Information & Ethics Committee on April 25th, 2023

[Dr. Nicole Giles]

That is a very good question.

It would depend on what is being excluded.

Obviously, having anything that could be accessed relating to lawful investigations could jeopardize ongoing judicial proceedings. As well, we would be very concerned about anything that would limit our ability to ensure that no information is released that could be injurious to the defence of Canada or to the detection, prevention or suppression of subversive and hostile activities.

I would say that a significant proportion of the ATIP and privacy information requests we receive are related to immigration applications, so we also do expect to see some successes stemming from the modernization undertaken by IRCC.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

That's really good to know.

I'm not sure who I should direct this question to. Maybe whoever wants to answer this question can put their hand up.

Occasionally, you'll get an access to information request that involves more than one federal department. Are there any challenges in dealing interdepartmentally when you have a request that crosses those lines?

[The Chair, Conservative, John Brassard]

Give a very quick response, please.

[Dr. Nicole Giles]

One of the challenges we face is that a lot of departments do not have ready access to secret and top secret systems. That impedes their ability to consult with us on requests that come in.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Hepfner, and thank you, Dr. Giles.

Mr. Garon, you have the floor for six minutes.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you, Mr. Chair.

I would like to start off by thanking the witnesses for being with us today.

We all know that access to information is extremely important. I remember a committee meeting that took place barely a year ago, when a superintendent from the RCMP lied to the committee. He misled us. This serves as a reminder that there is still progress to be made in this field.

I would like to start with the representative from the Canadian Security Intelligence Service. I'm interested in requests for permission to undertake an historical study. Witnesses, such as Mr. Andrea Conte, who was interested in the COINTELPRO file, have told us that the Canadian Security Intelligence Service still considers this to be an operational threat in Canada. Ms. Conte had to go to the United States and visit the National Archives in Washington to gain access to the very same file.

The United States seems to have an automatic declassification policy that kicks in after 25 years. Wouldn't it be a good idea to have a similar policy here, so that we would have some consistency? I presume that the fact that the Americans have declassified the documents does not constitute a threat to our national security.

Do you have an opinion on this?

[Dr. Nicole Giles]

Each of our Five Eyes intelligence partners has different legislative systems that we operate under. Obviously, ours is different from that of the United States. When we get the access to information request, as I mentioned, we do everything we can to declassify as much information as possible, but under our legislation there are often legacy national security concerns. We are prohibited from revealing information related to source or family names, for example. Other Five Eyes countries operate under different legislation.

[Jean-Denis Garon, Bloc, Mirabel, QC]

That is precisely what my question is about, i.e., the fact that depending on a country's legislation, the very same document can be declassified, something which was refused in Canada. Is it because we have a different view here on the level of risk that is associated with the early declassification of a document?

I'm just trying to understand why our legislation is perhaps stricter than that of the United States when it's the same document.

[Dr. Nicole Giles]

That is another very good question.

One of the factors is that the Government of Canada does not have a policy or system for declassification.

In the absence of that, CSIS administers the release of information under the access to information and privacy acts.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Should we be thinking that a declassification policy could be a good thing for Canada?

[Dr. Nicole Giles]

I think it would be outside my remit as an official of CSIS to provide an opinion on whether that regime would be appropriate.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you.

I have a question for the representative from the Department of National Defence.

In July 2020, the report entitled “Access at issue: Nine recommendations regarding the processing of access requests at National Defence” was tabled by the Office of the Information Commissioner of Canada. It contained recommendations for dealing with requests for access at National Defence.

What concrete measures have been taken by your organization to improve access to information since that report was published?

[Anne Bank]

Thank you for the question.

Some recent improvements that we've made as a result of the Information Commissioner's systemic investigation of National Defence have really focused on our practices. We are governed by the Access to Information Act and the Privacy Act, but we are following policy direction with Treasury Board Secretariat.

We've put some specific initiatives in place. We've established letters of agreement, which are signed between each senior official and the deputy minister of defence, committing to uphold their obligations under both of those acts. We've updated our reference tools to support the tasking liaison officers. Those are the ones who are out searching for the documents. We've incorporated access to information objectives into performance agreements for those who have primary or secondary access to information or privacy responsibilities. We've established processes to enhance the rigour around the retrieval process. We've improved our ability to receive electronic records to speed up the process, so that we're not dealing with the mail. We've emphasized the duty to assist principles across the government and undertook a comprehensive review of our ATIP training curriculum. We've also updated the departmental policies.

[Jean-Denis Garon, Bloc, Mirabel, QC]

I have a quick question.

Our committee heard the testimony of Mr. Patrick White, who is a professor at the UQAM's school of journalism. He told us that in certain cases, the statute of limitations for lodging a complaint about the access to information system could actually be shorter than the turnaround time for receiving a response to an access to information request. He stressed that in these circumstances, it might be better to suspend the statute of limitations as long as the access to information request has not been processed.

Has National Defence come across this issue?

[Anne Bank]

Could you please repeat the question?

[Jean-Denis Garon, Bloc, Mirabel, QC]

There are cases where someone who has made an access to information request can also lodge a complaint because of the way that request was dealt with. However, given the statute of limitations, in certain cases, it is not possible to lodge a complaint before having received an answer to the access to information request. This means that the way that the statute of limitations is applied is not reasonable. I was wondering if the statute of limitations has raised questions within National Defence.

I understand that it might not be the case, but please feel free to tell us anything that you may wish to on the subject.

[Anne Bank]

I don't have an opinion on the length of time you have to submit a complaint to the Information Commissioner. The time is prescribed under the act. You would not have to submit your complaint prior to receiving the response from the Department of National Defence.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Whatever the case may be, it seems that such cases do crop up, according to what witnesses have told us. We would be most grateful if you would provide a written answer to the committee.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Garon.

Mr. Green, you have six minutes. Go ahead, please.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you very much.

Dr. Giles, I'm going to come back to you on COINTELPRO. The author who was referenced, Andrea Conte, mentioned, for example, that the COINTELPRO file was considered still an operational threat by CSIS, which prevented him from accessing the archives related to this program at LAC. In the end, he had to go down to the National Archives in Washington, D.C., to obtain the documents.

Is it your testimony that the COINTELPRO file is still an operational threat and that legislatively you are not permitted to disclose it even though it's being disclosed in the States?

[Dr. Nicole Giles]

I don't have the specifics, and I'm not in a position to be able to assess whether the specific information in the file poses a threat to national security at this point. What I can say is that we often experience legacy national security concerns in files, especially as it might relate to, for example, counter-intelligence targets where the location or tradecraft could still be something that we employ today.

I can't speak for the U.S. system and what they perceive to be a threat.

[Matthew Green, NDP, Hamilton Centre, ON]

How do you explain that documents are still classified as secret in Canada when two weeks from now, when I go down to Washington, D.C., they're being disclosed there to the general public and researchers in the United States? That seems to defy logic. Would you not agree that it defies logic?

[Dr. Nicole Giles]

I think what happens is that when countries are operating under different legislative systems, there are different legislative restraints that we must operate under. For this specific case, I can't speak to what exactly are the differences in the legislation, except that we do not have the policies or declassification regime that the U.S. does.

[Matthew Green, NDP, Hamilton Centre, ON]

Okay.

[Dr. Nicole Giles]

For example, the U.S. has automatic declassification after a certain number of years. We do not.