Inside Politics

MPs to consider cracking open Commons door to Access to Info reqs

After reviewing the longstanding parliamentary practice of automatically asserting privilege over all parliamentary documents, regardless of sensitivity or even accessibility, a House committee is proposing that the Commons adopt a new, rules-based process for handling Access to Information requests to which the House is a third party.

Regular readers will recall that the question of how far Parliament should go to protect its privilege hit the headlines last fall, when MPs were, to a man and woman, gobsmacked to find out that, over the course of the summer recess, the House had somehow wound up on the losing side of a game of ATI chicken with, of all people, the Auditor General, after refusing to give its consent for the release of material related to the AG's appearance at committee.

The House, to its credit, was quick to act, unanimously passing a motion reversing its original position and waiving privilege over the material in question. It also referred the matter to Procedure and House Affairs for further study.

Earlier today, the committee tabled its report, which recommends that all committee-related documents would be divided into one of four categories:

        • Public and accessible records, such as committee transcripts, witness presentations and briefings, which would be automatically disclosed

        • In camera records, including transcripts of in camera meetings, draft reports and other documents distributed behind closed doors, which would never be disclosed

        • Other records that are not publicly accessible and are not part of an in camera proceeding, which would be dealt with on a case-by-case basis, with privilege asserted over any documents that contain confidential or personal information, and would require the unanimous consent of the affected committee to disclose material the release of which has been deemed unlikely to unduly prejudice the House or those who take part in the committee process

        • Documents prepared by government institution for a parliamentary proceeding but never submitted, which would be released unless otherwise excepted or exempt under the Act, or was prepared in relation to an in camera meeting
According to the report, the new process "is aimed at safeguarding the independence and autonomy of the House in the conduct, and control, of its proceedings, while addressing current expectations of the public in regard to access to information."

The Official Opposition, however, wants MPs to consider going even further.

In a supplementary report, NDP committee members recommended that the House "pursue, as a matter of priority, amendments to the Access to Information Act to more clearly set out what documents are encompassed by privilege and what definition of privilege would be added to statute law" in order to prevent future parliaments -- or, indeed, any other government institutions -- from asserting privilege in order to protect documents that would otherwise be released.

"Without a statutory provision, and with an overly broad interpretation of privilege," the NDP-penned appendix notes, "government departments may try to exempt or exclude information that relates to Parliament," which could include anything from "Question Period cards of Ministers, briefing notes for officials who have been asked to appear before committees, or even observations about what has happened in Parliament," and without "clear language [and] political leadership that favours disclosure over secrecy ... the history of the Access to Information Act in Canada shows that even minor exemptions or exclusions will be interpreted in an overly broad way."

"Parliamentary privilege is important in protecting freedom of speech by Members of Parliament and protecting them from intimidation," it concludes, "but when it is used to hide information that the public would expect to be available, its invocation becomes a detriment to the standing of Parliament."

Now that the report has been tabled, it's up to the Commons to decide whether to adopt its recommendations, which could happen automatically through concurrence, or be subject to debate.

In the meantime, you can read the full submission - which includes the main recommendations from committee, and the NDP's supplementary report -- here.
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