Government Responses to Parliamentary Requests for Documents
Top Line Points – Mckinsey:
[The public service/my department] respects the role of Parliament to hold the Government to account, and is committed to providing information to parliamentarians in a transparent manner.
The public service is bound to protect certain information in accordance with legal obligations, and has, over successive governments, sought to balance its commitment to being as transparent as possible with these requirements, and the need to protect information that it is not in the public interest to release.
In accordance with this approach, we may decide to exclude or redact sensitive information that falls within certain categories.
In the context of the McKinsey study, upon learning that McKinsey had provided its information in an unredacted format to the committee, we have taken steps to engage McKinsey and similarly lift redactions where the third party is no longer seeking to protect the information, as we are no longer obligated to protect it.
My department will [provide/has provided] a revised set of materials that demonstrates that additional transparency.
While the materials are [largely] unredacted, there may remain some residual redactions to protect [i.e., solicitor client privilege, Cabinet confidences], in accordance with longstanding government practice.
The Public Service Respects the Role of Parliament to Hold the Government to Account, and Understands that it Requires Relevant Information to Carry Out this Function.
Both the public service and the House of Commons share the common objectives of contributing to good government, and serving and protecting public interests.
Departments routinely provides information to the House of Commons in response to its requests.
The Public Service Provides Information to Parliament in a Transparent Manner and in Accordance with the Rule of Law. This Includes Protecting Information that if Released Could Cause Harm to Canada’s National Interests, to Individual Canadians, or that is not Otherwise in the Public Interest to Release.
Our approach to the production of documents responsive to any order is mindful of the powers of the House of Commons to order the production of documents and the role of members of the House of Commons in holding the Government to account.
The longstanding approach, taken by successive governments, has been to reconcile the exercise by the House of Commons of its privileges with other constitutional principles such as the rule of law, parliamentary sovereignty, responsible government, and the separation of powers.
In accordance with this approach, we may decide to exclude or redact sensitive information that falls within certain categories.
These obligations are found in statutes such as the Privacy Act, Security of Information Act, Security of Canada Information Disclosure Act, and the Canada Evidence Act.
In addition, successive governments have also withheld other types of information that is not in the public interest to disclose. This includes:
Cabinet confidences;
Information subject to solicitor-client privilege;
Information the release of which would be injurious to national security, national defence or international relations (which may also be protected from disclosure by a particular statute); and,
Other information that is prejudicial to federal-provincial relations, confidential business information, advice to ministers, and/or private/confidential papers as guided by the Access to Information Act.
As noted, protecting certain types of information from disclosure is a longstanding practice of governments, particularly as it pertains to confidential business information that, if disclosed, could reasonably be used by competitors of a third party to prejudice the third party’s competitive position. Disclosing confidential business information can also present a reputational risk to Canada that may jeopardize the negotiating power of the government in future interactions with these third parties.
Public Servants and Ministers are Guided by Complementary but Different Considerations when Responding to Requests for Papers
Public servants are bound not to disclose certain information through their terms and conditions of employment, as well as the oath taken pursuant to the Public Service Employment Act.
There are limited circumstances in which Parliament has expressly provided a statutory authority for the government to provide parliamentarians information that is otherwise protected by law. This includes, for instance, personal information pursuant to s. 8. (2)(g) of the Privacy Act for the purposes of helping an individual to whom that information relates resolve a problem.
However, in the absence of such authorities, government officials are bound not to disclose protected information to any party – including parliamentarians.
In Open and Accountable Government, the Prime Minister and his predecessors have issued guidance to Ministers and the Public Service as follows:
“Public servants also have a duty to hold in confidence some of the information that comes into their possession in the course of their duties. There is a tension between that obligation and the request of parliamentarians for disclosure of that same information. When appearing before parliamentary committees, public servants should refrain from disclosing that kind of confidential information, for instance because the information is confidential for reasons of national security or privacy, or because it consists of advice to Ministers. Accounting officers should not disclose confidential information, including advice to Ministers, even where that information pertains to matters of organizational management. In practice, officials should endeavor to work with Members of Parliament, in cooperation with Ministers and their offices, to find ways to respond to legitimate requests for information from Members of Parliament, within the limitations placed on them.
Responding to Certain Standing Committee Motions and House Orders Can Result in a Significant Burden on the Public Service
Motions and orders can place a significant resource burden on the government organizations tasked with collecting, vetting, and translating documents.
The scope of the motion for the production of documents concerning the contracts awarded to McKinsey and Company, has resulted in significant pressures on organizations to respond within the specified timeframe.
Given the considerable scope of this work, the production of all relevant documents is a significant undertaking, which entails a substantial amount of time and resources.
Hundreds of public servants in 20 organizations have been tasked with collecting, triaging and vetting documents, with an estimated total volume of over 220,000 pages in total to be processed.
Significant translation costs are being incurred by organizations in order to provide the documents in both official languages. This in addition to translation costs for the documents submitted by the company itself.
We have been actively working to respond to the motion and continue to make best efforts to complete the work, including by ensuring that third party information is not redacted for third party protections, where the company has not sought to protect that information.
