03/07/2013 02:25 EST | Updated 05/07/2013 05:12 EDT

Report calls for changes clarifying access to parliamentary records

OTTAWA - It's time to clarify what sort of federal records that enter the parliamentary orbit can be publicly disclosed under the Access to Information Act, and which ones should remain secret, says a House of Commons committee.

The report of the committee on procedure and House affairs calls for changes that would divide records into four categories in order to help determine whether they should become public.

"The process recommended by the committee 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," says the report tabled Thursday.

In a supplementary opinion, the NDP cautioned against overly broad changes that would allow government agencies to conceal records such as notes used by ministers during the daily question period. And it recommends entrenching any changes in law to ensure consistency and fairness.

The issue was touched off last year by an access request to the auditor general for emails relating to his appearances before MPs and senators between January and April 2012.

While the auditor general's office — like most government agencies — is covered by the access law, the House of Commons and Senate are not.

Parliamentary lawyers objected to release of the emails, saying they formed part of the proceedings of Parliament and were therefore protected by privilege — the right of the Commons to regulate its internal affairs.

The auditor general's office notified the Commons of its intention to release the records anyway, saying parliamentary privilege was not among the reasons an institution can withhold documents under the access law. Such reasons — listed explicitly in the law — include the need to protect national security, shield cabinet secrets and safeguard personal information.

In September last year, the Office of the Law Clerk and Parliamentary Counsel took the matter to the Federal Court of Canada.

In the end, the House of Commons unanimously resolved to waive its privilege related to the emails. But the Speaker suggested the Commons committee on procedure and House affairs study the issue.

The committee recommends designating four categories of documents that form part of parliamentary proceedings:

— Public and accessible records such as speaking notes and documents distributed by committee witnesses, which would always be readily disclosed;

— In-camera records including draft committee reports, which would not be released;

— Records such as committee correspondence, whose release would be weighed on a case-by-case basis;

— Documents prepared by a federal agency for a parliamentary proceeding but never submitted, which could be released by that agency in accordance with the access law.

In its opinion, the NDP says, the solution should involve more than mere administrative changes. It calls for an amendment to the Access to Information Act that would create a new exemption under the law for records covered by parliamentary privilege.

The party says such an exemption should be discretionary, meaning the House of Commons could grant access to records, and that exercise of this discretion be weighted in favour of disclosure to the public.

"Without a statutory provision, and with an overly broad interpretation of privilege, government departments may try to exempt or exclude information that relates to Parliament," says the NDP opinion.

"This could include the 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."

Members of Parliament themselves — let alone the public — have had trouble getting information from the government.

Last year the auditor general expressed "significant concerns" about the completeness of cost information provided to parliamentarians on the proposed purchase of new fighter jets.

For instance, said the auditor, National Defence told parliamentarians that cost data provided by U.S. authorities had been validated by American experts and partner countries, "which was not accurate at the time."

"At the time of its response, National Defence knew the costs were likely to increase but did not so inform parliamentarians."