Annual Report: 2002-2003

C. Thorny Cases (Cabinet Confidences)

The Information Commissioner found himself, this year, in the midst of a struggle between a parliamentary committee and the government concerning the types of information the Information Commissioner should keep secret about his office's budget. That struggle illustrates how "bizarre" has become the reach of cabinet secrecy. Here are the details.

For the first time in the almost 20-year history of the Office of the Information Commissioner, it was necessary for him to ask Treasury Board Ministers to approve additional monies to avoid going over budget for fiscal year 2002-2003. Ministers decided to give additional funds to the Information Commissioner in the amount of $311,000. As is required, the government then tabled Supplementary Estimates in Parliament seeking approval to expend the additional funds awarded to the Information Commissioner (and to many other government institutions). Review of the portion of the Supplementary Estimates relating to the Office of the Information Commissioner was assigned to the Standing Committee on Government Operations and Estimates. The information available to the Committee--as set out in the Supplementary Estimates--was the following:

As might be expected, the Information Commissioner's office was called before the committee to give explanatory details. In preparation (for a first appearance of this kind), officials of Treasury Board were asked if the expenditure details contained in the Treasury Board decision--but not in the Supplementary Estimates--could be shared with the committee. The Information Commissioner was anxious to make full disclosure.

To his great surprise, Treasury Board, in consultation with the Privy Council Office, said "NO". Here are the exact words used: "Both TB submissions and decision letters are considered cabinet confidences, and must be treated as such (i.e. not revealed in any way). . .The information has not been made public, so it is still a confidence which must not be revealed."

When the Deputy Information Commissioner appeared before the committee, he explained the dilemma in which the office found itself. He made it clear that the Information Commissioner wished to explain the details of the authorized expenditures and the terms under which the additional funds were approved by Treasury Board Ministers. However, he also explained that, in the absence of a committee order to disclose the information, the commissioner was not in a position to substitute his judgement for that of the government as to whether or not the details in the Treasury Board decision qualify for the cabinet confidence privilege.

The committee understood the difficult position in which the commissioner found himself, but was adamant that the information be provided. As a result, the committee decided to write to the Information Commissioner requiring him "to provide to the committee any and all information required by the committee to justify the new appropriation in the Supplementary Estimates (B) in the amount of $311,000". Treasury Board and Privy Council Office were given notice of the committee's order and of the date and time when the commissioner was required to appear to respond.

At the appointed hour, the Deputy Information Commissioner appeared for the second time. No official from the Privy Council Office or the Treasury Board appeared to assert the cabinet confidence objection to disclosure. Consequently, the Deputy Commissioner provided to the committee the detailed breakdown of the $311,000 which had been authorized by Treasury Board Ministers. He also informed the Committee that Treasury Board Ministers had placed $126,000 of the total in a "frozen allotment", which means that it would be claimed back from the commissioner's 2003-2004 budget.

It seems obvious to the Information Commissioner that an interpretation of the cabinet confidence privilege, which impedes the constitutional role of Parliament to review government expenditures, is overly broad and inappropriate. Moreover, such an interpretation appears inconsistent with the Supreme Court's guidance in Babcock which cautions against the use of cabinet secrecy to thwart the public interest in legitimate public inquiry. Surely, in a democracy, there is no form of inquiry with more legitimacy than that performed by elected representatives into expenditures which government is asking them to approve.