Information & Ethics Committee on Oct. 16th, 2006

[The Vice-Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen.

I'd like to call the meeting to order. This is the Standing Committee on Access to Information, Privacy and Ethics, meeting number 10. The orders of the day are, pursuant to Standing Order 108(2), for a study on issues related to the alleged disclosure of the names of access to information applicants.

We have three witnesses today, who are listed for you. We have David Gollob, who is vice-president of public affairs of the Canadian Newspaper Association. We have Ken Rubin, who is a Hill Times guy, a famous guy. I don't mean to be flippant, sir. We respect what you do; you are a journalist or reporter with The Hill Times and on other issues. We have Colonel Michel Drapeau, who is a lawyer.

Good afternoon, gentlemen.

We'll have each of you spend up to ten minutes in a presentation of your comments, in the order I just listed you—you've all been present and you all know how the game is played here—and then we will proceed with questions and comments from members of the committee.

Good afternoon to you, Mr. Gollob. We will start with you.

[David Gollob, Vice-President, Public Affairs, Canadian Newspaper Association]

Thank you, Mr. Chairman.

I am pleased to have the opportunity to appear before your committee today. I will continue in English because it is the language I would rather speak.

As you may know, the Canadian Newspaper Association is the voice of Canada's daily newspapers, and two key areas concern us: our business environment and threats to press freedom.

I have circulated to the committee—I hope you will receive copies of this—a letter of complaint from the Canadian Newspaper Association to the office of the Information Commissioner. This is a letter that was sent in September 2005. In my remarks I will be making reference to it, in a few moments.

Along with it, I distributed the photograph I am holding, which is from the U.S. Department of Defense. It appeared on the front page of the The Globe and Mail one day last week. It shows the Korean Peninsula, seen from space at night. This image is graphic evidence of the radical differences between two systems of government. As you will see in the picture, South Korea is lit up like a Christmas tree, and North Korea is as dark as a tomb.

I need not ask you, members of the committee and Mr. Chairman, which of these images is your preference, because I know that the answer is something that unites all of us in this room. The difference between totalitarianism and democracy—between a country that has a free press and one that does not—is so stark that you can see it from space.

I want to emphasize that while it was the U.S. defence department that took this photograph, it was a Canadian newspaper that put it on its front page. We rely on our journalists to tell us what the world looks like, whether down on the ground or up in space, or especially in the corridors of power. We rely on our newspapers and electronic media to keep our governments accountable, to shine the light of inquiry into the business of government.

The world in which the media exist simply to repeat government handouts is the world of Kim Jong-il. This is not the world Canadians desire. Unfortunately, the fact is that governments in Canada have an uneven record in showing that they share the same desires as Canadian citizens for the greatest possible transparency, the greatest possible illumination. Some in government appear to prefer that we leave them to govern in the dark.

In my opinion and the opinion of the Canadian Newspaper Association, this committee should not be limiting itself to investigating whether laws were breached in this, that, or the other instance; it should be inquiring, in our view, into the systematic spin management processes within government targeted at access to information requests from one group in particular that shines light on government decisions: the media.

Access to information, the Supreme Court of Canada tells us, is a quasi-judicial right and a cornerstone of our democracy. This committee has heard from senior public servants at Treasury Board that the Access to Information Act, the primary tool of transparency, is working well. And you've heard Treasury Board say that there is no widespread problem of disrespect or disregard within government, either for the spirit or the letter of the Access to Information Act, which is the law of the land. However, in May 2002 a former member of the governing party of the day with tremendous access to information wrote an article in which he described the creation of a “secretive Communications Co-ordination Group” at the very centre of government communications operations.

Jonathan Murphy wrote in that article, if I can continue the quotation:

The CCG,chaired by [the communications director to the Prime Minister], is made up of the top Liberal functionaries from ministers' personal staff, along with several of the PMO's senior staff, and the top communications bureaucrats from the supposedly non-partisan Privy Council Office, this latter group led by [the] assistant secretary to cabinet (...)

While the CCG's mandate is supposedly to “co-ordinate” the government message, in practice much of the committee's time each week is taken up discussing ways to delay or thwart access-to-information requests(...)

Did this secretive group, composed of exempt staff as well as senior officials from the Privy Council Office within government, really exist? And was its primary activity to thwart the quasi-constitutional rights of Canadians?

Jason Kenney and James Rajotte, Conservative MPs in opposition in 2004, denounced the existence of this secretive spin control group in the House. They clearly believed that this group existed. Does such a group still exist? Was this spin control mechanism dismantled, or does it survive in some other form? We believe this is the broader issue that should concern the committee.

As you know, the Elizabeth Thompson story suggests that the media requesters are sometimes identified by name in conference calls involving senior communications officials across government. That could point to the continued existence of a group of the type I have described. What should concern us is that media requests are singled out for special treatment. Let's not quibble over whether this is a widespread practice or not. We're dealing with a very small number, after all, of access to information requests in comparison to the total, the 10% of total requests that come from journalists. Why else would Treasury Board assign a special category to requests from media if they did not intend to treat them differently?

We have seen in testimony to the Gomery inquiry that this special treatment can involve toing and froing with the political office of the department and involve efforts to obstruct access. We have seen from the research of Anne Rees, an Atkinson Fellow who uncovered the so-called amber lighting system in her research--and I believe the committee has heard about this and discussed it and made reference to it--and from Professor Alasdair Roberts, whose research established that requests so flagged are subject to extensive delays, that media requests suffer from discrimination in violation of the letter and the spirit of the law.

As another point of illustration, this past spring the Canadian Newspaper Association conducted its second freedom of information audit. It's a sample, a rudimentary test of freedom of information and access to information systems across the country. In this exercise this year, five of six inquiries that went to the federal government were not responded to after five months, whereas the statutory period for response is 30 days. This is something the Canadian Newspaper Association has long complained about, and in fact, it has been the subject of a formal investigation by the Office of the Information Commissioner. The letter of complaint in both languages that I have distributed to you along with this photograph goes into this in more detail.

More than a year after that investigation began, we know nothing about what has been found, because we've been told that counsel for the Treasury Board objects to letting us see the data and is delaying the process. We believe this needs to be cleaned up. The Conservative government had a mandate from the people to do that, and the Canadian Newspaper Association is counting on this committee to hold the government to its promises.

Thank you. I'll be happy to answer questions.

[The Vice-Chair, Conservative, David Tilson]

Perhaps we can do that after the other two speakers have concluded, Mr. Gollob. Thank you very much.

I'll remind the speakers that what we're trying to do in this committee is talk about the alleged disclosure of names with respect to access to information.

Mr. Rubin is next.

[Ken Rubin, As an Individual]

Thank you, Mr. Chairman and members.

The work of the House of Commons Standing Committee on Access to Information, Privacy and Ethics has been one of the few positive changes under Canada's first-generation access legislation. Your committee's efforts have been in contrast to official Ottawa's constant war to deflate the importance of information rights.

The focus of your current deliberations is on whether access users are too widely discussed, tracked, and monitored. I can testify to some of these counterproductive practices, like amber alerting and profiling of access users, adopted by government agencies. These practices create barriers to public access to federal records, and abuse the public's right to know about Ottawa.

I am probably the access user with the longest continual and varied experience, having filed thousands of access requests since October or November 1982. I am drawing from that experience, as well as other experiences with access.

I want to first make it clear that the problem of watching over access users and interfering with access as a quick, equal, and non-manipulative public access means to federal records is not a new one. I've given the committee various articles to that effect. Also, counterproductive practices are not just the result of a few isolated incidents, as in a handful of bad guys. This goes contrary to the position expressed by government witnesses you've heard.

Few officials will want to elaborate on the real problems. They've been trained to only answer as little as possible, very slowly--something like the treatment my access requests normally receive. That does not mean many are not trying, under difficult circumstances perhaps too timid in fashion, to help access users.

My experience is that who is applying contributes to the type of reply received and the length of time it takes. My access applications, for instance, are usually recognized, and can be met with uneven and at times unequal treatment depending on the agency and the officials. I'm pegged by different agencies in different fashions as an individual applicant, as media, as business, as researcher--you name it. So having officials keep my identity secure or treat my applications fairly is important, but not always done. That has implications on how information sought is treated.

Two inside tracking systems help to watch users like me. One managerial coordination system, coordination of access to information requests, or CAIR, has been around since 1989. In a 1989 Toronto Star interview I questioned the wisdom and purpose of the CAIR tracking system in its matches and the central agency's use of it, and it still goes on.

I've also questioned the need for other early warning systems that give communication and political operatives a chance to intervene in information releases. One particularly insidious system that's been around for some time goes by different names such as amber light, red alert, or red file process. It channels some of my many requests and other users' requests as “sensitive”, “interesting”, in separate streams, all in need of watching.

Discussion is not usually recorded, or at least not in full, where such access requests involve access and communications people, even ADMs, DMs, and ministers' office representatives. It amounts to both an early warning surveillance system and a communication damage control vehicle, and it contributes to delaying access and subverting the public's right to know.

Countless times I've been told by officials that the data requested is further delayed by a week or two or more, having been dropped off at the communication shop, or is being reviewed by this or that exempt political staffer in the minister's office. This can be quantified to a point through access tracking logs--they don't record everything. Academics like Alasdair Roberts have referred to it, and citizens groups like the B.C. Freedom of Information and Privacy Association, which you will be hearing from, have documented the access problems such inside tracking systems bring. I'm not statistics; I'm the flesh here.

Given recently an actual internal amber alert memo for the first time...brings this questionable ongoing tracking system into further disrepute. That particular June 2006 amber alert was written about in The Gazette and The Hill Times. It was generated by one of my requests at Citizenship and Immigration Canada for records on developing integrated Canada-U.S. immigration systems.

Communications people, fed by the access officials, were given a heads-up and a few days' time to review the materials for release to me, and possibly prepared ministerial house cards and media lines. Certain pages of the proposed access release were identified—pages 21, 52, 120, 224, etc.—that might be sensitive or embarrassing or receive unwanted or undue publicity.

One of the officials taking part in the amber alert exercise works in the office of the current Minister of Citizenship and Immigration.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Mr. Chair, I have a point of order. This is all very fascinating, and I think it's important. Maybe we should be looking at this, but we're still not talking about what we are supposed to be doing in this committee, which is to investigate and report on issues related to the alleged disclosure of names of access to information applicants.

I fail to see where this is going.

[Jim Peterson, Liberal, Willowdale, ON]

On that point of order, Mr. Chairman, to me it's very relevant to our mandate. If they are saying that when names are disclosed differential treatment is provided, that's critical.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

I think this is the second witness, and we're still not going into our mandate, which is to see if the alleged disclosure of names has happened in the previous government and in this government. Are we moving in that direction?

[The Vice-Chair, Conservative, David Tilson]

It's a fine point. Mr. Peterson has raised an issue: if you open that door, you can go a little further.

Mr. Rubin, I will repeat what I said at the outset. We need the help of you witnesses with respect to the problem of releasing names of reporters and journalists when they make applications under the freedom of information legislation or the access to information legislation.

However, Mr. Peterson is right. There is a grey area, so please keep that in mind with your comments.

[Ken Rubin]

There's a narrow and a broader way of interpreting the spirit of the act, just as there is a narrow and a broader way of interpreting what colours what. My points will be that the names are one thing, but once they're in the system, or there are tracking systems or profiling, it's all part of the same thing. It is grey if sometimes the people are dishonest and not willing to talk about it inside.

I was talking about this very sensitive immigration case. The reason the amber lighting system is not a genuine...[Inaudible]...in information system disclosure is that it sees things to be diverted, diced, and dissected. Invariably these systems lead to classifying access users and targeting some that are more troublesome or adept users. For instance, in this one I was classified as media, and I could match up to my access request.

So some media and opposition groups are targeted, but they're targeted one day; the next day or the next week, it may be somebody else who is targeted. The former Reform Party, who utilized a more systematic use of access requests on certain subjects, was one access user group that was followed and targeted.

The problem becomes even more pronounced when citizens put in privacy requests along with access requests, and their identities, even their motives, are challenged. This, from experience, includes applications made on behalf of Meme breast implant victims, fired government scientists speaking out on safety concerns, and attempts by an individual such as Maher Arar to seek records that would help clear his reputation.

Yet another level of monitoring concerns me that goes beyond just tracking: categorizing or channelling access responses. That's when access users are profiled. I have just discovered that I was subject to this treatment. My name is mentioned, so I guess it's okay.

On October 5, 2006, after a long-standing complaint to the Information Commissioner, I received from Canada Border Services a memorandum, previously totally secret, dated January 27, 2004. It had the agency's president's name on it. The subject was access requests, including mine on the controversial advance passenger information and passenger name record systems that track airline passengers—they're tied in with surveillance systems in the United States. The memo was drafted for the then public safety minister, Anne McLellan, but CBSA officials, in the October 5, 2006, letter to me, say the memo in question was never conveyed to the minister or her office, at least in written form.

My name was brought up in that memo, being criticized as one who had applied for data on the secretive air risk scoring system. Mention is made that theToronto Star had made use of some of the data that CBSA had released to me to date on the subject, but the customs intelligence people preparing the January 27, 2004, ministerial memo then brought up my name again in a totally unrelated context, as one who was filing access requests for Maher Arar and Monia Mazigh, who as we now know were both on CBSA's lookout watch list, along with their very young children.

This is unacceptable. Matching up my background data and work on separate access requests should not be used to create a profile and discuss my access usage or that of other requesters. I do not consider this type of data being prepared and shared internally, or potentially going to a minister, a positive part of sharing within the spirit of the Access to Information Act.

I still have other access requests about the lookout watch system and advance air passenger database system at CBSA. They remain unanswered for many months.

Another disturbing development is even more intensive weekly review of requests by senior officials over many months. This was the case in the aftermath of the sponsorship scandal and during the Gomery inquiry. Records I obtained revealed that senior weekly meetings were held at Government Services and Public Works Canada to discuss handling sponsorship developments, including access use by me and others.

Senior ADM and interdepartmental meetings also took place regularly on the Arar file once the O'Connor inquiry was called. They had discussions on how to handle information, including coordinating responses to me as the individual applying, under both the access and privacy acts, for Mr. Arar and Ms. Mazigh. This is of concern to those I've talked to about this, as well as to me, as those applications contained sensitive personal and inaccurate information that was wrongly shared.

[The Vice-Chair, Conservative, David Tilson]

Mr. Rubin, I think you now have the attention of the committee.

We're over the ten minutes. Do you wish him to go on?

[An hon. member]

Perhaps we should.

[The Vice-Chair, Conservative, David Tilson]

Okay. Is everybody agreed? Okay.

You're well over your time, sir, so just keep that in mind.

[Ken Rubin]

Thank you, Mr. Chairman.

These tracking systems create a chilling and deterrent effect. They're not productive, unless you're an insider who is more intent on hiding, delaying, or manipulating data, or gagging your own officials. They add costs. They create administrative layers and fear inside the system. There is a code of silence.

And make no mistake, these tracking and coordination systems start at the very top. Back in 1986, records I obtained revealed that Prime Minister Brian Mulroney told the deputy ministers of defence and external affairs, through his political staff, to watch what they released on his prime ministerial foreign travel expenses. Jean Chrétien said the same thing when it came to his riding association.

This sent a signal to people down the line to watch access users more closely. None of the prime ministers since Prime Minister Joe Clark has even bothered to say to his officials that the main purpose is release of information. So when you get a Bronskill case, where official, tax-paid, private interdepartmental discussions are had about reporters, who's governing this country? Is it the people talking about the media and then naming them, or is it getting on with the real issues?

Heck, my name was brought up in the infancy of this act. I found out under an access request that the Atomic Energy Control Board of Canada was discussing why I was applying for their records on nuclear safety regulatory problems. I was right there on the official agenda.

In the 1990s, departments such as National Defence--and your committee has heard briefly about it--took zealously to tracking and discussing certain access users like me, the Ottawa Citizen, David Pugliese, and my colleague here, Colonel Michel Drapeau. They were very prejudicial in the way they treated us. I'm sure Mr. Drapeau will testify to that.

[The Vice-Chair, Conservative, David Tilson]

Mr. Rubin, you're getting into some great material here for us. My problem is that I've been told to go by rules, and you're well over. Could you wind up?

[Ken Rubin]

If it helps the committee, could I give you some suggestions as to what to do about these problems?

[The Vice-Chair, Conservative, David Tilson]

You're miles over, sir. I would prefer you wait until questions.

[Ken Rubin]

I'd be more than willing to do that.

[Col Michel Drapeau, Lawyer, As an Individual]

Mr. Chairman, I'm not going to have opening comments, I just have a thumbnail sketch of where I'm coming from and why I have an interest in access to information.

When I retired from the military in 1992, I was appointed acting director general of corporate management services at National Defence Headquarters. At the time, the access to information and privacy function was my responsibility. I spent three or four or five per cent of time a day on it. Every day, I had those green folders on my desk. It was my task to either inform the Minister of National Defence at the time, through his staff, to let him know what kinds of documents would be released on a specific day. I did this for two years.

On retirement, I created my own consulting firm specializing in access to information and privacy. My clientele ranged from members of Parliament--from every party in fact--to corporations, individuals, academia and the like. On average, I would submit something like 1,200 to 1,500 requests a year.

In 1996, I decided to go back to school, and I attained a law degree in both civil law and common law. On completion of my articles at the Federal Court of Appeal, access to me then, if it meant what it said, that it is a quasi-constitutional right.... In my research, and in the work I did as an articling clerk at the Federal Court of Appeal, when I looked at the law library, I recognized that there wasn't a single textbook on access and privacy. I set out a course to correct that. And I did. Before I was called to the bar, I produced the first edition of Federal Access to Information and Privacy Legislation. It is now in its fifth edition.

Being called to the bar, I opened my own practice, and I actually spent a good proportion of my practice doing access to information and privacy. The majority of my clients are either media or corporations or individuals. About 20% of my practice is now devoted to access. I submit, I would say, 600 or 700 requests a year--at least, the staff do it on my behalf.

At the same time as authoring this book, I also teach at the faculty of law,

in the civil law section, an access to information course for graduate and undergraduate students.

I should also add that my experience, as far as my private life and personal information being violated — and in some cases, this goes back to 1996 and 1997 — has convinced me that every time I made a request, the authorities who wanted to know who I was, did what they had to find out, and they did it on a regular basis.

I've been intercepted at cocktail parties, or through phone calls, and in many other ways, where people say they've heard I submitted a request or that my firm submitted a request. So I've lost any of my innocence concerning the potential protection of my privacy when I submit an access request.

People come to me as a lawyer and as a law firm to submit access requests because, besides providing them with the expertise that I've acquired over the years, I'm providing them with client-solicitor protection. My name could be divulged, but the identity or even the types of activities performed for my clients would not be known. It is too bad that we have to do this, but this is something we have to do.

To me, this divulgence of personal information is but one aspect. It's a serious aspect, but it doesn't prevent me from doing my job. I've learned over the years to cope with it, understanding that I have no protection through the system and that my identity is in fact regularly revealed as and when required.

I'll take questions.

[The Vice-Chair, Conservative, David Tilson]

Thank you, sir.

We'll start with Mr. Peterson.

I remind all members that we're trying to look at the disclosure of names of access to information applicants.

Mr. Peterson. You have seven minutes.

[Jim Peterson, Liberal, Willowdale, ON]

Thank you.

First of all, Mr. Gollob, I'm shocked to hear that four out of five of your requests have not been answered after five months. What recourse is there for you?

[David Gollob]

Normally, the recourse is to lodge a complaint with the Information Commissioner. In this particular instance, we did not do that because our purpose was to demonstrate, as it turns out, that access to information requests made by media are subject to systematic delays that are routine. We don't know the reason for the delays in this instance.

[Jim Peterson, Liberal, Willowdale, ON]

Would you mind showing us those five requests?

[David Gollob]

Absolutely. I don't know them off the top of my head, but I can make them available to the committee in our report.

[Jim Peterson, Liberal, Willowdale, ON]

I think this is shocking. We have to find a way, as a committee, to deal with these types of things.

Thank you.

Mr. Rubin, we've heard from Colonel Drapeau that he makes 600 to 700 requests a year. How many do you make?

[Ken Rubin]

I don't count anymore, because I'm into the thousands for sure. I probably make more than a thousand. A lot of them are my own. Some of them are like Mr. Drapeau's, who has clients. My clients vary too. And there are personal information ones too.