Information & Ethics Committee on Oct. 4th, 2006

[Bruce Stanton, Conservative, Simcoe North, ON]

I have just one brief question.

You referred to the ATIP community. Just so we understand what that means, is that the ATIP officers or directors across all departments?

[Jim Alexander]

Yes, it is, and we think there are about 500. That would be our sense. It's not as though we track that in excruciating detail, but we know what the large departments are, and we know that every institution needs someone who is working in ATIP. From that we have a sense as to what we would call the access and the privacy community, the professionals who are working in that across the system.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you, Mr. Chair.

[The Chair, Liberal, Tom Wappel]

Thank you.

If we wanted to annoy our witnesses, we could put in an access to information request to find out how many ATIP people are in the ATIP community.

Let me ask a couple of questions, if I might.

We had some hearings on Monday, and the representative of the Privacy Commissioner made the following statement:

In other words, there is nothing in the Access to Information Act that specifically indicates that the name of a requester cannot be disclosed. Since there is nothing that says you cannot name the requester, on the surface it would seem that it is not likely a contravention of the Access to Information Act. That said, however, the matter could be a violation of the Privacy Act.

Do you agree with that statement?

[Jim Alexander]

Yes, we do.

The joint administration of those two acts then causes us to say that when an individual requests something under the Access to Information Act his or her name should not be divulged, except as necessary to actually process that particular work. The two acts work together.

[The Chair, Liberal, Tom Wappel]

Following that, we got some information from the Information Commissioner's office as well, and in tab 4 of their information they have something dated March 25, 1999, entitled “Interim policy and guidelines on section 67.1 of the Access to Information Act”.

Now, that was 1999. Is there now a policy that is not an interim policy, or is this interim policy still the policy guideline?

[Donald Lemieux]

I understand, Mr. Chairman, that it says “interim”. I'm not sure whether or not it's just a mistake that hasn't been finalized. I think we're assuming that it's finalized. So maybe it's just an update that needs to be done. We can certainly look into that.

[The Chair, Liberal, Tom Wappel]

The only reason I'm asking is that I want to refer to “guidelines on treating the identity of a requester as personal information”. These are TBS's guidelines. It says: “The identity of an individual who has requested information under the Access to Information Act or the Privacy Act is considered to be personal information, and should be treated as such in the course of processing a request...”. You went through your reasoning for that—because you feel that it's under the definition of personal information under the Privacy Act.

It then goes on to say, “In some circumstances it is appropriate to disclose the identity of a requester to a departmental official...”. There is nothing else in the TBS guideline that indicates that it's appropriate to disclose it to anyone else. The guideline says, in some cases, it's appropriate to disclose it to a departmental official.

So what is TBS's definition of a departmental official?

[Donald Lemieux]

What we're talking about is that the departmental official would be, for example—and I think this might be an example, Mr. Chairman, that was used by the deputy information commissioner—a pay clerk who would have to know the name of a requester, because the name of the requester is on the cheque, for example. Someone who would be in the ATIP office, for example, who is processing that access request would be the departmental official in question. Anyone who, for example, is on what we call “the delegation tree” would be authorized to know the name of the requester. For example, depending again on the institution, depending on how complicated the institution is, it would potentially be the ATIP coordinator who has delegation. As well, a government institution may have chosen to delegate that authority, that power, to an ADM in the chain and the deputy, again depending on how that would be carried out.

[The Chair, Liberal, Tom Wappel]

But I take it that the departmental official is an official of the department. So to use your example, if there is a request from Citizenship and Immigration, then the release of the name of the requester could be made to departmental officials within Citizenship and Immigration. Is that correct?

[Jim Alexander]

That's correct.

If, for example, it was “I need information that you may have relative to my particular application”, clearly the person who is involved in responding to that access to information request, somewhere within that particular sector of Citizenship and Immigration, would have to know that they were looking for information on Jim Alexander.

[The Chair, Liberal, Tom Wappel]

I understand.

Let me explain my question. If it is appropriate to release the name in certain circumstances of a person requesting information under the Access to Information Act, according to the Treasury Board guideline as I read it, it has to be within the department that is concerned, and cannot be outside the department. Is that correct?

[Jim Alexander]

It's within the department concerned. Because the chain of delegation goes through the minister, it is also possible that the minister would be able to get access to it because of that chain of delegation.

[The Chair, Liberal, Tom Wappel]

But it's the minister in charge of that department, not some other department.

[Jim Alexander]

It's the minister in charge. For example, if it was within the Treasury Board Secretariat, it would be the President of the Treasury Board, as the minister responsible for that institution.

Under the legislation, the delegation flows to the minister of the department and down. By saying “the minister", it does not include individuals within the minister's staff, for example.

[The Chair, Liberal, Tom Wappel]

Does it include cabinet?

[Jim Alexander]

It would not go to other ministers who are not responsible for that particular institution. There's a minister responsible for each institution. It goes up to one minister, and it does not go sideways into cabinet, under the legislation.

[The Chair, Liberal, Tom Wappel]

Thank you so much.

I'm sorry, colleagues.

Mr. Zed.

[Paul Zed, Liberal, Saint John, NB]

Thank you, Mr. Chairman.

I apologize for being a little late, but that's the maritime weather, and I missed part of your presentation.

Mr. Chairman, I want to thank the witnesses for being here.

I caught the part of your presentation where you discussed the 1999 incident, when there was a similar situation to what's under discussion at present. You indicated in your presentation, as I would guess you did orally, that you issued an implementation report.

Am I correct in understanding that you issued some kind of similar broadcast across the system, if you will, to remind people this situation has happened or has been alleged to have happened, and we want to be careful that you feel there are existing protections in place, and you only wanted to make your civil service aware of the issue? Is that correct?

[Jim Alexander]

Yes, Mr. Chairman, the member is exactly correct in that.

We gave a reminder from the secretary of Treasury Board to all the heads of departments and agencies, the 180 or so across there. It was a reminder of that and that their ATIP coordinators had the information on it. We then gave a similar reminder on the implementation report and a restatement of it for the benefit of individuals on that particular issue. We sent both out almost two weeks ago now.

[Paul Zed, Liberal, Saint John, NB]

Thank you, Mr. Chairman.

I want to ask the witness, when you heard about this incident that was obviously brought to everyone's attention by the media, were you surprised?

[Jim Alexander]

I was surprised at the allegations that there was a name being broadly shared across departments, and so on. I was surprised to hear it.

I was also energized. As the policy authority for that, when you hear it in the morning news or wherever, you know you're going to have a busy day getting to the bottom of it and responding to it.

[Paul Zed, Liberal, Saint John, NB]

Not to carry it further, but I'm curious as to whether you were surprised. As the senior administrator in this area, does it worry you? Has your worry now in fact been abated?

The fact that our committee is even discussing it, does that throw “the cold light of day” on a practice that might or might not have been going on?

[Jim Alexander]

Mr. Chair, as I've indicated, we really do not believe this is widespread. That being said, one incident is still worthy of a good response to make sure there's a really good understanding, whether or not it's here in this committee, among public servants who will be watching this and tracking what's going on. I think it's a positive thing to actually make sure there's a very good awareness of public servant responsibilities under these two important pieces of legislation.

I see it as a good thing. It brings attention to it and makes sure there's real clarity not only among the ATIP community, because we believe they get it, but more broadly among all public servants in terms of a good reminder on how this works among all the other management policies.

[Paul Zed, Liberal, Saint John, NB]

If I could characterize this incident, with a new government coming in would you just describe it as a rookie's mistake?