Public Accounts Committee on Feb. 15th, 2011

[Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada]

Thank you Mister Chair.

Thank you for inviting me to appear before the Committee on its study of the Office of the Auditor General’s report on the Public Sector Integrity Commissioner of Canada.

First of all, my apologies on behalf of the Privacy Commissioner as she is ill and not able to be here today. As you said earlier Mister Chair, I am accompanied by Nathalie Daigle, one of our legal counsels.

My comments will briefly summarize the Privacy Act provisions as they relate to the disclosure of personal information and present some issues the Committee may wish to consider as it moves forward with its study.

The two main issues for the Committee to consider are whether the specific documents contain personal information and then the disclosure of that information.

The Privacy Act defines “personal information as information about an identifiable individual that is recorded in any form”. According to paragraph 3(f), this also includes “correspondence sent to a Government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence”.

Federal departments and agencies, subject to the Privacy Act cannot disclose personal information without the consent of the person concerned. However, there are exceptions to this provision listed under subsection 8(2) of the Act.

I will now discuss these exceptions in more detail with special emphasis on paragraphs 8(2)(m) and 8(2)(c).

Paragraph 8(2)(m) of the Privacy Act permits the disclosure of personal information where, in the opinion of the head of the federal institution in question, the public interest clearly outweighs any invasion of privacy that could result from the disclosure; or disclosure would clearly benefit the individual to whom the information relates. It is up to the head of the institution to determine whether the public interest outweighs the right to privacy.

I would like to underline two aspects of 8(2)(m). Firstly, disclosure is discretionary but is subject to a standard of clear public interest.

Privacy does more than protect the individual. Privacy is an important social value that is fundamental to democratic societies. Privacy is a constitutional right, protected by section 8 of the Canadian Charter of Rights and Freedoms, and the Privacy Act has been judged to be a quasi-constitutional statute.

In accordance with these principles, committees should explore with government departments some respectful privacy alternatives that balance a committee's authority with the legal responsibilities of federal institutions. This could be done, for example, through in camera meetings; restrictions and enforcement to guidelines on how documents are delivered, whether electronically or in paper format; and proper procedures for securing that information.

I note this was done by this committee on December 14, 2010, when, after requesting information about 228 disclosures of wrongdoing, members chose not to seek the names of individuals. I think this was a reasonable approach, and I applaud the committee for being able to identify a way to access the information while showing sensitivity to privacy.

It is important to note that the threshold for disclosure under the Public Servants Disclosure Protection Act is set at a rather high level.

Section 22.2 of the Privacy Act, which was added as a result of the creation of the PSIC, states that the Public Sector Integrity Commissioner shall refuse to disclose personal information requested under subsection 12(1) of the Privacy Act (access requests) that was created in the course of an investigation. This is an even higher threshold than our own investigations at the OPC.

Secondly, and although I am not an expert on the Public Servants Disclosure Protection Act, Section 44 of the Act states that information (and not only personal information) derived from an investigation should only be disclosed when it is “required by law, and not only authorized by law”.

In conclusion, we recognize Parliament’s authority to compel the production of documents that are necessary to do its work, but 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.

Thank you and I look forward to your questions.

I'm open to any questions.

Thank you.

[The Chair, Liberal, Joe Volpe]

Thank you Ms. Bernier.

Now I'm going to go to Mr. Robert Walsh, who is at a bit of a disadvantage, because we invited him before my communication with the lawyer.

I've just read his brief, so....

Mr. Walsh, we apologize if the situation is proving to be very fluid, but you have the benefit of a couple of questions you may wish to address in the course of your presentation--or not.

The floor is yours, Mr. Walsh.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chairman.

I have a presentation that was prepared before I was aware you had these exchanges with the lawyer. But I'll proceed with the presentation anyway; it doesn't make a material difference.

I have been asked to outline the options for further action where a witness has not responded to invitations to appear before the committee and has seemed evasive when attempts have been made to contact her. I understand that some members of the committee feel the committee should immediately report this matter to the House and seeks its aid in bringing the witness before the committee, perhaps including a citation for contempt of Parliament.

I understand the witness is presently outside Canada, and she is not expected back until late April. A lawyer has recently contacted the committee clerk and indicated that he has been retained by the witness but that he too is outside the country. He is not expected back in the country for several weeks, I believe.

Nonetheless, it would appear that a channel of communication with the witness is available through the lawyer, and I would suggest that the committee ask the lawyer whether he will accept service of the committee summons on behalf of his client, the witness. It is an important consideration in this case that the witness, for whatever reason, has not yet been personally served with the committee summons.

If the lawyer is not prepared to accept service of the summons on behalf of the witness, the Committee could attempt to effect service upon the witness directly if the Committee knows where she is. While a House committee has no jurisdiction to exercise enforcement powers outside of Canada, service of a document is not an exercise of enforcement but simply the delivery of a document, which can be done anywhere. The summons cannot be enforced outside Canada, however.

An immediate option for the committee is to report this matter to the House to seek the aid of the House to bring the witness before the committee. In its report, the committee should fully set out the facts indicating the many attempts of the committee to contact the witness, and to serve a summons upon her, and the fact that the witness did not appear before the committee when scheduled to do so.

The report should not fail to also point out that the witness has not been personally served with a summons to appear before the committee, though attempts at service were made.

The Committee report might also express the view that the witness’ failure to appear before the Commitee, as scheduled and, if it is the view of the Committee, that her seemingly evasive conduct touches on the privileges of the Committee and, indirectly, those of the House. As privilege is not within the mandate of this Committee, it cannot itself make a determination that the witness has breached the privileges of the Committee or those of the House or that the witness is in contempt of Parliament. This determination is reserved for the House, usually after the matter has been considered by the Standing Committee on Procedure and House Affairs whose mandate includes consideration of matters of privilege when referred to it by the House once the Speaker determines that prima facie there has been a breach of privilege.

Once a report is tabled in the House, any member of the committee, or the chair on behalf of the committee, can rise in the House on a point of privilege and make the case for finding a prima facie breach of privilege. Usually at the end of his or her presentation, the mover indicates to the Speaker that if the Speaker finds a prima facie breach, he or she is prepared to make the appropriate motion. The usual appropriate motion is to refer the matter to the Standing Committee on Procedure and House Affairs for review and a report to the House.

It is not always the case that matters of privilege are referred to the Standing Committee on Procedure and House Affairs. Upon a finding of prima facie breach by the Speaker, the mover could make a motion calling upon the House to affirm that the witness has breached the privileges of the House and its Committees and is in contempt of Parliament. The motion might go further and declare the witness to be persona non grata within the precincts of the House and to not have access to the precincts, other than for a meeting with the Member of Parliament, until such time as the contempt is purged by an appearance before the Committee.

As the witness has not been served with a summons, a finding of contempt of Parliament would seem premature at this time, although it is not beyond the powers of the House to do so.

In 2003, the privacy commissioner of that time was found in contempt of Parliament for providing misleading information to the government operations and estimates committee. Further action was contemplated against him, but he resigned moments before a motion was made, and so no further action was taken against him--I should say that he apologized and resigned.

In 2008, a senior RCMP officer was found in contempt of Parliament for deliberately misleading this committee in her testimony. No further action was taken by the House.

In this case, the witness is a former officer of Parliament as Public Service Integrity Commissioner.

That concludes my general remarks regarding options, Mr. Chair. I'm pleased to answer any questions that members may have for me.

[The Chair, Liberal, Joe Volpe]

Okay.

As you all know, colleagues, we are in public.

I just would like to ask our witnesses, before we go into question and answers, whether, given the dialogue they need to have, they feel they'd prefer to go in camera or to stay public.

Madame Bernier.

[Chantal Bernier]

I would be quite happy to have the discussion in public session.

[The Chair, Liberal, Joe Volpe]

Mr. Walsh.

[Rob Walsh]

Mr. Chairman, I'm quite prepared and pleased to respond to committee members' questions in public. It's just that in the nature of my role as legal adviser, it's not usually the case that a client takes legal advice in public. It understandably will put constraints on what I might provide by way of advice. If I'm advised to give full and frank advice as to the options, that might be difficult to do--and not serve the interests of the committee to be doing it publicly.

[The Chair, Liberal, Joe Volpe]

Thank you, Mr. Walsh and Madame Bernier.

I have two interventions before I....

Just those two, please.

Mr. Bains.

[Navdeep Bains, Liberal, Mississauga—Brampton South, ON]

Thank you very much.

Chair, I, too, was considering that when I was putting together some questions. I'm just thinking out loud, but with respect to having this in a public forum, due to the nature of the discussion, maybe to ensure a frank, open, and honest discussion, maybe in camera would be more applicable. That way we could have a candid exchange.

That's my viewpoint. I'm not sure if other colleagues share it, but I wanted to express that.

[The Chair, Liberal, Joe Volpe]

Mr. Young.

[Terence Young, Conservative, Oakville, ON]

I agree with Mr. Bains.

Thank you, Mr. Chair.

[The Chair, Liberal, Joe Volpe]

I'm sorry, what is it that you agree with Mr. Bains about?

[Terence Young, Conservative, Oakville, ON]

I'll let Mr. Bains restate it.

[Navdeep Bains, Liberal, Mississauga—Brampton South, ON]

It would be in camera.

[The Chair, Liberal, Joe Volpe]

You prefer to go in camera?

[Terence Young, Conservative, Oakville, ON]

Yes.

[The Chair, Liberal, Joe Volpe]

Are you speaking for everybody here?

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

No, he's not.

[The Chair, Liberal, Joe Volpe]

Initially I said that I was going to take only two interventions, but I'm going to stop with one, two, and three. Then I'm going to make a decision on which way we go.

Mr. Kramp.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Chair, I think the comments should be public at this point, because we are discussing process. We are seeking direction. We are not asking for legal advice that is going to deal with a specific case or option, at which point, I would agree, Mr. Walsh's comments would definitely and emphatically be reserved for in camera.

I think our process should be public. This is a public House. The public has a right to know what is going on. They need to know how their government, how the rules and everything, operate. We are discussing process and procedure here. We are not discussing the actual elements of the specific case.

If Mr. Walsh felt that a question would, in his mind, somehow create a problem for a particular action down the road, I'm certain his experience would guide him in his response to suggest that he wouldn't be answering it at that particular point for a wide variety of reasons, as he would certainly state to this committee.

So I would suggest that at this point, while we are discussing process and not the actual case itself, the public interest would be better served to continue, with our Privacy Commissioner and with our legal expertise advising the committee on how to proceed, in public.

[The Chair, Liberal, Joe Volpe]

Madame Faille, then Mr. Christopherson, and then I'll close it.

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

As far as the question of privilege is concerned, the Committee must decide whether to continue in public session or whether to go in camera so as to protect any detailed information Mr. Walsh might provide us. I am leaning both ways on the issue. I have some questions I could ask Mr. Walsh and the Commissioner’s replacement in public session. However, the Chair of the Standing Committee on Government Operations and Estimates that Mr. Kramp and I sat on did, on occasion, indicate that it would be more appropriate to deal with some issues in camera since the disclosure of specific information, such as contracts, could have legal consequences. I remember this happening.

However, I do not think that all Members’ questions need to be dealt with in camera. I myself have a number of questions that I could ask in public session.

[The Chair, Liberal, Joe Volpe]

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks, Chair.

Well, we asked our two experts for their opinions, and we heard them, so it seems to me that the common-sense thing to do is to hear the assistant privacy commissioner in public. Our goal is always to be in public as much as possible and to exhaust all our questions and discussions there. Mr. Walsh has made it clear that....

You know, I've been on this committee a long time, and this is not an unusual procedure that we would go in camera to take legal advice. I would ask colleagues to remember that it's not just a matter of wanting to look like a good small-d democrat to the public that's watching; we have obligations too--for instance, the House: we are a committee of the House.

If we ask some questions...or something is said publicly that limits, in any way, options for us or the House because we didn't take the advice of the parliamentary law clerk to take his advice in camera, then the House has every right to turn to us and say, “What were you thinking? You asked the law clerk whether you should be in camera or not. He said it was best if you went in camera so that he could give you full, frank answers. You didn't do it. Now you've ended up tying our hands. Thanks very much, public accounts committee.”

I'm here in the fourth party. I'm the one who should have the easiest time saying we should do everything in public and damn the torpedoes. But that's not the responsible thing to do. The torpedoes do matter.

As well, Mr. Chair, Mr. Kramp said we're not going to discuss the elements of a specific case. I would disagree: that is exactly what we are doing. The procedural answers, I grant you, are similar, but the questions we're going to ask will be very germane to the case in front of us. That's why we asked him to come here.

So I feel very comfortable taking the advice of the assistant privacy commissioner in dealing with this presentation in public in all its entirety; then that we would go in camera, on the advice of the parliamentary law clerk, and have our full, frank legal discussion; and then that we would return to continue our business in public.

Thank you.

[The Chair, Liberal, Joe Volpe]

As I said, we would stop there before I'd make a decision....

Mr. Kramp.