Evidence of meeting #51 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 policy.
A recording is available from Parliament.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
If, for instance, we believe a given country was preparing to go to war.
Executive Director, Information, Privacy and Security Policy, Treasury Board Secretariat
That could be an example.
Bloc
Director / General Counsel, Information Law and Privacy Section, Department of Justice
It could also have to do with elections in other countries.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
If it is felt that an individual is in a good position to win the elections. That would be something that would have to be disclosed.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
No. That information is not protected by section 13. It could be covered by another exemption. Section 15 could be applicable. It protects information, whether from another country or not, that could be injurious to our international relations.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Does Treasury Board policy require that access to information officers indicate the subsection of section 15 that was used to redact a sentence?
Director / General Counsel, Information Law and Privacy Section, Department of Justice
I might be able to answer that question.
In fact, there is case law dealing with section 15 in particular. I am referring to a 1990 Federal Court ruling, Information Commissioner of Canada v. Minister of National Defence. In that case, it was alleged that the department had not indicated which paragraph of subsection 15(1) applied. The Court found that the paragraph in question did not need to be referenced, insofar as one of the three areas included in subsection 15(1) was affected.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
Before getting to the paragraphs, there is the introductory text of subsection 15(1).
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
The subsection begins with: "15.(1) The head of a government institution..."
Director / General Counsel, Information Law and Privacy Section, Department of Justice
That's correct. The first paragraph includes three areas that are protected by the section: the conduct of international affairs, the defence of Canada or the detection, prevention—
Director / General Counsel, Information Law and Privacy Section, Department of Justice
The 1990 Federal Court ruling on this issue stated that the access to information coordinator had only to indicate which of those three areas was affected by the documents. The Court added that, even though it was not necessary, it could be advisable, in some cases, to indicate one of the paragraphs.
The paragraphs are only numbered as indication. Paragraph 15(1) ends with the words "any such information." That means that they are examples of areas protected by one of the three areas listed in the introductory paragraph.
Liberal
NDP
Paul Dewar NDP Ottawa Centre, ON
Thank you, Chair.
Thank you to our guests.
I am substituting for my colleague Mr. Martin. As Treasury Board critic, I have a particular interest in this area.
Starting with Treasury Board, your presentation was clear, but I do have some questions in terms of structure and function. You're responsible for the policy, that's pretty clear. I know my way around Treasury Board, and it makes sense. But I would turn to page 3 of your presentation, where you say that you don't have an audit function in terms of monitoring the act, and you rely on annual reports.
Under the part entitled “The Role of the Treasury Board Secretariat”, you say this:
The President of the Treasury Board, as Designated Minister under the Act, is responsible for developing and issuing policies and guidelines governing the operation....
So we get a picture here that you're not in the minutiae of every single day, keeping an eye on every single file, but you have, if you will, the big picture. That makes perfect sense from a structure and function point of view.
In some of the witness statements we heard here at committee, there were concerns around the policy. We talked about the policy, about exemptions, and national security being important, but....
Well, let me put it bluntly: there seems to be a concern from witnesses and others, and certainly I've seen this, that it's not credible to say that national embarrassment is worthy of a policy for exemptions. Would you agree with that?
In other words, if the government is looking bad on an issue, that's not worthy of an exemption in terms of the policy of Treasury Board. And I'm not trying to.... I mean, I know you're public servants; I'm just saying that's not good enough, that's not a reason for exemption.
Deputy Chief Information Officer, Treasury Board Secretariat
Mr. Chair, on that, if I can respond, as we write the policy, and as the policy is developed, we actually cannot and do not change anything that's actually established in the legislation.
With regard to how section 15 is phrased in the legislation, we may provide some guidelines on how that particular section is administered, but we actually don't change the definition of what's there in section 15 or anything.
NDP
Paul Dewar NDP Ottawa Centre, ON
I hear what you're saying. National embarrassment isn't in that, so I would concur with you on that.
There seems to be a pattern emerging. Certainly, with Mr. Esau, there were some concerns about his case. I'm going to turn to that in a second.
I have in my hand the annual report of the Information Commissioner. As you said in your report, you rely on officers of Parliament, like the Information Commissioner. It depends on whether you're looking at the glass as half empty or half full--mine is at about a third. I guess I look at the report card, and we have some problems. We have to acknowledge them--not exacerbate them, but acknowledge them--and get moving on them.
I look at this report and I see that we have some frequent flyers here. We have the Department of Justice, we have the RCMP, we have PCO, and we have DFAIT--they've gone up from an F to a D, but in my house that wouldn't be acceptable. As a former teacher, I'd be wanting to do some remediation with that student.
I guess I want to know your response to this report. And I know you just got this. How can we do better to clarify this issue of exemptions? I know that with Mr. Esau and others there's a lot of frustration. There seems to be a lot of “guess what I'm thinking” going on. I'm just curious as to your response, as a policy developer--not you personally--in terms of where you're going with this report. What is the response to date?
Deputy Chief Information Officer, Treasury Board Secretariat
Mr. Chair, the report, as has been pointed out, is a very valuable piece of information and one that I think we take very seriously--it and the internal audit reports and any other reports that are happening. I guess the other big piece of data and the sources we get are through the contacts we have with the ATIP community. Through the training sessions or those calls at the help desk we run, we get a pretty good sense of where the pressure points are, where the organizations are, and where there are systemic issues, I'll call them, where the professionals may be having some difficulty dealing with things because of whatever the changing circumstances may be. Or, as you pointed out, some organizations may be having more difficulty than others in meeting the standards as set. What we'll do is look at training sessions that can broadly help the organizations. We will work with organizations where they're having difficulty.
One of the other key things we're doing, especially with the expansion of the coverage of access to information under the Federal Accountability Act, is an awful lot in terms of developing capacity in the community. All those extra organizations we've added have really put a fair amount of pressure on trained professionals, and we are making sure that there are--
Deputy Chief Information Officer, Treasury Board Secretariat
We would provide clarifications to guidelines, especially, as I think has been referenced in previous testimony, if there are court cases or judgments that come down. Then we will reflect those in the guidelines and reflect what that now means in terms of how the judgment should be applied.
NDP
Paul Dewar NDP Ottawa Centre, ON
Mr. Chair, the last question I have is about the individual case that was heard here at committee.
Mr. Esau's case scenario--I have the documents here, and he's waived his right to privacy to share these e-mails--paint a picture of.... There's remediation needed here, and certainly, I would suggest, there's a need for a change in guidelines when you have this situation where he's asked for human rights reports and he gets back that they don't have reports on human rights. As I said before, there's this kind of “guess what I'm thinking” game going on, when in fact, as he establishes, we know that DFAIT would have reports on human rights in the Afghanistan file. He was told that they don't write formal reports. So it's a game of nomenclature as opposed to substance.
I guess the frustration, from my end, in terms of the policy is that there seems to be this disconnect, and I go back to it. It seems to be more concerned about embarrassment than about divulging.
Are you aware of his case, and are you concerned that he is being blocked in the access to information that all citizens should have? That's in terms of a policy, not you individually, because that's not your job, I understand.
Deputy Chief Information Officer, Treasury Board Secretariat
Mr. Chair, yes, we are aware of the case, mostly through the press and reading the previous sessions of this committee. There is an investigation under way, and the Information Commissioner, when he does report on that...it would be something we're very interested in following up. If there are issues he does identify through that, and if it is a broader issue in terms of duty to assist or clarification, if that's where it leads us, then as a policy centre we would be providing additional guidance and working with the community on that.
Executive Director, Information, Privacy and Security Policy, Treasury Board Secretariat
Currently, the guidelines we do have on helping requesters, at chapter 2-0, page 4, encourage ATIP coordinators and ATIP personnel in general to speak to requesters to be able to provide them with the best service possible. That will be augmented in September with the formal duty to assist as a result of the Federal Accountability Act. That is the legislative recognition; ATIP coordinators will formalize that in the legislation. They're doing it now for the most part. There will be some guidelines around that provision.
