Proceedings of the Standing Committee on
Internal Economy, Budgets and Administration
Issue 3 - Sixteenth Report of the Committee
Thursday, May 10, 2007
The Standing Committee on Internal Economy, Budgets and Administration has the honour to table its
SIXTEENTH REPORT
Your Committee has adopted the report of its Subcommittee established to inquire into whether certain conduct of staff is appropriate or permissible.
The Subcommittee's report is attached as Appendix A to this report.
Respectfully submitted,
GEORGE J. FUREY
Chairman
Appendix A of the Sixteenth Report
Thursday, May 10, 2007
The Subcommittee on Agenda and Procedure (Steering Committee) of the Standing Committee on Internal Economy, Budgets and Administration has the honour to present its
THIRD REPORT
Order of Reference
Text of the Order of Reference:
Your Committee adopted the following resolutions:
November 23, 2006:
That the Standing Committee on Internal Economy, Budgets and Administration undertake to examine and determine, in light of recent discussions and in light of present rules, procedures, practices and conventions of the Senate, whether it is appropriate or permissible that persons working in the offices of senators, including senators who are ministers of the Crown, should obtain or attempt to obtain from hotels used by senators conducting business properly authorized by the Senate, detailed breakdowns including lunches or other costs included in hotel invoices, and including any and all sundry expenses associated with the stay, and that on completion of its determination, this committee report its findings to the Senate at the first opportunity.
November 23, 2006:
That the matter be referred to the Steering Committee for review and investigation, and that the Steering Committee bring back any concerns or recommendations that it have to the full Committee.
December 7, 2006:
That the Steering Committee be authorized, except during periods of prorogation or dissolution, to send for persons, papers and records and to administer oaths and examine witnesses under oath;
That the Steering Committee meet in camera and have due regard in the conduct of its proceedings for considerations of natural justice, always subject to its sole discretion on means of implementation; and
That, at its discretion, the Steering Committee be authorized to provide assistance to this staff member, in keeping with the Senate Legal Assistance and Indemnification Policy.
Scope of the Order of Reference:
The substance of the order of reference requires your Subcommittee to review and investigate whether:
it is "permissible'' that persons working in the offices of senators, including Ministers, obtain or attempt to obtain certain travel information about senators;
it is "appropriate'' that persons working in the offices of senators, including Ministers, obtain or attempt to obtain certain travel information about senators.
The order of reference instructs your Subcommittee, in carrying out its order of reference, to take into account:
recent discussions;
present rules, procedures, practices and conventions of the Senate.
Your Subcommittee understands the reference to "recent discussions'' in the order of reference to refer to discussions that took place in your Committee on November 2, 2006 and to discussions that took place in the Senate Chamber during Question Period on November 2, 3 and 6, 2006 under the heading "Office of the Leader of the Government — Media Leak on National Security and Defence Committee Trip to Dubai,'' and on November 21, 2006 under the heading "Motion to Authorize Committee to Study Permissibility of Senators' Staff Inquiring into the Travelling Details of Other Senators.''
The reference to the "present rules, procedures, practices and conventions of the Senate'' requires your Subcommittee to gather and consider these.
The order of reference had its origins in a specific incident and clearly intends that the Subcommittee investigate this incident and use it as the basis for its analysis and conclusions. This explains the phrases "recent discussion'' and "this staff member'' in the orders of reference, as well as the requirement that the Subcommittee have due regard in the conduct of its proceedings for considerations of natural justice. The incident-specific nature of the investigation made it a possibility from the outset that the Subcommittee might make findings adverse in interest to the participants in the incident or to witnesses appearing before the Subcommittee.
On the other hand, the order of reference is framed in general terms. While it requires a report on the general permissibility or appropriateness of the conduct specified, it does not authorize the Subcommittee to visit consequences on any participant.
Finally, it must be remembered that this investigation does not have its origins in the Senate but in the Internal Economy Committee, acting on its own initiative. The scope of the investigation is therefore limited to those matters within the mandate of the Internal Economy Committee. That mandate consists of responsibility for the good internal administration of the Senate and includes, in particular, the right to determine the propriety of the use of a Senate resource. It does not extend to determining whether there has been a breach of parliamentary privilege.
Process
At all relevant times, your Subcommittee was composed of the Honourable George Furey (Chair), the Honourable Pierre Claude Nolin (Deputy Chair) and the Honourable Joan Cook.
Your Subcommittee met fourteen times to consider its order of reference, as follows:
December 5, 2006
December 6, 2006
January 18, 2007
January 29, 2007
February 1, 2007
February 8, 2007
February 13, 2007
February 14, 2007
February 14, 2007 — witnesses
February 22, 2007 — witnesses
March 28, 2007
April 17, 2007
May 1, 2007
May 8, 2007
Out of courtesy, your Subcommittee postponed its proceedings on two occasions, in order to permit its key witness with respect to the incident, Mr. Jeffrey Kroeker, to attend to other obligations outside the Senate. Mr. Kroeker appeared on February 14.
Your Subcommittee met in camera at all times.
Your Subcommittee heard four witnesses: Mr. Jeffrey Kroeker, Senior Legislative Advisor to the Honourable Marjory LeBreton, P.C.; Mr. Mark Audcent, Senate Law Clerk and Parliamentary Counsel; Ms. Heather Lank, Principal Clerk and Director of the Senate Committees Directorate; and Ms. Hélène Lavoie, Director of the Senate Finance Directorate. All witnesses were required to take an oath or make a solemn declaration, administered by the Clerk under the authority of the Parliament of Canada Act.
Your Subcommittee has prepared a record of deliberations, which it has tabled with the Clerk of the Senate in his capacity as clerk of the committee, of which this report is an abridged version. In the record of deliberations, your Committee also documents the factual background leading to its work, the evidence it received and its analysis. Your Subcommittee proposes that the record of deliberations be made available for Committee members to consult in the Clerk's office, but subject to the condition that no photocopies are made or notes taken of it.
Your Subcommittee is satisfied that it had due regard in the conduct of its proceedings for considerations of natural justice. In particular, Mr. Kroeker had legal assistance and was accompanied by counsel during the hearing at which he was heard. A draft copy of the record of deliberations and this report were sent to Mr. Kroeker's counsel, who was given an opportunity to comment.
Findings and Recommendations
In compliance with its order of reference, your Subcommittee has gathered and considered the recent discussions in the Senate and in your Committee concerning whether it is appropriate or permissible that persons working in the offices of senators, including senators who are ministers of the Crown, should obtain or attempt to obtain from hotels used by senators conducting business properly authorized by the Senate, detailed breakdowns including lunches or other costs included in hotel invoices, and including any and all sundry expenses associated with the stay, and has also gathered and considered the present rules, procedures, practices and conventions of the Senate that are applicable to this question.
Your Subcommittee has made the following findings and makes the following recommendations:
1. Jeffrey Kroeker is a very accomplished young man and also a very partisan individual. At all times relevant to this study he was a Senate employee on the staff of the Honourable Marjory LeBreton, P.C., with the title Senior Special Adviser, Parliamentary Affairs.
2. During the months of September and October, 2006 Mr. Kroeker gathered travel information about Senators and staff of the Standing Senate Committee on National Security and Defence who travelled to London, the Hague and Dubai. All the information Mr. Kroeker gathered was unpublished, confidential information at the time that he gathered it and some of the information that he gathered was personal information of identifiable individuals. By identifying himself as a Senate employee and asking for the information, Mr. Kroeker represented to the hotels from which he asked the information that he was entitled to it.
3. On October 17 and thereafter, Mr. Kroeker shared the information that he had gathered with persons outside the Senate, notably Graham Richardson, a reporter for CTV, John Williamson of the Canadian Taxpayers Federation and Krista Erikson of the CBC. The information was used to ground a national media story on the Senate and certain Senators that was negative in character and impact.
4. Mr. Kroeker's evidence is that he was acting alone at all times. It was his decision to gather and disseminate the information. He undertook the research without the knowledge or approval of any other person. In particular, neither Senator LeBreton nor Senator Stratton were aware of Mr. Kroeker's actions. Nor was any member of Senator's LeBreton's staff aware of Mr. Kroeker's actions.
5. Employees of the Senate, whether on the staff of an individual senator or on the staff of the Senate Administration, are a resource of the Senate. Your Subcommittee is satisfied that the conduct of Senate staff and the Senate Administrative Rules governing that conduct are matters that are within the mandate of the Internal Economy Committee.
6. Your Subcommittee is of the view that Mr. Kroeker's conduct in gathering and disseminating the information was inappropriate and unethical. By breaching the mutual expectations of appropriate behaviour that Senators have of each other and of each other's staff, Mr. Kroeker's conduct caused a significant internal problem requiring resolution, which is the underlying reason for your Subcommittee's mandate.
7. Mr. Kroeker's conduct may have left him vulnerable to a legal claim by a person adversely affected. Your Subcommittee has not pursued this line of inquiry or the question of whether the potential damages would be adequate to justify legal proceedings.
8. Federal legislation governing the management of information does not apply to the Senate; in particular, the Access to Information Act, the Privacy Act and the Personal Information Protection and Electronic Documents Act do not apply. However, the Senate has adopted its own regime for information management in the Senate Administrative Rules, chapter 2:06 of which is entitled "Access to Information and Privacy''.
9. Mr. Kroeker's conduct in disseminating unpublished, confidential information and personal information about identifiable Senators and staff without the required consent or authorization breached the provisions of chapter 2:06 of the Senate Administrative Rules that govern the use of such information.
10. Your Subcommittee concludes that, in the light of the present rules, procedures, practices and conventions of the Senate, it would not be appropriate or permissible for persons working in the offices of senators, including senators who are ministers of the Crown, in circumstances such as those brought to light by its examination of the facts of this case, to obtain or attempt to obtain from hotels used by senators conducting business properly authorized by the Senate, detailed breakdowns including lunches or other costs included in hotel invoices, and including any and all sundry expenses associated with the stay.
11. While your Subcommittee is satisfied that the Senate Administrative Rules govern in a comprehensive way the dissemination of information about Senators, including published, unpublished, confidential and personal information, it recognizes that the Rules do not at present govern the gathering of information and, in particular, personal information, about Senators and other identifiable individuals. In your Subcommittee's view, the events of this case give rise to the need for an explicit expression of the expectations of Senators in these matters in future. Your Subcommittee therefore recommends that the Senate Administrative Rules be amended, in chapter 2:06, by adding a new subsection 9(4) as follows:
(4) No person shall gather or attempt to gather unpublished information about an identifiable Senator or member of staff that is described in the definition "personal information'' in section 3 of the Privacy Act, except as expressly authorized by the Senate, a committee of the Senate, an individual Senator or the Clerk of the Senate.
Information is the lifeblood of the Senate. While this proposed rule will not prevent the gathering of personal information, it will ensure that, when personal information is gathered, someone is accountable for the act. While the scope of the prohibition "No person'' in the proposed amendment appears at first glance to be wide (for example, it appears to apply to a bureaucrat or a member of the press), it is in fact limited by subsection 2(1) of chapter 1:01 of the Senate Administrative Rules which provides:
2. (1) The Senate Administrative Rules are internal administrative rules made exclusively for use in the Senate.
12. Your Subcommittee recommends that the Clerk transmit to Mr. Kroeker any report concerning this matter that the Senate may adopt.
Respectfully yours,
GEORGE J. FUREY
Chair