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The House of Commons is trying to block auditor general Michael Ferguson from releasing documents related to his F-35 committee appearance. (THE CANADIAN PRESS)
CONTRIBUTION · 11th September 2012
PAUL McLEOD Canadian Press
House wants to stop Ferguson from revealing F-35 committee documents

The House of Commons is taking Canada’s auditor general to court to stop him from revealing documents around his high-profile F-35 committee appearance.

An application filed by the House of Commons in Federal Court last Friday shows House lawyers tried but failed to convince auditor general Michael Ferguson to reject an access to information request for his own correspondence.

Now they’re seeking a court injunction to gag the auditor general. It is likely the first time this has happened in Canada.

The documents in question have to do with Ferguson’s news-making appearance before Parliament’s public accounts committee in May, where he argued the Defence Department was lowballing the cost of F-35 fighter jets by billions of dollars.

On June 19, someone — the documents don’t say who — filed an access to information request to the auditor general for all emails pertaining to his committee appearance. Committees typically meet in secret to work out who they will ask to appear.

The Office of the Auditor General notified five committee clerks that were involved, as is necessary under the Access to Information Act.

House of Commons lawyers objected. They said the documents related to preparing committee hearings and thus were subject to parliamentary privilege.

“Any disclosure of those documents without the express consent of the House of Commons would constitute a breach of that privilege,” reads the House legal filing.

The lawyers also argued the House of Commons is separate from government, and thus is not subject to the act.

The pleas apparently didn’t work.

According to the injunction filed by the House, the auditor general’s staff decided the secrecy rules of the House did not extend to their office.

According to the injunction, on Aug. 17 the Office of the Auditor General notified the House it was going to make the documents public because it hadn’t found any exemptions in the Access to Information Act that “would permit us to refuse to disclose these documents to the requester.”

On Sept. 7, House lawyers Steven Chaplin and Catherine Beaudoin filed an injunction to immediately stop the auditor general from releasing the correspondence until the matter is settled. The lawyers are also asking for the court to ultimately ban the auditor general from ever releasing the documents.

The injunction claims the auditor general’s office is “interfering with the House of Commons’ constitutional rights and privileges to proceed free from any possible interference or obstruction” and “also interferes with the House of Commons’ right to decide what information relating to its internal proceedings should be released to the public.”

It could be a precedent-setting case. Federal Court records show no past case of the House of Commons taking the auditor general to court.

The Office of the Clerk of the House of Commons could not be reached Monday. A spokesman for the auditor general’s office said he would check with their legal team, but “there isn’t a lot we can say about the case.”

The Office of the Auditor General has not yet responded to the injunction.

The documents that were requested under access to information laws are listed as “email exchanges between the clerks of committees or committee officials, and officials or employees of the Office of the Auditor General, regarding the agenda of the committees, appearances of witnesses, answers to questions posed by the committee and other related committee business.”

Paul McLeod is The Chronicle Herald's Ottawa Bureau chief.

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