Inside Politics

UPDATED: NDP outs party as source of privilege-challenged ATI request -- and denies asking for F35-related material

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From the Can They Do That? files, courtesy of the Halifax Chronicle Herald, behold the ultimate -- and quite possibly inevitable -- outcome of hypersecretive committee proceedings: 

The House of Commons is taking Canada's auditor general to court to stop him from revealing documents around his high-profile F-35 committee appearance.

An application filed by the House of Commons in Federal Court last Friday shows House lawyers tried but failed to convince auditor general Michael Ferguson to reject an access to information request for his own correspondence.

Now they're seeking a court injunction to gag the auditor general. [...]
It's very much worth reading the whole story to appreciate the unprecedentedness of it all, but it's also worth pointing out -- in 75 point neon green font, underlined for good measure -- that this battle would almost certainly have been avoided had the committee in question -- and, more specifically, virtually all of its work on the F-35 file -- not conducted virtually all of its related business behind closed doors.

By invoking in camera privilege, the committee appears to have bolstered its existing immunity from outside law -- in this case, the Access to Information Act --  with a second layer of protection from the prying eyes of the public, as all such correspondence would be subject to the same rules that prevent MPs from discussing what may or may not have gone on behind the curtain.

Under normal circumstances, logistical emails between a clerk and a potential witness would have been covered by standard parliamentary privilege, but the non-parliamentary party -- in this case, the auditor general -- would almost certainly be free to release it at will --  or at the very least, would be unlikely to run up against the long arm of the Mace. (Although not a frequent occurrence, letters between committee officials and witnesses has indeed been circulated in the past without raising even the mildest of ruckuses.)

Material related to in camera proceedings, however, is automatically shielded from disclosure, which is, I suspect, what sparked this particular move by the House of Commons lawyers. Whether committee members -- or, indeed, the members of the all-party board of internal economy that generally handles legal matters -- were consulted on the decision to take an independent officer of Parliament to court to prevent him from complying with the access law remains, at press time, unknown, but you'd better believe they're going to be asked about it.

In any case, I've asked the Speaker's Office for more information. I'll let you know what I find out.

In the meantime, stay tuned. 

INSTA-UPDATE -- Conspiracy theorists take note: According to this tweeted response from PMO communications director Andrew MacDougall, it would seem the move by the House to clamp down on the AG came as much as a surprise to the government as the rest of us: 

We don't believe this is covered by parliamentary privilege. While we'll support a motion to waive parliamentary privilege we don't believe privilege should have been asserted in the first place

Over to you, House of Commons legal department! 

UPDATE - It occurs to me that this would be one of those situations in which it would be helpful to have a House of Commons Law Clerk. 

Alas, at the moment, we don't, as a permanent successor to the wise and venerable Rob Walsh has yet to be chosen. 

Interested and qualified applicants are, however, invited to apply for the post via Odgers Berndston. 

Among the qualities sought: 

As the ideal candidate, you possess strong leadership and managerial skills and have demonstrated experience providing expert legal advice within environments defined by multiple views and conflicting priorities. Your integrity and high ethical standards are matched by your advanced interpersonal and communications skills, and you thrive in contexts requiring tact and discretion.



MIDDAY DEVELOPMENT WRAPUP: Liberal MP Wayne Easter plans to ask the public accounts committee to waive privilege on the correspondence in question while simultaneously asserting that in its view, privilege does not, in fact apply. 

Read the full text of his motion here

Meanwhile, a spokesperson for Government House Leader Peter Van Loan provided the following comment: "While we will support a motion to waive any parliamentary privilege, we don't understand why the House of Commons administration initiated this proceeding in the first place." 

So basically, nobody -- or, at least, none of the parliamentarians on whose behalf this privilege claim was ostensibly being made -- seems to have been in the loop as far as this particular legal manoeuvre, and there appears to be cross-party agreement that it needs to be stopped. 
 

AFTERNOON WAIT, WHAT? UPDATE: 

This story just doesn't stop getting odder, does it?

The NDP has now outed itself as the source of the original ATI request, which, according to party officials, was not looking specifically for correspondence related to the AG's F-35-related committee appearance, but cast a far wider net, seeking any and all email from OAG officials related to any appearance in front of committee between January 17 and April 17, 2012. 

That request, they say, resulted in the following partial disclosure, a sizeable chunk of which is blanked out due to ongoing "consultation" with third parties. 

UPDATE: According to my count, 91 of the 289 pages -- or nearly one-third of the document -- have been withheld pending consultation with third parties, which almost certainly involves committee clerks, but may also include others. (Another 40-odd pages were withheld under existing ATIA exemptions.) 

(Scroll down to read the document.) 

What's more, as far as the NDP is concerned, there is no reason to think that the material being withheld on privilege grounds is related to the AG's F-35 appearance, which took place in May, which would put it after the time period covered by the request. That said, it's worth pointing out that, as noted above, the response is redacted, which means that no one -- well, except the OAG itself -- knows exactly what was in the sections held back due to privilege claims by the House of Commons.  

In any case, here's what they got: 

Tags: blackberry jungle, f-35, privilege watch, public accounts, where's rob walsh when you need him?

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