Public Accounts Committee on Feb. 15th, 2011

[Chantal Bernier]

Absolutely. If you indeed look at the act--I'm going to ask my colleague to give me her assistance--you see that our own investigations are confidential. It says clearly that they are confidential. And yet there is a second paragraph in relation to our investigations that reads:

However, the Commissioner shall not refuse under subsection (1) to disclose any personal information that was created by the Commissioner or on the Commissioner’s behalf in the course of an investigation conducted by, or under the authority of, the Commissioner once the investigation and all related proceedings, if any, are finally concluded.

So we have that exception that at the end we can indeed reveal the investigations. In fact, if you look at our annual report on the Privacy Act, you will see a description of salient investigations.

If you compare that to the provision relative to the Public Sector Integrity Commissioner, you will notice that there is no such exception that the investigation can become public once it is concluded. That's what we mean by saying that they have an even higher threshold of confidentiality than our own investigations.

[David Christopherson, NDP, Hamilton Centre, ON]

Bear with me: so this is speaking to any information that you acquire or accumulate as a result of an investigation; that is in a separate category from other information.

Is that right? Is that what you're saying--the fact that it was found in the course of the investigation?

[Chantal Bernier]

Yes, that is how the provision is written.

[David Christopherson, NDP, Hamilton Centre, ON]

Okay.

[Chantal Bernier]

Essentially everything that we gather to--

[David Christopherson, NDP, Hamilton Centre, ON]

Why would that be? Can you help me understand? What's the rationale behind that?

[Chantal Bernier]

Well, because there is sensitive personal information, it by nature--

[David Christopherson, NDP, Hamilton Centre, ON]

Yes, but I'm assuming there's personal information all around a given file. This is particular information that's found during the course of an investigation. So if you find reference to a letter and material, that could be captured by privacy if there's personal information. If you go and get a copy of that letter or a subsequent follow-up letter to it, because it was found in an investigation as opposed to already being there when you started, that differential alone means it's treated differently...?

I'm just trying to understand why. They're both private information.

[The Chair, Liberal, Joe Volpe]

Madame Bernier, you're going to have to answer that when you get a chance, okay?

[Chantal Bernier]

Well, the--

[The Chair, Liberal, Joe Volpe]

No, I'm sorry, you'll have to hold onto that--unless my colleagues on this side want to give up some of their time to have you answer it.

Mr. Saxton.

[Andrew Saxton, Conservative, North Vancouver, BC]

Thank you.

My questions are for Madame Bernier.

In your opening remarks, in the second to last paragraph, you state:

...information (and not only personal information) should only be disclosed when it is “required” by law, and not only “authorized” by law.

And then in the following paragraph, you go on to state as follows:

...we also believe it is possible that the personal information requested should be limited to what is necessary to keep public servants accountable without jeopardizing the intent of the Public Servants Disclosure Protection Act.

Well, in your opinion, who should be making those decisions? Obviously some of them are subjective.

[Chantal Bernier]

The committee should. As I was saying earlier, it is at the committee's discretion to assess, to ponder public interest and how far is necessary to go to fulfill your legitimate objectives.

[Andrew Saxton, Conservative, North Vancouver, BC]

Okay. Thank you.

Next, what is Parliament's obligation, if any, to ensure the privacy of individuals whose information may be disclosed as a result of a blanket request for papers and records? What is Parliament's obligation?

[Chantal Bernier]

It's to respect the intent of the law. When we look at the legislation that created the office of the integrity commissioner, we see this very high threshold of confidentiality precisely to allow the disclosure, precisely to ensure that people will come forward with allegations as they occur, with the lacks of integrity that they observe.

So protecting that is systemic, is to ensure that the whole system, the whole regime that has been set up, is indeed robust and sound.

[Andrew Saxton, Conservative, North Vancouver, BC]

What are the legal obligations of Parliament, then, in handling that confidential information?

[Chantal Bernier]

The general legal principles are that privacy should not be invaded beyond what is strictly necessary in relation to a legitimate objective in a manner that is proportionate to that objective. Those are the considerations that we feel should guide the decisions of this committee, as any other public institution.

[Andrew Saxton, Conservative, North Vancouver, BC]

Okay.

I'd just like to read another quote from an opening statement that says, and I quote:

As the witness has not been served with a summons, a finding of contempt of Parliament would seem premature at this time....

To either witness, do you feel there is some other course of action that the committee could take prior to that?

[The Chair, Liberal, Joe Volpe]

You have 20 seconds.

[Rob Walsh]

That statement was with reference to the option of seeking a finding of contempt of Parliament in particular. Now, the committee could well report to the House and propose that other actions relative to a breach of privilege be taken, short of contempt of Parliament, or that the finding of contempt of Parliament be conditional on the individual taking certain steps--in which case, if those steps were taken, they'd be purged.

[The Chair, Liberal, Joe Volpe]

Thank you, Mr. Walsh and Mr. Saxton.

Mr. D’Amours.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Thank you, Mister Chair.

Ms. Bernier, my question builds on Ms. Faille’s earlier comment. I would like a yes or no answer to a pretty straight forward question.

In principle, should the Public Sector Integrity Commission and the Privy Council Officer exchange the names of those public servants who have complained to the Integrity Commission?

Ms. Faille stated that there should be no problem. However, this has raised a question in my mind. The Commission’s goal is not to protect federal whistle-blowers. Consequently, should we not expect to see the names of specific public servants in the documents that we have subpoenaed from the Privy Council Office?

[Chantal Bernier]

In principle, no.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

That being the case, what would be the consequences of names being blacked out just before the documents are handed over to us? I am sure we could obtain the procedures in place for this type of situation.

[Chantal Bernier]

Before thinking about consequences, it would be appropriate to determine whether disclosure was authorized and legitimate. As I said earlier, there are exceptions to the non-disclosure requirement. Consequently, the first step would be to determine whether any exceptions applied. If there were none, this would constitute a breach of the Privacy Act.