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.
2:15 p.m.
Liberal
The Chair Liberal Tom Wappel
Okay, thank you.
You can give that to the clerk and then he can make a copy for us.
2:15 p.m.
As an Individual
Because of my background in access to information and privacy--
2:15 p.m.
Bloc
2:15 p.m.
As an Individual
Yes, I received that in English only. That's my first language. I don't have a second language, although I was raised in Newfoundland, so I guess that's sort of another language.
In any event, I was not satisfied with that answer. I had reason to believe, from sources that I keep confidential, that a report about Afghanistan in particular, among other countries, did exist. I pursued this with the officer who was responsible for this file. After I received this response, I went back to her in a series of e-mail traffic that I can provide to the clerk. I wanted to make sure she wasn't saying something didn't exist based on an unsympathetic reading of my request.
The Treasury Board guidelines that help access to information coordinators respond to requests give guidance on how to treat requesters. I reminded her of that, and I quoted it to her. I just said:
If the records do exist but I failed to use the precise title of the reports, please let me know. In other words, I'm hearing from other sources that DFAIT does in fact produce human rights reports and I just want to confirm DFAIT's position on this, that human rights reports DO NOT exist and that my request was not interpreted with undue narrowness by DFAIT. I want to be very clear on this.
She wrote back, saying, “We feel that we've answered the letter of your request.”
I then went back to her and said, “I'm assuming that there is some type of report produced by somebody, somewhere in DFAIT about issues concerning Afghanistan?” I then quoted the report “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”, and stated that I felt this was a chapter in a larger document. I wasn't sure, but I said: “My understanding is that this document or chapter or section or case study or whatever you want to call it exists, and if, by calling it annual or semi-annual I misled you, please be disabused of that.”
She said she would do some digging and get back to me. I'm presuming that what she did was go back to the people who would have produced the document that I quoted, the record holders. She basically came back and said that DFAIT only produces reports on a “situational basis”.
I wrote an e-mail back to her confirming the points that she had given to me over the phone: that these situational reports deal with one country at a time, and that it would take more than a hundred hours of search time to obtain all these individual reports that were produced in one year. For a researcher, a hundred hours translates into ten dollars an hour, so what they were asking for was a thousand dollars to find the reports, which for a private citizen is very steep—and the fees are something I can answer questions about.
She confirmed that I was correct in all the points that I had made back to her. That's when I felt I had battled the department to a standstill on this one, and that they were not, even with egging on and gentle persuading and prodding, willing to come out and say what they had and that I should pick what I wanted.
Because I never like to be caught up the creek without an ATI request, I had simultaneously submitted another request at the same time as I had submitted the one I've just spoken about. This one was for “a copy of the latest assessment by DFAIT of the human rights practices, compliance, and performance of Afghanistan”. That's pretty direct. It's pretty specific. In the event that they were not able to interpret this in an appropriate way, this was the second thing I sent in.
They received that request on March 13, which was the day before they received the one I spoke about just a few minutes ago. I have not received an answer to this request. What I got back was a letter saying they had received it, but that they were going to need an extension of 90 days beyond the 30-day statutory time limit. That means that instead of giving me a response on April 13, which would have been 30 days, they needed three months after April 13. I found that interesting, given the fact that by this point redacted versions of it were appearing in the newspaper.
I got a call late yesterday afternoon, because I had asked about the status of my request. I was told it was being sent to me post-haste, but I haven't received it yet. I still have not received a formal response from DFAIT on this second request.
That status inquiry was not signed by Madame Sabourin either. It was signed on her behalf by somebody whose signature I can't read.
So that's how I became involved. At each point that I had communications with the department, I basically went back to the people who retained me and told them what I was getting and what I had said, because I needed them to have all the facts. At one point, we agreed that I would be submitting a complaint to the Information Commissioner.
I don't submit such a complaint lightly, because having worked in the ATIP world, I know that a complaint just takes up the time of the people who are supposed to be working on the requests. If you flood or inundate a department with complaints that are really not something you want badly, you're just bunging up the system, as it were.
In this case, I felt a complaint to the Information Commissioner was in order, and I wrote one on April 26, within the sixty-day allowable time limit. I basically said that I felt the department had inappropriately and wrongfully and knowingly withheld a document that I was after, and that the relevant records did exist and they knew they existed.
That's my allegation. That's my contention, my personal belief as expressed to the Information Commissioner. I'm willing to share that. This is normally confidential correspondence between me or any person and the Information Commissioner, but that's what the wording of that is, so that people understand.
2:20 p.m.
Liberal
The Chair Liberal Tom Wappel
Thank you very much, Mr. Esau.
Just as a point of clarification before we go to questions, we would like a copy of the e-mails you offered to provide to us. Thank you.
2:20 p.m.
Liberal
The Chair Liberal Tom Wappel
You also referred to “she” throughout, when you were talking about that first set of e-mails. Is “she” Madame Sabourin?
2:20 p.m.
As an Individual
No, she was an ATIP officer, Francine Archambault, who works within the access to information and privacy directorate.
The other thing I want to make very clear is that, having submitted hundreds and hundreds of requests to many federal institutions over a number of years, as well as having been on the other side of the table as a serving uniformed officer, it has been my experience that the ATIP organization within a federal institution is extremely anxious to please a requester. Their goal, in virtually every case of which I'm aware, is to provide to the requester the documents that the requester wants. They want to serve their clients.
The difficulty, the dynamic that I have found within National Defence and in other federal institutions—especially the large, highly publicly visible ones—is that the ATIP people have to go to the individuals within the department who actually hold the records. Getting the records from the people who create them or hold them is a challenge for anybody in ATIP. So when I gave this e-mail to the Information Commissioner, it was made very clear that Ms. Archambault was going back to find out other things from the people who held the records, and that these things formed the basis of her responses to me.
2:25 p.m.
Liberal
The Chair Liberal Tom Wappel
Thank you, sir.
We'll now take ten minutes for opening comments from Professor Attaran.
Again, perhaps you could follow the same format, Professor. Tell us a little bit about who you are, what your interest in this matter is, and what your involvement specifically with the document is.
May 17th, 2007 / 2:25 p.m.
Professor Amir Attaran As an Individual
Thank you, Mr. Chairman.
If I could just raise a point, though, I know my colleague Mr. Esau is keener to get out of here sooner than I am. I would not object if you preferred to take questions from him. I can wait. It's really at your discretion, sir.
2:25 p.m.
Liberal
The Chair Liberal Tom Wappel
Is there a pressing need for you to leave, Mr. Esau? I feel that if we—
2:25 p.m.
As an Individual
By suppertime. I live in Greely and I have three teenage kids, so it's a little hairy.
2:25 p.m.
Liberal
The Chair Liberal Tom Wappel
We're going to go until about four o'clock at the outside, because we started at about two, roughly speaking. I think it might be helpful if we heard an opening statement from the professor as well, because it might help the questioners.
2:25 p.m.
As an Individual
I think my parking meter has expired anyway, so we're in it for the long haul here.
2:25 p.m.
Liberal
2:25 p.m.
Prof. Amir Attaran
Thank you.
Ladies and gentlemen of the committee, thank you for making it possible to hear from both of us today, despite your considerable differences.
I want to thank you for giving me the opportunity to speak to you today and testify, which I will unfortunately be doing in English.
The reason I have come to address you on this point will be, I think, fairly obvious from my background. I am a professor and Canada research chair at the University of Ottawa, jointly appointed to the schools of law and medicine. I work in the areas of human rights law, global development, and population health, across that spectrum of issues. I'm trained both as a lawyer in Canada and as a scientist, which was my Ph.D. subject at Oxford University. Prior to coming to the University of Ottawa to take up a faculty position in Canada, my previous two faculty positions were at Harvard and Yale.
The reason I chose to come back to Canada was that, on an ethical plane, I felt very strongly about the preservation of human rights and how this country, which is so exemplary in its rule of law, actually can contribute a great deal to the world in the maintenance of human rights standards. That is very much why I came back to this country and tried to reverse the brain drain.
At the outset of these comments, I'd like to make an observation on the business that has been done in this committee today. There have been a lot of objections—I won't go into any specific ones—about the injustice of parliamentary procedure and the injustice of this motion or that amendment. I'd like us all to remember that the actual injustice is torture, extrajudicial killing, and disappearance in Afghanistan. Those are the human rights issues, and believe me, torture is a greater injustice than any breach of parliamentary procedure, and so is being murdered.
The reason we're here today is because of a report—and I have here the redacted version that was given to me under ATI—about human rights in Afghanistan. It is terribly important—and I say this to all parties—that no time be wasted on wrangling of a filibuster or other nature, and that what this committee must concern itself with is why information in the possession of the Canadian government about torture, extrajudicial execution, and disappearance was concealed. It is obviously the case that only by having that information in the possession of the Canadian government out in the sphere of public debate can the situation be improved. I don't want to put too sharp a point on it, but the longer the document is not public, the less that is known about it, and the less debate that can therefore take place on these issues, the longer the people's lives are in danger. They could be killed or they could be tortured, so it is terribly important for this committee to move ahead.
Having just scolded you in those friendly terms, let me tell you what happened with my access to information request. I'll present this information chronologically. If there are any questions about the chronology, Mr. Chairman, please feel free to interrupt me.
The documents from which I'm taking this chronology have been faxed to the clerk. If I refer to something that is not in his possession, however, I would ask the clerk to note it to me so that I can provide it if I have erred and have not provided it already.
On January 24, 2007, I filed an access to information request with the Department of Foreign Affairs.
2:30 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I do sincerely apologize, Professor Attaran. I'm just wondering about something. If the clerk has those, are they in a form that can be distributed to allow us to follow more closely?
2:30 p.m.
Liberal
The Chair Liberal Tom Wappel
I can only assume, Mr. Reid, that if you don't have them, they are in a form that is not distributable. They're only in the English language, and I presume that the clerk is in the process of transferring them into the other official language, whereupon we will provide them to all committee members.
Carry on, Professor.
2:30 p.m.
Prof. Amir Attaran
If they are not available to you at the moment and you would like to see them, sir, I'm happy to show you my copies or make some other arrangement. I apologize if they're not before you now. They were provided to the clerk two days ago.
2:30 p.m.
Liberal
The Chair Liberal Tom Wappel
Usually we try to work miracles, but in this case it will take us a little while to get things translated.
Go ahead.
2:30 p.m.
Prof. Amir Attaran
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.
