Parliamentary Privilege / Rights of Members

Freedom from obstruction, interference, intimidation and molestation: Member denied access to computer files

October 15, 2001

Debates, pp. 6081-2

On September 27, 2001, Deborah Grey (Edmonton North) rose on a question of privilege, claiming that she had been denied access to her computer files as these had been frozen and shut down by the Canadian Alliance. (Editor’s Note: This occurred after Ms. Grey had left the Canadian Alliance caucus and was sitting as a member of the Progressive Conservative Party/Democratic Representative Caucus Coalition.) She further maintained that, without consulting with her office, the House of Commons Information Services Directorate had given permission to a staff member of the Whip of the Canadian Alliance to gain access to her computer files. Expressing concerns about privacy and confidentiality, Ms. Grey contended that she had been impeded in carrying out her parliamentary duties. After hearing from other Members, the Speaker took the matter under advisement.^[1]

On October 15, 2001, the Speaker delivered his ruling. He noted that there were competing claims in this situation. First, the Member contended that the documents and data she and her assistants had stored on the Canadian Alliance server and which were password protected, were hers and should be returned to her. Second, Canadian Alliance officials claimed that the server where the files were located belonged to them, that the files were found in a directory called “CA Leader”, a position the Member no longer held, and that the Alliance had a legitimate right to ensure that no caucus documents were included in the files to be returned to the Member. Faced with these competing claims, House of Commons Information Services had concluded that it could not adjudicate the dispute and had suggested that both sides negotiate a mutually acceptable solution to the impasse. The Chair was concerned that an officer of the Alliance, on the request of the Canadian Alliance Whip, had been granted access to the disputed files to review and determine their appropriate disposition. He added that this error might well have been an honest mistake, but the fact remained that the action taken could be viewed as potentially damaging to Ms. Grey’s ability to represent her constituents. He directed that the remaining disputed files still held on the Alliance server be returned forthwith to the Member. Further, he directed Information Services to establish new protocols immediately to ensure that files and data belonging to Members of Parliament, including caucus officers, be kept as originally intended on Members’ servers and not on caucus servers.

Decision of the Chair

The Speaker: I am now ready to rule on the question of privilege raised by the hon. Member for Edmonton North on September 27 concerning the alleged unauthorized access to the hon. Member’s computer files.

I would like to thank the hon. Member for bringing this matter to the attention of the House. I would also like to thank the hon. Whip of the Official Opposition for the information he provided on this question.

Let me say at the outset that I was greatly troubled by the hon. Member’s allegations. I asked for and have now received a complete report on the circumstances surrounding this case.

If the House will bear with me, I would like to explain the chronology of events in this case so that we can understand what has happened here; identify where things went wrong and take steps to ensure that such errors are not repeated.

I believe the hon. Opposition Whip put his finger on a central problem in noting what he called “the relative newness of the information age”. In organizing their work Members rely on their own staff, the staff of the party to which they are affiliated, and on the staff of the administration of the House of Commons.

Often the details of how work is organized particularly with regard to technology, for example how local area networks operate or how a server is configured, are left in the hands of the staff.

The Member’s primary concerns are to use the time in Ottawa most efficiently and effectively and to serve the constituency in the best way possible, and the staff is trusted to make the arrangements to make that happen. Ironically it appears to the Chair that it is precisely in trying to meet those concerns that this problem arose.

This saga begins in March 2000 when the hon. Member for Edmonton North became Acting Leader of the Canadian Alliance. At that time the Information Services Directorate received a request to move the data from the MP server in the hon. Member’s office to the Canadian Alliance caucus server.

This was done, that is the hon. Member and her assistants were given a special section on the Canadian Alliance CA server under the group title “CA Leader”. The files thus transferred were password protected and so could be said to belong to the hon. Member for Edmonton North, being accessible only to her and to her staff.

In September 2000, the hon. Member stepped down as Acting Leader. In the normal course of events, one might have expected that the hon. Member’s files—still being resident on the Canadian Alliance server—would have been transferred back to the server in her MP’s office. However, this did not happen.

It is important to note that while the Information Services Directorate operates as a centralized integrated service, Members and caucuses enjoy the usual autonomy of clients in how they organize their affairs. Information Services is in this regard reactive rather than proactive. Beyond establishing certain standards through recommendations to the Board of Internal Economy, the Directorate does not dictate how or where a Member or a caucus will organize or store its data. Nor does the Directorate point out anomalies or inconsistencies.

Thus it was only in May 2001 that the Canadian Alliance network administrator raised with Information Services the anomalous presence on the Alliance server of the files of the hon. Member for Edmonton North. Information Services was informed that consultations with the Whip would be undertaken by the Alliance administrator before any specific instructions on the matter would be issued to the Directorate. However no such instructions were given to the Directorate and all remained as it had been since March 2000.

The situation remained that way until September 20, 2001, when one of the hon. Member’s assistants requested that Information Services grant her access to a number of the standard functions, for example electronic forms, available to a Member’s office usually resident on the MP server. When Information Services granted the requested functionality the assistant’s connectivity to the Alliance server was severed.

On discovering that she could no longer access her files in the usual way, the assistant called the Information Services help desk. This call gave rise to a number of further telephone exchanges between and among concerned parties, with the final result that the matter was raised here in the Chamber by the hon. Member for Edmonton North on the afternoon of September 28.

As I understand it, the competing claims in this situation may be summed up this way. On the one hand, the hon. Member for Edmonton North contends that the documents and data she and her assistants stored on the Alliance server in a group named “CA Leader” that was password protected are hers and should be returned to her.

On the other hand, Canadian Alliance officials claimed that the server where the files were resident was the Alliance server; that the files were found in a directory called “CA Leader”, which position the Member no longer held; and that the Alliance had a legitimate right to ensure that no caucus documents would be included in the files to be returned to the hon. Member for Edmonton North.

Information Services, as a matter of policy, takes no action related to files on a server without the express authority of the Member or caucus whose server it is.

Thus, Information Services, faced with these competing claims, determined that it could not adjudicate the dispute and suggested that both sides negotiate a mutually acceptable solution to the impasse.

It is regrettable that a consensual solution between the two sides could not be found. Then, as the Opposition Whip explains, an Alliance official, having been advised that there was no impediment to his doing so, requested that Information Services grant him access to the disputed files. On the request of his Whip, the officer proposed to review and make a determination on the appropriate disposition of the files.

Information Services had also been advised that if a request were made by the Alliance for access to files held on the Alliance server, such a request could not be refused. As a result of this advice Information Services, acceding to his request, granted read only access to the Alliance official.

It is here that the Chair finds cause for disquiet for I must conclude that the parties have not been well served by the advice they received.

I refer the House to a decision by Mr. Speaker Fraser on February 9, 1988. I quote from pages 12761 to 12762 of Debates where he said in a case similar to this one:

I am satisfied that what has occurred in this case was done innocently. However, the point made by the hon. Member for Thunder Bay–Atikokan that electronic information should be treated no differently from “hard copy” material is well taken.

This error may well have been an honest mistake but the fact remains that the action taken in good faith as a consequence of that error can be viewed as potentially damaging to the hon. Member’s ability to represent her constituents.

It is true that the data on the Canadian Alliance server might in the ordinary scheme of things be considered to be under the unquestioned control of the Canadian Alliance, but this is not an ordinary situation. I would liken it to a person with a locked suitcase stored in the locked trunk of someone else’s car.

Can the owner of the car, asked to surrender the suitcase, unlock the trunk, retrieve the suitcase and ask a locksmith to unlock the suitcase so its contents could be examined before the suitcase is returned?

This analogy may seem somewhat oversimplified, but I believe it can be helpful in finding a way through the technological labyrinth that is unfamiliar territory to many of us. The files of the hon. Member for Edmonton North were in her own private compartment on the server in a form accessible only to her. I am therefore directing that the remaining disputed files that are still being held on the Alliance server be returned forthwith to the hon. Member for Edmonton North.

Further, I have directed Information Services to establish new protocols to ensure that files and data belonging to an MP are, even in the case of caucus officers, kept as originally planned on MPs servers and not on caucus servers.

There is little doubt that the case before us features many unique ancillary factors that have complicated what might have been a more straightforward situation. The Chair believes that all Members involved in trying to resolve this situation have acted honourably.

I also believe that staff both in the Members’ offices and in Information Services, acting on the direction of hon. Members, have carried out their duties responsibly. I trust that the remedial steps I am directing to be taken immediately will resolve this particular case and will ensure that this kind of situation is not encountered again by any hon. Member or caucus. I trust this settles the matter and I thank hon. Members for their attention.