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Report 20 - Access to Information Review Task Force
THE ACCESS TO INFORMATION ACT AND THE SECURITY AND INTELLIGENCE COMMUNITY
IN CANADA
Published: August 2001
Table of Contents
Executive Summary
Preface
Introduction
Section I, Historic Records
Section II, Contemporary
Records
Section III, Access Issues
and the Future
Consultations - Appendix
A
Glossary of Terms - Appendix
B
Executive Summary
The Access Act faces one of its most fundamental challenges in dealing with records from the Canadian Security and Intelligence (S&I) sector. (1)
The nature of the challenge posed by security and intelligence records stems from the need to reconcile the Access Act's two-fold intention. On the one hand, the Act is designed to provide for public knowledge and accountability of government operations. On the other, the Act respects the requirement to protect sensitive records held by the S&I community and avoid the compromise of information that might prove harmful to national security.
To understand the Access Act in a broad public policy context, my study suggests that the Act needs to be viewed in the guise of an unwritten bargain. The bargain does not describe the Access regime as it currently functions, or malfunctions; rather it describes a view of how the Act should operate for the public good. The Access "bargain" may be described simply as follows: In exchange for the right and power to protect secrets, vested in government agencies, there is an onus on the security and intelligence community to make as much historic and contemporary documentation available as possible. This is not just a matter of abstract good faith, but actually serves both the public interest and the enlightened self-interest of the S&I community. There is a demonstrable link between high levels of public knowledge about security and intelligence issues, which can only be fostered by systematic information release, and the perceived legitimacy and real capabilities of the community itself.
The bargain implicit in the Access Act, however desirable, is a long way from being upheld. Moreover, the current Access regime is fundamentally flawed and incapable of satisfying public policy goals. This is because the Access system itself works on the basis of a severely mistaken analogy that likens public researchers to "consumers" and overlooks the nature of an archive as a complicated and interleaved whole.
To illustrate the current inoperability of the Access Act's bargain, or trade-off, between the power to protect secrets and the mechanisms for information release to ensure adequate levels of public knowledge, we need to understand its effect with regard to both historical and contemporary records.
The Access Act has had the effect of bringing to a complete standstill any systematic process of declassification and release of historic records in the field of security and intelligence. Canada, in this regard, is lamentably far behind our major intelligence allies, the United States and the United Kingdom, who, of course, possess in their national archives systems historical material of vastly greater quantity and sensitivity. This is not a matter of opinion, but of fact, and it does not reflect well on our desire to sustain a national historical consciousness.
The Access system also effectively stifles the release of anything but a limited and fragmentary selection of contemporary records. This outcome illustrates the phenomenon of what I call the Access Act's "necessary fiction." Alternative methods for the creation of public knowledge about contemporary security and intelligence matters are required.
The security and intelligence community itself has an important, but often unappreciated, stake in raising the level of public knowledge about its work. Without a reasonably sophisticated foundation of knowledge about security and intelligence operations, both historical and contemporary, the security and intelligence community in this country will be stuck in a mythologized ghetto.
With regard to the future, the greatest challenge facing the Access system is probably one of human talent and resources. No fundamental changes to the nature of the relationship between security and intelligence and Access are foreseen. But steps need to be taken to make the system capable of responding to future changes.
Key recommendations excerpted from my report are as follows:
RE: HISTORIC RECORDS
1. The establishment of time limits on exemptions under the Act. The time limits might have different thresholds depending on the sensitivity of the records, starting with 20-30 years, and allowing for increases to 50 and 75 years. But such extensions would need to be approached with fine judgement before they were applied, their application should be limited according to a serious injury test, and should be subject to periodic review.
2. Greater transparency with regard to schedules of document transfers from Departments to the National Archives.
3. The compilation and publication of a National Archive guide to historic security and intelligence records.
4. Encouragement and resources to be given to departments in the S&I community to identify and process in "block review" form historic records to be opened and transferred to the National Archives.
5. An effective start to be made immediately on the release of aged security and intelligence records. This could be done either by a process of block review according to specified time periods, as per the NATO records strategy, or by starting with a significant, central collection of records such as the minutes and papers of the Joint Intelligence Committee and the Joint Intelligence Staff for the period 1943-1970.
6. Recognition of the need for central leadership and responsibility for historic records release policy, to be vested in the machinery of the S&I secretariat of the Privy Council Office and to be part of the mandate of the Co-ordinator, Security and Intelligence. Additional resources would be required to allow the Co-ordinator to deal with this work.
7. The formation of an advisory panel on intelligence community historical records, to consist of government officials and academic experts, who would meet on a regular basis to identify the sorts of historic records whose release should have priority and who would work with the intelligence community to achieve such releases.
8. The creation of a small historical staff to serve the entire security and intelligence community. The mandate of this staff, along the lines of the CIA's Centre for the Study of Intelligence, would be to promote historical knowledge throughout the community, to assist in training, and to serve as an outlet for the publication of historical reports.
RE: CONTEMPORARY RECORDS
9. The Security and Intelligence Community must continue to have at its disposal the power to apply exemptions under the Access Act to protect information whose divulgence would be harmful to national security and the conduct of international affairs. The current Access exemptions provide powerful and sufficient tools to allow for such protection.
10. The different agencies of the security and intelligence community should continue and expand their programs, outside the framework of Access, for the release of contemporary records under a proactive strategy.
11. The communications function of agencies in the security and intelligence community should be strengthened.
12. There should be increased centralised leadership and centralised policy-direction for information release matters provided by the Co-ordinator, Security and Intelligence, in the Privy Council Office.
13. To overcome the atomisation of information that is a feature of Access, there should be a centralised node for information available to the public on the security and intelligence community. This node, primarily in the form of a web site, would complement existing agency websites and offer links to them.
14. There should be a consolidated database of publicly available contemporary records dealing with the security and intelligence community. This consolidated database would contain a community-wide set of all public releases and Access documents plus an electronic database of archival material reflecting previous releases of information.
15. Efforts to form strategic partnerships with academic and private sector groups and individuals knowledgeable about security and intelligence issues should continue and be strengthened. These strategic partnerships would allow for a two-way exchange of knowledge on pertinent issues.
RE: THE FUTURE
16. In order to anticipate future challenges to the Access regime, there should be a capacity for study and consultation built into the Access system to link appropriate Divisions and their staff.
17. The Access Act will need future reviews of the kind launched by the Treasury Board. Such reviews should, in future, be closely linked to information management policy reviews in order to have maximum value. They should also involve an element of public consultation.
Preface
The views presented in this paper are entirely my own and represent my best judgement on a range of issues that relate to the functioning of the Access to Information Act in the realm of security and intelligence (S&I) records.
In the course of preparing this paper, I have consulted with fellow academics, journalists with experience in the area of S&I records, staff from the National Archives of Canada, officials in Access sections of various agencies, and a number of individuals from the Canadian Security and Intelligence community. I have done my best to capture their views in the course of consultations and to reflect on them in my paper, but I am solely responsible for the contents of this paper and for any potential errors in recording such views. All consultations were conducted by agreement, "on the record," with only two exceptions. I would like to acknowledge my gratitude to all those individuals who agreed to take time to discuss their views of the Access act with me.
The individuals with whom I consulted are listed in Appendix A. Off-the-record discussions are noted in the Appendix.
Because the world of security and intelligence can appear, at times, as a forest of acronyms, I have included a glossary of terms at Appendix B
Introduction
The Access Act faces one of its most fundamental challenges in dealing with records from the Canadian Security and Intelligence sector. The records to which I refer illustrate the operations of both the foreign intelligence and domestic intelligence components of the community, and policy decisions relating to these functions. The leading agencies at present involved in the security and intelligence community include the Privy Council Office (PCO), the Department of National Defence, the Communications Security Establishment (CSE), Canadian Forces Information Operations Group (CFIOG), and the Department of Foreign Affairs and International Trade with regard to foreign intelligence. The principal agency responsible for domestic intelligence and security is the Canadian Security Intelligence Service (CSIS); the Royal Canadian Mounted Police also have a role in this area. The term security and intelligence community is a loose one and denotes a decentralised system, but for the purpose of this paper it serves to identify the principal agencies involved. (2)
The nature of the challenge posed by security and intelligence records stems from the need to reconcile the Access Act's two-fold intention. On the one hand, the Act is designed to provide for public knowledge and accountability of government operations. On the other, the Act respects the requirement to protect sensitive records held by the S&I community and avoid the compromise of information that might prove harmful to national security.
Neither in my mind, nor in the view of any of the people with whom I consulted, is there any question that the requirement to protect secrets is a serious and legitimate one. It is also the case that the question of what constitutes secrets must be left primarily to the judgement of Canadian government agencies with responsibilities in this area. They hold the expertise and it is these agencies whose operations might be harmed in the event of disclosures of sensitive information. It must also be pointed out that there is a large and inevitable gap in knowledge about security and intelligence issues between "outsiders" (the public), and those working on the inside of the security and intelligence ring (government officials).
In the interests of effective public policy the gap between secret knowledge held by the security and intelligence community and public knowledge about their operations must be kept as narrow as possible, always providing as a first principle for the protection of necessary secrets. This puts a difficult onus on the S&I community. While it has traditionally never been a responsibility of the security and intelligence community, in this country or any other, to educate the public about its operations, both time and the Access legislation have altered the climate of secrecy that surrounds intelligence matters. Time has altered it in a number of ways, first with rising curiosity during the Cold War about intelligence issues. The end of the Cold War and the demise of the Soviet threat brought about a significant shift in intelligence activities and targets and an expectation of greater transparency. Recent decades have seen an increased public demand for information in general about government operations and for mechanisms of accountability. The Canadian government has attempted to meet such demands through a number of initiatives, many of them centred on a vision of "e-government." Similar initiatives and pressures have been experienced by our principal intelligence partners, the United States and the United Kingdom.
The Access Act was framed in an era of international relations and of intelligence that is vastly different from today. It would be wrong to call the Access Act a piece of Cold War legislation, but it was, it must be remembered, enacted during the Cold War. It is a younger piece of legislation than its American counterpart, the Freedom of Information Act, passed in 1966, but by most accounts, less successful. The Access Act is less fresh-faced than recent measures taken by the British government in this area.
The situation we now face, in my view, places a significant and perhaps little understood, responsibility on the shoulders of the security and intelligence community. The Access Act should be seen, in my view, as an implicit bargain between the S&I community and the citizens of this country. The bargain should operate as follows: in exchange for a recognition of the need to protect secrets and to allow for the efficient working of a security and intelligence sector, implicit in the variety of exemptions available under the Act, the S&I community takes on a responsibility to facilitate the release of as much information as possible and to accept both the intentions and spirit of the Act. This is not necessarily a comfortable bargain for any of the parties involved, but it is the only bargain possible.
As is often noted, Access legislation is a balancing act between the need to promote open government and the equally serious need to protect secrets. The scales, however, are weighed by the keepers of the secrets, and it is to them that we must look to exercise responsible judgements. The preconditions for the exercise of such judgements are numerous. They include sufficient resources devoted to Access work; high levels of talent and knowledge on the part of Access units and officials with Access responsibility in S&I agencies; support from senior management; a working "culture" within S&I agencies that recognises the nature of the Access "bargain" referred to above; an appreciation of the history of their work; and ways of sustaining historical memory within the community. Without these preconditions, some of which are obvious, some of which are not, the security and intelligence community will fail to live up to their side of the bargain implicit in the Access Act. Should they do so, they will lose public trust and will ultimately endanger that which they hold dear, namely the ability to safeguard secrets.
Public knowledge of security and intelligence issues needs to be understood as a good thing by the community itself. Without a strong foundation of public knowledge, the ability of the S&I community to function effectively in the long run is hampered in all sorts of key areas, among them recruitment and retention of high quality personnel, acceptance of their role, access to knowledge, and the capacity to engage in dialogue with experts outside the Intelligence community fence.
The remainder of this paper examines the workings of the Access Act with respect to three broad issues:
I. Historic Records
II. Contemporary Records
III. Access issues and the future
Under each heading the intent is to probe the Access Act to see to what extent the implicit bargain underpinning its legitimacy is sustained or sustainable. Each section concludes with a summary of findings and a set of recommendations for change.
Return to Table of Contents
1 The Security and Intelligence Community
is outlined in a pamphlet prepared by the Privy Council Office, "The Canadian
Security and Intelligence Community," (2001), available on the PCO web
site at www.pco-bcp.gc.ca
