AG, public sector integrity commissioner could have released reports in election
AG Sheila Fraser refuses to release report on G8 Legacy Infrastructure Fund. Her reasons do not stand up to careful scrutiny.
By B. THOMAS HALL
Published April 25, 2011
The Hill Times
OTTAWA—I am greatly disturbed by the decision of appointed officials such as the auditor general of Canada and the public sector integrity commissioner not to release reports containing information that the public has a right to see when deciding who should represent them in the next Parliament.
Following the leak of two draft versions of her future report to Parliament, Auditor General Sheila Fraser has steadfastly refused to release her office's findings about the government's use of the G8 Legacy Infrastructure Fund. With the greatest respect, the reasons given by Ms. Fraser on the AG's website do not stand up to careful scrutiny.
Ms. Fraser says, "Under the Auditor General Act, we can only present reports when Parliament is sitting." Well, that's not quite true. The act requires that the AG report to the House of Commons through the Speaker and sets out how she can do this. The act says absolutely nothing about whether the contents of a report can be released when Parliament has been dissolved for an election.
The AG Act is fairly typical of the many acts of Parliament that require government departments and other officers of Parliament to submit reports to Parliament. All such acts set out how often and when the reports are to be provided and the reporting procedure to be followed. For government departments, reports are to be provided by the responsible minister. For officers of Parliament, reports are tabled by the Speaker of the House of Commons. To my knowledge, none of these acts requires that the contents of a report be kept confidential until the report is tabled in the House. The reason the reports are traditionally considered confidential until tabled has to do not with the act but with the right of the Members of Parliaments to see the contents before anyone else. There may be grounds for a finding of contempt of Parliament if a report is released before being tabled when the House is sitting or adjourned.
When Parliament is in session, public servants and officers of Parliament who ask whether their report can be made public are always advised by House clerks not to release the report until it has been tabled in the House. When Parliament has been dissolved, however, officials are simply told not to send their reports to the House during the electoral period but to wait until a new House has been elected—which is what the Clerk of the House did this time. But the Clerk does not tell officials that their reports cannot be made public during this period.
The first edition of House of Commons Procedure and Practice, at p. 376, states, "During the period when Parliament is dissolved, however, ministers or government departments may authorize the release of any return, report or other paper required to be laid before the House." While the AG's office may or may not be a government department, and the AG does not report through a minister (the minister of Finance is, however, the responsible minister), there is no reason this statement cannot apply to the AG's office. It is simply one of those persistent, but unfounded, myths of Parliament that the AG's report cannot be released when there is no House to table it in and no Speaker to submit it to.
It is perhaps ironic that the House of Commons adopted on May 5, 1887—almost exactly 124 years ago to the day—a resolution which read in part as follows: "That the practice now in force, requiring the withholding of Blue Books and Departmental Reports till the assembling of Parliament, results in the suppression, often for periods of many months, of information relating to public affairs which the public interests require should be promptly made public. That the Blue Books and Departmental Reports for each fiscal or calendar year should in future be made public as soon as practicable after the same are prepared, and that no unnecessary delay should be permitted to interfere with the issuing of the same." To my knowledge, that resolution has never been rescinded or amended and is still in force. It appears that the desire for transparency and accountably may have been stronger 124 years ago than it is today in some quarters.
It is understandable that the auditor general and the public sector integrity commissioner do not want to be seen as influencing the electorate at this time. But the circumstances here are quite different from those that prevailed when the then commissioner of the RCMP inappropriately revealed during an electoral period that a minister was under investigation. Here the public has a right to information that they need to make an informed electoral decision. If there were no election on, the reports would be released. To withhold them because there is an election is itself an interference in the electoral process.
B. Thomas Hall, retired House of Commons procedural clerk and former clerk of the Public Accounts Committee.
The Hill Times
Monday, April 25, 2011
Posted by Brent Fullard at 8:08 AM