On Oct. 27, I attended a meeting of the House of Commons Standing Committee on Access to Information, Privacy and Ethics. The country's Comissioner of Lobbying Karen Shepherd was the main witness at that meeting. Shepherd is the first to hold that job. She was appointed in June to oversee new rules for lobbyists, rules that were one of the key promises of the Conservatives when they campaigned in 2006.
One of the interesting tidbits to come up at that meeting was the issue of exemptions. As you may know, the new law prohibits any public office holder — a broad group of folks that includes anyone from cabinet ministers to deputy ministers to the political staffer who carries the minister's briefcase — from being a registered lobbyist for five years after leaving their public office. You can get around that prohibition by applying to the Commissioner of Lobbying for an exemption. Ten people have asked Shepherd for exemptions and two were granted. Two others withdrew their names. Politicians at the committee asked for the names of the others who did not get exemptions. Shepherd said she would not say and advised MPs to use Access to Information laws to get those names.
The next day, I filed an Access to Information request to get those names and on Dec. 31, I received the official notification from that, no, I will not be able to receive those names and so, unless those individuals want to step forward and identify themselves, we will never know which Conservatives wanted an exemption to lobby their old friends.
The Commissioner's office, incidentally, is required by law to respond to my request within 30 days of my request and did not do so – a violation of federal law for which there is no sanction, one of several failings of our access to information laws. In fact, the Commissioner's office did not reply until I telephoned them to inquire about the status of my ATI request.
In any event, here are excerpts from that committee meeting of Oct. 27 on the exemption issue, followed by my ATI request and, following that, the response from Shepherd's office to my information request.
First the excerpts on exemptions, beginning with a question from Liberal MP Michelle Simson:
Michelle Simson (Scarborough Southwest, Lib.): … I want to zero in on the tail end of your opening remarks where you touched on the fact that the Lobbying Act introduced the five-year prohibition period for former designated public office-holders. You have the authority to grant the exemptions. Could you expand on the internal review process you implemented and the specific criteria you have in place to either approve or decline an exemption request?
Karen Shepherd: In terms of the process, we have a description on our website of the type of information we would like to see. When an application comes in for review, we will look at their past employment, résumés, whether they happen to know any information on their future employer, and so on. Interviews will be conducted with witnesses, and maybe past employers, or the applicants themselves if there's a new employer. Once all of that is done and analyzed, the report is given to me for consideration.
Part of the process we introduced was to give the applicant 30 days to comment on my intent. In other words, if I'm going to be granting the exemption or not, they get 30 days to respond. If I grant the exemption, or an exemption with some conditions, they are given a letter with an exemption number that they then have to use for registration. If the exemption is granted, the act indicates that I must, without undue delay, post my reasons for that exemption on the website.
To answer your second question on criteria, the act provides some criteria, for example, if the person has been in an acting position for a short period of time–maybe student employment, administrative duties only–whether the employer would gain an unfair advantage. In the case of transition team members, there are a few others that are added.
The position I have taken is that Parliament put the five-year prohibition in the act for a reason, which was to stop the revolving door. To me, the rule is that the five-year prohibition holds, and it is only with exceptional circumstances that I will grant an exemption.
Simson: Your report stated that you received seven applications in 2008 and 2009. Two were granted, and you have to post that information to the website. Is there any access for the public for the other five that maybe were declined, or is that kept private?
Shepherd: I have actually received ten applications to date. Two applications dealt with individuals who had left prior to the act coming into force, so even though they were comprehensive applications, there was no authority for me to grant an exemption. Two individuals withdrew. I denied three applications. And there is one current application.
With respect to those who are subject to the five-year prohibition, if they are not granted an exemption that is posted on my website, then they are subject to the five years.
Simson: Is the information on the ones you decline publicly accessible?
Shepherd: The department is subject to the Access to Information Act and Privacy Act.
Simson: So the public could access that information.
Shepherd: They could put in a request and we would go through the process of analyzing it. Because they are public office-holders, I would assume that some of the information would be permissible to give out. However, according to the Privacy Act, if the information is of a personal nature or there is confidentiality from a third party, I couldn't give it.
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Pat Martin (Winnipeg Centre, NDP): Good morning, Ms. Shepherd. I'm surprised to see in your report that you report a reduction in corporate lobbyists and even staff lobbyists. It's been my experience that you can't swing a cat on Parliament Hill without hitting a lobbyist. It feels like an infestation sometimes, especially in the members' gym, where a lot of the highest paid lobbyists in the land are in fact former cabinet ministers who skulk around the members' gym and look for secret meetings, etc.
I'm very surprised to see you see that. I don't see it as a bad thing–a reduction in lobbyists–as you might be able to tell. I liken it to driving the money-lenders from the temple even, if you ask me.
I'm very surprised, though, to see you say that the ink is not even dry on the new act and you're already granting exemptions. Who have you granted exemptions to, to date?
Shepherd: Mr. Chair, would the member like me to address the first point, in terms of the reduction of the number of lobbyists or…?
Martin: I'd rather not. We don't really have time for that. (Ed note: At committee meetings, NDP MPs, generally get only 7 minutes in the first 90 minutes or so for their questions and answers. So Martin here knows he only has 7 minutes to get Shepherd to answer his questions.)
The Chair: Take him off the list.
Martin: I just want to know who you have granted exemptions to, specifically the names of the people you've granted exemptions to.
Shepherd: They're on the website: one is Mr. Mark Brosens, who was in the minister's office, and Monsieur Guy Bujold, who had been the former president of the Space Agency.
Martin: I'm not even going to ask you for the rationale, as I don't think any reasonable rationale would exist. Why you would, after all the work we went to, to put a Lobbyists Registration Act, a toughened registration act, in place…. And on the Federal Accountability Act, as I say, the ink is hardly dry.
I think we should remind ourselves as a committee how important this act is. The difference between lobbying and influence peddling is about five years in prison. And it's a fine, fine line. Lobbying in an incorrect way, lobbying in the way that we were trying to address under the Federal Accountability Act, bastardizes democracy, undermines democracy in a very substantial way. So you have one of the most important jobs on Parliament Hill.
I don't mean to be critical, but we didn't put in place a robust Lobbyists Registration Act so it could be ignored within months of it being finally implemented. We had frustrations with the former act. I turned in Don Cherry for lobbying on the Hill, I believe, illegally, and we are very frustrated that even after a lengthy investigation, they found nothing wrong with Don Cherry bringing his jar of COLD-fX into the Prime Minister's Office and the very next day having COLD-fX deregulated under the Canada Health Act as a medication.
There have been glaring problems with lobbying.
Well, I suppose my question would be this. Does it not concern you that somebody like these two individuals can peddle the information they used to have privileged access to, to advantage a private sector corporation or organization?
Shepherd: Mr. Member, to answer the question, what I said to the other member, I meant it. In terms of granting exemptions it's very much that. There will be exceptional circumstances.
I very much respect what Parliament passed in terms of wanting to avoid the revolving door and to ensure that those who were in certain positions could not use their contacts or other benefits for lobbying purposes for five years. So when in reviewing those requests that I did grant—and I still denied more than I've actually granted—the review and analysis done by the team that presented me with the report was extremely thorough to ensure that the individuals in question could not use the contacts that they use for benefit.
The Chair (Paul Szabo, LPC): I may also add that it's not the commissioner who decided whether she would make exemptions. The act empowered the commissioner to do that. The committee that came forward with the act must have thought there would be some circumstances under which it would be appropriate.
Martin: We should have slammed that loophole shut while we had the chance.
The Chair: That's true, and maybe we can still do it. We could do it with another private member's bill.
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Martin: I guess this committee is particularly sensitive to the issue. We're the oversight committee for it. But we've also just gone through this exercise with Karlheinz Schreiber. The lobbying in the old days, with sacks of dough, exceeds it. Nobody ever said back then that what Karlheinz Schreiber was doing was illegal lobbying. That was just the culture of Ottawa at the time. People with vested interests sought the favour of people in power who had the ability to do what they wanted. I don't know if that's really changed today, except that we have no evidence of sacks of money changing hands in secret meetings in hotel rooms. But everything else is pretty much exactly the same, except for the five-year cooling-off period.
We're also faced with a problem. A lot of people bolted when the getting was good and got in just under the wire. We know that in the Conservative ranks a memo went out. It said that if you want to lobby, you'd better get out now, because the law is going to change pretty soon. There was an exodus, a rush, of people who established themselves before the rules. Is there any satisfaction available to the Canadian taxpayer regarding that flurry of new lobbyists who set up shop just before you and the act had the ability to deal with them? They got away with it.
Here is the wording of the request I filed the next day under the Access to Information Act:
Please provide: The names of the public office holders who have applied for exemptions under the Lobbying Act since its coming into force on July 2, 2008 and who were denied an exemption. Please provide the names of these individuals and public office or offices held.
And here is the response to my request, e-mailed to me by Pierre Ricard-Desjardins, the Access to Information co-ordinator in Shepherd's office, after I had telephoned on Dec. 18 to inquire about the status of my request.
Good day Mr. Akin,
This relates to your Access to Information request dated October 28, 2009, which was received by our Office on December 21, 2009, concerning:
“The names of the public office holders who have applied for exemptions under the Lobbying Act since its coming into force on July 2, 2008 and who were denied an exemption. Please provide the names of these individuals and public office or offices held.”
As I mentionned to you over the phone on December 18, 2009, the above request is considered a request for the disclosure of “personal information” pursuant to Section 3 – Definitions, of the Privacy Act (the Act).
In particular, the Act states that “personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence,
Therefore, the application of an individual for an exemption to the 5-year ban on lobbying to the Office of the Commissioner of Lobbying (OCL) (a government institution), by a public office holder would fall under subsection (f) of the definition of personal information.
Under Section 10.11, paragraph (4) of the Lobbying Act, it states that if such an exemption is granted, the Commissioner shall without delay cause every exemption and the Commissioner's reasons for it to be made available to the public. Thus, the Commissioner is immediately obligated to publish this information on the OCL's Web site and the Lobbying Act authorizes the disclosure of this particular personal information.
However, under the Lobbying Act, the Commissioner is not allowed or obligated to disclose any personal information other than in paragraph 4 referred to above and is in fact prohibited from doing so under Section 8.(1) Disclosure of personal information of the Privacy Act, which states the following: “Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.”
Paragraph (m), which would permit disclosure without consent of the third parties, states the following:
For any purpose where, in the opinion of the institution,
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(ii) disclosure would clearly benefit the individual to whom the information relates.
In our opinion, neither of these criteria would apply with regard to this particular personal information.
Thus, we must consult with the individuals themselves, and seek their permission to divulge their personal information as you have requested above. Should you wish to proceed with your request, our Office will then to ask the relevant third parties, in writing, if they are willing to allow the disclosure of their personal information.
Please notify our Office as soon as possible should you wish to proceed with your request. Also, please keep in mind that our Office will only be able to release the information you seek with the express written consent of each of the third parties involved. In this context, our response may be delayed somewhat, but is likely to be provided within the allowable 30 day extension period.
I look forward to your answer.
Season's greetings.
Pierre Ricard-Desjardins,
ATIP Coordinator