Information & Ethics Committee on March 22nd, 2016

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

That goes for exemptions, but is it any different for exclusions?

[Larry Surtees]

No, it's the same thing. If there's a complaint, we are fully open with the commissioner to resolve the complaint and to explain the rationale for why we have chosen to do what we've done.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you.

[The Vice-Chair, Liberal, Joël Lightbound]

Mr. Simms.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Thank you, Chair.

For the past probably six or seven years, the issue of redaction and whether it's necessary or not and the compliance issue have certainly been in the forefront for a lot of people, especially in the realms of journalism, for commercial reasons, and so on and so forth.

Both of you could weigh in on this subject, but Mr. Surtees, I'm going to go to you, because obviously the sensitivity in your department is that much higher, and as was pointed out by Ms. Empey, people's lives are at stake here. What happens when you have an issue with redaction of your department? If they redact something, do you have the right to say to them, “I don't think you're complying with the act here”? Do you have that conversation with them? If there is that—not so much by a client, by the person asking, but by the department itself, and you have a disagreement, do you have that power and ability? Or, if the Department of National Defence says, “We're sorry but that cannot go into documents”, do you then take that to the client?

[Larry Surtees]

We are part of the Department of National Defence, and the access to information and privacy organization has the ultimate decision. If there's a disagreement, we escalate it within the department to resolve it. We will challenge recommendations that come up from within the department. That's our role. Our people are much better trained than the staff who are supporting each of the parts of the organization. In fact, we train those people. We keep them up to date on the various things.

But the ultimate decision can only be made by someone who's delegated by the minister, and the minister has delegated the deputy minister, me, Ms. Empey, and a number of her staff to make those decisions on behalf of the department. Everything we do is based in that delegation. A senior departmental official can in fact not overrule us because they aren't delegated.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

That's very interesting.

Ms. Beck, do you want to answer that as well?

[Stefanie Beck]

It's exactly the same in our department.

There are very few people who have the authority to release or redact. Of course, our ATIP analysts do. In addition to those people, I, Michael, and the deputy do, and I think that's it. Nobody else can authorize. They may say that redactions should be done under this exemption or that exclusion. We would have a discussion with them: Is there some context that we're unaware of? Is there a third party involved that we need to know? Was this information obtained in confidence so we should not be releasing it because there might be an impact on health and safety?

The decision, though, ultimately rests with only those in the department who have the authority.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Right.

So all the redacted material that is provided to a client.... You stand by that redacted material as being in the public interest, to keep it out of the public realm for these reasons. Obviously in your case, it's far more sensitive.

[Stefanie Beck]

That's right.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

For commercial sensitivity, obviously procurement is a massive subject. I take, for example, fixed-wing search and rescue right now, which has been going on for a while.

If I want to find out information on one of the bidders to a certain procurement, would that go through you or Public Works?

[Larry Surtees]

That would go through the Public Works, as you mentioned. It goes through the procurement specialists who consult with us. They have the lead on the procurement aspects.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Are the specialists in your department?

[Larry Surtees]

Yes.

They would consult with specialists with our department, if they felt the need to do so.

[The Vice-Chair, Liberal, Joël Lightbound]

Mr. Jeneroux.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Quickly, on a couple of points of clarification and going back to my line of questioning, when you calculate the staff salary piece, I'm assuming that doesn't include pensions.

[A voice]

No.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

No? Okay.

I just wanted to get that—

[Stefanie Beck]

Whether they have pensions depends on whether they're indeterminate employees. With casuals, contractors, it would all be different.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Right.

There would be some sort of benefit compensation if they're not permanent employees.

[Stefanie Beck]

It would be hard to count that.

If you're trying to figure out what the overall cost is, they might leave before their pension comes. It would be easier to go on operating, like in-year, costs.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Sure, fair enough.

I have one other point to quickly clarify, if we could. You both deal with incredibly highly sensitive information, as we've learned even more so today.

With recommendation 2.6, the Information Commissioner has indicated five points “in which confirming or denying an existence of a record could reasonably be expected” when these are at play. The five points being:injure a foreign state or....any state allied or associated with Canada...with information in confidence;injure the defence of Canada or any state allied or associated with Canada, or the detection, prevention or suppression of subversive or hostile activities;injure law enforcement activities or the conduct of lawful investigations;threaten the safety of individuals; ordisclose personal information, as defined in section 3 of the Privacy Act.

Those are the five instances that the Information Commissioner has suggested in recommendation 2.6.

Does that suffice? Is there something else you'd like to add to that? Are those hurdles in any way in either of your departments?

[Larry Surtees]

I'll take that one on. The current act does not prescribe areas underneath that. One of the circumstances we have is that to acknowledge that there's a record is an issue. It's not just the things that she was talking about. If someone's looking for information about a court martial case and they want all the information on the court martial case, but it is a matter of national security, then to acknowledge information in a certain way could in fact indicate that there's a problem just by the very fact that we say we have records. From my perspective, the act, as it's currently put in place for that, does in fact allow us to impose the appropriate level of protection that might need to be on information, merely acknowledging the existence of which could create a problem.

[Stefanie Beck]

The other thing is that we keep that at a certain level, like some of the other aspects of the act, so I see all those.

[Kimberly Empey]

For us similarly, I could imagine an instance in which there was an ATIP request by someone looking for information on a refugee claimant. Again, the mere fact that we say we have a file could put that person's life in danger.