Evidence of meeting #49 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 request.
A recording is available from Parliament.
Director General, Executive Services Bureau, Department of Foreign Affairs and International Trade
I must say that I speak to Ms. Sabourin almost every day. In order to improve our access to information performance, we had to develop an action plan. So we developed a procedure to improve our performance—
Bloc
Robert Vincent Bloc Shefford, QC
I am going to be very clear, Ms. Thomsen. I would ask you to try to be both clear and brief.
You are Ms. Sabourin's supervisor. You have discussions in the minister's office and you must definitely talk about the specific issue involved here today—Afghanistan. You say you discuss nothing. So please explain to me why it is that you monitor what Ms. Sabourin says.
When the commissioner appeared before us, he said that the last person authorized to make any suggestions or do anything to have documents blacked out was the minister. The minister has the last word. The fact that the commissioner strikes out sections of a document under subsection 15(1) or some other provision does not change the fact that the last person to read the document is the minister. If there is something else he does not like, he censors it. That is what we were told.
Is that the way things work? No?
Director General, Executive Services Bureau, Department of Foreign Affairs and International Trade
No. The minister does not--
Bloc
Robert Vincent Bloc Shefford, QC
Then explain to me why the word "torture" appeared in the 2003-2004 documents that were provided, while today, in 2007, there is an article in Le Devoir that quotes excerpts from an article that appeared in the Globe and Mail that said:
The first, which was censored, was obtained after the newspaper complained to the Information Commissioner, and a second, uncensored version, that we managed to obtain.
That means there were two versions and the newspaper managed to obtain both. Ms. Sabourin, you said that the existence of this document had never been denied. That is strange, particularly given that the article states:
The newspaper said it inquired first about the existence of a report on human rights in early March. At the time, the Department of Foreign Affairs replied that there was no such report. Two weeks later, the Access to Information Branch specified that Canada did not write reports on this subject, as is done in the United States and the United Kingdom.
It is really very strange, is it not? You have just told me that no one ever denied that such a report existed. So they call your office and the answer is that there is no such report. Who are we supposed to believe? Why did the paper have two versions? There was a reference to torture, but that was censored. Can you explain that for me? Does torture have any impact on subsection 15(1)?
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
May I explain the situation? It is important that you understand that I am the person who makes the decisions. I am delegated to do that. The minister cannot make—
Bloc
Robert Vincent Bloc Shefford, QC
Fine. So you are the person who makes the decisions? Tell me why the word "torture" was blacked out in the two documents and why in subsection 15(1)... why was it that in previous files, this word was not blacked out, but it was in this case? I will tell you why. In 2005, there was an agreement with Mr. Martin whereby Canada would deliver the people taken prisoner. In 2006-2007, the Harper government was in power. So please explain to me why things were done in this way.
Liberal
The Chair Liberal Tom Wappel
Monsieur Vincent, you've gone on quite a bit.
The question was, I believe, why was the word “torture” removed in the 2006 document when it apparently was not removed in the 2005 document?
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
The documents were reviewed in light of the act. My office and my team made a recommendation regarding the exceptions that apply. I agree, and we applied the provisions of the act.
The second point that I would like to make is that we should not confuse the requests. The request regarding reports on human rights in Afghanistan, which you have—I don't know how you got the documents, but you have shown them to me—were processed under the act. We responded to this request.
As Ms. Thomsen explained, there is no overall report. No such report exists. We do not produce a report of this type. Our response was that these reports do not exist, because they do not exist. They do exist for individual countries, and those are the requests we processed.
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
Those on Afghanistan. The request was specific; I responded to the request.
Liberal
The Chair Liberal Tom Wappel
Madame Sabourin, you've said that twice now. You don't need to say it again.
You said you responded. When did you respond to Mr. Esau?
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
Mr. Esau? On the fact that he asked for this global report?
Liberal
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
He made a second request--
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
I think May 15.
Conservative
Bruce Stanton Conservative Simcoe North, ON
Thank you, Mr. Chair.
Thank you to our witnesses for coming today to shed some light on this topic.
In our meeting of May 17, one of the witnesses, Mr. Esau, talked about the culture within the department, about his experience working in the ATIP environment when he was working for, I believe, the Department of National Defence. I don't want to paraphrase him, so I'm going to use some of his words. Then I'd like to ask you a question.
He essentially said the following:
...when you're working in the federal civil service, either in uniform or as a civil servant, and you see your minister being zeroed in on day after day about a certain issue, then it tweaks an extra level of sensitivity and caution around that.
He went on to qualify that by saying:
Quite apart from getting into any speculation of nefarious motives, which I'm not convinced exist here, I think it's just—and somebody used the word earlier--an abundance of caution. I think people freeze up a bit when these things happen.... Documents on detainees that I received in June
—I assume that's June 2006—
are much less redacted than detainee-related documents that I'm getting now.
So he refers to this sense that when circumstances are confronted by a department, the suggestion is that somehow that translates into perhaps a different approach. But again, I don't want to paraphrase.
Based on your vast experience working in the access to information environment within the department, could you comment on this phenomenon that Mr. Esau explains?
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
All I can say, really, is that the provisions of the act have remained the same, but there have been court decisions that guide us in the application of certain provisions. When we get a request, we look at the documents in the context of today, and we try to understand what this information means. To me, a piece of paper is a piece of paper. But when you start to look at it, my office and I need to look at the legal obligations, the legal framework, that will allow me to make a decision on disclosure.
The principle is access, and there is openness, and that's the way we view it. All the officials have ingrained in them that “access” is the primary word here. What we do is look at the information, line by line, and we make a match with possible exemptions or with the exemptions provided by the act, and then we make a decision based on them.
Obviously we think that is it. That's my opinion about a document. And at the end of the day, when the response is sent out, the applicant can complain. Yes, we do have complaints about exemptions and about just about anything on the files. That's where the Information Commissioner comes in and makes a decision or a report on the use of these exemptions and whether the institution or the federal department made the right decision.
There has been an evolution of the provisions of the act. But at the end of the day, that is the legal framework upon which we base it. And it is all case by case, line by line.
Conservative
Bruce Stanton Conservative Simcoe North, ON
Thank you for that.
I have a smaller question about the process.
Once a complaint comes back from a requester saying that the person is not satisfied, for example, with the information that has been provided, and once this complaint goes to the Information Commissioner, how does that confine you in terms of your ability to respond? Could you describe briefly what implications that has for you, as a department, in this ATIP request?
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
When there is an investigation, the commissioner's powers take over, really. They'll do the collection of the information they need to conduct their investigation. They will also liaise with the complainant as to where the file is and its status. This is an investigative process, and it is done with confidentiality, which the Information Commissioner will keep from the applicant's point of view and from the department's point of view, until such time as his report is provided to me or, on occasion, to the minister.
NDP
Pat Martin NDP Winnipeg Centre, MB
Mr. Stanton was on an interesting line of questioning. I'm not sure you answered what he was asking.
When Professor Attaran finally received his information, he wasn't satisfied. He thought that too much had been blacked out. So he asked you to reconsider the exemptions. Prior to going to the Information Commissioner and filing a complaint, there is an avenue of recourse by which the applicant can come back to the ATIP coordinator and ask that you reconsider those exemptions or provide further explanation.
To whom did you take all the names involved in the reconsideration, then?
Director, Access to Information and Privacy Protection Division, Department of Foreign Affairs and International Trade
First of all, Mr. Attaran gave me sort of an ultimatum: I had 24 hours to review. I proceeded to pull the file out from wherever it was—it's stored in my office—and I had a very brief review of the records, and I felt that the application of the exemptions was properly invoked, from my perspective.