The committee directed its staff to prepare a brief discussion paper outlining the issues respecting Members' access to the confidential records of committees of previous Assemblies. An examination of legislative authorities and the practices in other jurisdictions was included.
This issue was deferred at the Rules Committee meeting of November 1, 2000 and considered at the committee's meeting of March 1, 2001.
The committee documents referred to do not include committee reports, transcripts of public proceedings, or any other material published under the authority of a standing or special committee of the Legislative Assembly. Access to these materials is not restricted as they form the public record.
In its deliberations, the Rules Committee examined firstly the Rules of the Legislative Assembly, specifically Rule 95(1) which states:
"All documents which come into the possession of a committee or which come into existence in the course of the conduct of committee business belong to that committee before it reports to the Assembly and belong to the Assembly after the committee reports to the Assembly, subject to any direction of the Speaker acting on an order of the Assembly."
Rule 95(2) qualifies the first part of the rule as follows:
"Notwithstanding Rule 95(1), where a committee does not report to the Assembly before dissolution of the Legislature, all committee documents belong to the Assembly upon its dissolution subject to:
(a) any direction of the committee as to their disposal;
(b) any direction by order of the Assembly as to their disposal; or
(c) in the absence of any other direction, the direction of the Speaker.
In the instance which precipitated a Member's raising the question of access to committee documents, the Speaker's direction was sought in the absence of clear direction -- in essence, Rule 95(2)(c) was applied.
However, there are a number of considerations and questions that the committee addressed to clarify the right of access to confidential committee documents from previous Assemblies. In assessing the issues, a number of long-standing parliamentary authorities are consulted.
The application of Rule 95 suggests that all unpublished committee documents from a previous Assembly are the property of the current Assembly. What is not clear however, is what that means for current individual Members or committees. Does this mean that all current Members, including Ministers, have the right of access to all confidential documents from a committee of a former legislature? Should this access be restricted to Members of the respective committees?
It had been suggested that committee work and issues do not end with the dissolution of an Assembly and that there needs to be some continuity in committee information available to the same committee of the next Assembly.
With respect to committee documents, such as in-camera transcripts, or other material which has not been published or reported, Beauchesne's 6th edition offers the following:
c. 851 "When a committee chooses to meet incamera, all matters are confidential. Any departure from strict confidentiality should be by explicit committee decision, which should deal with what matters should be published, in which form and by whom. Committees should make clear decisions about the circulation of draft reports, the disposition of evidence and the publication of their minutes."
In support of this position, yet taking it a step farther, Marleau and Montpetit, on pages 850 and 865 of their House of Commons Procedure and Practice, make the case for clear committee decisions about the destruction of records, suggesting that what is not destroyed will be available to all Members and will form part of the permanent record of the committee, available to the public after a specified period.
"While no public record is produced of what is said during incamera proceedings, committees often find it useful to have a transcript produced for the private consultation of the members and staff of the committee. In addition to deciding whether or not to keep a transcript of an incamera meeting, the committee must also decide how such transcripts will be disposed of at the end of the session (i.e., whether they will be made part of the committee's permanent record for historical purposes, or destroyed)."
"Where concerns about confidentiality exist, a committee may agree to have documents tabled at an in-camera meeting. Transcripts of in-camera meetings and other confidential documents of committees are to be classed as secret records by the National Archives for a period of 30 years from the end of the session in which they were created. The documents remain available to Members of the House during that time."
In consideration of these factors, the Rules Committee concluded that both the Rules of the Legislative Assembly and the parliamentary authorities indicate that in the absence of any committee direction, or House direction after the committee has reported or been dissolved, respecting the disposition of committee records, that they would be made available to all Members upon request. This would include current committees and Members of the Executive Council as no distinction is made in any reference.
It has not been common practice in this jurisdiction for committees to make explicit decisions about the disposition of committee documents in accordance with the rules and conventions. It may be advisable that more attention be paid by standing and special committees of the Legislature to the disposition of documents, particularly confidential materials of a sensitive nature.