Thank you.
In response to the motion for production of papers, the government departments retrieved records that responded to the committee's motion. In doing so, and as directed and allowed by the committee's motion, certain information was redacted. In fact, in some instances, information was provided beyond what the motion stipulated. We have mentioned this before, and my colleagues have stressed this point in the past, but I think it merits repeating.
For example, in the case of the Department of Innovation, Science and Economic Development Canada, or ISED, after a thorough search, it retrieved all records from the department that responded to the committee's motion. For that department, for example, this represented fewer than 100 pages of records that were responsive to the motion. Of that, only a small portion were redacted, consistent with the parameters of the motion and the principles and laws set out in the Access to Information Act and Privacy Act.
As is the practice in applying the Access to Information Act and Privacy Act, the goal was to release as much information as possible. In fact, as an example, in ISED's response, only two exemptions and one exclusion were applied.
In the context of the Access to Information Act, an exemption can be explained as a mandatory or discretionary provision under the Access to Information Act or the Privacy Act that authorizes the head of a government institution to refuse the disclosure of information in response to an access or privacy request.
Additionally, in the same context, an exclusion can be explained as being a provision of both the Access to Information Act or Privacy Act that removes certain records from the application of the legislation.
Of the two exemptions used, only one reference was redacted under paragraph 16(2)(c) of the Access to Information Act, which is a discretionary injury test exemption providing protection for information that could reasonably be expected to facilitate the commission of an offence.
Paragraphs (a), (b) and (c) provide examples of the types of information to which this exemption may apply. The examples specify information as follows:
(a) on criminal methods or techniques;
(b) that is technical information relating to weapons or potential weapons; or
(c) on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.
In ISED's case, the redacted reference detailed ISED's network path, the disclosure of which could reasonably have been expected to facilitate the commission of an offence.
The Government of Canada's network structures consist of vulnerable system aspects that should be safeguarded and not be disclosed in order to prevent providing potential hackers with information that could help them illegally hack Government of Canada systems. I am sure that everybody on the finance committee would agree with that point.
In refusing access to the file path, the public interest was considered, and the possible injury described above outweighed that interest. However, in the public interest, the name of the document was left unredacted in order to remain as transparent as possible while continuing to protect ISED's specific information. All institutions are committed to safeguarding personal information, and the release of the file path could have conceivably led to an unauthorized access of the network. In this instance, information was exempted to prevent such a possible breach and only after careful consideration.
The second exemption used, subsection 19(1) of the Access to Information Act, was applied on less than 1% of ISED's total documents. It is important to understand that the purpose of section 19 of the Access to Information Act is to strike a balance between the right of the public to access information in records under the control of a government institution and the right of each individual to his or her privacy.
Section 19 incorporates, by reference, sections 3 and 8 of the Privacy Act, which are essential for the interpretation and application of this exemption:
When deciding as to whether something constitutes personal information, one must not forget that the intent of subsection 19(1) and its incorporation of section 3 of the Privacy Act is to protect the privacy or identity of individuals who may be mentioned in releasable material. The subject of the two Acts read together is that information must be provided to the public except where it relates to personal information about identifiable individuals.
Although subsection 19(1) of the Access to Information Act is a mandatory exemption based on a class test, it is subject to three exceptions in subsection 19(2) of the act. Subsection 19(2) of the act allows for permissive disclosure in three circumstances. The information may be disclosed if, first, “the individual to whom it relates consents to the disclosure”; second, if “the information is publicly available”; and third, if “the disclosure is in accordance with section 8 of the Privacy Act”.
Also, we have this, in Fontaine versus the RCMP:
...the Federal Court of Appeal commented that the obligation under paragraph 19(2)(a) is, at most, to make reasonable efforts to seek consent of the individuals concerned and that what is reasonable must take into account the practical difficulties that may exist to find and locate the individuals.
It is up to each institution to determine whether it is appropriate to seek consent.
In preparing the records for this committee's consideration, care was taken by ISED, for example, to obtain consent to disclose certain personal information from exempt staff referenced in the material and, in collaboration with other government departments, the staff from WE Charity, in accordance with the provisions of the Privacy Act. The final redaction applied by the department was the exclusion of information that was classified as a confidence of the Queen's Privy Council for Canada. We are all aware of how our government cabinet system works—and I'm quickly finding out, as a new member—and how important and essential it is to keep the collective decision-making process protected by the rule of confidentiality in order to be able to continue to engage in full and frank discussions.
The Access to Information Act in section 69 allows for the exclusion of “Confidences of the Queen's Privy Council for Canada”, which are defined in the act as information contained in six types of documents. The types of records are described as follows:
(a) memoranda the purpose of which is to present proposals or recommendations to Council;
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) agenda of Council or records recording deliberations or decisions of Council;
(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
(f) draft legislation; and (g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).
The determination of the cabinet confidence is not done by the head of the institution alone. It requires the access to information office within a government institution to consult with its departmental legal services unit “in all instances where information that may qualify” as a confidence of the Queen's Privy Council for Canada “has been identified in response to a request under the act” or, in this case, a motion for the production of papers.
All this was considered, Mr. Chair, and legal services were consulted when the redaction was applied on the confidence of the Queen's Privy Council for Canada.
As members know, “The Committee's motion stipulates that Cabinet confidences and national security information are to be excluded from the package.”
In the case of ISED, “...No information is withheld on the grounds of national security, since the information did not so pertain.”