Evidence of meeting #50 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 document.
A recording is available from Parliament.
Information Commissioner, Office of the Information Commissioner of Canada
Yes. We are trying not to have any new files fall into the backlog.
Conservative
Mike Wallace Conservative Burlington, ON
I just want to be clear that I did have an opportunity to educate the committee on sections 17 and 21 and subsection 15(1), and they really appreciated it.
Conservative
Mike Wallace Conservative Burlington, ON
And still aren't.
The question that I asked the ATIP officer who was here at the last meeting was on which section they followed. The answer was--and I have it in the blues--that they generally follow subsection 15(1) and that the list that is in the act, which I had read out and discussed, isn't completely exhaustive but is more a guideline, particularly subsection 15(1), in terms of international relations and so on.
Is that your interpretation of the act also, that those are guidelines in the sense that it's not an exhaustive list of exactly what could require that decision? I'm not asking you about this specific case, but about what has happened in the past.
Information Commissioner, Office of the Information Commissioner of Canada
Well, subsection 15(1), as I said earlier, is a discretionary exemption and it's subject to an injury test. Once you get into an injury test, you're getting into a more ambiguous situation in terms of evaluating that injury test. It's not just because the word “terror” happens to be in a report that it automatically gets invoked. If the use of the word “terror” or “torture” in that context potentially has real injury potential, then it can be invoked.
Conservative
Liberal
The Chair Liberal Tom Wappel
No, you're at eight minutes and 30 seconds.
Just for the information of the committee, subsection 15(1) clearly lists the criteria, and I'll read the words directly: “including, without restricting the generality of the foregoing, any such information”, and then it lists paragraphs (a) through (i ). So it's very clear that the section is very broad and isn't restricted to the paragraphs (a) through (i), which are there by way of example and do not restrict the generality of the potential claim of injury. That's right from the statute.
We go to Mr. Dhaliwal.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Thank you, Mr. Chair, and thank you, Commissioner Marleau, Mr. Brunet, and Mr. Walsh.
Mr. Walsh seems to be totally wrong about the Security of Information Act, I would say--the SOIA--and standing in the way of our getting documents at the committee. As of late 2006, key provisions of this act were struck down as unconstitutional by Madam Justice Ratushny. That happened in the case of Juliet O'Neill. As of today, it's largely defunct; the crown has not appealed this case.
My question to you, Mr. Walsh, is you should know this, so why did you fail to mention it here? Would you like to tell us the straight answer about this particular issue?
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, I apologize to the committee if in fact the Juliet O'Neill case was not properly taken into consideration here. That may well be the case, as Mr. Dhaliwal is saying, but in the short time available to me, I had the act before me and read the act on its face, and I stand to be corrected. If in fact the Juliet O'Neill case makes some of these provisions irrelevant to the question put to me, then I'll certainly bring that to the attention of the committee.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Thank you, Mr. Chair.
Now, my question is to Mr. Marleau.
As I go through this act, paragraph 67.1(1)(c) says that to conceal a record is a criminal offence under this paragraph. When we look at Ms. Sabourin's issues, I think she tried to conceal the information. Would you agree that this is a criminal offence and we should have the RCMP involved in this particular issue?
Information Commissioner, Office of the Information Commissioner of Canada
While I've reviewed Ms. Sabourin's evidence, and I also have informed the committee that we have an investigation underway, until the result of that investigation is given to me, I would refrain from commenting on what is and what might not be the outcome.
If there is evidence of criminal wrongdoing, the act provides for the commissioner to turn it over to the Attorney General. Indeed, under section 67.1, I could conduct my own investigation to establish the facts, but it's far too premature for me to answer that question, sir.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
It's also my understanding that Mr. Attaran has also asked you to get the RCMP involved and to cooperate with the RCMP in this. So you haven't done that so far, is that right?
Information Commissioner, Office of the Information Commissioner of Canada
The investigation is continuing, sir, and I don't think I can comment on directions it might be going in.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
When we look at this, it's a very serious issue. It's a matter of torture and a matter of killing, murder. I personally feel, and I'm sure many members of the committee feel--and you as well, because you come with a lifelong experience, so you probably feel the same way—that this case should carry a priority. So how long would it take for you to conclude the investigation?
Information Commissioner, Office of the Information Commissioner of Canada
I agree with you that it is a very important issue. How I feel about it is not really relevant to what I have to do. The service standard is to try to resolve this within 120 days, possibly within 90 days. That's the standard the investigator is working under, and I have full expectation that that will be the timeline in which he will file his report.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Thank you.
The next question I'm heading to, you already mentioned.
The way I look at it is that Mr. Attaran filed his request around February 24 or February 29, and Mr. Esau filed the request around March 12.
On or around March 12, in a phone call, Mr. Attaran was informed by the access to information division of the DFAIT that there is a report on human rights in existence. So if we look at March 12, we see the human rights department of DFAIT informing the access to information in DFAIT, and on March 22, about 10 days later, the access to information of DFAIT telling Mr. Esau that no such report exists. I personally see this as totally a concealment of this, and that section 67.1 comes in.
Also, as earlier mentioned, Mr. Esau asked for a global report. When I look at this, he asked for a report of countries around the world. That means country by country by country. There was a report that was in existence. So would you reiterate that Ms. Sabourin was duty-bound to explain to Mr. Esau that, yes, there is that report available on human rights, country by country by country?
Information Commissioner, Office of the Information Commissioner of Canada
I'll refrain from commenting on that issue without the benefit of having a detailed investigation and looking at the facts of who said what to whom and when, and the premise of the search that was done or how complete it was. If you find in a situation that it was cursory and his request was given no attention or time, you could conclude something else.
The latter part of your question is relevant--and I don't mean in a procedural sense--to comments I made earlier, and that is the amendment brought to the statute under Bill C-2. I'll read it again in English. I've summarized it, so it's not that long:
The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.
That section will come into force on September 1. I can say that as a new commissioner coming in, it will form very much part of my agenda in the application of this act.
Liberal
The Chair Liberal Tom Wappel
Colleagues, it's 10:15. I have Mr. Wallace, Monsieur Roy, Mr. Stanton, Mr. Pearson, and Mr. Martin.
My point is that I wanted to reserve some time to talk about witnesses. We have nothing scheduled for Tuesday. So if we don't get to this I won't be calling a meeting, which is most unfortunate. I'd really appreciate it if we kept our questions direct and short--I'm not for a moment suggesting that the answers haven't been. Then we'll go on from there.
Mr. Wallace, please.
Conservative
Mike Wallace Conservative Burlington, ON
I'm going to split my time with Mr. Stanton, so that will save us a little time.
Just to finish on the way the process works, the individual who came to see us before had about 17 years' experience in ATI application. I think she actually worked in the department when Jim Peterson was the cabinet minister at one time, but I don't think he ever met her, because there was no political influence, which she hasn't mentioned at all.
On what happens in the process--because I think that will be the discussion at the end--you deal with that individual, you get a chance to look at the actual document, you look at the decision-making based on that, and then you report that back to the requester.
Is it possible to have you come back in the future, after you've done that work, and report the findings? Are they public to us after you've found them?
Information Commissioner, Office of the Information Commissioner of Canada
No. They're private between me and the requester. If the requester chooses to make them public thereafter, I have no control over that.
Conservative
Mike Wallace Conservative Burlington, ON
If the requester makes them public, we can request that you come back to talk about the public aspects you released back to that individual.
Information Commissioner, Office of the Information Commissioner of Canada
I'm reminded that the department could also make them public at that point.
Conservative
Mike Wallace Conservative Burlington, ON
Thank you very much.
I'm going to split my time with Mr. Stanton.
Conservative
Bruce Stanton Conservative Simcoe North, ON
Continuing in the same vein, and perhaps in the circumstances of DFAIT, if you have that specifically, when you've had a complaint from a requester about the degree of redactions in a report, for example, that's brought back to you and you then investigate with DFAIT to see whether the provisions of the act have been properly applied in the course of those redactions. In the case of DFAIT, what has been the level of success in determining that those sections were used properly? Do you have any indication when you go through the course of an investigation of a complaint, for example, what level of compliance the department has upheld under the act?
Information Commissioner, Office of the Information Commissioner of Canada
It's difficult to tell you what the level of compliance in terms of redaction would be. We have global statistics in the annual report.