Inside Politics

House to to reaffirm right to block access requests

More than a year after Commons Speaker Andrew Scheer ignited a firestorm of controversy by refusing to waive privilege over committee correspondence, MPs are set to sign off on a new system that would reaffirm the right to reject requests related to sensitive material.

The issue of how the House -- which is not subject to the Access to Information Act -- should handle requests for its consent to release material relevant to access requests submitted to other government institutions hit the headlines last year. Scheer refused to waive privilege to allow Auditor General Michael Ferguson to include his correspondence with committee staff in its response to an ATIA request filed by the New Democrat research office.

The ensuing public outrage led MPs to pass a motion overturning Scheer's initial decision.

They also referred the bigger question -- namely, how to handle such requests in future -- to the procedure and House affairs committee for further study.

As instructed, the committee dutifully looked into the matter, and reported back to the House last spring.

They recommended a new category-based system that would loosen restrictions on publicly available documents, as well as "routine correspondence," while continuing to decline requests for consent on all material related to in camera proceedings, as well as other "sensitive" matters, including procedural advice and correspondence with witnesses that includes personal information.

The report also makes it clear that all documents, including those for which the House grants consent for release, would still be protected by parliamentary privilege. 

From the report:

  • Public and accessible records

Public and accessible records include, for example, proceedings of House of Commons committees already published, broadcasted or posted on the Parliamentary website, such as the Evidence and Minutes of Proceedings of committee meetings. Speaking notes and documents distributed by witnesses to committees as part of their appearance or any brief submitted to a publicly accessible proceeding of the committee in relation to a public study are also included in this category. House officials would always consent to the disclosure of such documents, as they are already public and accessible, and disclose the documents in a timely way.

  • In camera records

In camera records include, for example, transcripts of in camera meetings, draft reports or documents prepared for or distributed at an in camera meeting, or any document referring to in camera parliamentary proceedings or documents from which the proceedings at an in camera meeting may be deduced. Consent to the disclosure of these records should never be given by House officials. Moreover, the disclosure of in camera materials constitutes a breach of the privilege of the House, and could lead to a finding of contempt of Parliament. Accordingly, House officials should indicate, in such cases, that the House objects to the disclosure of such documents.

  • Other records that are not publicly accessible and are not part of an in camera proceeding

The disclosure of records that are not publicly available, but are not part of an in camera proceeding, would be made on a case-by-case basis depending on the content of the records sought.

We recommend that House officials should not consent to the disclosure of records that they have determined to be of a sensitive nature. These would include, for example, procedural advice from the committee clerk to the chair, a Member, staff, or government officials. Another such case would be responses from potential witnesses that contain personal information (relating to an illness, for example). In assessing the sensitivity of information, House officials should be guided by exceptions to disclosure outlined in information and privacy laws.

Other records that are not determined to be sensitive in nature by House officials, such as routine correspondence on administrative matters, may be disclosed with the authorization of the responsible committee when the disclosure would not cause any prejudice to the House, its committees or anyone who participated in the parliamentary proceedings. In these cases, the decision as to whether or not a record should be disclosed or disclosed with redactions should be taken by the applicable committee, as custodians of the record, and the matter should be dealt with during an in camera committee proceeding. The decision should also be taken in a timely fashion so as to respect the time lines under the Access to Information Act as much as possible. If the committee which had possession of the record no longer exists, as in the case of a legislative committee following its report on a bill committed to it, then the matter should be dealt with by the Standing Committee on Procedure and House Affairs. Regardless of which committee is responsible, consent to disclosure of such records shall require unanimous consent from the committee. This requirement for unanimous consent shall, in no way, limit the ability of the House to deal with such a matter. If, however, such matters arise during prorogation or dissolution periods (as opposed to lengthy periods of adjournment such as the summer recess), then the Speaker of the House of Commons, as the guardian of the rights and privileges of the House and its Members, will decide whether or not a record should be disclosed.

  • Documents prepared by government institutions for a parliamentary proceeding but never submitted

As noted above, materials such as briefing notes, speaking notes, draft statements that were prepared by government institutions solely for the purpose of witnesses appearing before a committee or participating in any other parliamentary proceeding are protected by privilege. While such material may not be formally presented to the committee, and may only be known to the witness and the government institution, such preparation for committee appearances is expected and designed to assist committees in their business. This material forms part of the parliamentary proceedings and hence is protected by parliamentary privilege. However, the House does not object to the disclosure of this material which will therefore be released unless excepted or exempted under the Act.

(In its supplementary report, the New Democrats actually called on the House to go one step further, and amend the Act to include a "discretionary exemption" for parliamentary privilege, as recommended by the information commissioner, but judging from the government's response, which was tabled last June, that's not likely to happen any time soon.) 

In any case, this afternoon's debate is set to go for a maximum of 40 minutes, after which the report -- and along with it, the new system for processing access to information requests -- will be deemed adopted. 

Govern your future ATIPs accordingly!

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