Information & Ethics Committee on Oct. 4th, 2006

[Jim Alexander]

We were very much on the same track. As Mr. Lemieux said, he has worked in this area for quite a while. I've been in the chief information officer branch for a while. This legislation is something we value a lot, and we value the professional administration of it as well.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I'd like to table the e-mail we're referring to. It has been translated.

I referred earlier to Mr. Leadbeater's testimony. He told us—I refer here to the blues of the testimony—there was clearly a case of violation of the Privacy Act in the Rowat case in 1999, which resulted in intimidation by a former deputy minister of a requester of information. Mr. Leadbeater was asked what did he did following this and he said, “... we also found more subterfuge, the use of post-it notes to transmit the identity of the requester. It wouldn't appear on the actual transmittal slips of the file that went forward, but it would be on yellow post-it notes, to be removed later, and so on.”

Is this a practice with which you're at all familiar?

[Jim Alexander]

This is not a practice we are in any way familiar with. This is something that is clearly in violation of the Privacy Act and all of the guidelines and directions we have put in place. Privacy coordinators and ATIP coordinators in departments know full well that a practice like that would not be condoned.

We have no evidence or awareness that this practice is under way. We would address it directly if we ever heard of it, likely with the deputy minister if we needed to escalate it beyond the ATIP coordinator. But I would state that it is very hypothetical that such a case exists. It's not something we have any awareness of, and it is contrary to anything we believe in with the administration of this.

Thank you, Mr. Chair.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I appreciate that.

Mr. Leadbeater also testified. I can't find the precise reference here, but I'll paraphrase. He said that it was his understanding that not infrequently requesters of information were intimidated or harassed by government officials following their requests. He made specific allusion to journalists not being allowed to board the Prime Minister's Challenger, or something, because they had been identified as a requester of embarrassing information in the past.

Are you familiar with any instances like this, of requesters of information being harassed as a result of their names being shared?

[Jim Alexander]

Beyond the case that was raised in testimony on Monday by Mr. Leadbeater, I'm not aware of any cases that have taken place in the administration of this.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I have no further questions.

[The Chair, Liberal, Tom Wappel]

You're right on time.

Mr. Martin, go ahead, please.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair. And thank you also, Mr. Chair, for opening up what I think has been a very useful line of questioning. In fact, I think your questioning was an absolute bombshell here.

I learned something, perhaps the most useful thing so far in this meeting. Under the Treasury Board guidelines, personal information--which includes personal identity, perhaps the most personal information associated with an applicant--could properly get into the hands of the minister. In other words, the authority for ensuring compliance and administering the access to information regime is with the head of a department, but the delegation of authority flows both ways. Ultimately, the person who is responsible is the minister. Therefore, we've just opened the door and may have found the root of the problem.

If there are people reading these Treasury Board guidelines, to say that it's okay for the minister to find out.... And you'd have to be a Pollyanna to think that if one minister knows, the rest of cabinet or at least the PMO doesn't know. Their first loyalty and obligation are to the government they serve.

This is horrifying, frankly. Now I see how the scope and scale of this thing could be epidemic and consist of more than just isolated incidents, if anybody is interpreting it the way we've just seen it.

[The Chair, Liberal, Tom Wappel]

Are there any comments?

Yes, Mr. Alexander?

[Jim Alexander]

I'll make a comment, and I'm sure Mr. Lemieux will want to comment, as well.

There is a right to know, just because of the way delegation flows. There is a need to know. That right to know is a right to know that exists for that individual as a minister of that particular department and agency.

[Pat Martin, NDP, Winnipeg Centre, MB]

So he has a right and a need to know who the applicant was.

[Jim Alexander]

He has a right to know, and if he wishes to exercise it and say that he has a need to know, then that could happen.

[Pat Martin, NDP, Winnipeg Centre, MB]

Well, now I get it.

[The Chair, Liberal, Tom Wappel]

Mr. Martin, let him finish his remarks.

[Pat Martin, NDP, Winnipeg Centre, MB]

I'm just excited.

[Jim Alexander]

What we're not aware of and what we don't hear of when we talk to ATIP coordinators is that information of requesters is being shared on any sort of regular basis. In fact, we're not aware that the name of the requester goes to the minister. Theoretically, it is possible that it could go there.

[Pat Martin, NDP, Winnipeg Centre, MB]

We are not aware except anecdotally. And it would be in compliance with the guidelines.

[Jim Alexander]

It should not ever go through the minister or go through the minister's staff on the way to the minister, for example.

In our experience--and I think Mr. Lemieux could expand on this a bit more--this is not something that in any way is a widespread practice. But Mr. Lemieux--

[The Chair, Liberal, Tom Wappel]

I would like Mr. Martin to conduct his own questioning. If he wants to hear from Mr. Lemieux, he will.

[Pat Martin, NDP, Winnipeg Centre, MB]

Yes, I've been waiting patiently. And I always run out of time.

But I'm starting to see why Mr. Kenney is willingly taking us down these roads. As of this moment, I bet a chill has just gone over the whole ATIP community.

Who would file an access to information request if you can't be guaranteed anonymity? We've just realized that it's completely within the Treasury Board guidelines to tell the minister who filed. What else are we to conclude here? You no longer have any problems with ATIP nuisance requests, Mr. Kenney, because the bombshell has just gone off in the community: no one is safe, no one is protected, and ministers have a right to know who asked. You'd have to be an idiot to think a minister is not going to share that with other ministers.

[The Chair, Liberal, Tom Wappel]

Well, we won't speculate on who are idiots.

Monsieur Lemieux.

[Donald Lemieux]

If I can add to what Mr. Alexander has said, the policy and guidelines on access to information and privacy follow the legislation. Under the legislation it says that the head of the institution--in this case, the minister--has the right to know.

[Pat Martin, NDP, Winnipeg Centre, MB]

I always thought the head of the institution was some lower-level person, but you're right, ultimately the head is the minister, or his assistant.

[Donald Lemieux]

That's right. So the minister does not get rid of his right to process a request, or whatever. So whether or not he or she does, just with the workload given CIC, for example, which gets so many requests, they may not choose to exercise that.

[Pat Martin, NDP, Winnipeg Centre, MB]

So when the minister gets this red-flagged ATIP that says, amber alert, caution, this is really a potentially dangerous request here, and he sends his assistant running down the stairs to the ATIP coordinator saying, “Who filed this goddamned request?”, that's completely okay by what you've just outlined, because that's all within the chain of command and the responsibility of the head of the institution and their right to know who filed the request.