OGGO Committee Report
If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.
|
MATTERS RELATING TO THE Confidence lies at the heart of the relationship between an Officer of Parliament and Parliament. When trust is violated confidence is destroyed. This report reflects the finding of the members of the Standing Committee on Government Operations and Estimates, that the conduct of Mr. George Radwanski as Privacy Commissioner, did not meet the necessary standard of honesty. On June 13, 2003, the Standing Committee on Government Operations and Estimates tabled its Fourth Report in the House of Commons, a report stating findings and conclusions relating to the Privacy Commissioner and his Office (see Appendix 1). The central conclusion of that report was that the Committee had ceased to believe that information provided to the Committee by the Privacy Commissioner about his activities was accurate and complete. Consequently, members of the Committee were in unanimous agreement that they had lost confidence in the Commissioner. In addition, the Committee concluded that there was sufficient reason for concern about the financial and human resources practices of the Commissioner to refer these matters to the Auditor General and the Public Service Commission for detailed audits. As well, it was requested that the Public Service Commission use its powers to ensure that staff of the Office of the Privacy Commissioner (referred to throughout this report as the OPC) are not subject to interference or other negative consequences as a result of their appearances before this committee. This report provides the House with a statement of the facts obtained by the Committee, as well as an exposition of the reasoning that led the Committee to the findings and conclusions set out in the Fourth Report, in particular the four findings stated in the report as follows: Committee Members believe the Commissioner has misled the Committee with respect to: (a) the circumstances under which the Office provided a copy of a letter from which one of the original paragraphs had been deleted; (b) a set of expense reports whose incompleteness was not acknowledged in the cover letter; (c) travel expense forms on which there had been an attempt to conceal, by the application of white-out material, certain information; and (d) the reasons for his failure to appear in person at a hearing on the Commission’s main estimates . When these concerns were brought to the attention of the Commissioner or Office officials, some additional documents were provided but the Commissioner has continued to mislead the Committee with respect to these matters in subsequent letters and testimony before the Committee. This report also reflects additional information that has been provided to the Committee since June 13, 2003. Information received since that date provides further support for the conclusions set out in the Fourth Report, and provides no grounds for amending or qualifying any of the findings or conclusions stated in that report. The Committee remains united in its conviction that Mr. Radwanski acted improperly in his attempts to deceive the Committee, abused his privileges as the head of the Office, and created a culture of intimidation within the Office. The conduct of the Privacy Commissioner needs to be considered in light of the distinctive characteristics imparted to the Commissioner’s position by virtue of his being an Officer of Parliament. The Auditor General, the Chief Electoral Officer, the Commissioner of Official Languages and the Information and Privacy Commissioners are Canada’s Officers of Parliament.1 They are creations of Parliament, established to provide Parliament with information, advice and other services needed in holding governments accountable. Officers of Parliament make specific contributions through their investigative and auditing functions and frequently perform an ombudsman function relating to their areas of responsibility. A central requirement for the effectiveness of Officers of Parliament is their independence from the Government of the day. The role of Officers of Parliament as servants of Parliament, reporting directly to Parliament through the Speaker of the House of Commons (and in the case of the three commissioners, through the Speaker of the Senate as well) reflects this independent status. Their independence is safeguarded by reporting and removal procedures, the guarantee of financial independence, fixed terms of appointment, and the Officer’s general control over the operations of the office. At the same time, the degree of independence granted to Officers of Parliament remains controversial, and creates a need for Parliament to possess a remedy in case the independence of these positions is compromised. Since these Officers are accountable to Parliament, this remedy typically takes the form of legislative provisions that ensure that neither Parliament nor the Government can unilaterally remove an Officer, but rather that joint action is required. An additional safeguard is provided by the common requirement for agreement by both the Senate and the House of Commons. The Privacy Commissioner is responsible for the administration of the Privacy Act, which came into force along with the Access to Information Act on July 1, 1983. The Act is a data protection law, once described as an “information handler’s code of ethics.” The law:
The Commissioner is also responsible for the more recent Personal Information Protection and Electronic Documents Act, which governs the collection, use and disclosure of personal information in the private sector, but only in the course of commercial activities. On January 1, 2004, the Act will cover provincially regulated organizations and/or activities except where a province has enacted legislation that is substantially similar to the federal law. So far, Quebec is the only province in this category. In addition to investigating complaints under privacy legislation, the Commissioner can conduct audits of the fair information practices of government institutions, and audit private sector organizations where it can demonstrate reasonable grounds for doing so. The Privacy Act distances the Commissioner from the Government of the day by establishing roles for both the Government and Parliament in the appointment and, where necessary, removal of the Commissioner. The relevant provisions of the Act read as follows: 53. (1) The Governor in Council shall, by commission under the Great Seal, appoint a Privacy Commissioner after approval of the appointment by resolution of the Senate and House of Commons. (2) Subject to this section, the Privacy Commissioner holds office during good behaviour for a term of seven years, but may be removed by the Governor in Council at any time on address of the Senate and House of Commons. (3) The Privacy Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term not exceeding seven years. (4) In the event of the absence or incapacity of the Privacy Commissioner, or if the office of the Privacy Commissioner is vacant, the Governor in Council may appoint another qualified person to hold office instead of the Commissioner for a term not exceeding six months, and that person shall, while holding that office, have all of the powers, duties and functions of the Privacy Commissioner under this Act or any other Act of Parliament and be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council. The Standing Committee on Government Operations and Estimates was created in May of 2002 in response to two concerns. The first was the widely held view of Members of Parliament that the House of Commons should strengthen its oversight of departments and the annual review of estimates. These concerns were expressed in the passage of an Opposition motion calling on the Government to implement the recommendations of the Catterall/Williams Report — The Business of Supply: Completing the Circle of Control and in the passage of a motion calling for the free election of committee chairs The second concern was the need for the House of Commons to become more involved and more knowledgeable about the issues surrounding the introduction of the new Information and Communication Technologies (ICTs) into public management. It is widely believed that these "tools" will have a profound impact on public management and on the functioning of a healthy democracy. In response, the House decided to create the Standing Committee on Government Operations and Estimates and to give it a mandate to oversee the central departments and agencies of government, the Parliamentary Officers who have information management responsibilities and the range of other organizations who receive public money and who are not assigned to a specific committee. Standing Order 108(3)(c), which sets out the specific responsibilities of the Committee, includes the following (see Appendix 2 for complete mandate): (vi) the review of and report on reports of the Privacy Commissioner, the Access to Information Commissioner, the Public Service Commission and the Ethics Counsellor with respect to his or her responsibilities under the Lobbyists Registration Act, which shall be severally deemed permanently referred to the Committee immediately after they are laid upon the Table. OPC Estimates and Annual Report In accordance with this mandate, the Supplementary Estimates B relating to the Office of the Privacy Commissioner for fiscal 2002-2003 and the Main Estimates for 2003-2004 were referred to the Committee by the House of Commons (See Appendix 3). The Committee held meetings with the Commissioner and officials of the Office during March of 2003 on both the Commissioner’s annual report and Supplementary Estimates. The Main Estimates of the OPC were examined by the Committee on May 27, 2003. As detailed elsewhere in this report, these meetings began the process that resulted in the findings released in the Committee’s Fourth Report. THE PROCESS FOLLOWED BY THE COMMITTEE This section of the report outlines the events that led to the initial concerns of Committee members relating to the Privacy Commissioner, and the process employed by the Committee in responding to those concerns. On March 18, 2003, the Standing Committee on Government Operations and Estimates held a meeting with the Commissioner on his recently released annual report. At that meeting, Mr. John Bryden, M.P., requested a range of information from the Commissioner, including:
Following an expression of concern from the Commissioner about disclosure of OPC position and expense account information, Mr. Bryden served notice that he would place a motion before the Committee relating to the formal request for the information he sought. On March 21, 2003, the Clerk of the Committee received a letter over the signature of the Executive Director of the Office (see Appendix 4). The letter indicates that the Executive Director had been instructed by the Commissioner to provide:
A second letter dated March 24, 2003, provided additional information, including job descriptions and a general statement of the routing of the Commissioner’s news releases (see Appendix 5). Shortly after the documents arrived, the Chair received a phone call from an individual who purported to be an employee of the OPC and who claimed that the copy of the letter provided to the Committee had been falsified. Rather than respond to anonymous information, the Chair informed Mr. Bryden of the phone call and they decided that Mr. Bryden would request a copy of the original letter from the Deputy Minister of Justice, which he did. According to testimony received by the Committee, discussions then occurred between the OPC and the Office of the Deputy Minister of Justice. Mr. Radwanski refused to authorize release of the letter until he was informed that it was the Department of Justice’s view that the Access to Information Act provided no grounds for withholding the letter, and that the Deputy Minister of Justice intended to release it. The letter was subsequently provided by Morris Rosenberg, Deputy Minister of Justice, to Mr. Bryden on May 29, 2003 (see Appendix 6). A comparison of the copy provided by the Deputy Minister of Justice and the copy that had been provided to the Committee indicated that the copy provided to the Committee consisted of a falsified version of page 1 of the letter prepared by deleting the bottom paragraph and stamping the date as August 2, 2002, the date of the original. The remaining pages of the letter, including the final page bearing Mr. Radwanski’s signature, were photocopies of the original. A letter from the Privacy Commissioner to Mr. Bryden and copied to the Committee, also dated May 29, 2003, indicated that he had become aware that the original copy of the letter to Mr. Rosenberg was being provided to Mr. Bryden with the Privacy Commissioner’s “consent,” although, as seen above, consent would not have been required. (Appendix 7). This letter went on to provide the Commissioner’s explanation for the deletion of the paragraph (this will be examined in detail in a following section of this report). An Opportunity for the Privacy Commissioner to Respond On June 3, 2003, the Committee Members adopted a motion to call the Privacy Commissioner before the Committee in order to discuss the issue of the altered letter and related matters. This meeting occurred on June 9, 2003, and although the Privacy Commissioner was provided with several hours in which to amplify on the explanation given in the May 29, 2003 letter, at the conclusion of the meeting the concerns of members remained. By this time, some Committee members were being contacted directly by various employees at the Office of the Privacy Commissioner, past and present, and other individuals who expressed a range of concerns about the administrative and financial practices of the Commissioner. Following the meeting on June 9, 2003, the Chair contacted Mr. Robert Walsh, House of Commons Law Clerk and Parliamentary Counsel, to seek his advice on how the Committee should proceed, given the very serious nature of the allegations. As much of the information had been received from "whistleblowers," it was decided that Mr. Walsh would meet with one of them to ascertain the credibility of the individual. On June 10, 2003, Mr. Walsh was contacted by the individual who had initially telephoned the Chair, and the following day he advised the Committee that he had been contacted by an individual in the Office of the Privacy Commissioner who indicated knowledge of the circumstances surrounding the altered letter, and also indicated knowledge of additional matters relating to information supplied by the Commissioner in the documents provided in March. Following discussions with the Chair, Mr. Walsh interviewed the individual in order to be able to satisfy the Committee that the individual was a credible source of information, and had no personal biases or interests that would cast doubt on the veracity of the information being volunteered. In the course of these discussions, the names of possible corroborating witnesses, and others whose positions in the OPC would place them in a position to have knowledge relevant to the work of the Committee were communicated to the Law Clerk. The Decision to Hold In Camera Hearings Given the potential seriousness of issues relating to the altered letter, and of other information that was being communicated to members at this time, the Committee decided to hold a series of in camera meetings with the Commissioner and employees of the OPC, including both the individual who had come forward with information about the letter, other individuals who had indicated their willingness to provide information, and additional individuals whose positions in the Office made their testimony relevant. In considering its approach to these hearings, Committee members recognized that a speedy resolution of all matters that had come to be of concern was essential. Protracted hearings could have a damaging effect on the credibility of the Privacy Commissioner, and his capacity to perform his duties. If the concerns that had arisen were unimportant, or based on misinformation or misunderstanding, they needed to be addressed as quickly as possible. In addition, Committee members were extremely concerned about the predicament of employees of the OPC, both those who had volunteered to come forward with information and others. These were people who, in some cases, had legitimate reasons to believe that their jobs, or future in the OPC, might be at stake. Indeed, testimony subsequently received by the Committee indicated that, at a management meeting during the week of intensive committee hearings, the Privacy Commissioner had made a statement, in what was seen by employees as a menacing and intimidating manner, that if the “rat” were ever discovered, this person would have no future in the public service. On June 12, 2003, the Committee undertook a day (and evening) of intensive hearings involving a number of people. All who appeared before the Committee were advised of the in camera status of the meetings, which meant that the record or identity of witnesses would not be made public. The central reason for the in camera approach was the need to avoid disclosing information that could make employees vulnerable to reprisals, interference or other negative consequences. Witnesses were also advised of their own obligation to respect the in camera status of proceedings, and to not disclose testimony or questions from Committee members. It is noteworthy, however, that this restriction is not a “gag order,” and cannot justifiably be invoked by Mr. Radwanski as an inclusive pretext for refusing to answer questions from the media about expense forms, contracting, and other practices that have come to be widely discussed in recent weeks. It also does not apply to the public meetings that this committee has held with Mr. Radwanski and OPC officials, or documents provided during these meetings. The decision to rely on in camera hearings has had a significant impact on the structure and content of this report, as well as the fact-finding process itself. The need to protect the identity of witnesses has required us to refrain from using attributed quotations and unattributed quotations whose source could be readily identified based on what was said. As well, in describing the sources of information, we have taken care to avoid circumstantial details that could reveal identities. The main exception to this rule concerns the testimony of Mr. Radwanski himself, whose identity cannot be concealed in this report for obvious reasons. Our process provides an important source of credibility that other kinds of proceedings do not have, and that may not be possessed by other in camera processes. This is the agreement of members representing all political parties in the House of Commons on both the conclusions of this report, and the substance of the evidence upon which they are based. Given that the role of opposition parties within our Westminster model of Parliament involves frequent opposition to the Government, the only reason for members of all political parties to affirm the description of the evidence provided in this report is that it accurately represents the evidence provided to the Committee, and reflected in its conclusions. As well, all who provided evidence were advised, and accepted, that their testimony before the Committee had the same status as testimony under oath, acknowledged that they were testifying under oath and acknowledged that they had a duty to speak the truth. We highlight that all witnesses who testify at a parliamentary committee are required to tell the truth whether or not sworn to do so under oath. Federal public employees have an additional professional burden for truthfulness, because their oath of employment requires that they "… will faithfully and honestly fulfil the duties that devolve..." An even higher level of duty and foreknowledge for honesty during testimony is expected from ministers of the Crown and independent Officers of Parliament. As an Officer of Parliament, Mr. Radwanski had particular reason to be aware of the absolute requirement to be fully honest and transparent in his reporting relationship to Parliament through the Standing Committee. The hearings specifically on the matters addressed in this report began with the public meeting between the Committee and Mr. Radwanski on June 9, 2003. This was followed by a full day and evening of in camera hearings on June 12, 2003, which led to a second meeting with Mr. Radwanski on the morning of June 13. Mr. Radwanski was invited back before the Committee specifically to give him an opportunity to hear our major concerns and reconsider his earlier positions. The Privacy Commissioner has claimed that he has not been made aware of the allegations against him and thus has not been able to defend himself. However, the Commissioner’s letter to the Committee of June 11, 2003 (see Appendix 8) provides a detailed follow-up response to concerns that had been raised at the June 9 meeting, and leaves us with no doubt that the Commissioner was fully aware of our major concerns, even before his participation in the June12 and 13 in camera hearing process. It is our belief that the Commissioner has been provided with specific information identifying the Committee’s concerns and their basis, as well as an ample opportunity to respond to these concerns both before the in camera hearings commenced, and at their conclusion (on the morning of June 13, 2003). Finally, on June 17, one of the witnesses returned before the Committee, following a written request to appear for the purpose of providing additional testimony. As outlined earlier in this report, the receipt of a copy of a letter from the Privacy Commissioner to the Deputy Minister of Justice, from which a paragraph had been removed, was a pivotal event among those leading to this report. Our firm belief, based on testimony received as well as physical evidence, is that the Privacy Commissioner has persistently misled the Committee about the circumstances under which this alteration occurred, and the extent of his own direct involvement in the alteration. The cover letter that accompanied the documentation, dated March 21, 2003, and signed by the Executive Director of the Office of the Privacy Commissioner, refers to “the following documents, which were requested at his (the Commissioner’s) recent appearance at the … Committee.” (See Appendix 2). Among the documents then listed is one described as a “Copy of a letter of August 2, 2002 (Radwanski-Rosenberg) concerning the report of the Access to Information Review Task Force.” It is noteworthy that no mention is made of any alteration to the letter, or the removal of the paragraph noted earlier in this report. It is described simply as a “copy.” In his May 29, 2003 letter to Mr. Bryden (Appendix 7), the Privacy Commissioner undertook to explain the removal of the paragraph. He indicated that he had to provide direction regarding the assembly of the documentation by telephone, due to travel commitments, and that his intention that the letter be used as the source of content for a briefing note was not understood by officials in his Office. According to him, he agreed with their suggestion that the paragraph be deleted because it was not relevant to the interests expressed by Mr. Bryden, and this was interpreted by OPC staff as an instruction to alter the letter. Mr. Radwanski indicates, however, that what was intended was an instruction to omit that paragraph from a briefing note that was to be prepared for the Committee. The Privacy Commissioner has maintained this explanation in subsequent letters, as well as in his testimony before the Committee on both June 9 and June 13, 2003. However, this testimony, as well as the June 11 letter (see Appendix 8) has added certain details, notably that the discussion with officials and the falsification of the letter took place on March 21, a Friday, when Mr. Radwanski was in Vancouver. As well, the June 11, letter indicates that the falsified letter was produced by reprinting the first page from a computer file, and then date-stamping the printout with the same date as the original. During our June 12, 2003 day of hearings, one OPC employee supported the main points of the Privacy Commissioner’s account of events. A second employee supported the claim that the changes were made while Mr. Radwanski was absent, but differed from the first employee on details such as the name of the individual who requested a copy of the letter with the paragraph deleted from support staff. The Committee has also received, from two other OPC employees, testimony that conflicts directly with central aspects of the account provided by the Privacy Commissioner. We were told by each of these employees that they saw Mr. Radwanski in the Office when the changes were being made, and that he was present and directly involved in directing the changes — providing direction in the form of a copy of the original letter with the offending paragraph stroked through with his distinctive black pen. We have also been told that the Commissioner was advised by at least one senior official in his Office against sending a modified letter to the Committee, and chose to ignore the advice. During his testimony, Mr. Radwanski has repeatedly stressed the importance of miscommunication as the reason for the sending of the falsified letter by OPC staff. However, the witness who indicated that the Privacy Commissioner had been advised to the contrary also told us that the possibility of creating a memorandum based on the letter had been presented to Mr. Radwanski by his staff. This advice was ignored as well. Furthermore, we have been provided with physical evidence that supports the second of the two scenarios. We have obtained printouts of date/time/access data that is automatically stored within the computer system of the Commission, and it clearly indicates that the letter was accessed and modified from the terminal of an assistant to the Commissioner, on Wednesday March 19, 2003, when by his own account Mr. Radwanski would still have been in Ottawa, and at the office. The fact that the Committee has received conflicting oral testimony from witnesses before Parliament raises questions that are deeply troubling, and will require future attention. For the purposes of this report, however, the central issue concerns the veracity of the Privacy Commissioner’s account of his involvement in the alteration of the letter, as it may relate to the continuing confidence of Members of Parliament in his performance of his duties. With respect to the testimony of individuals, members of the Committee are unanimous in their belief that the more credible version of events is that provided by the individuals who came forward, voluntarily, despite their perception of some personal risk and to no conceivable personal benefit, to inform it that the letter had been altered, and that Mr. Radwanski was directly responsible. Perhaps most significantly, this version of events is consistent with the physical evidence, which indicates that the letter was accessed and altered two days before Mr. Radwanski claims he recalled the existence of the letter, and requested the inclusion of its contents (except for the paragraph to be deleted) in the package destined for the Committee. Mr. Radwanski was unable or unwilling to explain this evidence, when he was advised of its existence on June 13, 2003, and given the opportunity to explain it during his appearance before the Committee on that date. Mr. Radwanski has repeatedly stated that the deleted paragraph was an innocuous one, omitted only because it did not provide information relevant to the interests of the Committee, and that its omission does not reflect any attempt to deny the Committee information. We find the omitted paragraph confusing, since it seems to both deny and affirm that the Privacy Commissioner should be accountable to the public and Parliament (like a minister), and we are not convinced that its omission was merely because of its perceived irrelevance. In any case, Mr. Radwanski’s motive does not detract from the damage to the future credibility of the Privacy Commissioner inflicted by the fact that a document was deliberately falsified and submitted to the Committee, nor does it diminish our concerns about the apparent complicity of some OPC employees in the falsification. Having explored the matter with a great deal of care, we are unable to accept Mr. Radwanski’s account of his personal involvement in these actions. INCOMPLETE AND CONCEALED INFORMATION The March 21, 2003, letter that accompanied the initial documentation provided to the Committee indicated that “copies of his Expenses Claim Forms from April 1, 2001 to March 18, 2003” were being provided, in addition to the letter discussed immediately above. This responded to a specific request for information on expenses during this time period that Mr. Bryden had made at the March 18, 2003, meeting with the Privacy Commissioner. On April 8, 2003, Mr. Paul Szabo formally moved Mr. Bryden’s motion calling for expenses and related information for the full two-year 2001-2003 period and, for comparison purposes, the same information from the Information Commissioner (see Appendix 9). In the June 9, 2003 meeting with Mr. Radwanski, testimony revealed that the original package of expense claim forms had not been signed off by the OPC official responsible for finance, and Mr. Radwanski was asked to resubmit the package with a statement from this official attesting to its completeness. On June 11, a package of expense claim information was provided by the OPC consisting of the March 21 forms, and eight additional hospitality claims for the period covered in the March 21 package, but which had not been included in that package. They brought the total for hospitality and travel claims to $197,287.78. The fact that the package of expense information provided on March 21 was represented as a complete answer to Mr. Bryden’s original request for information covering this period, with no qualification alerting Committee members to the possibility of subsequent additions, remains troubling. At the time the package was sent, efforts to retrieve claims (or ensure that all claims had been retrieved) must have been continuing. Otherwise the additional claims provided to the Committee would not have been found. A statement advising the Committee that the original package of claims might not be complete should have been included in the letter that covered the original package. Our concerns about the incompleteness of the expense information provided by the Privacy Commissioner, and the credibility of statements concerning it, have not diminished since June 11, 2003. The Committee has obtained a printout directly from the Financial Management System of the OPC, that provides an itemized list of travel expenses during 2001-2002 and 2002-2003 for both Mr. Radwanski and his Senior Director General, Communications and Strategic Policy, who usually accompanied him on international travel. This document indicates that Mr. Radwanski’s travel expenses for the two years were on the order of $285,000 (subject to various notes relating to minor items). Allowances must be made for a time period that is longer by several weeks than that applying to the information originally provided by the OPC, in response to the formal motion demanding complete data, but this difference does not explain the gap between the total on the printout and the total expenses the Privacy Commissioner directly reported to the Committee. It is clear that the expense information originally provided to the Committee was incomplete, and understated the true total by in excess of $90,000, or more than 30% of the amount originally reported. Our review of the hospitality expense claim forms provided by the OPC has raised the issue of deliberate concealment. An initial basis for this concern arose with the reception of the original hospitality claim forms from the Privacy Commissioner. It was evident that the names of individuals who had shared in the Commissioner’s hospitality had been blacked out. In his recent appearance before the Committee, the Commissioner indicated that this had been done in order to protect the privacy of the individuals involved, and in so doing to avoid compromising his own effectiveness in meeting with people as required for his work. Important mitigating factors, with respect to the black-outs, are that there was no attempt to conceal the fact that information on the forms had been made inaccessible. However, we have been advised by officials of the Office of the Information Commissioner that it is now settled law that the names of persons who receive hospitality (i.e. discretionary benefits of a financial nature) and the names of government employees as they relate to functions of the individual are not subject to protection. So it appears that their concealment reflects a personal conviction of Mr. Radwanski, rather than a legal obligation. The Committee has obtained copies of the original expense claim forms (without blacked out names) and notes the frequency with which Mr. Radwanski provided hospitality to his Senior Director General, Communications and Strategic Policy (and with which she provided hospitality to him). Even if his views about the need for private meetings as a function of his responsibilities were accepted, we do not see why they would apply to meetings with a senior official of his own office, with whom the existence of a working relationship can be taken for granted. In the view of Committee members, the blacking out of all names on these forms suggests a tendency towards concealment which is unacceptable, when the relationship of an Officer of Parliament to a parliamentary committee should involve an open and complete provision of information. Our concerns about the completeness and accuracy of expense account information coming from the Privacy Commissioner have deepened considerably as a result of testimony provided by employees of the OPC during our June 12, 2003 hearings. We were told that expense claims underwent a process of apparent vetting before being included in the information packages provided to the Committee, and that information on four claim forms had been concealed with white-out material. The Committee has obtained copies of the originals of a number of these claim forms, and the physical evidence confirms that information on the forms has been concealed. The concealment of the information, we were told, was done in response to Mr. Radwanski’s direct instructions. While the significance of the white-outs, from a financial and administrative standpoint, needs to await examination by the Auditor General, their significance from a reporting to Parliament standpoint is self-evident. The practice of whiting out information on materials going to Parliament without indicating that the information has been whited out is completely unacceptable. When there is a valid reason to keep information private, the established practice is to indicate that material has been excluded and cite the reason for doing so. MATTERS REQUIRING ATTENTION BY THE AUDITOR GENERAL AND THE PUBLIC SERVICE COMMISSION The purpose of this section is not to prejudge technical issues that require the specific expertise of the Auditor General and the Public Service Commission. Rather, it is to enumerate the key issues that emerge from testimony provided to us by witnesses, and which we believe require further attention. Following the release of our June 13, 2003 report, letters requesting this attention were sent to Mrs. Sheila Fraser, Auditor General and Mr. Scott Serson, President of the Public Service Commission (see Appendix 10 for copies of these letters, and the Auditor General’s response indicating her agreement to undertake an audit, and report to Parliament in the fall). The substantial agenda of international travel undertaken by Mr. Radwanski and his Senior Director General, Communications and Strategic Policy, since April 1, 2001, is documented in the OPC travel claim printout. This printout also indicates the costs to the taxpayer; some $285,000 for Mr. Radwanski and $208,000 for his colleague. While decisions about travel are essentially within the discretionary authority of an organizational head, we think the Auditor General needs to look closely at whether or not the taxpayer has received good value as a result of Mr. Radwanski’s exercise of this authority. Several of our witnesses alluded to brief appearances, short speeches and no efforts at networking at some of the international events attended. There was also a claim that the Privacy Commissioner has made diligent efforts to obtain invitations to international events in order to have a rationale for attendance, and that a consultant was at one time specifically engaged for this purpose. These claims, and the value for money obtained for Canadians as a result of Mr. Radwanski’s journeys can only be established through an audit that includes these activities. Similarly, with respect to Mr. Radwanski’s hospitality expenses, an audit appears to be warranted. We await the findings of the Auditor General, on whether the practice of extensive shared lunches and alternating hospitality expense claims in which Mr. Radwanski and his Senior Director General, Communications and Strategic Policy, appear to have engaged is acceptable. We also look forward to an opinion on whether bills in the hundreds of dollars for lunches are acceptable, from a value-for-money point of view, and using as a reference point the modest hospitality limits established by Treasury Board for public servants (in the range of $22 per person, average cost of lunches).2 An audit of the financial and administrative practices of the OPC might also devote attention to a range of additional issues suggested to us by witnesses, or arising from physical evidence that we have inspected. Among these are the Privacy Commissioner’s approving his own expense claims; an instance in which the Privacy Commissioner and his Senior Director General, Communications and Strategic Policy, appear to have each submitted hospitality expense claims for the same expenditure; suggestions that a questionable $15,000 travel advance was not repaid until the end of the fiscal year, to avoid requirements that it be included in the Public Accounts, and was then reissued at the beginning of the next fiscal year; and practices such as contracting with individuals having personal ties to Mr. Radwanski and the initiation of a large end-of-fiscal-year advertising contract, alleged to have been for the purpose of disposing of a budgetary surplus. There was also concerns that the Privacy Commissioner may have claimed to be on “travel status” in both Ottawa and Toronto. Public Service Commission Issues In our June 13, 2003 report, we expressed special concern about the situation that employees of the Office of the Privacy Commissioner may find themselves in, as a result of the developments that have led to this report. The resignation of Mr. Radwanski as Privacy Commissioner and the announcement of the appointment of an acting commissioner substantially reduce our immediate concerns about the possibility that employees who have participated in our hearings may find themselves subject to interference or negative consequences as a result. However, we continue to believe that the investigation requested in our letter to Mr. Serson is warranted. Our request that the Public Service Commission use its full authority to protect the interests of employees of the Office of the Privacy Commissioner was based on testimony received by the Committee indicating the immediate need for such protection. As noted earlier in this report, Mr. Radwanski made remarks at an executive meeting during the week of June 8, 2003 that might reasonably be interpreted by employees as a threat. The plausibility of this interpretation was supported by information we received from several employees, indicating longstanding patterns of authoritarian behaviour on the part of the Privacy Commissioner that employees have experienced as bullying and intimidation. What remains needed is assurance that employees were not subjected to pressure or intimidation in recent days, and that the behaviour of those closely associated with Mr. Radwanski has been, and continues to be, appropriate. The Committee also urges the Public Service Commission to include within the scope of the human resources audit we have requested, attention to specific allegations made by our witnesses. The Committee has heard allegations relating to the manipulation of hiring, promotion and contracting processes in order to benefit individuals personally connected to Mr. Radwanski; the reclassification of certain positions in order to provide salary increases and other benefits to favoured incumbents; and the overruling or bypassing of immediately responsible officials in order to provide contracts to individuals known to the Privacy Commissioner. These claims are all potentially serious, and need to be investigated. In addition to examining specific human resources practices, we also expect the Public Service Commission to take account of the importance of corporate culture in the course of its audit, and explore broader impacts of any inappropriate practices that are identified. Practices of the kind that have been alleged have a detrimental impact on the effectiveness of organizations, and individual employees. We remain troubled by the possibility that the issues of honesty upon which this report has focussed may go beyond the conduct of the Privacy Commissioner himself. They also appear to point to the existence of a group of employees who may, in some cases, have been too dispirited to challenge effectively the conduct of the Privacy Commissioner, even when it was their duty to do so. If the Public Service Commission was to raise a possibility of conflict of interest in the EX positions, we would specifically ask the Auditor General to examine these cases. THE DECISION RELATING TO CONFIDENCE This report reaffirms the unanimous conclusion of the June 13, 2003 report tabled by this committee, namely that members of the Committee have lost confidence in the Privacy Commissioner. We believe the Commissioner has deliberately misled the Committee on several recent occasions, and we have therefore ceased to be confident in the completeness and accuracy of information communicated by the Privacy Commissioner to Parliament, and the Committee. In considering this conclusion, it is important to assess not only the evidence provided in this report but also the nature of the judgment that is involved in confidence. The judgment relating to confidence may focus on operational performance or perceptions of capacity, accountability practices, or personal suitability, to name only a few of the most obvious factors. As such, the judgment relating to confidence can best be understood as similar to the comprehensive judgment that a corporate board of directors is entitled to make with respect to the hiring and firing of senior executives. And senior executives, in both the private and public sectors, recognize that just as they owe their positions to a favourable judgment of confidence, they may be obliged as honourable people to renounce their positions should they cease to inspire the confidence of those who are responsible for their continuation. As this report makes clear, the central issue that has led the Committee to lose confidence in the Commissioner relates to information he has provided to the Committee that we believe has been deliberately misleading. However, our account of our deliberations would be incomplete if we did not add that the testimony we have received during the past several weeks has also left us, in addition, with growing concerns about the financial and administrative practices of the Commissioner, and his Office. That is why we have referred the matters detailed in a preceding section of this report to the Auditor General and Public Service Commission respectively. More broadly, testimony received from several employees relating to a personal style that appears to rely heavily on intimidation and bullying has deepened these concerns. Also, in view of the critical importance attached to the independence of the Commissioner from the Government, by both ourselves and the Commissioner in testimony provided to the Committee, we were concerned to learn of an arrangement negotiated with the Privy Council Office, involving a housing allowance of some $1,600 per month ($1,200 net of taxes) over and above the Commissioner’s salary. We raise for consideration the question whether such an allowance, renewable periodically at the discretion of the Government, is compatible with the Commissioner’s central role as an independent protector of privacy rights. In short, as a consequence of the evidence accumulated by the Committee, we came to lack confidence in the Privacy Commissioner and his capacity to perform his duties to Parliament and the people of Canada. CONCLUSIONS AND RECOMMENDATIONS The June 23, 2003, resignation of Mr. Radwanski as Privacy Commissioner changes the focus of the recommendations provided in this report. We have decided, however, to include the major recommendation that we would have made, had Mr. Radwanski not resigned. This recommendation and its supporting rationale is an element in our accountability for developments in which the Committee has played an important role. It should also be part of the historical record, since the action taken by the Committee concerning an Officer of Parliament is without precedent. Having reflected upon the information set out in this report, members of the Committee unanimously agreed to the conclusion stated in our June 13, 2003 Fourth Report. We believed that the Privacy Commissioner deliberately misled the Committee on several recent occasions. As a result, we had lost confidence in the Privacy Commissioner, in particular because we were unable to believe, unconditionally, that information he may have provided to Parliament, had he continued in his position, would have been accurate, complete and intact, with no exceptions. We therefore would have recommended: That the House of Commons adopt a motion for an Address to her Excellency requesting the removal of Mr. Radwanski from the position of Privacy Commissioner, and that a message be sent to the Senate of Canada informing Senators of the decision of the House and requesting that the Senate unite with the House in that Address. While, the investigation that has led to this report has focussed on the conduct of Mr. Radwanski as Privacy Commissioner, it also raises broader issues. First, we believe that a full response to the concerns raised in this report requires attention to the possibility that existing institutional arrangements may have contributed to the problem, or impeded its early discovery and resolution. The appointment processes that currently apply to privacy commissioners and other Officers of Parliament may be deficient. The imbalance, in practice, between the respective roles of the Governor in Council and Parliament in such appointments warrants examination. The apparent lack of due diligence concerning Mr. Radwanski’s relationship with the Canada Customs and Revenue Agency, suggested by recent reports in the media, may point to issues that require follow-up attention. The appointment process can only be considered adequately in the context of a comprehensive review of the structure and functions of Officer of Parliament positions, including the accountability regime that governs their relationships with both the Government and Parliament. This Committee therefore recommends:
Recent revelations about the special housing and travel allowances approved annually by the Privy Council Office for Mr. Radwanski have been considered by the Committee. In the opinion of members of the Committee, this practice was unacceptable. It should be noted that no other Officer of Parliament receives such additional benefits, and the Committee recommends that:
In addition to the recommendations set out above, the findings of the Committee in this matter have left us with three other matters. These are:
The Standing Committee on Government Operations and Estimates will address these matters, in order to ensure that existing arrangements and practices do not leave the door open to future incidents of the kind that has necessitated this report.
|