Information & Ethics Committee on June 5th, 2007

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Dewar.

My colleagues have given me the Liberal slot, so I'll ask some questions.

Forget about exemptions. My interest at this point is the process. We know for a fact that there have been numerous Afghanistan reports prepared. We know this because Professor Attaran received a disc with about five years' worth of them. So we know that is a fact.

On March 14 of this year, DFAIT received a request from Mr. Esau, who used the following words:

A copy of DFAIT's 2005-2006 annual or semi-annual report, or the 2006-2007, if it's been drafted, on human rights performance in countries around the world.

I referenced before chapter 2-4, page 2 of the guidelines, and it says:

Often the request is expressed in broad terms because of a lack of knowledge about government operations. An employee of the institution experienced in the area of access should contact the requester to clarify the nature of the request or help the requester to understand any difficulties which may be encountered in processing....

We all agree, as you've said so often, that Madame Sabourin is an experienced person. She did not follow, as far as I can see, this guideline, because eight days after the request was made, she answered by saying:

Please be advised that Canada does not produce an annual human rights report analogous to the reports produced by, for example, the United States or the United Kingdom.

And here's the important part:

Therefore, no such report on human rights performance in other countries exists.

That's exactly what she said seven days after the request, clearly not following the guidelines by calling Mr. Esau and asking him what he meant.

Am I seeing the facts as you see them, or do you see them in a different way?

[Jim Alexander]

Mr. Chair, on that one, I hear the facts as you're stating them to me. I understand there is an investigation by the Information Commissioner into all of the context around it, and he or his officials will be involved in that. I really don't feel that I can comment on the specifics of that. I think your reading, again, of chapter 2-4 emphasizes something that Mr. Lemieux indicated as well, that 2-4 is actually phrased as a “should” as opposed to a “shall”. I think one of the things the Federal Accountability Act brought in is the duty to assist, and we're working on the exact details of that to put the—

[The Chair, Liberal, Tom Wappel]

You're right, it doesn't say “shall”. But it doesn't say “could” and it doesn't say “can”; it says “should”.

Interestingly, after the response by Madame Sabourin, Mr. Esau does what Mr. Kratchanov suggested, and that is, he begins a conversation with the department to see if he can flesh out his request. I would say, reviewing the material that I've seen, that Madame Archambault, her assistant, tried her best, as far as I can tell. But what's interesting is that everybody went to the human rights gender equality health and population division of the Department of Foreign Affairs. According to Madame Archambault's e-mail, they state--that department--the exact wording that Madame Sabourin put in her letter. I have to assume that the wording from Madame Sabourin was obtained from GHH. I have great difficulty in believing that the department in DFAIT that works on these issues would not have known that there were at least five years' worth of reports pertaining to human rights in Afghanistan.

Is it not GHH's responsibility to properly advise the ATIP officers when they inquire about something?

Mr. Kratchanov.

[Denis Kratchanov]

Obviously, when an access request is received, the ATIP office doesn't know everything that's in the department. So it relies on a centre of expertise to tell them. They have a general knowledge, obviously--the department--and they know where they should be looking, and they will go to these centres and ask them if they have such a document. Obviously, the people who are in charge of a certain area would have more particular knowledge, and then they would provide an answer to the ATIP office. That's how it would proceed, and the ATIP office would typically take that answer and then have a discussion with that unit, have a discussion with other units in the department, and then decide if it has information that's relevant to the request.

[The Chair, Liberal, Tom Wappel]

Thank you. My time is up.

Mr. Tilson.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Determining the national security of this country--I'm getting to this issue of the series of reports that I think Mr. Martin gave to some members, but not to me at least. I'm getting to the issue of the regulations or the guidelines. Are they general enough for the people who are making assessments?

I'm dealing specifically with Afghanistan, but facts that may have existed in 2000 might be quite different from the facts existing in 2006 or 2007. Therefore, something that might be blacked out or redacted in 2006 might not have been blacked out in 2000.

I don't know if I'm property expressing what I mean, but times change.

[The Chair, Liberal, Tom Wappel]

Sorry to interrupt, but that's exactly what Mr. Kratchanov already said.

[David Tilson, Conservative, Dufferin—Caledon, ON]

I want to ask the question in my way.

[Denis Kratchanov]

You're correct, Mr. Chair. I think I provided the same comment in response to a question earlier. Yes, the facts change, and the injuries are assessed at the time the access request is processed. Over time, the same document might be requested several times. Perhaps in 2000 it was judged that there was injury and that it should not be disclosed. A new request for the same document is made in 2007 and the decision will be made that there is no injury today, so it will be disclosed. That's how the decisions are made at the time the access request is received.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Alexander, along the line of questioning as to whether or not the guidelines should be updated--there is consideration for that, and you indicated that they should--Ms. Sabourin referred to the effective case law and the fact that it would have an effect on the guidelines. Could you comment on that issue?

[Jim Alexander]

I'll start on it, and if necessary, Mr. Lemieux could add more.

When there is a case and when there is some clarification, through the courts, of the application of a particular aspect of the legislation, that is shared immediately with the access to information coordinators through things like these monthly or bimonthly meetings that we have with the coordinators. Depending on the import and the broad impact, we may send out a particular notice on it as well. It would then make it into this document. This document is the thing to which people should always turn, and that's the thing we need to keep more updated. We need to do a general updating now, because it's been a number of years since we've done it beginning to end. We're doing that under policy suite renewal. The case law then, very specifically, would be reflected in exactly how the guidelines would be applied in that particular section, subsection, or whatever.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Is there a process, or should there be a process, for the timing of the updating of guidelines and regulations?

[Jim Alexander]

Mr. Chair, that's a very valuable comment. I think there should be a process, and it should be something that we attempt to keep up to date as much as possible. There are limited resources, as is the case with a number of areas in government. It's really a question of which hot issues that particular policy centre may be dealing with--things like the Federal Accountability Act, some of the changes there, and the involvement of the policy centre. We're very involved in the training going on for all the new institutions, and those are just some of the workload pressures that hit and may affect how things are updated.

Mr. Lemieux.

[Donald Lemieux]

Mr. Chair, if I can just add a few things, I think what Madame Sabourin was mentioning was that in the existing format these guidelines and policy--if you notice at the bottom, it's 1993--are updated regularly in what we call implementation reports. If there's a new issue that comes up or a new guideline that needs to be issued, that is done independently of this. The ATIP community would have access to those implementation reports or notices, as Mr. Alexander mentioned. In the context of policy suite renewal, we are trying to take a rigid format for the policy, directives, and standards, and the guidelines will follow as well.

Specifically on the court decisions, I should say that Mr. Kratchanov's group attends bimonthly community meetings. If case law comes up, there's a section where it's updated. We update a certain area in terms of the access to information practice for ATIP coordinators, and they are advised or given a summary of that court case.

The ATIP community does have access to that. Can it be presented in a better way? I think the answer is yes. That's acknowledged.

[The Chair, Liberal, Tom Wappel]

Thank you.

Mr. Dhaliwal, followed by Mr. Albrecht, followed by Madame Lavallée.

Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair.

We're talking about 25,000 requests, and it sounds as if there's no clear process to prioritize those requests.

A request like this, where there were human rights issues, issues to do with torture.... A request like this that would have saved a couple of lives can be delayed for some time. Was there never any process of best practices applied to this particular request?

[Jim Alexander]

Let me begin, and Mr. Kratchanov can add more if necessary. The legislation gives very clear timelines and processes, but the legislation doesn't have anything that I'm aware of that says this subject area is higher priority than that subject area and therefore should go to the front of the queue. The deadlines and how they must be treated are there. Whether it's something of significant import or a very small request, both are there.

I think the standard--and this is what the Information Commissioner reports against--is a time standard. These must be met within that timeline, and if not, they are late and those are reported.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Do you have something to add, Mr. Kratchanov?

[Denis Kratchanov]

I can only add that the act doesn't provide for a particular process that depends on the nature of a request or a document that has been requested. It's really up to the ATIP office to decide what sort of consultation they need. Sometimes it's with another department that has an interest in the issue, or with the Treasury Board or the Department of Justice. It's up to them to decide if they need assistance in dealing with that request.

There's no process in place, except that the services are available and the people who do the work are aware of their existence.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Taking this case into consideration, do you think these centres of expertise within those departments will work in future to prioritize requests like this, or do you think it will still keep dragging on forever?

[Denis Kratchanov]

It's difficult to know what's going to happen. Mrs. Sabourin was here. She said, herself, that the time delay was not acceptable. I take it that she wants to avoid these things from happening. I'll take her at her word. I know that every ATIP office in town tries its best to achieve that.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Do I have some time?

[The Chair, Liberal, Tom Wappel]

You have one and a half minutes.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

We see that the Information Commissioner is having an inquiry now. All he is looking at is whether the process was followed. When it comes to concealment and a criminal investigation, would it be wise for the criminal investigation to be put on hold, or should it go simultaneously, in a case like this?

[Denis Kratchanov]

If the police receive a complaint of a criminal act, they'll decide what to do with it. I'm not going to tell them whether they should or should not be investigating. The commissioner has received a complaint; he is doing his own investigation under the act. If the commissioner believes that some infraction has been committed, he has the power to so inform the Attorney General of Canada under the act.