OGGO Committee Report

The work of the Committee on supplementary estimates identified an additional information-related issue, whose relevance extends to committee work on main estimates. The officials of organizations appearing before committees on estimates need to feel free to provide information that is sufficiently detailed and complete to enable parliamentary committees to do their work. In at least one instance, during our “supplementary estimates day,” this was not the case.

A.        Issue Background

During his appearance before the Committee on the supplementary estimates of the Office of the Information Commission, the Deputy Information Commissioner, Mr. Allan Leadbeater, advised the Committee that he was not in a position to answer certain questions relating to the details of the Commission’s request for supplementary funds. While the details were, in themselves, innocuous and the sums involved were, by the standards of modern government, miniscule, the details reflected the substance of the Treasury Board decision that would have preceded their incorporation in the supplementary estimates. The Commission, which has not relied on supplementary estimates in the past, sought guidance from the Privy Council office relating to what kind of information could be disclosed to the Committee and, according to Mr. Leadbeater, was advised not reveal the substance of the Treasury Board submission, which Commission officials interpreted as precluding their disclosure of the information requested by Committee members.

According to Mr. Leadbeater, he was told that under the Canada Evidence Act and the Access to Information Act, a Treasury Board decision is considered a cabinet decision. Cabinet decisions are subject to cabinet confidence except to the extent to which their contents are disclosed by the government. This would make the information in the supplementary estimates document, with the limitations discussed in the previous section, all that organizations appearing before committees could disclose.

The Committee, following Mr. Leadbeater’s advice, subsequently provided him with a letter instructing him to appear before the Committee at a later date (the hearing occurred on March 18, 2003, the day following the initial hearing) to answer detailed questions on the Commission’s supplementary estimates. He duly appeared and, being satisfied that the Privy Council Office had been made aware of the request and had not chosen to intervene, provided the Committee with a table disaggregating the information appearing in the supplementary estimates into a list of professional services contracts and other individual costs. The Committee then proceeded with its examination and, with the assistance of the new information, had an especially fruitful discussion focussing on specific expenditures, requirements and their rationales.

B.        Existing Policy

The Government of Canada has developed an extensive set of policy guidelines for the purpose of guiding the officials who respond to access to information requests, or are responsible for other matters addressed by the Access to Information Act. Among these is a specific guideline relating to cabinet confidences.¹¹ Cabinet confidences belong within a class of matters that is excluded from the Act, which means that the Government of Canada (in this case, the Privy Council Office) may make decisions about them which cannot be appealed to the Information Commissioner.

Subsection 2(c) of the policy guideline, on agenda and records of cabinet deliberations, provides the basis for withholding Treasury Board submissions containing the details that are aggregated in the estimates provided to Parliament. However, the second paragraph of this subsection states clearly that “a distinction must be made between the text of the formal Record of Decision, which always remains a Confidence, and the substance of the decision of Cabinet, which is often made public.” The substance of the decision may be disclosed as deemed appropriate by Cabinet or by the Minister with the approval of Cabinet.

C.        Conclusions and Recommendations

The element of the guideline relating to Treasury Board submissions, like a number of others, does not preclude disclosure. On the contrary, it provides for disclosure, subject to ministerial decision with the approval of cabinet. However, it is easy to see how, in practice, such a provision can operate to preclude disclosure of even relatively innocuous information, if a disclosure decision is required in a compressed time-frame, and if the steps required to make the disclosure unproblematical have not been taken. The Subommittee therefore recommends: