Hall Findlay, you have five minutes.

[Martha Hall Findlay, Liberal, Willowdale, ON]

Thank you very much, Mr. Chair.

I thank everybody for being here.

Merci, Madame Faille.

Clearly a number of questions jump out at us from what Madame Faille has said.

I have a couple of questions, and because of the limited time, short answers would be much appreciated.

The first question that comes to mind, given what your report said, Ms. Meredith, and what Madam Faille's did, is that on the one hand only a very small amount of taping was taken out to protect the identity of certain people, but on the other hand, according to Madame Faille's review of the tapes, it sounds like a great deal of time was deleted.

Can you speak to that discrepancy, please?

[Daphne Meredith]

Chair, I can't speak to the discrepancy.

What I can speak to is the fact that my staff made the deletions targeting the names. They then verified the deletions to ensure that it was just the names they had properly deleted. The information that came back to me was that it had been done correctly. Unfortunately, it took two passes through to do that properly, but my information is that only the names have been deleted.

Therefore, I'm surprised to hear today that there's a different view. So I can't explain that.

[Martha Hall Findlay, Liberal, Willowdale, ON]

There are other questions, but I would hope, given the discrepancy, that somebody would go back and take what Madame Faille has pointed out and either confirm that those sessions were not taped or explain the deletion.

I had understood, because of our work on the public works committee, that the consultations had been done for the most part, if not completely, with a number of people in the room. Were, in fact, a number of these consultations engaged in on a one-on-one basis with participants?

[Daphne Meredith]

No. There were three sessions: one in December, one on January 15, and one between February 4 and 6. All of them were held with many industry representatives present, as well as many executives and others from the federal government. So there was a group.

[Martha Hall Findlay, Liberal, Willowdale, ON]

But clearly there were industry participants who might have had different vested interests in where the GENS project was going to go, or some of the other aspects of the subject of the consultations. What I'm trying to get at is whether there were different people who might have had differing interests in the room at the same time.

[Daphne Meredith]

Yes, indeed. In fact, the staging of the consultations was posted on MERX, which is sort of a general information system that suppliers use. So it was an open invitation for diverse representatives of the industry who might have an interest to attend.

[Martha Hall Findlay, Liberal, Willowdale, ON]

Madame Faille has pointed out—and we in Public Works had a bit of the same frustration in the request for a business plan. In our committee, we had much discussion over whether the business rationale that PWGSC provided us was the same thing as a business plan. We certainly had much toing and froing in that discussion.

But I will say that one of the reasons we had asked for the business plan was out of a concern that had been raised about bundling of contracts with regard to professional services. And when the department came out with a business rationale, it seemed to address, in fact, a number of those concerns, particularly the decision not to bundle, in particular, with professional services.

My question, though, is this: were the participants in these consultations provided with a copy of the business rationale that we were provided with at committee, and if not, why not? But if so—

[Andrew Saxton, Conservative, North Vancouver, BC]

Mr. Chair, I have a point of order.

I'd just like to remind my honourable colleague that we're here today to discuss the tapes. We're not here today to discuss the business case. That's a completely different matter. So if you have issues about the tapes, then please—

[Martha Hall Findlay, Liberal, Willowdale, ON]

But with respect, I'm trying to get at whether there was any reason to delete any information on the tapes. So my question is, if the business rationale provided was provided to all of the participants in the consultations, have you had complaints or have you had some view that participants were not adequately heard?

[The Chair, Liberal, Shawn Murphy]

I'm going to allow the question. Then you'll have 40 seconds left, Ms. Hall.