Consultation - International Relations Information,
March 16, 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 discussion groups during the consultation.

Participating Institutions (12)

Agriculture and Agri-Food Canada
Canada Customs and Revenue Agency
Canadian Environmental Assessment Agency
Canadian Food Inspection Agency
Canadian International Development Agency
Department of Fisheries and Oceans
Department of Foreign Affairs and International Trade
Department of National Defence
Public Service Commission
Public Works and Government Services Canada
Royal Canadian Mounted Police
Transport Canada

Key Issues, Questions and Concerns

The participants recognized the need to balance the public's right of access and the need to protect some information that is vital to the successful conduct of foreign relations and international business. Participants also noted that the Access to Information Act recognizes the importance of protecting confidential international information through the current exemption provisions and emphasized the need for these to be maintained.

Participants felt that when Canada receives information given to us in confidence by a foreign government or international organization, we have the responsibility to treat it as such. While the concept of "access" may not be understood in the same way in all countries, the concept of "confidential" is well understood. If Canada's international partners have the impression that their confidential information may not be protected, they may stop providing us with critical and sensitive information and Canada may be left out of the loop. This could have military and commercial consequences, such as in the area of trade opportunities. No time limit should be added to the current exemptions, since some international disputes are never really over.

If the access law in another country calls for the protection of a certain type of information, can the Canadian Act force its disclosure? Participants identified our relationship with foreign access laws as an area of uncertainty calling for clearer explanation or guidelines. For example, the USA has much more stringent rules related to disclosure of information about armament sales. If they perceive that Canada represents an area of weakness, our participation in this lucrative field could be curtailed. Some participants noted that sometimes pressure comes from certain requesters and the OIC to release information that our international partners would not be comfortable with releasing.

The opposite situation can also occur: can Canadian confidential documents given to other countries be released contrary to the Canadian practice? Canadian documents are sometimes released by the U.S. government according to a schedule under their automatic declassification program while the same documents are protected in Canada. A more coordinated approach to the disclosure of information is required with our international partners.

Participants stressed that international relations also means international trade, an area where it is vital that Canada's interests are protected. Canadian trade policy is based on rules, agreements and negotiations and our strategy must be protected both with respect to ongoing negotiations as well as future negotiations. The softwood lumber negotiations is an example where a large access request is on-going and if critical information related to the Canadian position or strategy is revealed the negotiations could be put at risk. Participants pointed out that the strategizing and analysis surrounding international commercial information can still be sensitive after 20 years, as in the case of the softwood lumber issue, and that a time constraint should not apply.

There are cases where information related to positioning and strategy during a round of negotiation should not be released afterwards because there will be another round of negotiations on the same issue in the near future. On the other hand, certain types of information may only need to be protected during negotiations but then can be released once negotiations have been completed.

There is a need for more clarity as to what information is protected and what is not so that there are no surprises when Canada deals with the foreign institutions who provide the information. Departments need to be able to definitively inform foreign partners early in the process about what information will be exempted and what will be releasable.

It was recommended that section 13 be reviewed with the view to clarify the meaning of the terms "institution", "international organization" and "information obtained in confidence". A change in wording was recommended in subsection 13(1)(a) from the term "foreign state" to "foreign authority". Not all foreign relations have to do with states, such as the "Palestinian Authority" and "Taiwan".

Participants recommended that the protection be extended to other entities in foreign countries that are transnational such as APEC, OAS, or privatized entities. There may be a need to cover these explicitly.

Greater flexibility is needed in legislation and policy on handling time extensions for slow international consultations. Some participants felt that a separate category of time extension be considered for international relations information, in recognition of the need to communicate with foreign countries including third world countries, as well as multinational organizations . These communications can be difficult and time-consuming due to technical or political issues, such as coups-d'état, complex bureaucratic structures, lack of communications tools and difficulty in identifying who to consult with, bureaucrats at headquarters or in the government of the member country. Slow responses, or non-responses, occur in some countries where there are differences in resources and philosophical climate. The need to manage the expectations of requesters was mentioned and the need to inform requesters to help them understand the processes involved.

When dealing with international organizations, our communications go through other countries (i.e., the country Chair). This is a potential issue as permission to disclose may be required from several parties and because of differing views, one or more of the parties may have objections to disclosure, leading to a negative outcome on ATI requests. Often, documents require careful screening before the consultation, due to concern over safety of individuals who may be mentioned in the documents, which can be the cause of a further time delay. An explanation of the processes and constraints involved in handling requests for documents that have originated in other countries would help requesters and the OIC understand the complexities involved.

The trend was noted toward larger and more complex requests, for example requests for "all documents relating to…". Such requests can generate thousands of pages. In addition, the ease of communications with other countries by e-mail is resulting in large amounts of information flowing in from outside Canada, which may be subject to consultation with the country of origin if it is requested under the ATIA. If many names are copied on an incoming e-mail, all the individuals listed in the country of origin may need to be consulted, leading to time delays. Participants suggested that the public may underestimate how much information exists on a particular topic and conveying a better understanding of this may encourage requesters to narrow the scope of their requests.

Some participants felt that the fee structure in the Regulations should reflect the actual cost of document searches and preparation incurred by both the program area as well as the ATIP Office. The need to translate documents originating in other countries that are in other languages before exemptions can be applied was cited as another factor that causes time delays and incurs costs.

Need was expressed for clarification in the application of section 44, that deals with third parties who may apply for a review of a decision to disclose information. Some participants felt that although this provision does not now apply to foreign countries, consideration should be given to having it do so.

The accessibility of multiple interim drafts of documents was identified as an area requiring clearer guidelines. Requests for "drafts" engender a huge workload. The suggestion was made that requests be limited to the final documents or the "most current draft", the "final working document" or the "current work in progress" and not to previous drafts.

Transitional documents may be misleading if released prematurely, even if marked "draft", because they are often viewed as containing a government "position" or policy even before they are finalized and approved. For example, in the subject area of biotechnology, policy is still being formulated. Line branches that are in the process of consulting with educational institutions and other countries don't want the early consultative process to be public and mistaken for the government position or policy, because it could have a negative impact if released ahead of time or out of context.

Participants recommended that quasi-government bodies that have foreign dealings should be covered by the Act, e.g. Nav Can. A concern was expressed about future devolution of federal government responsibilities in the area of foreign relations when such organizations are no longer under the control of the government. It is sometimes not always clear who is responsible when dealing with other countries.

Clarification is needed on information that is considered be "advice to the Minister". The suggestion was made that it would be helpful if someone could review all the jurisprudence to date and formulate guidelines on how to apply this provision of the existing Act with clear concrete examples and a practical injury test.

Participants noted that our international partners may not all have the same attitude toward access as we have. This situation could cause complications with consultations with third parties in foreign countries who may not regard such requests with the same level of urgency nor the same expectations for release of information. It can sometimes be a challenge to get foreign third parties to respect our timelines. Participants felt the realities of international business should be taken into account by considering special extensions for international consultations.

Consultation