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Consultation - Security, Defence and Law Enforcement Information
Date: February 20, 2001
Highlights of Discussions
This synopsis highlights the main points made in discussions at each of the roundtables and during the plenary sessions. This synopsis does not represent minutes or verbatim transcripts but rather a summary, in point form, of the views of those participating in the various discussion groups during the consultation.
Participating Institutions (14)
Agriculture and Agri-Food Canada
Canada Customs and Revenue Agency
Citizenship and Immigration Canada
Canada Security and Intelligence Service
Correctional Service Canada
Department of National Defence
Fisheries and Oceans Canada
Department of Foreign Affairs and International Trade
Natural Resources Canada
Privy Council Office
Public Works and Government Services Canada
Royal Canadian Mounted Police
Solicitor General
Transport Canada
Part 1: Issues, Concerns and Recommendations for Improvements
Generally, participants felt that most sections of the current Access to Information Act work well to ensure the necessary protection of the highly sensitive information related to national security and law enforcement. However, the environment in which this community now operates has changed substantially in the last 18 years. For example, issues such as information warfare, trafficking in humans and DNA evidence among others, did not exist when the Act came into force. Consequently, some of the provisions and their interpretations need to be modernized. What follows is a summary of participants' specific concerns, problems and recommendations for improvements.
Information obtained in confidence (ATIA Section 13)
- Need to clarify an apparent contradiction in the application of this
exemption. Although it is a mandatory exemption and requires a "class"
test, departments are asked to demonstrate injury in the complaint resolution
process. Retaining this exemption with a mandatory "class"
test only would be appropriate.
- When applying this exemption to a document, it is often difficult
to determine what is confidential in a document. If an institution has
good reason to believe that the very fact of requesting the consent
of a foreign country to release information might jeopardise relations
with that country, the institution should have the discretion to withhold
the information from disclosure.
- Increasing awareness within the OIC and other agencies of potential
impacts from inappropriate or inadvertent disclosure of information
that should legitimately be protected by sub-section 13(1) would help
maintain Canada's international relations.
International affairs and defence (Section 15)
- Retaining this exemption in its current form is fundamental to the maintenance of Canada's international relations and defence.
Law enforcement, investigations and security (Section 16)
Sub-section 16(1)(a):
- Giving "investigative body" status to agencies charged with
investigative law enforcement responsibilities, including "quasi
criminal" investigative units such as CIC, Fisheries and Oceans
would better protect sensitive law enforcement information. More and
more law enforcement information is now being shared between agencies
at all levels. Currently, agencies without this status are perceived
as "weak links" and not trusted when there is a need to share
information. The section 16 schedule should be reviewed and renewed
periodically to include new investigative bodies that are being created
and delete those that are obsolete.
- Another option, instead of a list of designated bodies, would be a
list of statutory references to law enforcement and investigation where
the "enforcers" would be considered as "designated"
bodies. A further option would be to add the law enforcement and investigation
statutes to schedule II under section 24.
- After 20 years there may still be a good reason to apply the exemption
to protect law enforcement information, based on demonstration of injury.
The injury test should include a consideration of harm to victims and
families of victims. This exemption should therefore remain discretionary,
but with no time limit. If a time limit is retained, however, it should
be applied to the last administrative action taken on the file, not
the date the record came into existence.
Sub-section 16(1)(c)(i):
- Currently this exemption applies only to ongoing investigations. Making
the exemption mandatory and applicable as well to past investigations,
where disclosure could cause injury, (for example, to the security clearance
process) would better protect the integrity of future investigations
or investigations that could be re-opened. Further, it would be beneficial
to modify 16(1)(c) to make it clear that it applies to the disclosure
of information which could reasonably be expected to be injurious to
the administration or enforcement of any law of Canada (compare with
16(4)(a)).
- Extending the 30-day time period would allow for a more thorough assessment
of the risk to an investigation.
- Victims and families of victims would benefit if this exemption included
an injury test for disclosing information injurious to their well being.
- Providing examples of "injury" in the Regulations would
help clarify how "injury" should be interpreted (the IC has
questioned the examples in the Treasury Board Secretariat guidelines).
- Other jurisdictions should be canvassed for possible solutions to
problems with security exemptions.
Sub-section 16(2):
- The departments' security and law enforcement programs would not
work without assurance of confidentiality given to third parties when
they disclose critical information to the government, for example, information
on their security vulnerabilities.
- Providing assurances to third parties such as airport authorities
who have to rely on government institutions to exempt the information
they provide about their security and public safety measures is important.
They need up-front assurances that security information will not be
disclosed under ATIA.
- Departments find it difficult to collect information if they cannot assure third parties that their security information won't be disclosed to others (i.e., competitors) under ATIA, for example, Y2K information involving computer security.
Confidential third party information (Section 20)
- Allowing third parties the opportunity to intervene and make a case
for exempting security information just as they can in the case of confidential
commercial information would provide assurances about confidentiality.
Including security information in the list of confidential information
supplied to government institutions by third parties under section 20(1)(b)
would be appropriate.
Advice to government (Section 21):
- Clearer guidelines from Treasury Board would assist departments in
determining how best to apply this provision of the Act. The evolution
of advice and interpretations of this section of the ATIA over time
has made it difficult to apply this provision because even though this
is a class exemption its application is discretionary.
Statutory prohibitions against disclosure (ATIA Section 24):
- The statutes prohibiting disclosure that are listed in Schedule II
include security and law enforcement provisions. Making transparent
the criteria that guide decisions on inclusion of statutory references
in Schedule II would clarify the situation for institutions.
- Treating the information covered by statutory reference like an "exempt
bank" would be appropriate since this information is exempt under
other provisions.
- Periodic reviews by a Parliamentary Committee to determine whether and to what extent the statutes scheduled under s. 24 are necessary would help ensure modern and forward looking legislation.
Process issues:
- Some requests cast a wide net for results of investigations; how
can we contain the resource effort to deal with these? (All records
must be searched for, but due to their nature, most are unlikely to
be released).
- Policies and standards for Information / Records Management are needed
by government institutions, particularly for management of electronic
information.
- Lack of consistency in responses across government institutions on
similar inquiries is an issue that needs to be addressed.
- Strong concern was expressed over having to provide exhibits to the
OIC and breaking the chain of evidence necessary for successful criminal
prosecution.
- Clearer guidelines are needed to link the Government Security Policy
to ATIP, as well as better interaction between security and ATIP staff
[the Government Security Policy is under review].
- A question was raised as to who is in a better position to make disclosure
decisions on access, the program officials (who know the business and
can determine whether there is an injury) or the ATIP Office (who knows
the law).
Training, Networking, Sharing Best Practices:
- Because everyone is busy getting the job done, there is little time for communications within the community on ATI issues, nor is there time to share best practices. A stronger facilitative role by Treasury Board and ensuring appropriate financial allocations for access units , encouraging networking, sharing of best practices, as well as providing ongoing, mentoring, and mandatory, issue-specific training for the security, law enforcement and defence community would improve access.
Proactive Release:
- Greater use of the Internet and GOL to disseminate information proactively would provide improved access to government information.
- Routine press conferences would help inform the public of issues without
the need for ATI requests.
Part 2 : Individual Recommendations to the Task Force Chair
In Part 2 of the session, participants were asked to identify the one recommendation they consider to be most important. The following list reflects the individual recommendations submitted by participants that do not duplicate suggestions already made in Part 1.
- Modify the reasons for extension of time limits to include the magnitude
and complexity of the access requests.
- Treasury Board training programs should take into account the specific
circumstances of the defence, law enforcement and security community
in the design and delivery of the training by consulting with experts
from this community. TBS should also issue updated and improved government-wide
information management policies, standards and guidelines.
- Improved co-ordination and consultation among agencies would help
ensure that disclosure and exemptions are consistent in dealing with
information in which there is a common interest.
- Action by Treasury Board to provide networking and shared training
opportunities for the ATIP community and the security, law enforcement
and defence community on exemptions and the implications of recent court
decisions would be appropriate.
- Creating a provision in the Act for an "Office of the ATIP Co-ordinator"
would be beneficial. Having ATIP Co-ordinators report to an independent
body, instead of Deputy Ministers would enable co-ordinators to maintain
their neutrality; and providing full delegated authority to ATIP co-ordinators
to disclose information or apply exemptions would also be an improvement.
- The Government Security Policy (GSP) needs to be clarified with respect
to the ability to share personal information within investigative agencies.
Although the GSP is already linked to the Access to Information Act,
the areas where there is an imbalance should be addressed. While being
clear on the need to protect personal information from unauthorized
disclosure, the GPS should allow for this type of information to be
more easily shared within the department on a need-to-know basis, e.g.
Security/ Staff Relations.
- Treasury Board Secretariat should ensure that the Office of the Information
Commissioner is aware of and understands the adverse consequences of
releasing security sector information or breaking the chain of evidence
so that that Office may take appropriate security measures to safeguard
this type of information.
- TBS has a role in ensuring that departments allocate sufficient resources
to handle the regular ATI workload as well as peak volumes and that
managers and program personnel integrate ATI into their regular jobs.
- Departments should post on the web the results of ATI requests for
all to see including other government departments. Departments may want
to consider more proactive disclosure by holding press conferences to
discuss current issues of high media interest. GOL projects in departments
should include disseminating information of interest to the public.
- Further opportunities for consultation between the Task Force and
the security community and the ATIP community would help explore and
identify the implications of any proposals or recommendations that the
Task Force might put forward.
