Information & Ethics Committee on Oct. 18th, 2006

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

In that case, why did the representative of the Information Commissioner who testified before the committee approximately two weeks ago confirm on numerous occasions that there were five categories: corporations, the public, organizations, the media and requests from the academic world? He said that categorically, no pun intended. And yet you say that the studies you have done show 17 categories. Those studies appear to be quite recent, and I'd like you to give me the year when they were done. The purposes of those 17 categories is to inform the minister about information requests, which may be acceptable, but they also have the effect of delaying the requests.

[Prof. Alasdair Roberts]

I'm unable to address directly the question of the Information Commissioner's position, but I can say quite affirmatively that departments do use other categories. The difficulty may be in a question of interpretation.

As I understand it, Treasury Board policy is that every department should use that limited number of basic categories. In the annual reports regarding the operation of the Access to Information Act, that limited number of categories is used. But as I have said, based on my research published in 2005 and earlier, it is clearly the case that departments use other categories, and the one category that is used by every other department that I have examined essentially captures political requests. The label may be “member of Parliament” or “political party” or “Parliament”.

Indeed, if you look at the monthly reports of incoming requests that are maintained by an organization called Open Government Canada—I just checked the August 2006 report before I came in to this session—you can see requests identified as coming from Parliament. It's unambiguously a current practice.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I said earlier that the categorization of requesters slowed down the requests, but its purpose was also to provide as many indicators as possible in order to recognize the requesters. Is that correct?

[Prof. Alasdair Roberts]

The original intention of creating the categories and requiring departments to divide by category many years ago may have been to improve public knowledge about the understanding of the act. But since the software was designed to allow the refinement of categories, it has become used as a tool for managing requests internally, and in particular as a mechanism for separating requests that are thought to be politically risky. The irony is that this mechanism has been changed in its purpose over time.

A reasonable question might be why any government department needs to categorize requests for its internal purposes. What legitimate purpose pertaining to the operation of the law is served by the categorization of requests by occupation?

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

In one of your proposals for correcting the situation, you suggested informing the requesters. When requesters are informed, couldn't they be told to whom their identity has been revealed? Under our act, the minister is entitled to request the name of the requester. When the requested information is transmitted to the requester, couldn't the requester be informed that his or her name has been disclosed to such and such an official or minister?

[Prof. Alasdair Roberts]

Sometimes transparency is a good remedy for a problem. Departments that process a large number of requests have established procedures for doing the sort of activity I describe—that is, for undertaking a risk assessment regarding a request or for undertaking consultations regarding sensitive or interesting requests. They have these things written down.

I suggested that if there is an internal procedure or guideline governing the operation of the law and affecting requester rights, that guideline or procedure should simply be published on their website. The website should say that these are the internal procedures used to process requests. If it's innocuous, there's no reason why that material could not simply be published on a departmental website. Privy Council Office could explain the processes it uses to deal with requests it calls “red files”.

The next step might then be to tell a requester that their request has been identified as a red file and is being treated in that way. I think the disclosure of information would help to avoid some of the awkwardness or confusion we may be seeing in the current discussions, and it would also encourage departments to use those practices parsimoniously.

[The Vice-Chair, Conservative, David Tilson]

Thank you, Professor Roberts.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Chair, and thank you, witnesses.

I'd like to start with Mr. Jack. Mr. Jack, you stated pretty flatly that you have never have asked for or been given the names of applicants. But it's your name that's on the top of this e-mail we all have. You circulated the name of the applicant in this case. You published it. Even if it wasn't you who asked for it, you are party to it, maybe inadvertently, even innocently. But you circulated this to a list of people. I'm not sure who all these people are, the people you sent it to. I recognize Sandra Buckler's name.

The point isn't whether you asked for or wanted the name of the applicant. The point is that you took part in circulating it far and wide. So the issue isn't even how easy it is to figure out who the applicant was, as Mr. Roberts mentioned. Sometimes it's not a difficult task, as evidenced by the students in the U.S. who knew very readily who the applicant was. The issue is what people like Sandra Buckler would do with that information once it's circulated to them—that's what worries us at this committee.

If you have the right to equal treatment and timely access, I would argue that you also have the right to the expectation of privacy as an applicant. If you're in the media, or you're a different type of applicant, you have a legitimate fear of reprisals if people find out who's asking these annoying questions.

I'm not being overly critical of you, Mr. Jack. I don't accuse you of taking part in anything untoward here, but you were party to circulating this information that I argue should never have been circulated to this list of people or anybody else.

Do you agree, basically, that the name of the applicant shouldn't be circulated far and wide, the way it was in this e-mail?

[Dale Eisler]

Could I offer a comment?

[Pat Martin, NDP, Winnipeg Centre, MB]

I didn't see your name associated with this, Mr. Eisler. I don't know who called you as a witness, but we did call—

[The Vice-Chair, Conservative, David Tilson]

Mr. Martin would like to hear from Mr. Jack, Mr. Eisler. You could comment after that, but I think that since the question was directed to Mr. Jack, he is the one who should respond. If you wish to add something afterwards, you can.

[Gregory Jack]

I'm happy to respond, Mr. Martin.

I agree that we should not be circulating the names of access to information applicants far and wide. In this case, that's not what happened.

First of all, Mr. Bronskill was writing stories about this issue fairly frequently, as I mentioned. We knew that. It was known to anybody who was paying attention to the newspaper. That does not mean we knew the name of the ATIP applicant. We did know that Mr. Bronskill was in possession of the documents from an ATIP, because he phoned me about that very issue on February 22, when I was the media spokesperson. He said he had an ATIP released by PCO, and asked if I could tell him about it.

So I knew that he was in possession of documents released by my office under access to information. That doesn't mean we knew he was the applicant for the PSEPC ATIP on the top of that e-mail. Indeed, the assumption was merely that he would likely write another story, given that documents were coming out under access to information.

Perhaps this was not the right assumption to make. We might instead have said that documents were going out on the issue of alleged CIA overflights. In the past, when documents on this issue have gone out, articles from individuals such as Mr. Bronskill have resulted. Therefore it was likely that it would happen again in this case.

However, there's a distinction between assuming that the documents being released are going to result in an article and having knowledge of the ATIP requester. I want to say once more: I'm not and have never been privy to the names of requesters. I was not privy to the name of the requester pertaining the PSEPC ATIP. There was a PCO ATIP that was released. I knew that Mr. Bronskill had those documents because he told me so himself.

[The Vice-Chair, Conservative, David Tilson]

Would you like to add to that, Mr. Eisler?

[Dale Eisler]

No. My colleague has said that an assumption was inappropriately made. We shouldn't make those kinds of assumptions. However, in the context of the time, the nature of the issue, and the coverage it had been receiving, it was not an illogical assumption to make.

[Pat Martin, NDP, Winnipeg Centre, MB]

It was widely circulated to at least this list. The way it's spelled out here, it's pretty clear that Bronskill has been filing ATIP requests on this issue.

Mr. Roberts, do you agree that if information on the names of the applicants is too widely spread it could create a chill on the user groups? Would certain types of frequent users, or even infrequent users, be less likely to use the freedom of information service if they knew their names were not really subject to any right to privacy and were going to be released?

[Prof. Alasdair Roberts]

I should make it clear that I have limited knowledge of the subject of the circulation of names of requesters. But if it were the practice to circulate the names of requesters, it would have a chilling effect.

I also think that the clear and expansive practice of circulating the occupation of requesters has a chilling affect. The total effect is to undermine the legitimacy of the law; the belief that the law is an effective device for obtaining information held by government.

[Pat Martin, NDP, Winnipeg Centre, MB]

The anonymity of the applicant is key and integral to the integrity of the whole process.

You might be interested to know we had a witness at our last meeting, Mr. Ken Rubin, who is a frequent user. Not only his name, but a whole profile of who he is, what type of research he's known to undertake.... I don't know who he worked for, but there was an actual profile of the person making the application.

Do you agree that is fundamentally wrong and would constitute a violation of a person's right to privacy, as it pertains to the access act?

[Prof. Alasdair Roberts]

I'm not able to comment on the specifics because I'm not familiar with them, but it strikes me that sort of practice, if it actually occurred, would be completely extraneous to the point of the law. It's not necessary for the administration of the access law.

[The Vice-Chair, Conservative, David Tilson]

Thank you, Professor Roberts.

Mr. Kenney.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Thank you, Mr. Chairman.

Thanks to all the witness.

Because we're here as a result of the controversy that flowed from this March 15 e-mail, I'd like to focus my questioning on it.

First of all, just to be clear--to Mr. Jack or Mr. Eisler--did any members of the politically exempt staff in the Prime Minister's Office ask for the information provided here about Mr. Bronskill?

[Dale Eisler]

They did not.

[Gregory Jack]

No.

[Jason Kenney, Conservative, Calgary Southeast, AB]

You're both responsible for more than just public security issues in terms of communications in the PCO.

[Dale Eisler]

Right. As assistant secretary I'm sort of head of the secretariat itself. Greg manages the security intelligence files, among other things. So I have sort of overall authority in the communication secretariat.

[Jason Kenney, Conservative, Calgary Southeast, AB]

We've established that neither the PCO nor the political staff who received this e-mail had access to the requesters's name. Is that correct?