:
Good morning, colleagues. Welcome to meeting number 49.
Today we're continuing our investigation of the internal report entitled “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”.
We have with us today, from the Department of Foreign Affairs and International Trade, Lillian Thomsen, director general, executive services bureau; and Jocelyne Sabourin, director, access to information and privacy protection division.
Welcome, to our witnesses.
Before I get to the witnesses, I want to remind members that I received, and you should all have received, a copy of a letter from the Deputy Minister of Foreign Affairs. I want to remind members of the contents of that letter, which I will précis.
Basically, he is advising me as the chair of this committee that the Standing Committee on Foreign Affairs and International Development passed a motion at its meeting at which it requested a full and uncensored version of the document that we are considering. He obviously refused to provide that, and his reasons are that he believes he has to abide by his interpretation of the Access to Information Act.
The reason I bring this to your attention is that we can deal with this at another time, but obviously the witnesses who are before us will be following the advice given by their deputy minister in respect of whether or not they are able to provide us or talk to us about an uncensored version of the report.
I bring this to your attention because members may or may not be wanting to question that way, and they may get frustrated, but given the letter of the deputy minister, either we may have to deal with this through him, or it may be very pertinent questioning for our witnesses on Thursday, who are the Information Commissioner and our general counsel, Rob Walsh. We may want to ask advice from our general counsel, for example, on Thursday about the situation. There are plenty of other things that we can ask our witnesses today.
Mr. Martin, did you want to make a comment before we start?
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I don't think we can do anything else. My recollection is as good as yours, in the sense that I cannot accurately regurgitate word for word what the advice of Mr. Rob Walsh was, and even if I were able to do that after the meeting, I would have no authority from the committee to proceed, because they don't know what he said, and therefore the committee cannot instruct me. So I'm afraid we're going to have to wait until Thursday, hear what he has to say, and then make a decision at that time.
Of course, if the session is adjourned, we certainly can meet if we wish. If this particular session is prorogued, it's a different matter. But that's out of our hands.
Anyway, this is just a little bit of housekeeping.
I'm sorry, witnesses, I just wanted to get things straightened out. I want to welcome you, I want you to relax, I want you to feel you are in our living room here. You've heard what the members have said. It's important that you listen to the questions and answer them to the fullest degree you possibly can. I'll be listening for the questions and the answers. If you have some kind of question or problem or something, you could express it, and then I'll make a ruling, or I'll guide you or offer some advice, or whatever the case may be.
Let's get into it. I believe you have an opening statement, Ms. Thomsen. Is that right?
Thank you, Mr. Chairman, and good morning, ladies and gentlemen. I'm the director general of the executive services bureau at the Department of Foreign Affairs and International Trade, which includes the access to information and privacy protection division.
With me today is Madame Jocelyne Sabourin, who has been the director of this division since September 2003. Ms. Sabourin and I welcome the opportunity to provide the standing committee with information and clarification regarding the processing of access to information requests within the department.
After I have provided general background and information on this subject, Ms. Sabourin and I will be pleased to answer questions from members of the committee.
The Access to Information Act and the accompanying regulations set out the legal requirements for processing access requests that the head of each government department or agency is responsible for applying within his or her organization. At the department, the act is administered by the access to information and privacy protection division, and the director, Ms. Sabourin, is the access to information and privacy protection coordinator for the department.
At present, the division consists of 17 access to information and privacy protection analysts, who are also responsible for requests under the Privacy Act, plus support personnel. As of today, the division is processing over 500 access case files, representing over 63,000 pages of information to be reviewed, as well as 200 other files, including requests under the Privacy Act.
Under the Access to Information Act, the overall compliance of the department in meeting its obligations has been consistently substandard in the past years, as determined by the Information Commissioner in his report cards on the department's performance and as reported to Parliament in his annual report. As a result of an action plan implemented in 2006 and with the support of the deputy minister and senior management, the department has doubled the staff of the access to information and privacy protection division and has also obtained and put into use the most up-to-date technology for processing requests.
As a result, there has been a substantial improvement in the department's performance. In March 2006, the department was only able to respond to 39.1% of its access requests under the statutory deadline. By March 31, 2007, the department was responding to 81.3% of the access requests within the timeframe. This has been recognized by the Information Commissioner as a “very significant improvement” in the department's performance under the act, despite the fact that there was a 30% increase in the volume of access requests during the past year.
[Translation]
Mr. Chairman, I would now like to say a few words with respect to the processing of access requests.
When a request is received, a file is opened and is reviewed by the team leaders in the Access to Information and Privacy Protection Division, who then determine to which analyst the file will be assigned.
As a first step, the analyst prepares and sends a standard letter of acknowledgement to the client. The analyst then determines what information is being requested and canvasses the various offices of primary interest he or she has identified to determine whether and where records are held. When the search for documents proves to be extensive or the number of documents is voluminous, the division will advise the client that an extension to the normal 30-day time period is required and the Office of the Information Commissioner is also advised.
Once documents are collected and input is received from the office of primary interest, the information in the documents is reviewed line-by-line by the analyst who will make a recommendation as to which, if any, information classifies for an exemption or exclusion under the provisions of the act. The redacted document is then reviewed by the team leader, who performs a challenge function on the redactions. Once redactions are agreed upon, a final review is conducted by the director of the division, or in her absence, the deputy director, before the information is released to the client.
The minister's office and the department's Communication Bureau are provided, on a weekly basis, with a list of the titles of new access requests at which time they may indicate an interest in receiving a copy of the final redacted package. If they do indicate an interest in a particular request, they receive a copy of the redacted information at the end of the process so they may prepare the minister and the department for possible questions in the House or media queries on the subject matter. Neither the minister's office nor the department's Communication Bureau are provided with the identity of the requester.
[English]
If a client is not pleased with the length of time the department takes to respond to his or her request, with the exemptions taken by the department under the act and redacting the information, or with any other aspect of the administration of his or her file, he or she is entitled to file a complaint with the Office of the Information Commissioner.
The Information Commissioner will then initiate an investigation that will normally include interviewing officials in the access to information and privacy protection division who handled the file, and any other officials who may be able to assist him, including officials from the office of primary interest. Once he has completed his investigation he provides his findings and recommendations to the minister or his delegate. I understand the committee will be hearing from the Information Commissioner at one of its subsequent meetings.
As you are aware, both Mr. Jeff Esau and Professor Amir Attaran submitted access to information requests to the department, and they discussed these requests at length when they appeared before this committee at its last session. One of these requests has been the subject of a complaint to the Information Commissioner and is under investigation by him.
Ms. Sabourin and I will be pleased to take questions from the members of the committee on the processing of access to information requests by the department. On the requests of Mr. Esau and Professor Attaran, we will be pleased to respond to questions to the extent that we believe we can do so without violating the confidential nature of the investigation now being conducted by the Information Commissioner in the department.
I thank you for your attention.
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Again, speaking without the files in front of us, Mr. Esau's original request to the department was for a global report. The access to information division went to the division responsible for human rights. They came back and said we don't do such a report, similar to the type of global report that the United States and the United Kingdom produce.
The ATIP division then challenged that by also consulting the legal bureau in the department, which also has a section that covers international humanitarian law and human rights law; they similarly said.
We went back to the client and advised that there was no such report. The file was essentially closed.
Subsequent to that, there was an exchange of e-mails, and I believe some phone calls, between Mr. Esau and officers in the ATIP division that further clarified the question. Mr. Esau said he had thought at one point--I'm paraphrasing slightly--that there was a global report with chapters in it. He mentioned specifically a chapter on China and a chapter on Iran, I think.
We don't do a global report like that. We told him we do reports on individual countries. We also explained that if he wished to have the reports on all the countries we do, an extensive search, then at that point the client has to pay. But he was told that if he wished to identify a country or other countries or a number of countries that he wished to have reports on human rights searched for--and the years, obviously--we would be pleased to accommodate him. At that point, if I recall correctly, he advised that he had already submitted a separate request for the human rights report on Afghanistan.
Thank you.
I will try to build off the previous questions of my colleagues and not be repetitious, but I am puzzled about why you didn't come here with complete files and records on both of these inquiries. You delayed your presence here by two weeks so that you would have time to prepare. Our argument at the time was.... And I was very frustrated that you said no to our invitation to attend, because frankly, it doesn't take a lot of preparation to tell the truth about what happened.
I'm very frustrated that now, two weeks later, you're not here with the very files that we're asking questions about, because I have specific questions about specific dates. Now I don't know how to go about this.
Let me just summarize what our problem is here. Time after time after time, the and the stood up in the House of Commons and denied any knowledge of any Afghan detainees being mistreated or tortured. Over and over again, “we have no knowledge of that”, “we have no record of that”, “nobody ever told us of any prisoners being treated badly or we wouldn't have handed them over to the Afghans”. That's what our frustration is.
Then we learn that for five consecutive years in a row they were getting very specific information that extrajudicial executions, disappearances, torture, and detention without trial have been a consistent problem, from 2002, 2003, 2004. So they were lying to us.
So you can't blame us for thinking that this information from the access to information was blacked out to save embarrassment to the government--nothing to do with national security. That's what's going through our minds here, and that's what our frustration is.
So my question is, list for me again the names of the people who would have contributed first to denying the existence of the reports at all, and secondly, who helped you black out which lines and choose the excuses. List all of them, all of those names. And I wish you had your files here because you probably would have it documented in those files. I can see you writing in a foolscap notebook now. But tell us, please, to the best of your recollection, who was involved with blacking out these paragraphs and the misinformation that no such documents exist.
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Mr. Martin, I'm afraid you're out of time.
Ms. Sabourin, I must say that it would have been helpful if you had brought your files, whether you're concerned with confidentiality or not. It's not that you would have had to reveal your files necessarily; it's that the files would have been there for you to be able to answer specific questions about dates and names without having to undertake to get back to us. It may be necessary for you to come back here a second time in a process that you acknowledge to be very unusual and no doubt uncomfortable, and we wouldn't want to put you through that a second time.
So it is inappropriate that you did not bring your files with you. But hey, those things happen, and we'll do the best we can. It may be necessary for you to come back and it may be necessary for you to bring your files at that time, depending on what kinds of answers you give us in writing to the questions that you cannot answer today.
We'll go to Mr. Reid, please.
:
Thank you very much for the question.
I have in fact worked with different administrations throughout the years. The Access to Information Act has a provision for the minister to delegate this function to officials. In all these instances, this function was delegated to the office that I would have worked in or in whose management I would have participated. Right now, I'm the delegated authority for Foreign Affairs and International Trade. In the previous year, I would have been a simple officer doing work.
The officials who work in access take their obligations very seriously. When I say “officials”, I mean I am part of this responsibility. This is a legally based provision of information. I would have examined the exemptions to make sure the exemptions were well documented and they in fact met the provisions of the act.
I'm aware there are processes in which we serve notification to the minister's office. For new requests or when there's a release, those requests are provided in terms of the disclosure package so that the minister's office can in fact prepare in the event of any questions.
With regard to being directly told by a minister's office to redact, I am not aware of such a practice. We are at arm's length, and it doesn't happen.
Professor Attaran came to us the last day the committee met and he made a number of statements that, quite frankly, were derogatory toward your office. I don't know whether you had a chance to look at the transcripts, but I'll bet you did.
The most serious one of all, I thought, was an exchange with Chairman Wappel. I'm going to read you the portion and ask you whether you have any comments. I found this the most serious of all. This is the professor speaking:
I would also like to raise the point that there seems to be here, in this set of events as I've just described them, a pattern of concealing the 2006 and earlier Afghan human rights reports, and possibly concealing the U.S. human rights reports. If so, that is a criminal matter under section 67.1 of the Access to Information Act. To conceal a record is a criminal offence. I'm not making an allegation against anyone personally. I do not know who might have been involved in such concealment, although I do believe the circumstances show that it has possibly happened and there is need for a criminal investigation.
I would recommend, as a further step, that the RCMP and the Director of Public Prosecutions be involved at this stage to investigate whether any persons, be they civil servants or political figures, were involved in concealing information arising out of my request. I won't say to include Mr. Esau's request, because that's up to him, but I think the three or four requests together--I've lost count--do show a constellation of facts that indicate concealment went on.
Now, he just thinks this. He doesn't really have any facts, but it's his personal feeling. But it's a serious allegation. Have you had the time to think about those allegations and do you have any response to that? It really is a slam against your office--not necessarily you personally, but against your office.
On a completely different question, Mr. Chairman, it has been mentioned that there's an investigation going on by the Information Commissioner. What happens to your office?
My colleague Mr. Martin has raised an issue, that you didn't appear with your files. I expect on the one hand you've got the Access to Information Act and on the other hand you have the Privacy Act, and on the other hand you know you've got comments made that you don't want to prejudice applications that are being investigated by the Information Commissioner.
My question is, when the Information Commissioner begins an investigation, what's the process, from your office to the Information Commissioner?
Thank you to our witnesses for coming today to shed some light on this topic.
In our meeting of May 17, one of the witnesses, Mr. Esau, talked about the culture within the department, about his experience working in the ATIP environment when he was working for, I believe, the Department of National Defence. I don't want to paraphrase him, so I'm going to use some of his words. Then I'd like to ask you a question.
He essentially said the following:
...when you're working in the federal civil service, either in uniform or as a civil servant, and you see your minister being zeroed in on day after day about a certain issue, then it tweaks an extra level of sensitivity and caution around that.
He went on to qualify that by saying:
Quite apart from getting into any speculation of nefarious motives, which I'm not convinced exist here, I think it's just—and somebody used the word earlier--an abundance of caution. I think people freeze up a bit when these things happen.... Documents on detainees that I received in June
—I assume that's June 2006—
are much less redacted than detainee-related documents that I'm getting now.
So he refers to this sense that when circumstances are confronted by a department, the suggestion is that somehow that translates into perhaps a different approach. But again, I don't want to paraphrase.
Based on your vast experience working in the access to information environment within the department, could you comment on this phenomenon that Mr. Esau explains?
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All I can say, really, is that the provisions of the act have remained the same, but there have been court decisions that guide us in the application of certain provisions. When we get a request, we look at the documents in the context of today, and we try to understand what this information means. To me, a piece of paper is a piece of paper. But when you start to look at it, my office and I need to look at the legal obligations, the legal framework, that will allow me to make a decision on disclosure.
The principle is access, and there is openness, and that's the way we view it. All the officials have ingrained in them that “access” is the primary word here. What we do is look at the information, line by line, and we make a match with possible exemptions or with the exemptions provided by the act, and then we make a decision based on them.
Obviously we think that is it. That's my opinion about a document. And at the end of the day, when the response is sent out, the applicant can complain. Yes, we do have complaints about exemptions and about just about anything on the files. That's where the Information Commissioner comes in and makes a decision or a report on the use of these exemptions and whether the institution or the federal department made the right decision.
There has been an evolution of the provisions of the act. But at the end of the day, that is the legal framework upon which we base it. And it is all case by case, line by line.
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I would argue that it's arbitrarily based, not legally based.
You've seen the unredacted, uncensored version, and obviously we all have the censored version. Can I ask you, in the one last minute I have remaining, will you verify that this is the language that you blacked out? It's too bad you don't have your files with you or you could actually look at them: “Extrajudicial executions, disappearances, torture, and detention without trial are all too common and the freedom of expression is still not widely observed.”
Did you blank that out, in paragraph 1 of page 1 of the document, “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”? Did you black out those words or not?
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It's both. For example, when we take an extension on a file, there's a standard phrase in the letter that goes to the client: that it's disruptive to the operations of the department.
For example, we have a task force in Afghanistan. I consider I work long hours, but I don't work anywhere near as long, nor am I under the same stresses, as our Afghan task force is.
If you look at the lists of requests the department gets on topics of international issues, they tend to be the issues that are on the front pages of the newspapers. So it's Darfur, so it's Afghanistan, so it's Haiti. There is a direct correlation. It's the same subject-matter experts who are being tapped over and over again.
So as Ms. Sabourin pointed out, there are capacity issues, and there's a very significant increase in volume and complexity of the files.
Ms. Sabourin, the Access to Information Act is very important legislation for consumers, for the population, for citizens and for voters. The act was created for them and it is an act that is intended to ensure government transparency.
For the last little while, you have said repeatedly that you have restricted your criteria, that you have drafted your own guidelines in order to impose limits on yourselves. You also say that in 2006, you eliminated the word "torture" because it would have been illegal to disclose the fact that there had been torture in Afghanistan. On the other hand, in 2004, you kept that word. Was it in 2004 or in 2006 that you were yourselves in an illegal position?
Then, you boast about the fact that 81.3% of the requests you receive were dealt with on time, whereas the legislation demands 100%. That is another form of illegality. You arrived here without files; I cannot believe it. You do not even have a copy of the legislation in hand. It seems incredible to me. I do not know who advised you before your appearance, Ms. Sabourin, but I must tell you that I am very disappointed.
Moreover, you told Mr. Attaran that this kind of a report does not exist whereas you know that these reports are produced by country, and he asked for a global human rights report. You did not even tell him that such country-by-country reports exist. That is the worst response that a citizen could get. You know and yet you did not tell him. You were waiting for the precise question, as if this were a quiz. That is unacceptable.
What is really bizarre in your case, Ms. Sabourin, is that you are drawing all of the blame upon yourself. It is as if you are preparing to experience a very difficult, even dramatic, I would say, final stretch in your career. It seems that for the last little while, you have been attempting to show us that you are incompetent. Mr. Wallace's congratulations would be the Judas kiss of the Conservatives. I'm telling you that they are not real congratulations.
I cannot believe that you are whipping yourself like this in public and that you have decided to end your career on the issue of the Department of Foreign Affairs' internal report on the prisoners tortured in Afghanistan. I cannot believe that. I imagine that you must have received marching orders from someone. It is not possible. When did you or someone on your team decide to review your guidelines in order to delete the word "torture"? When did you decide to do that? Do you have a document or some e-mail to submit to us on the issue? Do you have the minutes of a meeting, perhaps, that it would be in your best interest to send us? Can you swear to me—because you are under oath—that the people who participated in this decision did not speak to anyone in cabinet directly or indirectly? Are you absolutely sure that throughout the whole process, there was no political interference of any kind?
In subsection 15(1)—I know that you do not have a copy of the legislation with you, as you go to war without a gun—there are exactly 10 paragraphs, from (a) to (i). The first deals with military tactics or strategy. Could torture fit into that definition? Is it part of defence materiel? No. Is it part of the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishments? No. Could we find the reason in paragraph (d): information obtained or prepared for the purpose of intelligence relating to the defence of Canada? No. Is it part of the information for the purpose of intelligence respecting foreign states? No. I could read them all. There is no reason.
The only reason I can imagine is that some political person said that it would not be very good if Canada and our ministers were aware of the fact that Afghan prisoners had been sent to Afghan prisons and were tortured with the full knowledge of this country, because that goes against the Geneva Convention. That is the only reason why we might believe, Ms. Sabourin, that you or someone on your team would have suddenly decided... If you are the one who did it, I can assure you that it was not very bright.
Thank you, witnesses, for coming. It has been a difficult morning; I can see that.
One of the things that have to be brought out is the fact that your responses have reached 80%, but there has also been a 30% increase in requests. I want to give you a chance to answer a few questions, yes or no, because I think you may have been attacked somewhat unfairly.
Are you duty bound by the act, the law, to make your decisions? Let me ask you this. Would you knowingly comply with the wishes of a minister if he were ever to ask you to break those laws or to do something that wasn't right?