Annual Report: 2002-2003

Background

In early January 2002, two journalists requested records from Health Canada about the travel expenses of the minister and one of his special assistants. The department denied access to the records citing subsection 19(1) of the Act.

Health Canada based its response on a Treasury Board Secretariat (TBS) Implementation Report 78 (IR 78). This report informed departments that records of travel expenses for ministers and their exempt staff members are to be considered personal information and processed accordingly. The report also encouraged application of subsection 19(2) of the Act to effect disclosure of such information, essentially paragraph 19(2)(a), consent by the minister or staff member. Since consent was not forthcoming from the minister and his assistant, access to the requested records was denied.

Legal Issues

The complainants observed that the policy enunciated by IR 78 is a complete reversal of previous policy whereby travel expenses of ministers and exempt staffs were disclosed on request and were not considered to be personal information. They placed this issue before the commissioner: Does the Access Act give a right of access to expense claim records of ministers and their staff members, or is access dependent upon the willingness of these officials to consent to disclosure?

On March 15, following extensive media coverage of this policy reversal, the President of Treasury Board announced in the House of Commons that the Prime Minister had asked all ministers and their staffs to consent to the release of their travel expense records. Subsequently, officials at Health Canada sought and obtained consent from the minister and his assistant for disclosure of their records. The records were disclosed with small portions containing such personal information as personal credit card numbers, home addresses and telephone numbers withheld.

The commissioner's role ended with the disclosure of the information. However, in another complaint against Treasury Board (still under investigation), the legal merits of the new policy set out in TBS Implementation Report 78 was challenged. The result will be reported next year.

Lessons Learned

As the commissioner indicated in his report last year on this topic (see Annual Report, 2001-2002 at pages 20-22), whatever be the legal merits, the government's decision to treat public access to ministerial expense records as a matter of "grace and favour" rather than "right" is unhealthy in a democracy. This new approach gives rise to conjecture about what ministers may be hiding and increases public cynicism about the honesty and integrity of government. If accountability through transparency is required of all other public servants, why not, too, for ministers and their staff members?