Thank you, Mr. Chairman.
I was just providing information to the committee on subsection 21(1) on the advice part of operations of government. I just want to be clear, there are paragraphs (a), (b), (c), and (d), and at the end of that, if you take those out, it reads:
if the record came into existence less than twenty years prior to the request.
If you put that with the first part, they read:
The head of a government institution may refuse to disclose any record requested under this Act that contains
--and then it goes into what it may contain, then--
if the record came into existence less than 20 years prior
I know some academics and some individuals would say there's no way the government can always, forever, hold the information. Well, the act itself says that after 20 years that information, that advice, because this is in the advice section...they're likely not in government any more, they're a different body, different names of people, and this part may not apply to that. There may be other areas in terms of national security and so on that may apply.
In this section, in terms of advice, because that's what we're talking about, any advice in writing to a minister within 20 years that meets the criteria that was set out in paragraphs (a), (b), (c), and (d) is protected. The access to information officer who is in this department had the ability to make a determination based on seeing the report in its full context that it may be blacked out based on one of those criteria...“may be” because we haven't seen it, based on the advice, and that's completely legal.
In 20 years from now, if the report, Afghanistan 2006: Good Governance, Democratic Development and Human Rights, is still of interest to people, to see that report and what advice may or may not have been in there, then after 20 years, likely they would, in this particular section, be allowed to see it. But at present, based on what's written in front of us and what the law is, the law that came in and was fully supported by the House and has done a pretty good job for Canada over the last couple of decades....
There is an exercise of discretionary power in this. Subsection (2) reads:
Subsection (1) does not apply in respect of a record that contains
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person;
So this exercise of discretionary power obviously is not black and white, and there is a potential because you can't list absolutely everything in terms of what constitutes advice, what doesn't, how it affects other areas...you just cannot physically list it out. There is an opportunity, which I think is part of the exemption, to exercise a discretionary power function. Where the account or statement or reasons for a decision that is made in exercise of discretionary power affects the rights of a person, that part of the legislation may be able to be released.
That's a section that, again, the ATI person, particularly in this case, would be very familiar with, having been in the business focusing on this probably for a number of years, based on the fact that it's in Foreign Affairs and we would have people who would have been there.
My guess, Mr. Chairman, is that if you really look at it at that level, the chances of it being a change from one government to another is pretty slim.
We'll probably be looking for consistency in that function from the Office of the Information Commissioner and that department to make sure that the protections that have been provided in the past for our allies, for the advice to ministers, for our negotiations with foreign countries, for our international obligations, and for our safety and security....
My guess is it's pretty consistent that the person who may have made these decisions may have been in this department for many years. That person has been using the exact same criteria for many years to determine whether it fit into any of these exemptions pieces.
There's also an exercise of discretionary power:
a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.
So there are some exemptions here to allow for some discretion, based on what the report says or what the advice is, in terms of its detrimental effect to the operations of government. It provides some security for those who are on the outside as consultants or advisors, but not for an employee of government at the time, or for an employee of the minister when the report was prepared.
That also helps protect them in this section, and this wasn't done on its own. It's been tested numerous times, Mr. Chair.
There are references in this area of this report that you could look at. There are reports to refer to, and in 2002, again long before we were in government, there's item (i)(g) in that report—