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.
9:35 a.m.
Liberal
The Chair Liberal Tom Wappel
Thank you, Mr. Lemieux.
Just one thing, following from Mr. Dewar, if government embarrassment is not a ground, then you must agree that ministerial or bureaucratic embarrassment is not a ground for withholding information, correct?
9:35 a.m.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
Embarrassment is not a ground for refusal. There are exemptions; none of them refer to embarrassment.
9:35 a.m.
Executive Director, Information, Privacy and Security Policy, Treasury Board Secretariat
What I have here is chapter 2-0, page 4, a reference to our guidelines on helping requesters.
9:35 a.m.
Liberal
The Chair Liberal Tom Wappel
I'm drawing the attention of the committee for any questioners to chapter 2-4, page 2, access to information, in the middle. That's just a heads-up, if anybody wants to look at it.
Mr. Tilson.
9:35 a.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I'm interested in the issue that was raised by Mr. Esau and Mr. Attaran on the issue of delay. They both spoke of delay in providing these reports. I questioned the director of access to information and privacy protection division of the Department of Foreign Affairs, Jocelyne Sabourin. I addressed her on that. She acknowledged there was a delay in getting the reports out.
However, I got the impression, having acknowledged that, and it was admirable of her to do that, that her primary concern was making certain that the release of certain information would not be injurious to the country. That was the impression I got.
I asked her questions about how she made her decisions. She indicated there were regulations that one had to learn, one had to observe, and that part of the problem was the issue of staff. This requires a very specialized training to read the regulations, understand them, and be able to apply those regulations to any kind of document, particularly items that could be injurious to the country.
My question is with respect to training staff. That seems to be one of the issues: acquiring staff. They're specialized, they're well-trained, and there seems to be some difficulty in acquiring that staff.
Can you comment on that issue, or if indeed it is an issue?
9:40 a.m.
Deputy Chief Information Officer, Treasury Board Secretariat
Yes, Mr. Chair, I can begin with that, and Mr. Lemieux may have some more details to add to it.
Generally, when one looks at the manual, and Ms. Sabourin was referring to the document that we distributed to you today, and as Mr. Kratchanov indicated in his opening remarks as well, this isn't a science, but there's an awful lot of judgment there. However, it's judgment that is circumscribed by the legislation, the regulations, and then the case law that has evolved since 1983.
Generally, access to information professionals start off in some assisting role, possibly in a larger department, or they may actually be working in a sector within a department coordinating with the access to information coordinator, the lead, on it. They will develop their expertise primarily through experience, through working with other professionals who know the practice better, and then through the training sessions that we offer, the various pieces that are there.
It is something that really requires us then to grow access to information professionals, because it's based on our legislation. The legislation differs in provinces, so it's not even something that's necessarily easily transferable from another jurisdiction.
This is something where our ATI coordinators and the ATI leads in departments really grow, and it's something we are focusing on pretty strongly right now with this expansion of institutions due to the revisions under the Federal Accountability Act. It is putting greater pressure on it, and that is one of the reasons why we've run 17 training sessions so far this fiscal year, just really to bring more people up to speed and help them move up that learning curve more rapidly, which is primarily, it seems, an experience learning curve. It's a case of “I've applied this exemption before, this exclusion before, this injury test before; I've got experience in it, or I phone people who have more experience in it and work on it that way.”
So it is very much growing a profession that doesn't exist very strongly outside the federal government and its agencies.
9:45 a.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
So you're confident this issue will be resolved. It's just going to take some time.
9:45 a.m.
Deputy Chief Information Officer, Treasury Board Secretariat
We are confident that it will be resolved, because in the end the leads of each--an ATIP coordinator, the equivalent of Ms. Sabourin in all the other departments--are the ones who have lots of experience. They've grown up there. They may have a slightly greener team for a period of time, but that's why we're there as a policy centre to provide additional assistance with the help desk calls, to assist them in that proper administration of the policy and the legislation.
9:45 a.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I think you indicated you've read some of the transcripts. I'm going to read to you something Ms. Sabourin said, and this was an answer in response to a question I had asked on the regulations. Essentially, she's raising the issue as to whether they should be updated. She says:
Absolutely. We have the act. We have its regulations. We have Treasury Board Secretariat guidelines that are quite expensive.
I don't know whether she meant expansive or not, but it says “expensive”. Mind you, maybe they are expensive. That's what it says.
Mind you, we'd like them to be updated to reflect court precedents so that it's updated with the current court decisions. We are guided by this guideline, which is about four inches thick. It helps us to confirm the application of exemptions.
Can you comment--Treasury Board, in particular--on this issue as to whether or not these guidelines should be updated?
9:45 a.m.
Deputy Chief Information Officer, Treasury Board Secretariat
Yes, Mr. Chair, I'd be pleased to do so.
We agree with that statement, and broadly, across all of the Treasury Board policies, including this particular policy that we're speaking of here and the associated guidelines and so on, we are under way in something that we've called “policy suite renewal”, which is looking at all of the Treasury Board management policies, updating them all to really clarify deputy head accountability and then make sure that the additional documents underneath the policies, whether they be directives or standards or the more optional guidelines that are there, are very clear and very easy to access.
So we would agree with those statements that Ms. Sabourin made. It is our intention to have the policy revised by the end of this fiscal year, and we will be continuing to work on the directives and the guidelines that fall under that.
June 5th, 2007 / 9:45 a.m.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Thank you, Mr. Chair, and thanks to the panel for coming.
Consistency is very, very important--whether we are in the private sector or whether we're with the government--when we are doing things.
Could you explain to us why subsection 15(1) was not invoked in the previous years, but it was used in 2006, particularly with all this language, when they whitewashed or blacked out those sections, and taking into consideration that it will be impacting international affairs?
Ms. Sabourin, when she was here, was adamant about an injury test. Could you explain it to us?
9:45 a.m.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
I can't speak about the particular document, but I can tell you that from my experience, and especially with respect to an injury-based exemption, an ATIP office will assess the injury or the existence of an injury at the time it receives the access request. International relations evolve over time. There might be a situation where with respect to one country a few years ago we had very good relations, and perhaps these relations have evolved over time—and here I'm not talking again about the particular DFAIT circumstances.
My point is that an answer that is given, or the existence of an injury found in the access act, may evolve over time where perhaps last year disclosing a particular document would not have caused injury, but circumstances on the ground have changed so that releasing the same document today would cause injury. So that might be an explanation of the situation.
Another explanation is that the act gives discretion with respect to section 15, so that even if there is a possibility of injury, there is discretion to disclose. That discretion is to be exercised at the time the access request is received. It might be possible for this, again, over time, to exercise the discretion differently. Frankly, if it weren't exercised differently or if it weren't really exercised each time an access request is received, probably this would be seen as an improper exercise of discretion.
I hope that answers your question.
9:50 a.m.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
That should be fine.
Mr. Dewar was mentioning that Mr. Esau said this, and it was also mentioned in Parliament--the duty to assist. The people who are working in the access to information department are not legally obligated to assist. “Not legally obligated” might only mean that they are not to assist...? If we look at the e-mail trail, this is quite evident.
9:50 a.m.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
The act has been changed to make it express.... Certainly, even without that particular provision in the act, we've always encouraged good communications between ATIP offices and requesters to clarify, when it's required, the exact nature of information that's requested. Obviously, there is a lot of judgment and discretion in doing that.
If there is any doubt from the ATIP office as to what is being requested or if the scope is not clear, as is often the case from the sorts of requests that are made, then ATIP officers, in my experience, do not hesitate to pick up the phone and talk to the requester.
9:50 a.m.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
When we say we're not obligated to assist, in this particular case, when we look at reports prior to 2006 and in 2006, to me it seems that it's a clear case of concealment.
Would you explain how this paragraph 67(1)(c) will come into effect?
9:50 a.m.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
Subsection 67(1) is a provision that was added to the act in 1999. It created a criminal infraction for concealing, destroying or hiding a document that's subject to the act with the purpose of denying the right of access. From a purely criminal law point of view, it requires evidence of the action, the concealment, and it also requires proof of intent of wanting to avoid or prevent the exercise of the right of access. There has been no case law in that provision. To my knowledge, no one has ever been charged with it. It's a bit difficult to assess exactly how that would play out in the courts, but it would certainly be subject to the whole criminal law rules with respect to obtaining a conviction that includes the proof of what we call in law the mens rea and the actus reus.
9:50 a.m.
Conservative
Bruce Stanton Conservative Simcoe North, ON
Thank you, Mr. Chair, and thank you to our panel here this morning.
My first question is directed to Mr. Kratchanov. You appeared before this committee back in October when the committee was dealing with another issue. As a point of context here, through the course of this consideration that the committee has been dealing with on this Afghanistan report, there have been allegations and assertions of political interference. In fact, that's been one of the central themes that the opposition has dealt with.
Back in October, you said, “A minister is the head of the institution under the act, and decisions about access are made in his name and under his delegated authority.” On the whole subject of political and/or ministerial involvement, I am wondering what you counsel ATIP coordinators in this respect.
As a second point, what is your experience with this kind of...? I am sure there may have been allegations in the past, and I'm sure this is a regular occurrence, but in actual practice, how would you comment on these types of assertions? In fact, what plays out at the practical level when ATIP coordinators are making these types of decisions?
9:55 a.m.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
From my experience, ATIP coordinators with delegated authority make the decision on their own. I can't say that I'm aware of cases.... Obviously, ministers are the ones under whose name the decision is being made, and they have the power to make that decision themselves if they want to, but from my experience, this is not a power that's being exercised, certainly not on a frequent basis.
9:55 a.m.
Conservative
Bruce Stanton Conservative Simcoe North, ON
Do you have any such situation that has occurred, in fact, where there has been a specific case of ministerial or political interference with regard to ATIP coordinator decisions on, for example, the degree to which a document is redacted?
9:55 a.m.
Director / General Counsel, Information Law and Privacy Section, Department of Justice
Not that has come to my attention.
9:55 a.m.
Conservative
Bruce Stanton Conservative Simcoe North, ON
Okay.
Moving along on this question, we've had considerable testimony--it's been referenced here a couple of times--with regard to Madame Sabourin, and I'll put this generally. Of the 25,000 access requests per year, DFAIT handles approximately 500 or so a year. Of the 50-odd e-mails or questions that come your way at Treasury Board, do you find that DFAIT is part of that mix? In other words, do you get activity coming your way, questions from DFAIT ATIP officers inquiring about the legal and/or procedural guidelines they should be following?
9:55 a.m.
Executive Director, Information, Privacy and Security Policy, Treasury Board Secretariat
Mr. Chair, maybe I can answer that question.
I'd say in the past two years, a rough estimate would be perhaps half a dozen, but there are questions of all types, and not necessarily questions. For somebody like Madame Sabourin, who has been in the ATIP field for so long, it is often to simply double check to see where things are at, whether or not things have evolved, that kind of thing. But like every department, we get questions of a general nature. It would be to qualify them. It's not as if Madame Sabourin is phoning frequently, and not just Madame Sabourin, but also her staff. It's not necessarily only the ATIP coordinator that would be phoning.