It's time for an independent review of what constitutes a "Cabinet confidence," say opposition MPs and critics after the federal government recently used the reason to refuse financial figures to the House Finance Committee and to Canada's Parliamentary Budget Office.

"It's the most abused exemption or exclusion from the law because it's pretty easy to say everything's on its way to Cabinet or is advice to Cabinet and therefore is a confidence of Cabinet," Democracy Watch coordinator Duff Conacher told The Hill Times last week

In early February, Liberal finance critic Scott Brison (Kings-Hants, N.S.) raised a question of privilege in the House asking Speaker Peter Milliken (Kingston and the Islands, Ont.) to determine whether the government was breaching MPs' privileges by refusing to give the House Finance Committee documents it demanded last November relating to costs associated with the implementation of several government crime bills, and its plans to cut corporate tax and buy F-35 fighter jets.

The government refused to provide the figures because it said they were matters of Cabinet confidence.

Government House Leader John Baird (Ottawa West-Nepean, Ont.) later tabled crime legislation figures the opposition-dominated committee asked for, but opposition members said that wasn't enough.

When asked later by reporters about the government's change of heart in releasing documents despite its earlier claims that they be kept secret because they were matters of Cabinet confidence, Mr. Baird said Prime Minister Stephen Harper (Calgary Southwest, Alta.) has the right, as all prime ministers do, to waive things. "He was comfortable with me tabling that information today in the House of Commons," said Mr. Baird Feb. 17.

Parliamentary Budget Officer Kevin Page said he's seeing a "negative trend" when it comes to transparency. He has been trying to get information from the government on its analysis of crime legislation and its plan for operational freezes in the federal public service, only to be shot down by the governing Conservatives who call the information Cabinet confidences.

"There is genuine concern that Parliament is losing control of its fiduciary responsibilities of approving financial authorities of public monies as afforded in the Constitution," Mr. Page told the House Finance Committee last month.

"The economy's recovering, revenues are coming back, people are debating about corporate income tax reductions—people need to know, Parliamentarians may want to know what's the impact of these corporate income tax reductions, how big will they be? The Department of Finance is saying it's a Cabinet confidence. Five years ago that wasn't a Cabinet confidence," he said.

Critics are not satisfied that there is sufficient independent review of what records are deemed Cabinet confidence.

Although she wouldn't comment on the Finance Committee controversy as it was before Parliament, Information Commissioner Suzanne Legault told The Hill Times in late February "I should be able to review documents to ensure that they are Cabinet confidence."

Governments have traditionally claimed that to be fully effective, Cabinet ministers must be able to have full and frank discussions among themselves knowing that their decision-making process is protected. Parts of the Privacy Act, the Canada Evidence Act and the Access to Information Act protect information considered matters of Cabinet confidence

If someone complains to Ms. Legault about the refusal of access to records because they have been deemed matters of Cabinet confidence, she currently isn't able to independently review whether they are or not.

Cabinet confidences are excluded entirely from the Access to Information Act. Individual ministers and government institutions have no discretion to make a confidence publicly accessible. Only Cabinet and the Prime Minister do.

The Commissioner's Office may request that the Privy Council Office, the administrative, non-partisan arm of the Prime Minister's Office, certify that records she's investigating are, in fact, Cabinet confidences.

But that's not good enough, said Mr. Conacher. "The PCO serves at the pleasure of Cabinet," he said. "If Cabinet says, 'No, you're wrong, this is Cabinet confidence,' the clerk [of the Privy Council] can quit. That's about all the clerk can do," he said.

Almost since the Access to Information Act was first put into force in 1983, calls for reform have included proposals to make disclosure refusals due to Cabinet confidence reviewable by the information commissioner, the courts or both. Some have also proposed that the time limit on protection of Cabinet confidences be lowered from 20 years to 15.

Former information commissioner Robert Marleau proposed 12 quick fixes to the Access to Information Act including that it apply to Cabinet confidences. Hearing conflicting testimony on the recommendation, the House Access to Information, Ethics and Privacy Committee rejected the recommendation in a report to the House in June 2009.

Access to Information Act reforms have since been stalled. The government says the Ethics Committee still hasn't finished reviewing the former information commissioner's recommendations and a government discussion paper on possible reforms, tabled in 2006. The committee chair, Liberal Shawn Murphy (Charlottetown, P.E.I.) says the government is ignoring its latest report and can't dictate its activities.

The situation frustrates NDP Ethics Committee member Bill Siksay (Burnaby-Douglas, B.C.).

"I think it's really important that we get to all of those [reforms proposed by Mr. Marleau] and to get to reviewing Cabinet confidences in a new way," he told The Hill Times last week. "We can't just kind of have these blanket hands-off declarations on them."

Meanwhile, Mr. Conacher advocated that instead of being excluded from the act entirely, Cabinet confidences should be legislated within the act as a reason for exemption from disclosure only in narrow circumstances to protect from harm to personal safety and health.

He said the information commissioner should be able to refer disputes to a mediator who would, within 60 days, try to find a compromise and if that didn't happen it would go to the commissioner, as is the case in Ontario. If the government wasn't satisfied, it could go to court to get its way, he said.

But government transparency advocate Ken Rubin said he's not optimistic that even giving the information commissioner the ability to review whether something is truly a matter of Cabinet confidence would change the broken system.

"Rest assured of one thing, if the commissioner...if they win, it doesn't mean the ministerial agendas, the Cabinet agendas are going to be released to the public. It just means the commissioner will see them and then put the stamp of approval for secrecy on them," he said last week. "Ultimately, in the end, because of their limited power and no order power, they're not going to win, they're not going to release much."

The whole access to information system needs to be reformed, he said, and culture changed from one of secrecy to openness.

In the end, said Liberal MP Paul Szabo (Mississauga South, Ont.), a Finance Committee member and former Ethics Committee chair, the government should release all the information the Finance Committee requested because it is clearly not a matter of Cabinet confidence. The committee is asking for information in discussion papers that present background information to ministers so they can make decisions about whether to bring forward legislation to Parliament. Once a decision to which a discussion paper relates has been made public, the paper is no longer considered a Cabinet confidence.

The legislation relating to the information the Finance Committee demanded has already been tabled publicly, said Mr. Szabo, so the government has no case. The issue is unrelated to whether there should be independent review of what is or isn't a Cabinet confidence.

In any case, said Mr. Siksay, "we need that ability invested some place so we can have an independent review of these kind of decisions. We need them to be on...somebody's agenda, in the way that they aren't now, to improve our democracy, to improve transparency, to improve accountability."

kshane@hilltimes.com

The Hill Times