Auditor general's complaint leads to cabinet order for release of Finance documents

Michael Ferguson is entering his sixth year as Canada's auditor general and, not surprisingly, his reports during that time have found numerous examples of government waste, excess and neglect.

But his most recent batch of audits released this week exposed a significant hurdle to ensuring government programs provide good value for taxpayers' money.

In two cases, both involving the Finance Department, auditors were denied access to key documents they needed. As a result,Ferguson was unable to report back to Parliament on whether those programs are working, and if not, how the government can do a better job.

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It's serious enough that he took the unusual step of writing a separate message to the House of Commons alerting MPs that he was unable to get all the information needed to complete those audits.

"We need to get back to the first principle that we have a broad right of access to information," Ferguson says in an interview Wednesday with the podcast edition of CBC Radio's The House.

Audits stalled

In the first case, the Finance Department didn't give auditors information they needed to assess what had been done to identify and eliminate inefficient fossil fuel subsidies.

This is no small matter. Prime Minister Justin Trudeau listed the phasing out of fossil fuel subsidies as a core commitment in his mandate letters to both Finance Minister Bill Morneau and Environment and Climate Change Minister Catherine McKenna.

In the other, the department refused to hand over its analysis of the $20 threshold for customs duties on parcels imported by mail or courier, claiming it was a cabinet confidence. Raising that threshold to allow people to import more items bought online duty-free is another topic of considerable public debate.

"It speaks to the very core of the auditor general's mandate,'' says New Democrat MP David Christopherson, who serves as vice-chair of the Commons public accounts committee, which reviews the auditor general's reports with senior officials of the departments reviewed. "If his office doesn't get the information they are legally entitled to they simply cannot do their work."

Order-in-council issued

Morneau was pressed to explain why his department, in apparent defiance of the Liberals' campaign commitment to openness and transparency, refused to hand over the information.

He told reporters the cabinet issued an order on May 12 toaddressFerguson's concerns.

"When we realized that it was possible to provide more information through an order-in-council, we moved forward to do this. This is unprecedented and will allow the auditor general a high level of information from which to make future reports."

Unprecedented is not the word Christopherson uses, especially since the order came too late for the information to be included in the audits released this week.

"The Liberals are the ones who ran on transparency and accountability, and they weren't prepared to live up to that until they were about to be called on it by the auditor general."

The cabinet order, itself, is a shining example of never using a few words when far more will do.

His Excellency the Governor General in Council, on the recommendation of the Prime Minister, directs that the Auditor General of Canada be granted access to the following information that constitutes a confidence of the Queen's Privy Council for Canada, as defined in subsection 39(2) of the Canada Evidence Act, that comes into existence on or after November 4, 2015, all of which information remains a confidence of the Queen's Privy Council for Canada for the purposes of any Act of Parliament:

1. explanations, analyses of problems or policy options contained in or prepared by officials in relation to a record the purpose of which is to brief a Minister of the Crown on budgetary matters that are, or proposed to be, the subject of communications or discussions between Ministers of the Crown relating to the making of government decisions or the formulation of government policy, but not information revealing views, opinions, advice, recommendations or proposals of, or presented to, a Minister.

Ferguson's translation? A good step that doesn't go nearly far enough.

"The problem with it is it's built like other orders-in-council that we have had in the past that list certain types of documents that we will get access to in the future, and then what happens is somewhere in the future another type of document that comes along that departments tell us is a cabinet confidence and we have that same battle all over again."

Pressure on the government

For the record, Ferguson is not the first, or the only, parliamentary officer to have problems trying to wrest information out of governments that don't want to give it.

When Kevin Page was the parliamentary budget officer in 2012, he sued the previous Conservative government to turn over information about its proposed austerity program.

Former auditor general Kenneth Dye went all the way to the Supreme Courtin the 1980s in a bid to audit theConservative government's analysis of Petro-Canada's purchase of Petrofina. He lost when the court said his only recourse was to take the issue to Parliament.

And Sheila Fraser was prepared to do that in 2006 in a bid to get documents she sought during her term as auditor general. The threat of reporting to Parliament was enough for the government of the day to give in.

"And that's what we've done," Ferguson says.

So what now.

Ferguson told the public accounts committee late Wednesday that he hopes the cabinet order signals he will not encounter similar problems in the future.

Christopherson says he intends to keep the pressure on to get a lasting solution, so that no government gets to say no again to information the auditor general is entitled to receive.

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