On January 24, 2007, I filed a request under the Access to Information Act to the Department of Foreign Affairs and International Trade, requesting copies of the country's human rights reports for Afghanistan and the United States, two countries. I explicitly noted in my request my knowledge that such reports do exist. An example of one report of this kind is contained in the factual background of the commission of inquiry in relation to Maher Arar. On page 237 of that report, it's mentioned and footnoted that DFAIT has a Syria human rights report.
Those of us who work in the human rights field know that these reports exist. It's certainly not controversial that they exist. They're even cited in the Arar commission report.
So I did, on January 24, request the reports for both Afghanistan and the United States. I mentioned in my request that I was aware that the reports would exist, in accordance with the example found in the Arar commission report. This would seem to fly in the face of what Mr. Esau was told: that human rights reports are only prepared by DFAIT on a “situational basis”.
On February 5, my information request was acknowledged by Jennifer Nixon of DFAIT. Her acknowledgement letter indicated that I would receive an answer on my request within 30 days of the date that DFAIT received it. I've done a quick job of counting the days, and I believe it was on March 1 that I should have received my information from DFAIT.
On March 1, I had not received the information, contrary to DFAIT's written undertaking to deliver the information within 30 days. DFAIT did not take an extension under the act. It did let its own timeline, the legal timeline, lapse illegally.
On March 29, I filed the second access to information request. This time, and because DFAIT had already illegally failed to deliver information at this stage, I requested the report by its exact title. That title is “Afghanistan–2006: Good Governance, Democratic Development and Human Rights”.
My second access request to DFAIT, the one of March 29, did explicitly mention the title of the document that I sought. By inserting the title, I hoped to avoid a situation in which DFAIT would inform me, as it informed Mr. Esau, that no such report existed. I was well aware that Mr. Esau had not been told the truth on this matter.
Also around this time, in late March or early April—I cannot be more precise—I instructed my assistant at the university to phone DFAIT every day, and often more than once a day, to secure an opportunity when I could speak with Ms. Jennifer Nixon, who had corresponded with me on February 5 about my access request. My secretary tried to make this phone call happen for well over a week, and DFAIT refused to take the call.
On April 4, I complained to the Information Commissioner about my January 24 request that was now seriously overdue. As I wrote to the commissioner, “DFAIT has failed to advise me on this file as it promised. DFAIT has failed to divulge the requested information. DFAIT has failed to cite any lawful exemption under the act for refusing access. DFAIT failed to take a lawful extension of time under the act.”
On April 11, after the matter had now been escalated to the level of a complaint with the Information Commissioner, I received a telephone message from Gary Switzer, an employee at DFAIT who is responsible for access to information. I subsequently called him back shortly thereafter—I believe it was a few days—and I asked him what the delivery date for my information would be. He declined to provide one; he said he could not provide one. I pointed out to him that under the access law, he is required to have a delivery date, which, by the way, DFAIT had already breached.
Mr. Switzer again refused to give me a delivery date. He mentioned that the document needed “review” by somebody other than him. He mentioned that the document was on his desk, that he was reviewing it himself, and that he would then have to send it to someone else to be reviewed. I asked him who was going to review the document. He declined to answer me, but it was certainly established in that conversation that the officer for access to information charged with my file at that date, Mr. Gary Switzer, did intend—and in fact later did—submit the document to somebody unknown for review. I asked Mr. Switzer if this was a sign of political interference. He declined to answer.
On April 17, I had a telephone conversation with Jocelyne Sabourin, who is, as I understand it, the top official for access to information in DFAIT. She agreed to take over the file from Mr. Switzer and to manage it herself, and she agreed to deliver the document in a matter of days. In fact, disclosure was made, on April 23, of the 2002, 2003, 2004, 2005, and 2006 Afghanistan reports. This disclosure was given to me as an electronic file on a compact disc. When I looked at it, I found that for the 2006 report—I shall confine my comments from here on in to the 2006 report, but the ones from the earlier years were quite similar—subsection 15(1) of the act was used very heavily to censor the document. Other parts of the act were used, but subsection 15(1) was the one used the most frequently by far.
DFAIT did not and has not indicated which paragraph of subsection 15(1) applies. There are nine paragraphs to that law. Although DFAIT is required to be exact about which exemption it's applying, it has never indicated, in that precision, which of the nine exemptions it is using.