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.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
But would that affect his investigation? If the criminal investigation comes right at the same time, would it in any way interfere with the way he or she is doing the investigation?
Director / General Counsel, Information Law and Privacy Section, Department of Justice
Without talking about any particular instance under section 67(1), there's always a danger, when there's some sort of public process that is investigating or looking into the same things a criminal investigation is undertaking, that it might spoil the evidence that might be used in a criminal trial. That's a danger that always exists. I'm not one who specializes in that area to say how it should be handled or not handled. I think those who do the criminal investigations are the ones who are responsible for deciding what to do. In this case, the Information Commissioner is the one to decide how far he wants to take his own investigation.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
Mr. Chair, as you and the committee members will know, I'm not a regular member of this committee. I may be asking a question that's been covered previously, but I ask for your indulgence.
Mr. Kratchanov, you indicated that it's not a scientific process, that it's oftentimes more art than science, indicating that there are divergent interests that need to be balanced in providing information and still protecting privacy.
You also mentioned that two different ATIP coordinators might come to a slightly different result, so there's a process of appealing to the Information Commissioner. Section 2-9 of section 1 states:
The role of the Commissioner is to attempt to mediate a resolution of complaints in order to avoid, if possible, costly and time-consuming recourse to the Federal Court.
Could you give us an idea of what percentage of the 25,000 information requests, or what number, might actually go to the Information Commissioner? Maybe that's already in the information and I haven't read it. Of that number, what percentage would go on to Federal Court for adjudication?
Director / General Counsel, Information Law and Privacy Section, Department of Justice
Last year, the commissioner reports I think that he received around 1,200 complaints, as a ballpark figure. Last year, I think he said he did not take the government to court on a single one of those complaints. In past years, most complaints—99% of the complaints that he received—were resolved, as far as he was concerned, and less than 1% were not resolved to his satisfaction. In those cases, he decided to take the government to court.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
Thank you for that information. I certainly wasn't aware of the answer. I wasn't asking it because I knew, but I think it should be encouraging to the Canadian public to know that this process is in fact working. It may not be perfect, but it seems to be working well.
Thank you. That's all for my questions.
Liberal
The Chair Liberal Tom Wappel
Thank you.
You should also know that the commissioner told us that his success rate in court, when he does go to court, is well over 90% against the government.
Thank you for your questions.
Madame Lavallée.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Thank you, Mr. Chairman.
Before asking my questions, I would like to know whether someone from the office of Ms. Sabourin or the Department of Foreign Affairs asked you or someone in your circle for an opinion on the specific case of the Afghanistan internal report.
Executive Director, Information, Privacy and Security Policy, Treasury Board Secretariat
No, not at Treasury Board.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
You were never asked for an opinion and you never heard that anyone in your entourage had been asked to express an opinion?
Executive Director, Information, Privacy and Security Policy, Treasury Board Secretariat
Exactly.
Bloc
Director / General Counsel, Information Law and Privacy Section, Department of Justice
Yes.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I see.
I will continue the discussion we were having earlier.
You told me, Mr. Kratchanov, that section 13 and subsection 15(1) used the word "injurious". Could you tell me what that means for a government?
Director / General Counsel, Information Law and Privacy Section, Department of Justice
It is a reasonable expectation that something will likely be injurious. That probably does not help you much.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I will tell you quite frankly that it does not help me at all.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
This is what the courts have identified as the legal test. This is the expression used by the court and which all the lawyers have to work with.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
It is a reasonable expectation something will likely be injurious to the interest defined in the act.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
The issue is whether the disclosure of the information in question will be harmful to the interest protected by the exception. When we say that something is likely injurious, we are distinguishing it from something that is potentially injurious, something that is feared to be injurious. It has to be more than something that is vaguely apprehended to be injurious. There must be facts involved.
In practice, this means that when there is a challenge about the enforcement of an exemption or a test as to what is injurious, we have to present evidence to the court to convince the judge, who will judge not only the law but also the facts and will decide whether we have done what was required of us.
In access to information cases, I must confess that this is a problem, for those of us who work in the field, when the government manages to prove that something is likely to be injurious. To do this, the government often uses information that is confidential and that would be injurious to disclose. This information is disclosed to the court in confidence. The court has full access to the information, and in its judgment, which is public, if the court agrees with the government, will not reveal the exact nature of the evidence to the extent that this would disclose the confidential information.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I apologize for interrupting, but we also know that the government loses all these cases, or almost all of them, where the Commissioner of Information is involved. I think the percentage is 98%. You can refer to your book, but we both know that that is about right. Even though it is embarrassing for the government, that means that somewhere, there are people who are quick to use the black-out pen, and use it often.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
I think you are trying to embarrass me.