Evidence of meeting #48 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Liberal
The Chair Liberal Tom Wappel
I would just remind you that you're at 13 minutes. I wonder if you could wrap it up. There will be opportunity to add more things.
Prof. Amir Attaran
The U.S. report was never released—and you will recall that I did ask for the U.S. report, as well as the Afghan report—nor was anything said about why it was not released.
I find it curious that the exemptions were applied so heavily throughout the Afghan document. There's nothing secret here. The sections that have been cut in the first paragraph and which The Globe and Mail subsequently published refer to torture being “all too common in Afghanistan”, according to DFAIT. The U.S. Department of State has said there are “credible reports of torture”. The UN High Commissioner for Human Rights, who is none other than Louise Arbour, a former Justice of the Supreme Court in this country, has said torture is “routine”. The Afghanistan Independent Human Rights Commission has said torture is “common”. This is very similar to saying that torture is “all too common”, as the Department of Foreign Affairs has written in the 2006 human rights report. Nothing appears to be secret enough about that revelation to justify using subsection 15(1) of the Access to Information Act to withhold it, except, of course, if that section were being abused, which I believe is the case.
There does seem to be a systematic problem within the Department of Foreign Affairs and International Trade about denying torture, about not confronting it openly. Again I refer to the Arar commission report. A DFAIT employee, Mr. Ambassador Pillarella, at the time Mr. Arar was being tortured, wrote in an e-mail that “a meeting with Arar should help us to rebut the recent charges of torture.”
Ladies and gentlemen, there is a blind spot in the Department of Foreign Affairs about torture, which means they don't want to know. I suspect that cultural reality of the department has something to do with why any reference to torture or other abuses was cut out of this document even though it really isn't a secret that torture goes on in Afghanistan, by those corroborating references I've given you.
It's further curious to me that the title of this document contains the words “Democratic Development”, among other things. That is, of course, a reason for Canada's presence in Afghanistan: to contribute to democratic development. It does seem to me that the information about democratic development that the Government of Canada possesses ought to be laid on the table for all to see.
I have no objection to this committee looking into this matter. In fact, I ask you to please do it. I say that as the person who has complained to the Information Commissioner. I've heard it said by members of the committee that the committee shouldn't act while the commissioner's investigation is under way. I disagree. As the person who brought the matter to the commissioner, I would be very pleased if this committee were to take its business up concomitantly and not wait for the commissioner to conclude.
I also would like to raise the point that there seems to be here, in this set of events as I've just described them, a pattern of concealing the 2006 and earlier Afghan human rights reports, and possibly concealing the U.S. human rights reports. If so, that is a criminal matter under section 67.1 of the Access to Information Act. To conceal a record is a criminal offence. I'm not making an allegation against anyone personally. I do not know who might have been involved in such concealment, although I do believe the circumstances show that it has possibly happened and there is need for a criminal investigation.
I would recommend, as a further step, that the RCMP and the Director of Public Prosecutions be involved at this stage to investigate whether any persons, be they civil servants or political figures, were involved in concealing information arising out of my request. I won't say to include Mr. Esau's request, because that's up to him, but I think the three or four requests together—I've lost count—do show a constellation of facts that indicate concealment went on.
I'll end my comments there, Mr. Chairman, with thanks for giving me the extra few minutes.
Liberal
The Chair Liberal Tom Wappel
Thank you, Professor.
We now will have our usual situation of questioning. We'll begin the first round of seven minutes per person with Mr. Dhaliwal, followed by Madame Lavallée.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Thank you, Mr. Chair.
I would like to thank Mr. Esau and Professor Attaran. I feel sorry for what they had to go through this morning.
My question is to you, Professor Attaran. When you look at the performance of the Conservative members of this committee, do you think it would be a reasonable deduction for Canadians to draw a direct connection between your ATIP difficulties and the clear reluctance of these members to let us hear from you?
Liberal
The Chair Liberal Tom Wappel
I don't think that's an appropriate question, Mr. Dhaliwal. Would you rephrase it, please?
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
If that's the case, I'm going to go to the other question on which I should probably comment here.
Mr. Attaran, you are on record as saying this government has been very slow to react to any concerns about Afghanistan detainees. You said it took nearly one year to correct Mr. O'Connor's falsehood that the International Committee of Red Cross, the ICRC, was monitoring the treatment of Canada's detainees while they were in Afghanistan's custody. You have made it clear for Canadians—and I appreciate your work on this—that the ICRC normally keeps the results of its inspections confidential, except for sharing them with the detaining power. In this case, that would be Afghanistan.
We also know the ICRC has a long history of questionable decisions about confidentiality. It did not even publicly denounce the various abuses of Nazi concentration camps, and it did not denounce the use of torture in Guantanamo Bay until these crimes against the Geneva Convention became known through other avenues. You would expect other avenues to include our very own government.
I wonder if you would tell us if you have tried to have a dialogue with the government and about your difficulties, and how cooperative you have found Minister McKay and his department.
Prof. Amir Attaran
The question does take me somewhat out of the subject of the 2006 human rights report, but insofar as your question asks whether I have observed a pattern under which information about Afghanistan and/or detainees is not easily available, my answer would be yes.
I have another access to information request pending with CIDA, about international development projects it's undertaking in Afghanistan. That request has been pending for 11 months and is not completely answered. I have numerous other requests that are out of time as well.
It has certainly been the case that in the last few months the civil servants responsible for access to information have become very much less willing than they were in the past either to discuss the progress of files or to release documents. I can't tell you exactly how many because I don't know off the top of my head, but I have several complaints pending with the Information Commissioner on the subject of Afghanistan right now.
There is a systematic problem getting information out on Afghanistan. It is subject to the most extraordinary delays and, I believe, illegal withholdings.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Mr. Esau, you have gone through the ATIP issues as well. Why do you think there has been such stonewalling from these departments on the ATIP requests?
As an Individual
I think my experience reveals two things. First of all, anybody in the public service, at any level, who creates documents and reviews them in the course of their work thinks their work is important and that, because it's important, it must be secret. Amongst people who create and hold records, I think there's a tendency to overstate the import of those documents to be released.
What I'm saying is that subsection 15(1), which Professor Attaran was talking about, is a section of the Access to Information Act that's very broad. It allows the government basically to withhold any information that would be, if it were disclosed, “injurious to the conduct of international affairs” or the preservation of national security. When you really think about that, it means that anything withheld under subsection 15(1) has to be virtually a state secret. Otherwise, you are overstating the sensitivity of the information. I think that's the first thing.
The second thing is much more issue specific, if I'm hearing your question correctly. My sources within the government—and I'm speaking as a journalist—say there is a chill going through major departments right now on issues surrounding torture, detainees, and Afghanistan. There is a very obvious reluctance for anybody to talk about it. In some departments, my sources tell me, special teams have been formed in order to deal with certain requests that relate to detainees, and these requests are specially treated.
So those are two things that I think are at work. When you talk about stonewalling, I'm not sure it's a cold-blooded case of their saying they're going to do this. I think it's more that part of it is a human tendency to overstate the importance of the documents that somebody works on, and then, when somebody else asks for them, to say that this second person can't have them because the defence of Canada or our international reputation rides on the e-mails sent to colleagues by the first person.
I looked very quickly at some of the copies of this report that were redacted and that we're talking about. I was astounded at the amount of white space that was actually left. I've asked about the Darfur region, as a totally different topic, and the documents that I get back are page after page of blank documents. For some documents, there's a whole page that just says they're withheld in their entirety under subsection 15(1). You can't even read these documents. They're about Darfur, and it's hard to know that they are e-mails between people working.
I don't think it's specific to Afghanistan, but as I say, I think Afghanistan has caused a chill to go through departments at the working level because of the notoriety it has received.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Thank you very much, Mr. Chairman.
First, I want to say that we regret the filibustering that took place this morning. As you will have no doubt have realized, the members on this side are not responsible for the delay.
I have a number of questions to ask. I want to ask my first question to Mr. Esau.
You said that you were an information officer at the Department of National Defence. So you, better than anyone, understand the internal process when people request documents.
Has it ever happened that someone requested a document, that you went to see your colleague who was in charge, and came back saying that there was no such document, when you had in fact found such a document?
Do you understand my question?
As an Individual
I have to answer that very carefully, because when I was the access to information and privacy training officer at National Defence, we were going through the Somalia inquiry. If you think this stuff that you're dealing with is sensitive, you ain't seen nothing. That was a departmental thing that they actually set up. The provision of documents during that period of time was done by the Somalia Inquiry Liaison Team that was created at National Defence to provide documents to the inquiry. In our job of going to the record holder and saying these documents had been requested and that they should please send them because we needed to deal with them, we were very much out of that line, for better or for worse. I'm not personally aware of anybody ever denying the existence of a document that they knew existed.
I think lots of things get lost, so one of the points I want to raise is that your ability to get information out of the government is predicated on the government's or the civil service's organization of that information. In other words, when you ask for something, the people who create those documents have to know where that something is stored. That's the bigger problem, in general terms.
Around the Afghanistan issue, I'm not aware of anybody saying point blank that it doesn't exist. I'm going to be very interested in what the Information Commissioner says in answer to my request. I'll give this to the clerk, but I indicated that I think Foreign Affairs falsely responded to my request because of the political sensitivity of the issues contained in the records. That's my sense, and that's what I told them.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
You have not yet received the departmental report, despite your access to information request? Am I mistaken?
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Yet, you, Mr. Attaran, you have received the departmental report.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Did you get the censored report from the department?
Prof. Amir Attaran
I don't know whether the document was prepared by the department, but I did obtain this document. It is in fact censored.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Did the department send it to you as a result of your Access to Information Act request?
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
So you obtained it from a government source following your access to information request?
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Mr. Esau filed a similar access to information request, but he did not receive the report, whereas you did. Yet, you filed your request after he did. You should give him some tips. That's a joke.