Information & Ethics Committee on June 5th, 2007

[The Chair, Liberal, Tom Wappel]

I call the meeting to order.

We are continuing our study of the access to information request for the Department of Foreign Affairs and International Trade internal report entitled “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”.

Today, from the Department of Justice we have Denis Kratchanov, director and general counsel from the information law and privacy section. He has been here before. Welcome, sir.

From the Treasury Board Secretariat we have Jim Alexander, deputy chief information officer; and Donald Lemieux, executive director of information, privacy and security policy. Welcome to you as well.

Does anyone have an opening statement? Okay, both of you do, so we'll let you both go.

I just want to remind everybody that we're here looking at that document, but particularly about the access to information issues surrounding it, including the request, how it was responded to, and what the government's policies and Treasury Board policies are surrounding that. Perhaps opening remarks can more or less focus on those things.

Mr. Alexander, go ahead.

[Jim Alexander, Deputy Chief Information Officer, Treasury Board Secretariat]

Thank you, Mr. Chair.

My name is Jim Alexander. I am the Deputy Chief Information Officer at Treasury Board Secretariat. I am accompanied by Donald Lemieux, who is Executive Director of the Information and Privacy Policy Division at Treasury Board Secretariat.

On behalf of the Secretariat, I would like to begin by thanking the committee for this opportunity to discuss the policy role that Treasury Board Secretariat plays with respect to access to information across the Government of Canada.

We've been invited by the committee to offer our knowledge of the access to information policy, for which TBS is the lead department. I'd like to take a few minutes to give a quick overview of the policy to help clarify the different aspects of it and its role in identifying the responsibilities of government departments and agencies in carrying out the requirements of the Access to Information Act.

It's important to note the shared responsibility of the Treasury Board Secretariat and the Department of Justice in providing Canadians with right of access to the federal government's records. In this respect the access to information policy issued by the Treasury Board Secretariat supports and enhances the Access to Information Act and its associated regulations, the broad overview of which falls under the responsibility of the Minister of Justice.

The legislative framework of the Access to Information Act provides a general right of access to information that is held by the Government of Canada. It was proclaimed into force on July 1, 1983.

With respect to the Access to Information Act, Canada has a parliamentary officer: the Information Commissioner. The role of this agent of Parliament is to investigate complaints pertaining to the Access to Information Act and report back to Parliament annually on these investigations.

The Treasury Board Secretariat does not have an audit function with respect to monitoring the administration of the act.

The Treasury Board Secretariat does not have an audit function with respect to monitoring the administration of the act. The secretariat relies on annual reports and other departmental documents to monitor compliance with policy. Beyond this, Treasury Board policy indicates that internal audit groups are responsible for examining the institution's success in meeting legal and policy requirements. It's also important to note that the heads of institutions are responsible for ensuring that their organizations comply with the Access to Information Act.

The President of the Treasury Board, as the designated minister under the act, is responsible for developing and issuing policies and guidelines governing the operation of the Access to Information Act and its associated regulations.

Treasury Board Secretariat supports the president in this role by developing these policies and guidelines and providing ongoing training to the access to information and privacy or ATIP community. More information on the role of the secretariat can be found in the introduction of the access to information manual that committee members have received this morning.

From a policy perspective, TBS has issued the access to information policy: it applies to 180 institutions that are covered by the legislation. The policy reinforces information management principles inherent in the management of government information policy and the security policy. The access to information policy, which is built on the foundations set out in the act, is there to ensure the effective and consistent administration of the Access to Information Act and regulations on a government-wide basis.

The policy specifies the roles and responsibilities of government departments and agencies to carry out the spirit and requirements of the Access to Information Act in a manner that recognizes the duty to inform as the essential principle underlying the access legislation and discloses to requesters the maximum information possible that is not injurious to the public and private interests identified in the exemptions in the legislation, and does so in the most timely and consistent manner, given the nature and the scope of the request.

As heads of institutions are responsible for ensuring that their organizations comply with the Access to Information Act, deputy ministers and heads of agencies are responsible for ensuring that their organizations comply with the access to information policy.

Now, from a training and development perspective, the secretariat is the functional lead for training the ATIP community. Parliamentarians and the Library of Parliament are among the regular users of the service provided by this ATIP community across the federal departments, and you're familiar with the work and professionalism of these valued public servants.

These qualified individuals have a mandate to provide access to government records to all Canadians. They're also in charge of upholding the legislative and policy requirements for each request, and they do this on an ongoing basis. For example, last year the government's access to information and privacy community processed an astonishing 60,000 requests, which translates into approximately 25,000 access to information requests and 36,000 privacy requests.

Their daily work is founded on a thorough understanding of the laws and policies at hand and their application and the judgment and discretion needed to carry out access to information and privacy files, and ensuring the rightful access of Canadians to information while upholding the exemptions legislated under the Access to Information Act and the legislative framework of the Privacy Act.

Now, given the importance of their mandate, throughout the years Treasury Board Secretariat has adopted different measures to help federal institutions adhere to the policies and standards issued across access and privacy. For example, Treasury Board Secretariat provides ongoing training to the ATIP community. We do this through a variety of means, such as developing training materials and hosting training sessions. Last year we held a total of 23 distinct ATIP training sessions, and so far this fiscal year we've already held 17 training sessions, involving 225 participants.

We hold regular community meetings, often in conjunction with the Department of Justice, and at these meetings we share issues of interest and best practices and advise the community of any changes to the policies. We respond to calls and written requests from ATIP practitioners who have questions or concerns or who require assistance regarding training. We get an average of 50 calls and e-mails a month for interpretation of ATIP policies and guidelines, and then as well we prepare and distribute guidance documents to the ATIP community and maintain things like the manual that we have just distributed.

Finally, we publish the annual Info Source bulletin, which contains the statistics of requests made under access to information and privacy and summaries of Federal Court cases of relevance.

While the Secretariat plays an important role in establishing the policies and guidelines and providing guidance to the ATIP community, it remains the case that heads of institutions are ultimately responsible for the administration of the acts within their respective institutions.

Heads of government institutions are responsible for ensuring that their organizations comply with Access to Information legislation and with Treasury Board policies and guidelines that support the legislation to ensure access to government information. Each institution is responsible for putting in place a process to respond to requests in a manner that is both consistent with policy and complies with legislative requirements.

The responsibility for responding to access to information and privacy requests within institutions is generally delegated to ATIP coordinators.

The Access to Information Act is an important means for the public to obtain information on government operations and decision-making and is a means through which Canadians can hold the government to account. The government is strongly committed to access to information and its principles of openness, transparency, and accountability. We're also strongly committed to the protection of individual rights to privacy.

I'm confident that we have the legislative framework, policy frameworks, and the tools needed to ensure departments and agencies and crown corporations provide Canadians with access to the maximum information possible that is not injurious to the public and private interests identified in the exemptions in the legislation.

This is an issue that we take very seriously, and as leaders of the ATIP community, I'm confident the same can be said of all ATIP coordinators and their personnel across agencies, departments, and crown corporations.

Ultimately, the government's goal with respect to access to information is to ensure the continued accessibility of information to Canadian citizens and businesses and upholding the act. As such, l can assure you that the Treasury Board Secretariat is committed to supporting the administration of the Access to Information Act and to endorsing the strong and competent community that day in and day out upholds Canadian laws--the Access to Information Act and the Privacy Act--and serves all Canadians in a professional and dedicated manner.

We'll continue to provide all departments, agencies, and crown corporations with guidance on related policy issues as well as arising issues and concerns, and to support the ATIP community across government and across Canada and the essential responsibility this community has in providing more transparency and openness to government in Canada.

Mr. Chairman, this brings me to the end of my statement. I believe Mr. Denis Kratchanov, from the information law and privacy section at the Department of Justice, has a short opening statement as well. Following that statement, we would be very pleased to respond to questions from members of the committee on our role.

Thank you so much.

[The Chair, Liberal, Tom Wappel]

Thank you, sir.

Mr. Kratchanov, please go ahead.

[Denis Kratchanov, Director / General Counsel, Information Law and Privacy Section, Department of Justice]

Thank you, Mr. Chairman.

I am pleased to appear before the committee this morning to help you understand the role played by the Department of Justice in the enforcement of the Access to Information Act.

First of all, I would like to say that I have not seen the document entitled "Afghanistan 2006: Good governance, democracy and human rights". I was also not asked to provide legal advice to the Department of Foreign Affairs and International Trade regarding this document or any other similar document. Consequently, I am not in a position to provide you with any opinion about the way the document was processed as regards the enforcement of the Access to Information Act, even if it were my role to do so.

In reading the transcripts of your last two meetings, I have noted that the committee has some questions regarding the application and the interpretation of some provisions of the Access to Information Act. I would be pleased to answer your questions in this regard if it may help your understanding of the legislation.

As counsel with the Department of Justice, however, it would not be appropriate for me to provide you with legal advice on a particular question, but I will do my best to give you clear and precise answers. Before answering your questions, however, there are two general points that I want to make in respect of the Access to Information Act.

The application of the act is not a scientific process that leads to a predetermined answer. The context in which information exists and the divergent interests that must often be balanced make it a process that is more art than science. The law and the guidelines adopted by the Treasury Board give some structure to that process. But at the end of the day, it is understandable, in my view, that in applying exemptions and exclusions, two competent ATIP officers would come to a slightly different result. This is why there are review mechanisms built into the legislation.

Also, understanding why a particular exemption has been applied may also require the further disclosure of confidential information. This is why the investigations of the Information Commissioner are conducted in private and why the act puts limitations on the information that he can include in his report to a requester. Similar limitations exist in relation to court proceedings relating to the access act.

Mr. Chairman, that concludes my remarks. I would be pleased to answer any questions you may have.

[The Chair, Liberal, Tom Wappel]

Thank you very much.

We have a full first round.

We'll start with Mr. Pearson, for seven minutes.

[Glen Pearson, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

Thank you, too, for coming in this morning.

As you know, this has been a fascinating subject for us over the last few days, and I'm trying to understand the process of it.

Mr. Esau, when he was in front of us and giving testimony, talked about how the Treasury Board had certain guidelines that were applied to this whole idea about access to information and that these guidelines provided guidance to the ATIP coordinators.

I was wondering, because we are trying to figure out exactly what happened here, if you could perhaps take us through some of those guidelines that you would see, because I'm not sure what they all are, and how they might apply in this case.

[Donald Lemieux, Executive Director, Information, Privacy and Security Policy, Treasury Board Secretariat]

Maybe I can just start by explaining that the guidelines we're talking about are what was handed out this morning. There are actually two parts: the policy and the guidelines.

The general scheme is that the policy and guidelines reflect what the law says. So it's very close to the legislation. It certainly does not detract from what's in the legislative framework.

From what I gather from reading the blues with respect to the hearings you've been having, there has been some discussion about the processing of a request--in fact, two requests. And there is an issue about what Mr. Kratchanov alluded to, that there seems to be one document that was handled differently over time.

The guidelines that we provide are with respect, in this particular case, to how you would apply section 18 of the Access to Information Act, which has to do with the Departments of Foreign Affairs and National Defence.

Other exemptions that were mentioned concerned section 13, which has to do with documents obtained in confidence from another government; I believe section 17 was mentioned, concerning safety of individuals, although I'm not sure whether or not that provision would actually apply; and section 21, which is advice and recommendations.

I understand, again from the hearings, that those exemptions were applied to this file by Foreign Affairs.

What we provide, as far as guidance goes, is interpretation about, for example, injury and how to interpret those various provisions. It also lays out a framework as to roles and responsibilities, for example, what the ATIP coordinator should be doing.

It covers the scheme, and that's why it's so voluminous. It covers the whole scheme. In fact, it's a manual right now. This is what the ATIP community uses in doing their job, so it's quite extensive.

That's supported by what we call a cold call function. Mr. Alexander referred to the fact that we field approximately 58 questions a month to try to assist the ATIP community.

That's the way I would sum up, in broad strokes, what the guidelines are, what the policy is, and what we do.

[Glen Pearson, Liberal, London North Centre, ON]

Thank you.

And in the area of the Access to Information Act, when a request is made, the act requires that a response be given within 30 days; otherwise it is deemed that there has been a refusal. Section 9 of the act allows institutions to extend that deadline, which I believe happened in this case.

Are there Treasury Board guidelines that apply specifically to that? I think you just alluded to them, but could you just clarify?

[Donald Lemieux]

Yes, there are.

Mr. Chairman, there is a reference in the guidelines with respect to extensions under the act. Those are dealt with in paragraphs 9(1)(a), 9(1)(b), and 9(1)(c). Basically, they deal with consultations with other government institutions if there are a large number of requests. Paragraph 9(1)(c) has to do with access requests dealing with commercial information where you're engaging a third party.

So there are guidelines that explain to the ATIP community how to extend. As you correctly pointed out, there is a 30-day mandatory period to respond, but there is the opportunity to extend beyond that.

The objective, of course, is for the ATIP office to respond by the target date that they've assessed as being reasonable to process that request.

[Glen Pearson, Liberal, London North Centre, ON]

Go ahead, Mr. Alexander.

[Jim Alexander]

Just to reference the document we've provided you this morning, under tab 2.4, around pages 15 and 16 and so on are where it actually talks about time limits and extensions. So this is really the manual that any ATIP officer would be using to go through that, and it really talks them through each subject, like the ones Mr. Lemieux has just covered.

[Glen Pearson, Liberal, London North Centre, ON]

Thank you.

Thank you, Mr. Chair.

[The Chair, Liberal, Tom Wappel]

Thank you.

Madame Lavallée.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you very much.

Thank your for coming and welcome to our committee.

First and foremost, Mr. Pearson asked you a question about the type of direction and guidelines you provided. If I understood correctly, you said that basically they reflect the content of the act. Is that correct?

[Donald Lemieux]

Generally speaking, Mr. Chairman, the guidelines and policy reflect the legislative framework. In other words, for each exception under the Access to Information Act, there will be a provision regarding the guidelines and policy. So in that regard, the guidelines and policy reflect the legislative framework.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I imagine that the guidelines you provide are always in accordance with the Access to Information Act. I have no doubt about that. I just wanted to understand the type of direction you provided. Give me an example of a direction you have provided to a person responsible for implementing access to information.

[Donald Lemieux]

For instance, we explain why section 18 is a discretionary exemption.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

What is section 18?

[Donald Lemieux]

The legislative scheme under the Access to Information Act provides for exemptions. As a general rule, there is a right to access to information, but there are some exemptions and exclusions to this right. For the time being, I am working specifically on exemptions. There are two types of exemptions, one of which is mandatory. Under section 13, which I mentioned earlier on, we could be dealing with documents obtained from other countries. Personal and commercial information could fall under mandatory exemptions. However, most exemptions under the act are discretionary.

In some cases, we must also examine if it could be injurious. Section 18, which was referred to in the committee's report, is a discretionary exemption involving injury. It is not enough to say that we are consulting this information. It must be injurious. There is also the discretionary power to disclose information or not, even if it falls under this request.

With respect to the legislative framework, I cannot say too much. If you want further information, that matter would fall within the purview of the Department of Justice.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I would simply like us to continue focusing on the type of guidelines you provide. You gave the example of section 13, which is rather clear in the case of information coming from another country. If I've understood you correctly, information coming from another country may be disclosed so long as the disclosure is not injurious to the other country.

[Donald Lemieux]

Some documents under section 15 may not contain information on another country. I am not an expert in this area. That would be for Foreign Affairs. Why did the government decide to provide a specific exemption for section 13, for instance, to deal with draft treaties with other NATO countries? Given the nature of such documents, the government decided it had to be mandatory.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

That falls under section 13. For instance, the disclosure of a draft treaty sent to us by Afghanistan could be injurious to ongoing negotiations.

Did you want to add something? I see you are on the edge of your seat.

[Donald Lemieux]

Section 13 deals with information provided to us by another country or a province. For instance, a third country forwards information to us stating that it is confidential. In that case, the section 13 exemption would apply. This exemption is not discretionary, it is mandatory. The access to information coordinator does not have a choice, when the country providing the information states that this information is confidential. It only affects the information forwarded to us by that country.

Moreover, information as to Canada's thoughts on another country do not come from that country. In that case, the information would not be protected under section 13. That would be the information we generated ourselves based on sources other than a foreign country. Section 13 would not apply to this second category of information.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Can you give us an example?

[Donald Lemieux]

For instance, it could be analyses produced by Foreign Affairs officials on—