PACC Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Public Accounts

EVIDENCE

CONTENTS

Thursday, March 21, 2002

¹

1530

The Chair (Mr. John Williams (St. Albert, Canadian Alliance))

Mr. John Bryden (Ancaster--Dundas--Flamborough--Aldershot, Lib.)

The Chair

Mr. John Bryden

¹

1535

The Chair

Ms. Mary Dawson (Associate Deputy Minister, Department of Justice)

The Chair

Ms. Mary Dawson

¹

1540

¹

1545

The Chair

Ms. Mary Dawson

The Chair

Mr. Ross Hornby (Assistant Secretary, Government Operations Sector, Treasury Board Secretariat)

Mr. Ross Hornby

¹

1550

The Chair

Mr. Toews

¹

1555

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

Mr. Toews

The Chair

Ms. Mary Dawson

º

1600

Mr. Toews

The Chair

Mr. Toews

Mr. John Bryden

The Chair

Ms. Mary Dawson

The Chair

Mr. Ross Hornby

The Chair

Mr. Odina Desrochers (Lotbinière--L'Érable, BQ)

Ms. Mary Dawson

º

1605

Mr. Odina Desrochers

Mr. Ross Hornby

Mr. Odina Desrochers

Mr. Ross Hornby

Mr. Odina Desrochers

º

1610

Mr. Ross Hornby

The Chair

Mr. John Bryden

Ms. Mary Dawson

Mr. Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

º

1615

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

The Chair

Mr. John Bryden

The Chair

Mr. Szabo

The Chair

Mr. John Bryden

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

Mr. Denis Kratchanov (Senior Counsel, Director of Information Law and Privacy Section, Department of Justice)

The Chair

Mr. Denis Kratchanov

º

1620

The Chair

Mr. John Bryden

The Chair

Mr. Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Bryden

The Chair

Mr. Bryden

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

º

1625

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Ross Hornby

º

1630

Mr. Pat Martin

Mr. Ross Hornby

Mr. Pat Martin

Mr. Ross Hornby

Mr. Pat Martin

Mr. Ross Hornby

The Chair

Mr. Alex Shepherd (Durham, Lib.)

Mr. Ross Hornby

Mr. Alex Shepherd

Mr. Ross Hornby

º

1635

Mr. Alex Shepherd

Mr. Ross Hornby

Mr. Alex Shepherd

Mr. Ross Hornby

The Chair

Mr. Toews

The Chair

Mr. Ross Hornby

º

1640

Ms. Anne Brennan (Director, Information and Security Policy Division; Treasury Board Secretariat)

Mr. Toews

Ms. Anne Brennan

Mr. Toews

Mr. Odina Desrochers

Mr. Toews

The Chair

Mr. Ross Hornby

The Chair

Ms. Mary Dawson

Mr. Denis Kratchanov

The Chair

Mr. Denis Kratchanov

Ms. Mary Dawson

The Chair

Ms. Sophia Leung (Vancouver Kingsway, Lib.)

Mr. Denis Kratchanov

Ms. Sophia Leung

Ms. Mary Dawson

Ms. Sophia Leung

Mr. Denis Kratchanov

Ms. Sophia Leung

Mr. Denis Kratchanov

º

1645

Ms. Sophia Leung

Ms. Mary Dawson

Mr. Denis Kratchanov

The Chair

Mr. Gilles-A. Perron (Rivière-des-Mille-Îles, BQ)

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Mr. Ross Hornby

The Chair

Mr. Ross Hornby

The Chair

Mr. Szabo

The Chair

Mr. Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Ross Hornby

The Chair

º

1650

Mr. Odina Desrochers

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

The Chair

Ms. Mary Dawson

Mr. Denis Kratchanov

The Chair

Mr. Denis Kratchanov

The Chair

Mr. Odina Desrochers

The Chair

Mr. Shawn Murphy (Hillsborough, Lib.)

Ms. Mary Dawson

º

1655

Mr. Ross Hornby

Mr. Shawn Murphy

Mr. Ross Hornby

Mr. Murphy

Mr. Ross Hornby

The Chair

Mr. Pat Martin

The Chair

Mr. Ross Hornby

Mr. Pat Martin

Mr. Ross Hornby

The Chair

Mr. Pat Martin

Mr. Ross Hornby

Mr. Pat Martin

Mr. Ross Hornby

Mr. Pat Martin

Mr. Ross Hornby

Mr. Pat Martin

»

1700

Mr. Ross Hornby

Mr. Pat Martin

Mr. Ross Hornby

Mr. Pat Martin

Mr. Ross Hornby

Mr. Pat Martin

Mr. Denis Kratchanov

Mr. Pat Martin

The Chair

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

»

1705

Mr. John Bryden

Ms. Mary Dawson

Mr. Bryden

Ms. Mary Dawson

Mr. John Bryden

The Chair

Mr. Ross Hornby

The Chair

Mr. Ross Hornby

Ms. Anne Brennan

The Chair

Ms. Anne Brennan

The Chair

»

1710

Ms. Mary Dawson

Mr. Denis Kratchanov

The Chair

Mr. Denis Kratchanov

The Chair

Mr. Ross Hornby

The Chair

Mr. Ross Hornby

The Chair

Mr. Ross Hornby

The Chair

Mr. Ross Hornby

The Chair

Mr. Ross Hornby

The Chair

Mr. John Bryden

The Chair

Mr. Toews

Ms. Mary Dawson

Mr. Toews

Ms. Mary Dawson

Mr. Toews

Ms. Mary Dawson

Mr. Toews

Ms. Mary Dawson

Mr. Toews

»

1715

The Chair

Mr. Szabo

Ms. Mary Dawson

Mr. Szabo

Ms. Mary Dawson

Mr. Szabo

Ms. Mary Dawson

Mr. Szabo

Ms. Mary Dawson

Mr. Szabo

»

1720

Ms. Mary Dawson

The Chair

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

Ms. Mary Dawson

Mr. Pat Martin

The Chair

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

Mr. John Bryden

Ms. Mary Dawson

The Chair

Mr. John Bryden

Ms. Mary Dawson

The Chair

Mr. Alex Shepherd

»

1725

Ms. Mary Dawson

Mr. Alex Shepherd

Ms. Mary Dawson

Mr. Alex Shepherd

Ms. Mary Dawson

Mr. Alex Shepherd

Ms. Mary Dawson

Mr. Alex Shepherd

Ms. Mary Dawson

Mr. Alex Shepherd

Ms. Mary Dawson

Mr. Alex Shepherd

The Chair

Mr. Perron

The Chair

---

CANADA

Standing Committee on Public Accounts

---

NUMBER 045

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, March 21, 2002

[Recorded by Electronic Apparatus]

¹  (1530)  

[English]

    The Chair (Mr. John Williams (St. Albert, Canadian Alliance)): Good afternoon, ladies and gentlemen. Welcome to another meeting of the Standing Committee on Public Accounts.

    This afternoon's meeting is a little bit different from the norm in the fact that we don't have an opening statement by the Auditor General of Canada and we're not dealing with a chapter of the Auditor General's report. We're dealing with a specific motion that was tabled at the committee. Therefore our order today, pursuant to Standing Order 108(3)(e), is resuming consideration of the motion of Mr. Gurmant Grewal, MP, dated February 5, 2002, with regard to detailed expense account information for ministers and their exempt political staff.

    The actual motion, dated January 31, 2002, reads: “That the Public Accounts Committee recommends an Order of the House be issued for copies of all detailed expense account information for ministers and their exempt political staff, and that the information shall be tabled in the House and permanently referred to the Standing Committee on Public Accounts.”

    To try to prepare everybody for this meeting, I had the clerk circulate a copy of the motion in both official languages.

    Mr. Bryden.

    Mr. John Bryden (Ancaster--Dundas--Flamborough--Aldershot, Lib.): Mr. Chairman, if you wouldn't mind, I think it is important for those following this debate to understand the government's recent position that pertains to this particular motion.

    The Chair: I was going to get there, Mr. Bryden.

    Mr. John Bryden: All right. Thank you, Mr. Chairman.

¹  (1535)  

    The Chair: I was going to try to develop things in a logical format.

    I've had the clerk distribute the motion in both official languages, and I presume everybody has received this package, in the grey folder.

    Number one, on the Dagg decision, I understand that's only kind of a summary of the Dagg decision. We have over on the table the full Dagg decision in both official languages. So if anybody wants a copy, they can ask for it.

    We have a copy of Treasury Board implementation report 78; a letter that I had written to the Honourable John Reid, PC, and his response; and a letter that I had written to the Honourable Lucienne Robillard, the President of the Treasury Board, and her response.

    In addition to that, again on the table, we have a copy of the Privacy Act and a copy of the Access to Information Act in both official languages. This morning--and I understand from the clerk that it has been distributed to all offices--I received a letter from the Auditor General of Canada that was actually addressed to the Honourable Lucienne Robillard, but copies were sent to Bonnie Brown, MP, chair of the Standing Committee on Health; to Mr. Gary Sokolyk, the clerk of the Standing Committee on Health; to myself as chair of the public accounts committee; and to Santosh Sirpaul, the clerk of the public accounts committee. That has been circulated electronically to all members, because I just got it. I have enough copies here, and I will ask the clerk to circulate copies to everybody so they can have it. I apologize that I wasn't able to get you the written copy, but as I said, I only received it this morning.

    The issue is that approximately a year ago there was a change in the interpretation of the Access to Information Act. As I understand, based on an interpretation of the Dagg decision in 1997, the Department of Justice said--and you can correct me if I'm wrong in my very brief summary, Ms. Dawson--that this had an impact on the Access to Information Act. In fact, it dealt with a specific issue on the Access to Information Act. From that, the Treasury Board issued a new guideline saying that expense reports of ministers and their exempt staff were not to be released without the authorization of the people whose expense accounts were being released.

    Last Friday the President of the Treasury Board announced in the House of Commons that the Prime Minister had requested, or dictated, I'm not exactly sure what the terms were, but he made it quite clear that these expense accounts were to be made public. Therefore the issue we are dealing with today, I presume--and it's up to the members of Parliament to question along the lines they want to question--is that the interpretation of the impact of the Dagg decision on the Access to Information Act has not changed, even with the President of the Treasury Board's statement as of last Friday.

    As to the interpretation that expense accounts cannot be released without people's approval, I presume now that the Prime Minister has said yes, they will be, that is because he has deemed it to be in the public interest, which overrides the consent to be withheld by the individuals involved.

    Is that a simple and correct assumption, a statement of the issue, Ms. Dawson?

    Ms. Mary Dawson (Associate Deputy Minister, Department of Justice): Yes.

    The Chair: Okay.

    We should start by introducing our witnesses this afternoon. From the Department of Justice we have Ms. Mary Dawson, associate deputy minister; and Mr. Denis Kratchanov, senior counsel and director of the information law and privacy section. From the Treasury Board Secretariat we have Mr. Ross Hornby, assistant secretary, government operations sector; and Ms. Anne Brennan, director of information and security policy division.

    We'll now turn to Ms. Dawson for opening statements.

    Ms. Mary Dawson: Thank you, Mr. Chair.

    Good afternoon. I'm pleased to be here today to provide you with the perspective of the Department of Justice on the issue of expense accounts of ministers and their staff.

    As you know, on March 15, 2002, the Honourable Lucienne Robillard announced in the House of Commons that the Prime Minister had asked all his cabinet ministers and their staff to release their expense accounts when requested, pursuant to the Access to Information Act. I understand, however, you would still like to hear from us on that issue generally.

    In the past few weeks, several statements have been made concerning the applicability of the Access to Information Act and the Privacy Act. I hope my comments here today will provide you with an understanding of the government's position on the expense account issue.

    Secondly, I would like to clarify the Department of Justice's role in the matter. One of the responsibilities of the Department of Justice with respect to the Access to Information and Privacy Acts is to provide legal advice to other departments of the Government of Canada on the interpretation of both statutes. In this role, the Department of Justice has provided legal advice in relation to Access to Information Act requests for the expense accounts of ministerial staff. The departmental legal advice on this issue, like our advice on any other legal issue, must devolve to take into account case law as we become aware of recent court decisions.

    In interpreting the legislation, the department has always encouraged other departments to be as open and transparent about the disclosure of expense accounts as the law permits. The Department of Justice cannot, however, exercise the discretionary power that the legislation grants to individual ministers.

    As you know, subsection 19(2) of the Access to Information Act provides that personal information may be disclosed at the discretion of the head of a government institution if one of three conditions is met. Such discretion can only be exercised by the minister to whom it has been granted or his delegate, in accordance with the legislation itself. Ministers and their delegates will also take into account the Treasury Board guidelines issued pursuant to the legislation.

    The Access to Information Act and the Privacy Act apply to records and personal information that are under the control of a government institution. It's my understanding that records relating to the expense accounts of staff in a minister's office are under the control of a department if and when those requests for reimbursement of travel or other expenses are received by the responsible employees working in the department. To the extent that those records concerning the expense accounts of ministers and their staff are under the control of a department, they're subject to both acts.

    When requested under the Access to Information Act, these records must be disclosed to the requester, unless an exemption applies to protect them from disclosure. In order to determine if an exemption applies in relation to personal information, it's necessary to go through a two-step process under the Privacy Act. The first step is to determine whether the information falls within the general definition of personal information, which includes a list of examples of what personal information is. The second step requires an examination of the exclusions listed, for certain limited purposes, of certain information from that definition.

    Until recently, the position of the Government of Canada had been that the definition of personal information in the Privacy Act did not include expense accounts because they were not about an individual personally. As a result, the personal information exemption failed at the first step of the analysis. For this reason, expense accounts of ministerial staff in government institutions were routinely disclosed. This position was based on a narrower interpretation of the definition of personal information in the Privacy Act and included, by reference, in the Access to Information Act. Without clear guidance from the courts at that time, that position was thought to be the appropriate one.

    In 1997 the Supreme Court of Canada issued a decision in Dagg v. Canada (Minister of Finance), in which it looked at the definition of personal information in the context of the relationship between the Access to Information Act and the Privacy Act. A unanimous Supreme Court gave a broad interpretation to the definition of personal information.

¹  (1540)  

    While there were dissents in the Dagg case, all nine of the judges agreed that the intent of the definition “seems to be to capture any information about a specific person, subject only to specific exceptions”.

    As a result of this decision of the Supreme Court of Canada, the government had to reconsider the position it had taken before the Dagg decision, namely that the expense accounts of identifiable individuals, ministers and their staff or officers, and employees of government institutions was not personal information. Based on the broad interpretation adopted by the Supreme Court in Dagg, the government modified its position so that the expense accounts of identifiable individuals would have to be considered to be personal information about these individuals.

    Moving from there to the second step of the process, the Privacy Act excludes information that relates to the position or functions of officers or employees of a government institution from the definition of “personal information”. Once excluded from the definition, that information would be accessible under the Access to Information Act, unless protected by another exception.

    The situation is different for staff in a minister's office. A minister's office is not part of a government institution. This position of the Government of Canada is not a new one. In fact, it's as old as the Access to Information Act and the Privacy Act themselves.

    Accordingly, the minister and the staff in a minister's office are neither officers nor employees of a government institution. For this reason, they're not covered by the exclusion from the definition of “personal information” in section 3 of the Privacy Act, as set out in paragraph (j) of that definition. Our position is therefore that, by virtue of the specific wording of that provision, the expense accounts of ministers and their staff do remain personal information for the purposes of the Access to Information Act.

    In and of itself, however, this doesn't absolutely preclude the disclosure of this information. Both the Access to Information Act and the Privacy Act provide that personal information may be disclosed with the consent of the individual concerned.

    As mentioned at the outset, the Prime Minister has asked cabinet ministers and their staff to agree to the disclosure of their expense reports that are under the control of a government institution. The Treasury Board Secretariat has issued a new information notice to government institutions to explain how access requests for the government travel and hospitality records of ministers and their staff are to be treated.

    That completes my presentation. I will now turn to Ross Hornby.

¹  (1545)  

    The Chair: No, I will turn to Ross Hornby.

    Ms. Mary Dawson: Okay. Pardon me.

    The Chair: Before we do that, I notice in your report that you talk about a unanimous Supreme Court decision. If you're talking about the Dagg decision, it was not a unanimous decision. Are you talking about the Dagg decision?

    Ms. Mary Dawson: Yes. What I said there was that it's unanimous on that one aspect, which is that “personal information” should be interpreted broadly, but I acknowledge it was a five-to-four decision. It's just that it was one of the dissenting judges who was cited by the majority on that point, and the whole court agreed.

    The Chair: Thank you so much.

    Now we'll turn to Mr. Hornby for the opening statement from the Treasury Board.

    Mr. Ross Hornby (Assistant Secretary, Government Operations Sector, Treasury Board Secretariat): Thank you, Mr. Chair and members of the public accounts committee. I would like to thank the committee for allowing me the opportunity to address you today as a representative of the Treasury Board Secretariat.

    As Ms. Dawson indicated, the President of the Treasury Board, the Honourable Lucienne Robillard, announced in Parliament last Friday, March 15, that the Prime Minister had asked all ministers and their political staff to consent to the disclosure of expense claim records that are under the control of a government institution. On Monday, March 18, the Treasury Board Secretariat sent an information notice to all government institutions subject to the Access to Information Act, providing further clarification on the treatment of expense records under the control of a government institution. That notice reminded coordinators that they are to seek consent with a view to disclosing information about expense claims of ministers and their exempt staff.

    I will speak more about that information notice in a moment. First I would like to respond to a question asked on your behalf by the clerk of the committee.

[Translation]

The Clerk asked that I explain TBS's role in informing government institutions of policies and practices by means of TBS's implementation reports and other notices.

    The President of the Treasury Board is the designated minister for the purposes of the Access to Information and Privacy Acts. What this means is that the President is responsible for developing policy related to the legislation, directing institutions as to what should be included in their annual reports to Parliament on the Acts, prescribing forms and coordinating and disseminating the annual InfoSource publication.

    

    Mr. Ross Hornby: Under section 70 of the Access to Information Act (ATIA) and section 71 of the Privacy Act (PA), which essentially contain the same requirements, the TBS issues policies and guidelines to government institutions for interpreting and administering the legislation. As Ms. Dawson noted in her opening remarks, the President or the TBS can only exercise the discretionary power that legislation grants to individual ministers. Only they have decisional power under the legislation.

[English]

    When contemplating any changes to the policies or directives related either to the Access to Information Act or the Privacy Act, the Treasury Board Secretariat consults with the Department of Justice to ensure that appropriate legal advice on the correct interpretation of the legislation is received before any changes are made and guidance is provided to government institutions. That consultation is conducted by Ms. Anne Brennan, present today, who is the director of the information and security policy division of the government operations sector. That's the part of the secretariat I head.

    The information and security policy division is a small office that provides training, advice, and guidance on an ongoing basis to all government institutions that fall under the jurisdiction of the Access to Information Act and the Privacy Act. Institutions call Ms. Brennan and her associates on a daily basis when seeking guidance on the application of the legislation. Subject to my approval, Ms. Brennan issues new directives and provides updates to all institutions that come under the legislation concerning policy and legislative changes.

    Treasury Board Secretariat and other government institutions must also rely upon court decisions for interpretation of the legislation. When the courts provide a precedent-setting decision, the secretariat, in consultation with the Department of Justice, informs government institutions of any judicial interpretations that will affect the administration of the legislation. It provides guidance and advice when required.

    One established method we use to provide such guidance is through the instruments of implementation reports and information notices. The implementation reports are used to clarify Treasury Board policies and guidelines. Information notices are sent to inform the access to information and privacy community of upcoming events and to remind those offices of new practices, existing practices, or information sessions with respect to those practices.

    Early in 2001 several institutions had received access to information requests for the records of expenses and travel claims of ministers and exempt staff. As a result of inquiries from various federal institutions for guidance and clarification with respect to the proper interpretation of the legislation regarding those requests, implementation report 78 was issued.

    There has been speculation in the media that the implementation report was sent “by stealth”, and that Treasury Board Secretariat quietly changed the manner in which ATI requests for such expense claims are processed. I can assure you that was not the case. The implementation report 78 was sent to all access to information and privacy coordinators on March 30, 2001, and like all TBS implementation reports it has been publicly available on the Treasury Board website since the date it was disseminated.

    As you are aware, implementation report 78 brought about a change from the government's practice of disclosing such expense claims and records without consent prior to the Dagg case. And the change in practice resulted in no small amount of surprise in the media and among MPs as it became learned. However, the decision to issue implementation report 78 was made only after a very careful review and consideration of the Supreme Court decision in the Dagg case--as Madam Dawson has indicated--and on its impact on the interpretation of the relevant provisions of the Privacy Act.

    Mrs. Dawson has explained how that advice was developed. Treasury Board Secretariat maintains that implementation report 78 was correct in its guidance to government institutions. Ms. Brennan and her staff met with the ATIP community representatives earlier this week with a view to ensuring that all government institutions have a clear understanding of the government's policy regarding access requests for expense claim records.

    The two main purposes of implementation report 78 and the recent information notice sent out this week to government institutions were, first, to make it clear to ATIP officials that when requests are received for records relating to expense claims of ministers or exempt staff, expense-related information should be disclosed. Second, both the implementation report and the information notice make it clear that the ATIP office is to seek consent from the individuals whose personal information is contained in the records, prior to the disclosure of the records.

¹  (1550)  

[Translation]

     Thank you, once again, for allowing me the opportunity to speak before the committee today. I would not be pleased to answer any of your questions.

[English]

    The Chair: Thank you, Mr. Hornby.

    Now we'll turn to the questions. Mr. Toews.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.

    I find it troubling and indeed astounding that anyone, on the basis of law or otherwise, would contend that in Canada, the expenditure of taxpayers' funds by ministers or their staff, however one defines their staff, exempt or otherwise, is not disclosable and that the government and the minister are entitled as a right to object to the disclosure of that expenditure on the basis that this is personal information. Think of it; it's absolutely astounding that we compel taxpayers to pay money to the government and that on the basis of a decision, we are saying this is not disclosable.

    What troubles me is that now we hear from the Prime Minister that there's some discretion and there's this manufactured consent. Somehow we're now magnanimously entitled to see this, not as a matter of right and not as a matter of law, but because of the magnanimous attitude of our government. Mr. Chair, how can a government presume that expenditures of public funds are in effect a personal, private matter within the meaning of the Privacy Act or the Access to Information Act?

    I've read the Dagg decision. I've been a public sector lawyer for many years and I've been a minister of the crown in the provincial government. It is astounding that someone would advance this. I admit that the Dagg decision is a difficult one to read, but given those difficulties and given that it isn't directly on point, I think legal counsel needs to re-examine this. In fact, what is happening here is that the opinion being advanced by the government is using the act to subvert the very purposes the act was intended to address. I don't think the irony can be lost on the people of Canada.

    In my extensive career as a lawyer--perhaps not as extensive as some of my colleagues, but since 1976 at least--I've spent most of my career in the public service. There are two ways to elicit an opinion from a public sector lawyer or any other lawyer. Of course we always assume the lawyer is honourable, because I believe our legal staff is honourable. There's no question about that issue. The first method of obtaining an opinion is to say, “Here are the facts, here is the situation. What is your opinion?” The second way of obtaining an opinion, which is still an acceptable mechanism, is to say, “Here are the facts, here's the law, here's the position we're taking. Please provide us with an opinion to support the position we are taking.” That's done all the time.

    I heard Mr. Hornby indicate that Ms. Dawson has indicated how this advice was developed. I think it's crucial that this committee understand exactly how this advice was elicited. What documents were sent over to the lawyers to provide this advice? That material should be here so we can look at the veracity of this opinion. I'm just wondering if the counsel or Treasury Board or whoever, any of the witnesses, are prepared to produce the documentation, not only the legal opinion that was produced, but the documents that in fact prompted that legal opinion.

¹  (1555)  

    The Chair: You have a question to two people.

    Ms. Dawson, are you prepared to provide the legal opinion and the documents that led to the creation of that opinion?

    Ms. Mary Dawson: I don't have the documents, if there are any, that led to the creation of the opinion.

    The Chair: We're a little concerned about this, if there are any. We've been debating that issue in the House on another matter.

    Ms. Mary Dawson: I have no knowledge of it, and it's possible that Treasury Board....

    In any event, it has been the policy of the Government of Canada for many years not to release their legal opinions. There was a policy tabled in 1973 to that effect.

    Mr. Vic Toews: Mr. Chair, I appreciate that's been their position, but they've come to us with what I consider a very controversial opinion. If the opinion is correct, and if it was elicited in the most objective way possible, then what we really have to do is examine what this law is doing. Therefore, I say whatever the practice of the government has been in the past, I think it's absolutely essential that those records be produced so that we can examine them to see whether or not the law has to be changed.

    The Chair: Ms. Dawson.

    Ms. Mary Dawson: I don't think there's any more I can say. We are here to talk. Certainly the information that's in the public domain gives you a good sense of the nature of the legal advice that was given, and we're here to discuss the basis of that advice, as indeed we have in our opening remarks. The principle of not releasing our legal advice is a very important one to the government. It's similar to the principle of not releasing general advice to the government, but it has other aspects as well, when it relates to legal advice. It's one we can't make exceptions for, because it's a matter of principle, not a matter of not disclosing a particular piece of information.

    The Chair: Mr. Toews.

º  (1600)  

    Mr. Vic Toews: Well, I think this is a very important issue and I think the minister or minister's staff should be asked whether they're prepared to release it.

    I understand the difficulty legal counsel is in; they have certain solicitor-client relationships. It is the minister who should be answering as to whether or not that documentation....

    I'm not here to second-guess what the lawyers have said in terms of these summaries. I want to see the actual opinion and the documents that elicited that opinion. I think for the purposes of this committee, it's absolutely essential. I've read and I've reread this Dagg decision as a lawyer, both in the public sector and in the private sector, when we worked to implement this. It is a very difficult decision. They have taken this decision, Mr. Chair, and given it the most favourable view one could possibly do in respect of supporting the government's claim to secrecy.

    The Chair: As a fairly new member of the committee, Mr. Toews--you haven't been here too often--do you have a specific question for production of papers, or anything else you want to ask them?

    Mr. Vic Toews: I certainly do. Whoever has the authority, and I understand the lawyers may not.... Perhaps the lawyers, Mr. Chair, could go back to their client and say I want the documents.

    Mr. John Bryden: May I make a point of order, Mr. Chairman? I think I can help out here.

    The Access to Information Act provides for the withholding of documents such as this under the solicitor-client privilege provision. But I understand the minister has the discretion to allow the release of such documents.

    The Chair: I think the witnesses are quite capable of responding in that manner, if that's how they feel. So how do the witnesses feel?

    Ms. Mary Dawson: As a matter of fact, I think it goes beyond an individual minister. It is a government-wide decision as to whether they will release information that is subject to solicitor-client privilege. As I said, it's the policy of the government not to release it. We've had several circumstances over the past year in other committees where legal advice has been requested and we have not provided it.

    The Chair: Do you have anything to say, Mr. Hornby?

    Mr. Ross Hornby: No, I have nothing further.

    The Chair: Okay, thank you, Mr. Toews.

    Monsieur Desrochers, s'il vous plaît.

[Translation]

    Mr. Odina Desrochers (Lotbinière--L'Érable, BQ): Thank you very much, Mr. Chairman.

    I will not make a strong plea, as my colleague from the Canadian Alliance has done, but I will ask some very rational questions.

    We have been told that the minister has the discretionary powers to decide what is private and what is public. When a minister or an individual working for the minister goes to lunch, and there is a bill, is the bill considered to be personal or public? I am referring here to a bill paid by the taxpayers. We often see certain expenses appearing in the departmental expense statements. I think that they should appear in the operating expenses for the ministers' offices and staff. These are two completely different things. To what extent can we differentiate between personal or public expenses.

[English]

    Ms. Mary Dawson: It's difficult to answer that question in a direct way, but let me say that our master is the act itself. There are two goods that are being protected by these two acts: one is access to government information, the other is the protection of personal information. There's always a balancing act between those two goods, and the only thing we can do in interpreting the two pieces of legislation as they interrelate is to take a look at the precise language in each of those acts.

    The difficulty with respect to ministers' offices' expenses is that they are not itemized in the exemption in the same way that government employees' expenses are itemized. Whereas in the early days we did not give a legal position that suggested that personsal information was as broad as the courts later found it, once expense accounts appeared to be included within the realm of personal information we then had to go the second step and decide whether there was an exemption.

    On the plain wording of the legislation, there's only an exemption for officers or employees of a government institution. So the answer to your question generally is that we have to be governed by the wording of the legislation.

º  (1605)  

[Translation]

    Mr. Odina Desrochers: You are unable, therefore, to tell us today whether an expense that has been authorized and paid by a minister from his budget, and which is reimbursed by public funds, is personal or public, or what distinction can be made between the two.

    Also, Mr. Hornby, in referring to the guidelines that the President of the Treasury Board issued last week, we will be able to determine now where the line is between what are personal expenses and public expenses?

[English]

    Mr. Ross Hornby: Mr. Chair, I think I can help the member by saying that the expense claims are considered to be personal information. As Ms. Dawson indicated, when they are expense claims with respect to an officer or employee of a government institution they are releasable, but when they are with respect to any other person they are not releasable without the consent of that person. That's the way the act operates as a result of the guidance we have been given by the court in the Dagg decision.

    Certain items are not intended to be in expense claims. When a minister's staff or the minister is seeking reimbursement from a department it's in accordance with the Treasury Board guidelines of what is an acceptable expense. Those claims will go down, in the case of exempt staff, to the corporate services of a department and they'll be verified in the same way they are for all other claims that come from public servants who are officers and employees of the department. Items that are found to be within the guidelines are reimbursed; those that are not, if they've been put in by error, by inadvertence, or whatever, are not reimbursed in accordance with the vetting of those claims by the corporate services of a department.

[Translation]

    Mr. Odina Desrochers: Within this context, in looking at the column that contains the departmental expenses paid by public funds, can you tell us what appears in the column for the minister's office.

[English]

    Mr. Ross Hornby: What we are dealing with today are only the expense claims that are under the control of the government institution. In other words, they are the monthly certificate that the minister sends for reimbursement of travel or hospitality on government business, and they are any expense claims that are sent by exempt staff on government business to the department.

    If there is an access request with respect to those claims the implementation report and the information notice provides guidance to the access coordinators on how to deal with that access request. We're not dealing with documents that are within a ministerial office because the act does not apply to ministerial or parliamentary offices. They are not part of the government institution.

[Translation]

    Mr. Odina Desrochers: I will ask my question again. How will the guidelines issued by the President of the Treasury Board allow us to be better informed on expenses incurred by the minister, his office and his staff, if we want to know more about this?

º  (1610)  

[English]

    Mr. Ross Hornby: What I believe the Prime Minister's exhortation to his ministers and exempt staff means is that when the access coordinator comes to seek consent, the Prime Minister has asked his ministers and their exempt staff to give that consent so that the documents that are within the control of the government institution can be released.

    I should just add that the documents that are in the control of the government institution are those related to public business that is reimbursable in accordance with the guidelines of the Treasury Board. They're not related to other political business that would be maintained within the political office of the minister.

    The Chair: Thank you, Mr. Desrochers.

    Mr. Bryden, please, eight minutes.

    Mr. John Bryden: Ms. Dawson, you say your master is the act itself, and yet you cannot provide us with the legal reasoning for your interpretations. Is there any point in my asking you any questions?

    Ms. Mary Dawson: We've come here to discuss the general parameters of our legal position.

    Mr. John Bryden: Well, then, let me try to be specific. As I understand your presentations, this decision to make expense claims not automatically disclosable is based on an interpretation that ministers and their political staffers are not officers and employees of the institutions and on a second interpretation that expense account claims are personal information.

    Ms. Mary Dawson: That's correct.

    Mr. John Bryden: Let me deal with the first one.

    You said in your remarks that the position of the Government of Canada is that a minister and the staff of a minister's office are not officers or employees of a government institution. On what grounds does the government take this position?

    Ms. Mary Dawson: This is a position the government has taken since the inception of the acts. As you probably know, there are a number of pieces of litigation at the moment on this issue, and for that reason--

    Mr. John Bryden: But what are the legal grounds, Ms. Dawson--

    Ms. Mary Dawson: Legal grounds?

    Mr. John Bryden: --upon which the government takes this position that ministers are not officers of their institutions?

    Ms. Mary Dawson: Let me just say in a general way--and I really do not wish to get into a legal discussion of that particular issue, because it's before the courts--there are references in the Privacy Act that appear to distinguish between officers and employees of government institutions and ministers and their staffs. There are distinct references that appear to be distinguishing between the two groups. In a general way, that is a rationale for suggesting they are not the same class of people.

    Mr. John Bryden: What about the Interpretation Act? The Interpretation Act that I have before me here would suggest it's the legislation that defines how we interpret other laws. Subsection 24(4), where it says “Words directing or empowering any public officer, other than a minister of the Crown...”, makes it very clear that a minister of the crown is an officer of the institution.

    How do you have this situation, that the Interpretation Act seems to make it clear that a minister is an officer of his ministry and yet you tell me it is government policy not to so interpret the Access to Information Act?

    Ms. Mary Dawson: As I say, I cannot get into the discussion of the precise legal advice too deeply, but a general rule would be that the Interpretation Act is a general piece of legislation such that, in the absence--I think it says in the beginning of the act--of something to indicate to the contrary in a specific act, the general rules of the Interpretation Act would apply. But you would have to look at the specific act before you went to the rules of the Interpretation Act on any such issue.

    Mr. John Bryden: I notice also the Financial Administration Act defines “public officer” as including a minister of the crown, and any other person employed in the public service of Canada--

    Ms. Mary Dawson: Yes.

    Mr. John Bryden: And you're not prepared to discuss these legal interpretations? If you aren't prepared, it really makes it difficult for me.

º  (1615)  

    Ms. Mary Dawson: Well, all I can do is suggest that it's within the terms of the Privacy and Access to Information Acts that you have to look at the use of these terms, not by virtue of their use in other legislation.

    Mr. John Bryden: Well, section 73 of the Access to Information Act and the Privacy Act, where it says “The head of a government institution may, by order, designate one or more officers or employees of that institution to exercise and perform any of the powers...”, seems to make it very clear that the minister, if he's ordering officers around, is himself an officer of that institution. I appreciate that I don't have your great expertise, but in my naive interpretation of this section it seems very clear, even in the Privacy Act and the Access to Information Act, that a minister is an officer of his ministry.

    Ms. Mary Dawson: Well, I think I actually can't go any further in this. It is before the courts.

    The Chair: I have to interject here. This is members of Parliament doing the nation's business, and for a witness to say “I can't go any further” I'm not sure is an appropriate answer.

    Would you say that, Mr. Bryden?

    Mr. John Bryden: Well, my difficulty, Mr. Chair, goes back to Mr. Toews' point, which is that it's very hard to examine something like this when the necessary information is protected, and I wouldn't say so much through government policy but through the Access to Information Act, which does protect this type of information I'm asking from the witness under solicitor-client privilege.

    I would have thought that the witness would feel that she could disclose it regardless, given the power of the committee. I also believe that if we can't get it this way, then we're going to have to ask, as Mr. Toews suggests, that the justice department request of the minister to provide the answers. If not, how are we ever going to proceed?

    The Chair: Mr. Szabo, a point of order.

    Mr. Paul Szabo (Mississauga South, Lib.): Thank you, Mr. Chairman.

    The rhetorical question you raise I think is important to get an answer to. Maybe the clerk can give us.... The representation of the witnesses has been that there are current proceedings in the courts, and that therefore, because the government is part of those proceedings, their position in this matter cannot be discussed in this public forum. That is precisely the representation that ministers make in the House of Commons when similar matters come up, when matters are before some judicial proceedings.

    On that basis, Mr. Chairman, you seem to have indicated that this is unacceptable. I'm not sure, but it would appear to me that this has been the practice within Parliament. We should clarify that right away. If that's the representation of the witnesses, we've accepted it in the House of Commons and we should accept it here.

    The Chair: I agree, Mr. Szabo, that we have to accept, if it's before the courts.... The witness has indicated in a general way that something is before the courts. There are tens of thousands of cases before the courts, so perhaps she can be more specific if she wants to claim an exemption under the fact that it's before the courts. She can tell us what is before the courts and claim her exemption on that basis.

    Mr. John Bryden: The question that a minister is or is not an officer of his ministry--is that a question that is before the courts that makes it impossible for the witness to answer?

    Ms. Mary Dawson: Yes, I believe it is.

    The Chair: Can you spell out the case that is before the courts?

    Ms. Mary Dawson: The Attorney General of Canada versus the Information Commissioner.

    The Chair: What's a quick 30-second synopsis of the case?

    Ms. Mary Dawson: It's just at the front end. Preliminary proceedings have been heard and the court has agreed that it's an issue of sufficient debate that it should be--

    The Chair: But what is the issue of debate that's before the courts?

    Ms. Mary Dawson: I'll let my colleague give you a little bit more detail on that.

    Mr. Denis Kratchanov (Senior Counsel, Director of Information Law and Privacy Section, Department of Justice): This is a case that involves the access request for the Prime Minister's agenda and the challenge presented by the government to the subpoenas of the Information Commissioner to members of the Prime Minister's Office and in a related case to members of the Minister of National Defence's office.

    The Chair: And this is directly being challenged by the fact that the Prime Minister is not an officer of a department--is that part of his defence?

    Mr. Denis Kratchanov: One of the issues before the court is whether or not the Prime Minister's Office is part of a government institution, which goes to the issue of whether or not he is an officer of the government.

º  (1620)  

    The Chair: Then I have to allow Mr. Szabo's point of order.

    Mr. Bryden.

    Mr. John Bryden: Mr. Chairman, I have a lot of difficulty with that line of reasoning, because there are two things there. Whether the Prime Minister's Office is a government institution is one question. But I submit to you that I find it very difficult to be persuaded that also affects the question of whether a minister is an officer of his ministry. I believe that is quite a separate question. I'll leave that point, Mr. Chairman. I think my time is almost up, and I'll get another turn.

    I have before me the Concise Oxford Dictionary and the other Oxford dictionary. Under the definition of “officer” it says “a sovereign's minister”. It may be something that's before the courts, but between the Interpretation Act and the ordinary dictionary, I think it's pretty clear.

    Thank you, Mr. Chairman.

    The Chair: Thank you, Mr. Bryden.

    I'm going to ask a simple question on that particular issue. I refer to the Privacy Act. I'm looking at Interpretation, section 3, Definitions. It says:

    “'head', in respect of a government institution, means(a) in the case of a department or ministry of state, the member of the Queen's Privy Council for Canada presiding over that institution...”.

    Therefore, I would ask you, Ms. Dawson, if the minister is the head of a department, how can he be the head of the department and not a member of the department?

    Mr. Paul Szabo: I have a point of order, Mr. Chairman. The other issue that came up had to do with the production of legal opinions with regard to the interpretation. I wonder if the clerk could advise us whether under Beauchesne and Marleau-Montpetit those are in fact exempt documents.

    The Chair: There was only a request by a member. I didn't see it as a request by the committee, Mr. Szabo. Therefore, I didn't ask the clerk to confirm whether or not it was allowable. We'll have to confirm with Mr. Toews whether he actually wanted that production as a member of Parliament.

    Mr. Paul Szabo: I believe Mr. Bryden asked for the specific legal opinion.

    The Chair: Oh, I'm sorry. Did you ask for the specific legal opinions also, Mr. Bryden?

    Mr. John Bryden: Mr. Chairman, I'm not following this very well.

    The Chair: The point of order raised by Mr. Szabo was that documents were requested by members of Parliament at the table here. The committee did not request the production of papers. Therefore, as the committee had not requested the production of papers, I didn't ask the clerk for a ruling.

    Mr. John Bryden: It was not my intention to ask this committee for a production of papers. This is an access to information issue. It is within the discretionary power of the minister to instruct his officials to release the documents that were requested by Mr. Toews. I think we should leave it at that. The officials have to respond in the way they think correct, and I always assume that the officials do that. I don't think we need to take it beyond that point.

    The Chair: Thank you, Mr. Bryden.

    Let's now hear the answer to the question. Heads of ministries are not members of the ministries.

    Ms. Mary Dawson: The difficulty we have in this whole area is that is part of the issue before the court in these cases. I really can't say too much else. If I give you an answer to some of these questions, it becomes a legal opinion in and of itself. Because the matter is before the court, I really am restricted as to which areas I can get into in making legal argumentation today.

    The Chair: How many hundreds of thousands of cases do you have before the courts at the moment?

    Ms. Mary Dawson: Several. The one case we mentioned--

    The Chair: But I just said on a broad base.You may have hundreds going on at any one time, so your ability to speak is virtually non-existent.

    Ms. Mary Dawson: Well, I--

    A voice: Bingo.

    The Chair: Mr. Martin, eight minutes, please.

    Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, Mr. Chair.

    Let me say to both of you thank you for the opening remarks.

    I have to share with my opposition colleagues the outrage I feel the more I learn about this issue. I think I speak on behalf of a lot of Canadians when I say that we're outraged the more we learn. Frustrated and disappointed are words that come to mind, too.

    I grew up, maybe in a naive layperson's world, thinking that accountability and transparency were goals and objectives of this government. They've become almost buzzwords and clichés in Parliament. Yet we're being told there's a group of what I call employees of the government who don't have to reveal their expenses or the work they're doing.

    A lot of people in Manitoba, where I come from, think that some of the ministers who are involved in the leadership race--or the non-leadership race--are having their exempt staff travel the country and campaign on their behalf, and they are therefore using public funds for private purposes. This is a widely held belief ,at least in the province I come from, because we've seen what we believe to be some graphic examples of that. We thought we'd be able to find out whether this is true by asking for the production of documents and expenses. We're disappointed and horrified.

    In terms of questions rather than comments, first of all, have you seen this letter from the Auditor General dated March 20 that was just circulated to us ?

º  (1625)  

    Ms. Mary Dawson: Yes, I just glanced at it as I was on my way over.

    Mr. Pat Martin: It's the first time I've seen it too, but there are some significant comments here. For instance, if we look at the first line of paragraph 2, it says: “At the outset, it is clear that the Auditor General has the right to audit any expenditure of public funds”. She goes on to say that she cannot audit exempt staff, given current rulings, but she may audit any public funds used to pay exempt staff or public funds spent by exempt staff. In other words, maybe she can't audit the exempt staff, but surely she has the right to audit the things the exempt staff do, the tasks and the duties they perform. Am I wrong?

    Ms. Mary Dawson: I think there's a distinction to be made--

    Mr. Pat Martin: What worries me is that--

    Ms. Mary Dawson: Some of the things the exempt staff do they don't claim out of the public purse, and it's those things I think she's referring to that she wouldn't have access to. Her interest is in examining the expenses in relation to which there's a request under the public purse.

    Mr. Pat Martin: And the rationale is that they are neither officers nor employees of the institution? Is that the terminology you use, that they are neither officers nor employees of an institution or a department?

    Ms. Mary Dawson: Actually--

    Mr. Pat Martin: I want to focus on that. I come from a labour relations background, so a hundred times I've made the argument of what is an employee, and what are the tests by which an employee is defined? Do they take wages from the public purse? Are their salaries paid for by government? Do they perform tasks and duties on behalf of their employer? These are all tests you use. Do they use their own equipment, tools, and office space, or do they use the government's equipment, tools, and office space? Those are some of the ways you prove whether a person is an independent contractor or an employee.

    I would suggest that all of the exempt staff at least fit the definition of “employee”. Therefore, the fact that we can't ask the question and get an honest answer about what they're doing with public funds drives me wild, frankly.

    Ms. Mary Dawson: If I could help a little bit, I'd note that it's not just are they employees, it's are they employees of a government institution?

    Mr. Pat Martin: Are they are employees of the government? Are they using public funds? Because the Auditor General says she has the right to audit any expenditures of public funds, no matter what they are, really.

    Ms. Mary Dawson: I'm sorry, I'm in the framework of the Access to Information and Privacy Acts.

    Mr. Pat Martin: I know.

    Ms. Mary Dawson: I'm not that familiar with this issue vis-à-vis the Auditor General. It's not what I'm focusing on today.

    Mr. Pat Martin: If I could switch to one thing we are focusing on, Dagg v. Canada came out in 1997, yet the Treasury Board directive that exempts ministers and their exempt staff came out on March 30, 2001, four years later. If the ruling from Dagg v. Canada was so compelling and obvious, why wasn't it introduced in 1997?

    I would postulate that March 2001, frankly, was a very significant time in the House of Commons because “Shawinigate” was on the front page. So it wasn't just the leadership hopefuls going around spending public funds with their exempt stuff that concerned people; also what concerned people was a little golf course and a little hotel called Grand-Mère.

    Does it not strike you as odd that if this ruling is so compelling that it compelled you to change the way you do business it wasn't introduced in 1997? Why wasn't that directive made a week after this Supreme Court ruling came down? Have you any ideas about that?

    Ms. Mary Dawson: I think that's probably for Treasury Board to answer, because it's Treasury Board's directive.

    Mr. Ross Hornby: Thank you.

    Yes, there was a gap between the issuance by the Supreme Court of the Dagg decision and the implementation report by the Treasury Board Secretariat. I wasn't there the entire time, but my belief is that the reason for the gap is because there really were very few requests for ministerial expenses until about a year and a half to two years ago. Ms. Brennan's researchers think there was an average of about 20 requests a year, and then in that period there were several requests all at once, sometimes blanket requests for everyone in the minister's staff and then others for every trip a minister made, or whatever. It was as a result of that quite dramatic increase in the number of requests for ministerial expense claims that access coordinators began to telephone the Treasury Board Secretariat and ask for guidance on this.

    It was at about the same time that the Department of Justice re-evaluated the legal position it had taken with respect to whether this was personal information or not and sent out its opinion with respect to that, which prompted further requests from access coordinators to the secretariat to provide some clear guidance on whether this was personally protected information or not.

º  (1630)  

    Mr. Pat Martin: How am I doing for time?

    The Chair: You can have a short question. We're short of time.

    Mr. Pat Martin: Can I go back to one of the questions Mr. Desrochers asked, then? Where do we get the definition of personal information? Does it come from the act? Is it one of the definitions in the preamble of the act?

    If somebody spends $50 on a business lunch and exempts it, how do we, in all good conscience, view that as personal information? Using taxpayers' money to buy a business lunch in the course of their duties, working on behalf of the Government of Canada in one capacity or another--how does that become personal information?

    Mr. Ross Hornby: First of all, the Public Accounts of Canada do indicate in a general sense what ministerial expenses are for travel or hospitality. They're reported in the Public Accounts, and as the Auditor General has indicated, she may audit those statements. They go to the department; they're processed; the minister is reimbursed.

    Mr. Pat Martin: What if a guy spends three months selling Liberal memberships when he's supposed to be assistant to the Minister of Health, or something? How do we find out if a person's doing that?

    Mr. Ross Hornby: What we're dealing with here are only those claims that are sent from the minister's office to the government institution for reimbursement.

    Mr. Pat Martin: Then how do we find out about things like the issues I raised?

    The Chair: We'll have to wrap up this questioning here, Mr. Martin.

    Can you finish up your answer, Mr. Hornby?

    Mr. Ross Hornby: What I was going to say was those expense claims come in to the department, and because they are associated with the name of the individual, they are deemed to be personal information.

    In the cases of officers or employees of the department, there's no protection for that, but in the case of other individuals, including ministers and their exempt staff, it is considered to be personal information, and there's a mandatory exemption--subject, of course, to release with consent.

    The Chair: Thank you, Mr. Martin.

    Mr. Shepherd, please. Yes, I'm going to give Mr. Shepherd a chance, because we've got quite a number of Liberals who would like to speak. I'll let you take the start of the second round, with four minutes.

    Mr. Alex Shepherd (Durham, Lib.): Thank you very much, Mr. Chairman.

    First of all, I just want to say that the opposition doesn't have a monopoly on requests for accountability. In fact it's been many of the members from this side who press this issue, and we're happy that the Prime Minister has made the decision he has, to make these fully disclosable.

    What I'd like to know, Mr. Hornby, is even though the Prime Minister has made this decision--and favourable as it is--presumably we still have a problem, because it's an intervention to override this guideline. The question is, what if a person for some reason refuses consent?

    Mr. Ross Hornby: Well, Mr. Chair, in that case it's a matter between the Prime Minister and his ministers. It's not a matter we would deal with in the law. The law, as Mrs. Dawson has indicated, is quite clear on the relationship between the privacy right and the access right.

    If the Prime Minister has asked his ministers and their exempt staff to give their consent and they do not, that is a matter, as I mentioned, that the Prime Minister would presumably take up with his ministers.

    Mr. Alex Shepherd: But even so, in the case where they said “fine” and the result is terminations, even so, the records the exempt staff may well have had will not be disclosed, is that right?

    Mr. Ross Hornby: That is correct.

º  (1635)  

    Mr. Alex Shepherd: You've talked about an exempt staff making application for expense reimbursement where the comptroller or whoever has decided some of those things are not reimbursable because they are indeed personal.

    When you do a release and get the consent, I assume the expenditures that are not reimbursable are not disclosed. Is that correct? In other words, if somebody has actually applied for $4,000 and it was for furniture for his house, and the comptroller said that's not an expense we can reimburse, even so, on an access to information request we would never know that he actually attempted to do that. Is that correct?

    Mr. Ross Hornby: If the person has given his or her consent to the release of the expense claim, then I would imagine the entire expense claim would be released, with the exception of certain items such as the person's home address or Visa number, if they put the expenses on their Visa account and were claiming back. My presumption is that the consent would go to the entire document except for those specific items the coordinator would just, as a matter of course, cross out, because one would not expect or want to see that kind of information released.

    Mr. Alex Shepherd: It's still not really clear to me, because there's a thin dividing line. The minister or the exempt staff would give their consent; however, the $4,000 furniture expense was personal and therefore private information and still not releasable, just to follow the logic of your argument.

    Mr. Ross Hornby: But the consent would be related to the entire document, and the entire document would be personal information. So by giving consent, unless the person specifically withheld the consent with respect to a particular item on it, the entire document would be released, with the exceptions I noted.

    The Chair: Mr. Shepherd, I'm sorry, but your time has now expired.

    Mr. Toews is next, for four minutes please.

    Mr. Vic Toews: Thank you.

    I was very interested in some of the comments Mr. Martin elicited from the witnesses, specifically the fact that these requests were not very common a number of years ago, but all of a sudden there was an increase in requests for this type of information. Mr. Hornby's point was that because of this sudden increase, there was a need to re-examine the basis for the release of this information.

    I would like to know what specific request, and from whom, prompted this re-examination of the basis for the release. It gets right back to my point. There are various ways of eliciting a legal opinion. If the government simply says they're a little concerned about this, their position is that this shouldn't be released, and they would like a legal opinion, a good Department of Justice lawyer will provide that opinion. So I think it's incumbent upon the witnesses here to indicate....

    Mr. Hornby has indicated that something specific prompted this change. We want to know whether it was a document or a verbal comment, who it came from, and where it came from. I would like Mr. Hornby to produce the papers or the verbal confirmation of that evidence.

    The Chair: Confirmation might be hard to come up with, Mr. Toews. But he is asking for documents that are presumably available through the Access to Information Act. He's not asking for a legal opinion, but letters and memos and so on between departments saying “Shucks, we should perhaps look at this again”. Are they available?

    Mr. Ross Hornby: I'm not aware of any document that is available related to that, but there was discussion at the time.

    Perhaps Ms. Brennan could answer the member's question.

º  (1640)  

    Ms. Anne Brennan (Director, Information and Security Policy Division; Treasury Board Secretariat): I can tell you that in early March of last year, several departments received the same essentially eight-part request seeking various information relating to the operations of ministers' offices. The Treasury Board Secretariat, in our role of giving advice, was contacted by some of the coordinators, asking whether this was considered personal information or not.

    We have a system called the coordinators access to information register, into which government departments input the information relating to ATI requests. We monitor that, as do other government institutions. When we noticed there was this increase in the number of requests, coupled with coordinators asking if something was personal information or not, we opened up discussions with the Department of Justice to seek their advice.

    Mr. Vic Toews: Were those conversations between you and the Department of Justice in writing?

    Ms. Anne Brennan: At the beginning it was mostly by phone, with me contacting Mr. Kratchanov. There were also conversations with my senior analysts at Treasury Board.

    Mr. Vic Toews: Governments usually run on paper. I find it astounding that with all the mounds of paper we produce, we never seem to have paper about the things that really matter.

[Translation]

    Mr. Odina Desrochers: You are talking about documents. They are used to producing documents.

[English]

    Mr. Vic Toews: I'd just like to reiterate the request that any documents related to the generation of this review of the basis upon which this information was released should be brought to the committee. I make that motion.

    The Chair: I don't think we need a motion. These documents are available under the Access to Information Act; therefore a request by a member of Parliament should produce them.

    Am I correct, Mr. Hornby?

    Mr. Ross Hornby: Yes, you are.

    The Chair: So you will produce what you can find.

    Ms. Dawson.

    Ms. Mary Dawson: I just have one concern. A request for advice, I believe, is under solicitor-client privilege, in the same way as the advice given is.

    Denis, can you confirm that?

    Mr. Denis Kratchanov: Yes. That's a pretty classic scenario of solicitor-client privilege.

    The Chair: So you're telling me that a request for an opinion is the same as an opinion?

    Mr. Denis Kratchanov: It's protected under privilege in the same way as the response of the lawyer.

    Ms. Mary Dawson: Yes. The theory underlying solicitor-client privilege is to allow a solicitor and a client to exchange confidences and information. So that would be the theory.

    The Chair: Okay. Well, our exasperation continues.

    Ms. Leung.

    Ms. Sophia Leung (Vancouver Kingsway, Lib.): Thank you, Mr. Chair.

    I know many of my colleagues really want to know if the witnesses, Ms. Dawson and Mr. Hornby, can provide legal opinions and papers. If I understand correctly, those legal opinions are really considered exempt documents under Beauchesne and Montpetit. Would you like to expand on that, perhaps to help us understand a little bit?

    Mr. Denis Kratchanov: If I understand your question correctly, you want....

    Ms. Sophia Leung: I want to know the reason you cannot answer or cannot provide the documents and opinion. Is it because those legal opinions are exempt?

    Ms. Mary Dawson: Yes. I'm sorry; I didn't quite hear you.

    The rule or the practice the government has followed is reflected in Montpetit and Beauchesne. It has been the standing practice of the Government of Canada not to release legal opinions in Parliament or any committee. I might add it's also the practice in other Commonwealth countries and countries similar to Canada.

    Ms. Sophia Leung: In the meantime, because of the concerns we have expressed in Parliament.... That's why the Prime Minister is trying to advise that perhaps we'll make all the information accessible. Isn't there a contradiction in that?

    Ms. Mary Dawson: I didn't follow the question.

    Mr. Denis Kratchanov: A contradiction between the fact that the Prime Minister has said he's asking his ministers to give consent and--

    Ms. Sophia Leung: And the President of Treasury Board also announced that.

    Mr. Denis Kratchanov: These are two different things. Whether the expense accounts will be released or not and whether or not the legal opinions explaining the legal status of these expense accounts will be released are two distinct issues. The fact that the Prime Minister has asked that the expense account be disclosed, when requested under the act, is not related to the protection of the legal advice provided on this matter to the government.

º  (1645)  

    Ms. Sophia Leung: So the legal opinion from you is definitely exempted. You cannot disclose.

    Ms. Mary Dawson: That's right.

    Mr. Denis Kratchanov: Yes.

    The Chair: Thank you very much, Ms. Leung.

    Now we're going to turn to Monsieur Perron. He has indicated that he wants to split his time with Monsieur Desrochers.

[Translation]

    Mr. Gilles-A. Perron (Rivière-des-Mille-Îles, BQ): Thank you, Mr. Chairman.

    I will not ask our guests any questions because they cannot or will not answer in a satisfactory manner.

    I have a question for you, Mr. Chairman, in the same terms that I ask myself the question. Why is it necessary to keep public accounts if we cannot have access to all the documents we need to judge on how taxpayer money is being spent?

[English]

    The Chair: That is an excellent question, Monsieur Perron. I'm at a loss to answer you because, as you have just heard, we can't get legal opinions. We understand why we can't get legal opinions. We can get letters requesting legal opinions. As Mr. Toews points out, the government is now doing business on the phone and verbally, so there's no record of anything. I would hope that through this meeting, and by virtue of the fact that the Prime Minister made a statement last week, public pressure does actually produce something.

    I'll use your intervention to ask a question to either Mr. Hornby or Ms. Dawson. Is the Prime Minister's statement retroactive, or is it effective the day he made the announcement?

    Ms. Mary Dawson: I guess it's effective the day he made the announcement, but if there's a request sitting there, I would think it would apply when somebody's deciding whether to consent.

    The Chair: So all these access to information requests that came rushing in in the spring of 2001 are now barred.

    Ms. Mary Dawson: Except that they could be submitted again, I would assume.

    The Chair: Mr. Hornby.

    Mr. Ross Hornby: Yes, that's correct. In the information notice and in the meeting we had with access coordinators earlier this week we indicated that the exhortation does not apply to cases that are already closed. Of course, if there is a new request with respect to the same information, then the Prime Minister's exhortation would apply to the ministers and exempt staff to provide their consent. But we did not ask the coordinators to go back and open all the cases they may have closed.

    The Chair: No, I appreciate that, but if somebody wanted an expense account for 2001 or 1999, that's still available.

    Mr. Ross Hornby: Yes, because if the record is still in the government institution, it is subject to the act.

    The Chair: Okay.

    I hope that provided some light on your question, Monsieur Perron.

    Mr. Paul Szabo: Mr. Chairman, I have a point of clarification.

    The Chair: Point of clarification, Mr. Szabo.

    Mr. Paul Szabo: Mr. Chairman, Mr. Perron had indicated that the witnesses did not want to answer something.

    The Chair: No, he said “to his satisfaction”.

    Mr. Paul Szabo: To his satisfaction?

    The Chair: Yes.

    Mr. Paul Szabo: Secondly, I have some confusion as to the two circumstances, one being the interpretation of the law with regard to the exempt status, that there is protection if that protection is wanted. But the clarification I want is if a minister volunteers to disclose, that is not time-sensitive; that is, the minister has an opportunity to disclose anything a minister wants, at any time, regardless of how long ago it was.

    The Chair: Mr. Hornby or Ms. Dawson, can you make the clarification?

    Mr. Ross Hornby: Well, that is correct: a minister can disclose any document he wishes to disclose that is in his office, and the institution would disclose documents--

    The Chair: Okay. So that's fairly clear.

    Now we're going to get back to Monsieur Perron and Monsieur Desrochers.

º  (1650)  

[Translation]

    Mr. Odina Desrochers: While trying to distinguish what is public from what is personal, I will ask you the following. When a minister uses his personal credit card to pay for a meeting that he has had with three or four people, and he asks for a reimbursement of his expenses from his office or his department, this means he will be reimbursed using public funds. If he uses a government credit card, because it is processed internally, is that information available as well if he uses his personal credit card?

[English]

    Ms. Mary Dawson: I don't think the credit card that he was using would be particularly relevant. When the issue comes to the attention of those who are checking expenses is when it's sent to a government institution for payment. If it's not sent to the institution then it's not an issue with respect to the public purse. If it is sent to the government institution, then there would be an assessment made as to whether it was a legitimate claim or not.

    The Chair: I think his point, Ms. Dawson, is that since the government credit card is issued by the department and it belongs to the department and contains information--i.e., what he had for lunch or where he went for lunch and how much he spent--that is departmental information, is that exempt?

    Ms. Mary Dawson: It would.... Yes.

    The Chair: Why?

    Ms. Mary Dawson: It would be, because it's not in the exception that's expressed, because it relates to a minister's--

    The Chair: No, I said the credit card belongs to the department, it was issued by the department, that no doubt the bill went to the department, was paid for by the department. Why is there any discretion to claim privacy on it?

    Ms. Mary Dawson: Well, it isn't a question of what credit card it is or whose account it is; it's a question of whose information it is. It's information--

    The Chair: But it's government property.

    Ms. Mary Dawson: Maybe my colleague can help a little bit better.

    Mr. Denis Kratchanov: Perhaps I can help. You have to go back to the definition of personal information, the first step.

    The Chair: A government credit card is not personal information.

    Mr. Denis Kratchanov: If you have a slip, this is what you'll get at the end of the day.

    The Chair: Then the government gets a bill.

    Mr. Denis Kratchanov: Yes. The slip will show Minister X paid $100 for a meal at La Gondola Restaurant. The record is information about an identifiable individual. I'm using the words of the act. You've completed the first step of the process of the definition of personal information.

    The Chair: If I can speak for Mr. Desrochers, to repeat Mr. Perron's words, the answers really aren't satisfactory.

    Are you correct in saying it?

[Translation]

    Mr. Odina Desrochers: I have said this at the beginning of my intervention and I repeat again, Mr. Chairman. We are unable to distinguish what is public from what is private. We are talking about personal credit cards and Government of Canada credit cards. We still have no answer. How do you expect the public not to ask questions, as well, in the face of such lack of clarity?

[English]

    The Chair: We'll finish up with that line of questioning.

    We'll turn to Mr. Murphy to see if he can shed some light on the subject.

    Mr. Shawn Murphy (Hillsborough, Lib.): I have a couple of questions. I want to follow up, Mr. Chairman, on the point raised by Mr. Shepherd. This goes back to the position taken by our Auditor General.

    This is to Ms. Dawson. Is there not a conflict with the Auditor General's position? She has taken the position that the expenses can be fully audited. They're public expenses. She can go in and audit them. She can publish them to become part of the public domain. Once they become public, they can release the information, testify here, and present a report. Your position is they're totally excluded. Is there not a conflict here?

    Ms. Mary Dawson: I have to admit I have not studied the relationship between the Auditor General Act, the Access to Information Act, and Privacy Act. I simply can't give you an off-the-top legal opinion on the issue. I'm sorry.

º  (1655)  

    Mr. Ross Hornby: Mr. Chair, perhaps I could help. The Auditor General, under the Auditor General Act, has the right to go in and audit the Public Accounts of Canada and any expenditure made in relation to the accounts. The auditor would go in and look at the department.

    For example, if they were doing an audit of the expense claims generally of travel in the department, they would go in and see all the records there. For ministerial travel, the ministerial expenses are reported in the Public Accounts of Canada in a general sense. We're talking about whether a specific certificate from a minister with respect to expenses, or a specific travel claim by a member of the exempt staff, is releasable to the public.

    It's a different issue. It's about whether a member of the public can see the document by virtue of making a request under the Access to Information Act. The position of the government is they can see it, provided there is the consent of the individual concerned. There is personal information on the specific piece of paper.

    The Auditor General can go in, audit all the documents and public expenses, and does so on a rotating basis in accordance with her audit priorities.

    Mr. Shawn Murphy: If there was any hanky-panky in what the auditor was auditing, it would be fully disclosed to the House of Commons.

    Mr. Ross Hornby: One would presume the Auditor General, if she found a consistent practice where improper expense claims were reimbursed out of the public purse, would report it.

    Mr. Shawn Murphy: She wouldn't be dealing with them any differently from anything else, would she?

    Mr. Ross Hornby: You're quite right.

    The Chair: Thank you, Mr. Murphy.

    Mr. Martin, please, for four minutes.

    Mr. Pat Martin: Thank you, again, Mr. Chair.

    Frankly, I'm still fuzzy on a lot of issues here. I don't feel any smarter than when I came in, which wasn't that smart.

    I'll ask you a very specific question. Maybe we're asking too broad and general questions. Are the funds used by exempt staff ultimately recorded in the Public Accounts of Canada, yes or no?

    The Chair: Mr. Hornby.

    Mr. Ross Hornby: Not based on an individual's name, but yes, expenses of a minister's office are recorded in the departmental expenses in the Public Accounts of Canada.

    Mr. Pat Martin: Ergo the Auditor General has unrestricted access to them under the Auditor General Act, yes or no?

    Mr. Ross Hornby: If it's a public expense, yes.

    The Chair: You also mentioned, Mr. Hornby, that the minister's expenses and those of his staff are reported in the department's expenses. Yet we have this very fine, funny line that they're heads of departments but they're not part of the department, that expenses are included in departments but they're not there.... I'm a little bit confused myself.

    I'm sorry to intervene, Mr. Martin.

    Mr. Pat Martin: I don't think that line of questioning is going anywhere. With the minutes I have left, I'm going back to, if the exempt staff are not officers or employees of a department or institution, what are they? What is their status? If it walks like a duck and it quacks like a duck, then usually there's a reasonable expectation that you're dealing with a duck, right? What are these guys, then? They get a paycheque.

    Mr. Ross Hornby: The position of the government is that they are employees of the crown, but they are not officers or employees of a government institution. That is because they are not appointed, pursuant to the Public Service Employment Act, through the Public Service Commission. They are hired directly by ministers. Their tenure is limited to that of the minister in office, so that when in fact the minister--

    Mr. Pat Martin: They're subject to the parliamentary staff association, then--PESRA?

    Mr. Ross Hornby: No, they are appointed under the Public Service Employment Act, but not by the Public Service Commission. Therefore the merit principle does not apply to them.

    Mr. Pat Martin: It's like dealing with the secret service or something--I have no idea--a special status.

    Mr. Ross Hornby: They are hired by ministers, and they--

    Mr. Pat Martin: So they do get a paycheque from the Government of Canada. It probably looks like my paycheque, issued by the crown. Is that right?

»  (1700)  

    Mr. Ross Hornby: I haven't seen one, but I would presume they're issued in the same way as other paycheques.

    Mr. Pat Martin: Then, I would argue, they're employees. Maybe that's the root of our problem here, that we have to revisit that somehow.

    I don't know how much time I have left.

    The Chair: You have about two minutes.

    Mr. Pat Martin: Going back, then, to the date of implementation of the IR, what does “IR 78” stand for?

    Mr. Ross Hornby: Implementation report.

    Mr. Pat Martin: Implementation report 78 of March 30, 2001. Does it not strike you as odd that this was the date of implementation? Just as a person, not even as an expert witness, doesn't that seem goofy to you?

    Mr. Ross Hornby: I know of no mystery around that particular date. It was when the report was prepared and issued.

    Mr. Pat Martin: But you said it was triggered by a volume, a cascade of requests that came in all about the same time. Doesn't it also coincide with the beginning of this court case that it made reference to, about the Prime Minister's agenda? Is that about the same timeframe?

    Mr. Ross Hornby: I don't know.

    Mr. Denis Kratchanov: That court case began around the end of August or early September of 2000.

    Mr. Pat Martin: Of the year 2000.

    Mr. Denis Kratchanov: Yes.

    Mr. Pat Martin: Shortly thereafter it became advantageous, maybe, to clam up on that information. That would be the conclusion I would come to.

    I have no further questions, Mr. Chair. Thank you.

    The Chair: Thank you very much, Mr. Martin.

    Mr. Bryden, four minutes, please.

    Mr. John Bryden: Mr. Chairman, I have gone through the definition of “personal information” in the Privacy Act, and I can't find a scintilla of evidence indicating it was ever intended, even remotely, to apply to the expense accounts, the expense claims of people using government money to do government business. The only connection I could make to the interpretation that came from the Justice department is the Dagg decision, which dealt with time sheets, not expense accounts.

    All I have left is the comment from Ms. Dawson's speech, where she says that the intent of the judges with respect to the definition of personal information--this is her quote--“seems to...capture any information about a specific person”. “Seems”--isn't that an awful slender thread on which to hang an interpretation that exempts expense accounts?

    Ms. Mary Dawson: Well, it was the conclusion that was agreed to by nine judges of the Supreme Court.

    Mr. John Bryden: It's you who used the word “seems”.

    Ms. Mary Dawson: No, it's the court that used the word “seems”.

    Mr. John Bryden: But it is you who has interpreted the word “seems” as applying to expense accounts. The court never said anything about expense accounts. I read the court's decision.

    Ms. Mary Dawson: But they said they applied to log-in books, or whatever they were.

    Mr. John Bryden: But the log-in books were personal information because they do disclose people's comings and goings.

    With regard to the expense account, which involves spending government money on government business, I'm sure the judges didn't mean that this is information about a specific person. An expense account is not information about a specific person. It has nothing to do with their colour, their medical records, or their time in and out. It has to do exclusively with government business. So it is your interpretation.

    Ms. Mary Dawson: Log-ins relate to government business, too.

    Mr. John Bryden: I agree.

    Ms. Mary Dawson: Expenses relate, I would suggest, just as much to individuals as logging in. It's what they spent their money on.

»  (1705)  

    Mr. John Bryden: No, that's not so.

    Mr. Chair, I'd like to make a point about the log-ins. This is what was dealt with in the Dagg case. If somebody logs in and out of his employment and that information is released to the public, this person may be cheating on his wife or on his union, for example, and in that sense it is personal information that could damage an individual. I thought that the court's decision in the Dagg case was entirely appropriate.

    But to jump from that to people who are supposed to be spending government money on government business and declare that was the intent of the judges, I submit to you that is exclusively your interpretation, not the judges' interpretation.

    Ms. Mary Dawson: Can I point out, though, that in the Dagg case that information on the log-ins was in fact released, and the only distinction between that case and the expenses we're dealing with is that the question we're focusing on is who it applies to, just government employees or exempt staff. The whole point we're trying to make with regard to the Dagg decision is that what changed in that decision didn't relate to the issue of the legitimacy of releasing material related to the public purse. But what that decision did was it opened up the interpretation of personal information such that it's almost an accident in the way the act is drafted that the result is that only the government employees managed to get into the exemption in this area.

    Mr. John Bryden: May I suggest that you could have easily interpreted that decision in the way I just suggested. It was your choice to determine that expense claims were personal information, in the sense that the judges said personal information seems to capture just about anything. But they only said “seems”. When they referred to information about a specific person, we have to interpret what the judges meant by that. I submit to you that I wouldn't presume that the expenses of an employee on government business is personal information. I don't think the judges ever intended that, yet you have taken that to be their intention.

    I note that the whole argument about whether or not the employees have to give consent to release this information is based on the premise that the interpretation, if you will, of whatever the judges only seemed to say is that expense claims are personal information. It's your interpretation, not the judges' interpretation.

    Ms. Mary Dawson: I'm afraid I would have to disagree. It's the judges who said it seems to come to this result, not us saying it seems that the judges have said this. Up until the time of that decision or when it was focused on subsequently, in fact the legal advice was in the generous direction toward release of this particular information, and that's the way we had approached the act from the beginning. But when the effects of this case were reconsidered, there was another assessment of how that interfaced with the other provisions of the act, and, like it or not, our assessment had to take into account that decision, which broadened the meaning of personal information and ended up with this result.

    Mr. John Bryden: One final word, Mr. Chairman.

    The key words were that it was your assessment, and that's my stumbling block. It was your assessment.

    The Chair: Thank you, Mr. Bryden.

    I have a question. I understand that when an expense account is requested to be released, under access to information, the release the person signs contains a big notice that says: In accordance with the Privacy Act, you have the right to examine any records containing your personal information. If you believe there is an error or omission in any of the personal information you examine, you may request a correction.

    Mr. Hornby, if this is an expense account and somebody says oops, this is going to be public, and oops, that shouldn't be there because that was political business and not government business, and if they request a correction, would that be removed and not disclosed?

    Mr. Ross Hornby: I believe that to be the case.

    The Chair: Shocking, absolutely shocking. So they would reimburse the treasury, I presume, and say that was a mistake. Is that correct?

    Mr. Ross Hornby: That's my presumption.

    Do you want to add to that?

    Ms. Anne Brennan: I just would add that under the Privacy Act there is a section--section 12, I believe--that requires that documents can be corrected. It's a provision under the act. So it is within the Privacy Act that if there is an error in a document, an applicant can make a request to have it corrected under the Privacy Act.

    The Chair: What about reimbursement of the government?

    Ms. Anne Brennan: Well, I think that may not be a mistake. I'd have to see a real case before I could--

    The Chair: Let me just give you a specific case. Somebody has an expense account. The government reimburses the person because they said it was government business. He happens to be a ministerial staff member. An access to information request comes in and says “I want to see that”. Through the notice, he has a right to correct it. He says, “Remove that. It was a mistake. I shouldn't be getting the government to reimburse it, so here is the money back. Take that off and leave it that way.” Would that information be hidden?

»  (1710)  

    Ms. Mary Dawson: There isn't an automatic right to correct.

    I would just ask Mr. Kratchanov again to address that.

    Mr. Denis Kratchanov: Yes, the act provides the right to correct generally for personal information, but there is no obligation on the government institutions to make the correction.

    The Chair: I know there's no obligation, but there's no reason they wouldn't either, for a minister's staff. Right?

    Mr. Denis Kratchanov: That's a decision that has to be made by the person responsible for the act. The provision you have quoted is really paraphrasing what the act is saying.

    The Chair: I'm getting a little frustrated here with these types of answers.

    I'm getting back to Mr. Hornby because you're Treasury Board and you write the guidelines. If someone requests a correction and reimburses the government for something he didn't want to become public, you would accept that and prevent it from being released. Is that correct?

    Mr. Ross Hornby: I think travel claims are frequently corrected at times. People realize they may have made a mistake and they reimburse the government, or there's an audit and it reveals that someone has been paid for something.

    The Chair: No, I'm talking about something else. If he says, under his consent to disclose under access to information, “I don't want that disclosed. Please correct it, hide it. Here is the money back”, you would accept that.

    Mr. Ross Hornby: Well, we're dealing with personal information here.

    The Chair: No, I'm dealing with the issue of an ability to correct and amend a record so that it doesn't become public.

    Mr. Ross Hornby: The document cannot become public without the consent.

    The Chair: If it is public information, if he says, “I don't mind all of it going except for this one particular lunch. I want that taken off as a correction”, you would do that and prevent the release of that information.

    Mr. Ross Hornby: Well, I should point out again that these decisions are made in each institution.

    The Chair: You're avoiding the point, Mr. Hornby. Would you hide the information and prevent its release?

    Mr. Ross Hornby: We can only release with consent, sir, and therefore--

    The Chair: No, you're missing my point. Let me say it again. If the government reimbursed the person and he consented according to what the Prime Minister said last week, all that information is public. But he has the right to request a correction. “This was a political meeting rather than a government meeting. I don't want that to be released. Now that it's going to become public, I want it hidden instead. I'll pay the government back.”

    Mr. John Bryden: Mr. Chairman, I have to interject. I think that's a hypothetical question. I'm not sure that's fair to the witness.

    The Chair: I'm only trying to get the answer to one question from Mr. Hornby. Mr. Hornby is responsible for advising Ms. Brennan on how to write the regulations on how to manage the access to information for all government employees, ministers, and staff. I would hope these new regulations would make absolutely sure the opportunity to bury an expense account that was illegitimate, if it were being requested to be made public, would never happen.

    Mr. Toews.

    Mr. Vic Toews: Perhaps I'm missing the point here and you can help me a bit, Mr. Chair. As I understand it, these employees are not employees for the purpose of this act.

    Ms. Mary Dawson: Which employees?

    Mr. Vic Toews: These exempt employees in the ministers' offices are not employees, for the purposes of this act.

    Ms. Mary Dawson: They're not employees of the government institution.

    Mr. Vic Toews: So they might be employed for other purposes, but for the purposes of the act they're not employees.

    Ms. Mary Dawson: No, but you need the four words, not just one: employees of a government institution.

    Mr. Vic Toews: Okay, but the Prime Minister has now said, “We want you all to consent to the release of this information.” This consent is elicited on whatever basis.

    What the chairman just read troubles me. He said that under the Privacy Act you have the right to review and object. But how do you get rights under the Privacy Act if you aren't an employee within the definition of that act?

    He has said, “You'll consent now to this, and by the way, we're going to give you all the protections of the Privacy Act but none of the responsibilities”. That's what this is leading to, and some of the issues the chair has just raised cause me a lot of concern. It seems that whichever way we go, these ministers and their exempt staff get these exemptions. How do they acquire these rights under the Privacy Act if they're exempt employees?

    Ms. Mary Dawson: The right to have your information corrected applies to any Canadian--the generality of the definition of personal information.

    Mr. Vic Toews: Let me get this straight. So the generality of the act allows them to exercise these rights to correct, but the generality of the act does not allow the taxpayer to know how these people are spending their money. This is completely astounding.

    Anyway, I think I'm getting the picture.

»  (1715)  

    The Chair: Mr. Szabo, do you have the picture, or do you need some questions?

    Mr. Paul Szabo: Thank you, Mr. Chairman. It's an interesting meeting. The chairman is more than a chair; he's also a member sitting at the table, but we'll leave that for now.

    It's probably worthwhile to just reaffirm what the representations have been, which is that it is the interpretation of the relevant legislation, and a longstanding practice, that ministers and exempt staff are exempt from the requirement to disclose that information. Is that correct?

    Ms. Mary Dawson: That is the effect of the Dagg decision, indirectly.

    Mr. Paul Szabo: On the Dagg decision, there is this issue of whether time sheets are the same as expense reports. You might want to comment on the fact that time sheets represent personal information because they can be interpreted to indicate personal activity. Similarly, an expense report can indicate a nature, dimension, etc., of personal activity. Therefore, by association, you could link anything that has personal activity or personal information to the Dagg decision. Would that be a fair assessment?

    Ms. Mary Dawson: I'd go even further than that. I think the Dagg decision said it didn't have to be personal in nature; it just had to be about the individual. So it even went further than what you're suggesting.

    Mr. Paul Szabo: So there is a valid linkage to the Dagg commentary and the word “seem”. Thank you.

    Credit cards are not a legal person, are they? So the dialogue on whether or not an expenditure paid for with a government credit card versus a personal credit card and submitted on an expense report does not change the character of the transaction.

    Ms. Mary Dawson: No.

    Mr. Paul Szabo: Okay, and just to reaffirm that, notwithstanding the protection, as it were, that the ministers and exempt staff have under the current interpretation of legislation, the aspect of volunteering information is quite a separate matter. Is that not the case, that any government official, and so on, can disclose information on their own volition, notwithstanding any legislation that would otherwise protect it?

    Ms. Mary Dawson: Yes, and they can consent to someone else disclosing it.

    Mr. Paul Szabo: Okay.

    Finally, with regard to the scenario painted here about, if someone volunteered to disclose or to release information, they could request a change and reimburse, and so on, so that they could hide things, it would seem to me that is a hypothetical that also imputes some motive or some wrongdoing, which I think is quite inappropriate to the extent that, if a minister is volunteering to disclose anything, there clearly would be no concern about the nature.

    I thought in the representations of the witnesses--and maybe the witnesses can confirm this--if there are changes requested, either corrections or reimbursement for errors, omissions, or any other reasons of such nature, that does happen from time to time, and the motivation is to correct file documents, period.

»  (1720)  

    Ms. Mary Dawson: But the purpose of the provision is to protect people, to ensure that the correct information is kept about individuals by the government. The focus in that provision is on protection of individuals.

    The Chair: Thank you, Mr. Szabo.

    Mr. Martin, you indicated that you have a short question or intervention.

    Mr. Pat Martin: Yes, I do have one very short question, to help us leave here with some feeling of satisfaction, at least.

    I opened my remarks earlier by saying accountability and transparency have become almost the mantra of this Parliament since I've been here, in 1997. Most Canadians would like to believe there are no people who are exempt from being transparent and accountable, right? So what specific changes would be necessary to either the Access to Information Act or the Privacy Act to bring that about, to take away the sheltered protection they currently enjoy? What changes could you recommend that we might want to follow up on to fix that, to give Canadians what they probably thought they already had?

    Ms. Mary Dawson: First of all, there are a whole bunch of legitimate exemptions from access to individuals' personal information. But you're talking about ministerial staff, I assume.

    Mr. Pat Martin: Yes, not to abolish the whole idea of privacy. Certainly we don't want to invade legitimate privacy issues. I'm talking about exempt staff pretty much being able to do whatever they like without really accounting for the time or the expense.

    Ms. Mary Dawson: There are any number of ways one could look at tightening the act in that respect, but an express reference to ministerial staff would do it in the particular provision.

    Mr. Pat Martin: Would that be a deletion or an addition? Is there a list somewhere they would have to be taken off, or a list somewhere they would have to be added to?

    Ms. Mary Dawson: You would take a look at paragraph 3(j) under the definition of “personal information”.

    Mr. Pat Martin: Okay, very good.

    Who would answer, then, for the Privacy Act?

    Ms. Mary Dawson: That is the Privacy Act, but the Access to Information Act incorporates that definition. So it's for both.

    Mr. Pat Martin: Okay, thank you.

    The Chair: Thank you, Mr. Martin.

    Mr. Bryden, please. You have a short intervention.

    Mr. John Bryden: Yes. I think Mr. Szabo and Mr. Martin have crystallized a lot of this debate at last. It seems to come down to this, Ms. Dawson: In your view, the justice department's view, the judges in the Dagg decision ruled that expense claims, taxpayer expense claims, are about the individual, not about government. Is that what this is all about?

    Ms. Mary Dawson: Well, they weren't focusing on expense claims, of course. They were focusing on how broadly the definition of “personal information” can be interpreted.

    Mr. John Bryden: But you took from that, from what they said, that expense claims are about the individual and not about government. In other words, it was you who took that expense claims are about the individual, or personal information, rather than being actually an operation of government.

    Ms. Mary Dawson: Well, it was our department, but I don't know if I'd add “and not about government”. The conclusion was they were about the individual.

    Mr. John Bryden: That was their conclusion.

    Mr. Chairman, if I may follow up on Mr. Martin and I'll go back to all of you, it seems to me what we have in the case here was the original Privacy Act defined personal information. We now have a court ruling that has obviously put us as MPs--and the officials as well--at loggerheads of what to do.

    Would it be constructive from your point of view to have the government review this whole question of what personal information is and perhaps revisit the legislation with an amendment sometime in the future that will clarify this mess for all of us?

    Ms. Mary Dawson: I think that's not for me to suggest.

    The Chair: That's for Mr. Bryden to ask and for you to respond.

    Mr. John Bryden: It would be helpful, I think is the way--

    Ms. Mary Dawson: I think anybody could suggest that and it would change the legislation.

    The Chair: I think Mr. Bryden just asked that. Can we get it?

    Mr. Shepherd, I'm going to allow you a short intervention. That will be the last one.

    Mr. Alex Shepherd: You said this “right to correct” applied to all Canadians. In other words, not just exempt staff but other people who work for the government also have the right to correct.

»  (1725)  

    Ms. Mary Dawson: Yes. To be a little more precise, the Privacy Act is about information held by the government about individuals. When I say “all Canadians”, I mean everybody who has information being held about them in the government.

    Mr. Alex Shepherd: As a larger example, I'm an assistant deputy minister and I submit an expense claim and I accidently put my furniture in there, and then somebody under an access to information request pulls my file. I have the right to say whoops, here's the $4,000, and it's not disclosed. Is that correct?

    Ms. Mary Dawson: Well, you'd have to determine whether--

    Mr. Alex Shepherd: Yes or no.

    Ms. Mary Dawson: I don't think so.

    Mr. Alex Shepherd: Well, there seems to be a terrible lack of clarity on this issue about the ability to “correct”.

    Ms. Mary Dawson: I think we're mixing two different types of provisions here in this discussion. There is a power for an individual to get records corrected about him, so that there isn't erroneous information on government records about that individual--

    Mr. Alex Shepherd: Then it could happen at the time of an access to information request.

    Ms. Mary Dawson: Well, that would be very unusual.

    Mr. Alex Shepherd: But it can happen.

    Ms. Mary Dawson: It could happen at any time, so in theory it could happen--

    Mr. Alex Shepherd: So the chair's point applies not only to exempt staff, but to anybody who works for the Government of Canada?

    Ms. Mary Dawson: That's right.

    The Chair: Thank you, Mr. Shepherd.

    The motion was that the public accounts committee recommends that an order of the House be issued for copies of all detailed expense accounts information for ministers and their exempt political staff and that the information shall be tabled in the House and permanently referred to the Standing Committee on Public Accounts. I'm going to call the question.

    (Motion negatived)

    Mr. Gilles-A. Perron: We spent three hours for nothing.

    The Chair: We normally wrap up our meeting with a closing comment by the Auditor General, but of course we don't have that.

    I will just thank everybody for being here this afternoon. The next meeting is Tuesday, April 9, 2002.

    This meeting stands adjourned.