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Obtaining Access to Expense and Travel Claims of Ministers and Exempt Staffers
Since the coming into force of the Act on July 1, 1983, a number of requests have been made to government institutions seeking access to the travel and expense claim records of Prime Ministers, ministers, and members of ministerial exempt staff. Until March 30, 2001, it was the position of the President of the Treasury Board, as the minister designated to give policy and interpretive guidance to government concerning the Act (see paragraph 70(1)(c)), that subsection 19(1) of the Act could not be relied upon to justify a refusal to disclose the travel and expense claims (reimbursable from public funds) of the Prime Minister, ministers, and members of ministerial exempt staff. Travel and expense claims records were routinely released in the same manner and to the same extent as were travel and expense claim records of all other public servants. Some minor severances were permitted to protect such items of personal information as home telephone numbers and credit card numbers.
That long-standing policy and practice changed as of March 30, 2001, with the issuance by Treasury Board Implementation Report No. 78. Under the new policy, requests for the travel and expense claim records of the Prime Minister, ministers, and ministerial exempt staff were to be denied, while such requests for other public servants were, as before, to be granted. The legal justification for refusal, according to the new policy, is subsection 19(1) of the Act, as a result of a broadened interpretation of "personal information" and a narrowed interpretation as to whether ministers and their exempt staffers are "officers or employees" of the departments over which they preside - the legal view of the previous government being that they are not.
A frequent user of the Act complained to the Information Commissioner that
IR No. 78 constitutes an improper interference with the pre-existing right of access to the travel and expense claim records of Prime Ministers, ministers, and ministerial exempt staff.
Are ministers, and ministerial exempt staffers, officers or employees of departments over which the ministers preside? If so, then IR No. 78 is wrong, and travel and expense claims of ministers should be disclosed under the Act.
The investigation confirmed that the position adopted in IR No. 78, concerning the status of records held in ministers' offices, was a departure from long-standing Treasury Board interpretation policy. Since the access law came into force, the policy has been that the decision, whether or not records held in ministers' offices are subject to the Act, turns on an assessment of the content of the records. If the records contain personal and political (constituency) information relating to the minister, they are not considered to be "departmental" records covered by the Act. All other records held in ministers' offices that relate to the administration or operation of the department are considered to be departmental records and covered by the right of access. This policy is clearly articulated in the 1993 revision of the Treasury Board ATIP manual, Chapter 2-4, page 5. It is also clearly articulated in the January 2001 revision to the Treasury Board's Guidelines for Ministers' Offices, Chapter 10-2.
The true significance of this policy change can only be appreciated when one takes into account ministerial practice of keeping the actual receipts and detailed breakdown of expenses in their offices, while providing "the department" with a bare-bones summary only. This practice stems from a letter from the Minister of Finance dated December 5, 1963, which refers to a Cabinet direction asking ministers to submit to the department, as their travel claim, a statement, on a monthly basis, which includes:
- the period covered by the trip and the places visited;
- transportation expenses; and
- other expenses (such as accommodations and meals),along with a signed certification that the expenditures were incurred on official government business.
Thus, the long-standing practice of keeping expenditure details in the minister's office, together with the new view that no records held in ministers' offices are covered by the right of access, had the effect of putting a veil of secrecy over the details of ministerial travel expenses.
The Commissioner noted that the blanket of secrecy IR No. 78 placed over ministerial expense claims ran contrary to the Receiver General Directive that requires that ministerial travel expenses be made public in order to "enhance ministerial accountability for travel expenses". Indeed, the Receiver General Directive requires the Treasury Board Secretariat to make public "upon request" the reports concerning ministerial travel expenses. As well, he noted the fact that paragraph 8(2)(a) of the Privacy Act authorizes disclosure of personal information without consent "for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose". Since a principal reason for keeping receipts and making claims when public money is spent is to ensure the transparency of the transactions and accountability of the officials, the Commissioner reasoned that, even if privacy rights were at play, disclosure would be authorized by the Privacy Act.
This obligation, for reasons of accountability, to be transparent about the use of public funds by ministers is deeply imbedded in government policy and democratic tradition. All the more remarkable, then, that IR No. 78 fails to even mention it or to suggest that there is a strong public interest in disclosure, clearly overriding any privacy interest ministers may have in their expense records. All the more remarkable, too, that IR No. 78 fails to advise government that disclosure without consent is authorized by paragraph 8(2)(a) of the Privacy Act.
Officers or Employees
In IR No. 78, the Treasury Board adopts the view that ministers (and their staff) are not "officers or employees" of the government institution over which they preside. This view runs counter to the fundamental design of the British Parliamentary model under which departments are extensions of the authority of the minister and cannot exist apart from the minister. This reality is reflected in the constituent statutes of departments and in the Financial Administration Act. The latter statute makes it explicit that a minister of the Crown is included in the definition of "public officer". As well, the Concise Oxford Dictionary of Current English includes "a sovereign's minister" within the definition of "officer". Most important, the access law itself stipulates that the minister is the head of the government institution over which he presides for the purposes of the rights and obligations contained therein.
The Commissioner noted that the restrictive view contained in IR No. 78 proved impossible for governments to justify to taxpayers. Almost one year after this implementation report was issued, the then Prime Minister told his ministers that they and their staff should not refuse consent for disclosure of their expense claim records. The President of the Treasury Board informed the House of Commons on March 15, 2002, as follows:
"While respecting the Access to Information Act and the Privacy Act, the Prime Minister has asked all his ministers and their political staffs to release information related to their expense records."
This unambiguous direction to his ministers meant that IR No. 78 had to be clarified to put emphasis on the process of obtaining consent. An information notice (No. 2002-04, dated March 18, 2002) served this purpose.
The result of all this is that, in some ways, the matter has come full circle - Canadians may make access requests for ministerial expense records, and the records will be disclosed as in the past. However, in other ways, much has changed. Previously, Canadians were given access as a matter of right; now, they are given access only by the grace and favour of ministerial consent. Second, Canadians do not have access to any ministerial expense records that ministers choose to keep in their own offices - an element of caprice that is entirely at odds with the notion of accountability.
The Commissioner concluded that the Treasury Board policy on the disclosure of ministerial expenses is based on an erroneous view of the law. In his view, the proper legal position is that ministerial expense records do not fall within the definition of "personal information" because:
- they are not about an individual but, rather, about government business; and
- they fall within 3(j) of the Privacy Act.
The Commissioner also concluded that, even if the expense records are "personal", paragraph 19(2)(c) of the Act authorizes disclosure by reference to the public interest override contained in subparagraph 8(2)(m)(i) of the Privacy Act and the provisions of paragraph 8(2)(a) of the Privacy Act relating to original and consistent uses.
Thus, the Commissioner considered the complaint to be well-founded and recommended to the President of the Treasury Board that IR No. 78 and Information Notice 2002-04 be withdrawn and that a new implementation report be issued in conformity with this finding. The minister has not responded to the recommendation; therefore, this complaint remains unresolved.
The issue of whether or not travel and expense claims of ministers and ministerial exempt staff are accessible under the Act, or whether they may only be disclosed with the consent of the claimants, remains unresolved. The Information Commissioner holds one view; the government holds a contrary view.
Cases currently before the courts, concerning the accessibility of records held in ministers’ officers, may help resolve the issue. When judicial guidance is given, it will be reported in a future annual report.