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Library and Archives Canada (Re), 2022 OIC 03

Date: 2022-01-28
OIC file number: 3213-01488
Institution file number: A-2013-00161/DS

Summary

The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies), subsection 15(1) (national security) and paragraph 19(1) (personal information) of the Access to Information Act in response to an access request for a 1989 RCMP Security Service briefing on Hugh George Hambleton.

In reviewing LAC’s application of subsection 15(1), the Office of the Information Commissioner (OIC) found that a significant amount of information pertaining to Hugh George Hambleton is within the public domain. For instance, it is a matter of public record that: Hambleton, during his employment at NATO, provided classified documents to Soviet intelligence agents. Hambleton’s spying was uncovered in the 1970s, and drew comment from the media and members of Parliament, who debated the case in the House of Commons. Hambleton served time in prison in the UK and then subsequently in Canada.

The Information Commissioner found that LAC did not fulfil its burden of demonstrating that the information at issue, which it refuses to disclose, meets the requirements of the exemption.

The complaint is well founded.

Complaint

[1]      The complainant alleged that LAC had improperly withheld information under subsection 13(1) (confidential information from government bodies), subsection 15(1) (national security) and paragraph 19(1) (personal information) of the Act response to an access request for a 1989 RCMP Security Service briefing on Hugh George Hambleton.

Investigation

[2]      The responsive record consists of a 13‐page brief concerning Hugh George Hambleton. The record appears to have been prepared for the first 5‐year review of CSIS in 1990, and the Hambleton file was one of those selected for review.

[3]      LAC continues to withhold information on pages 3, 4, 5‐7, 9, and 12. The complainant indicated that they are not interested in the file list and routing slip found at pages 14 and 15 of the response package. Accordingly, these latter pages do not form part of the OIC’s investigation.

[4]      Over the course of the investigation, LAC decided to no longer rely on subsection 13(1) and paragraph 19(1) to withhold information.

Subsection 15(1): national security

[5]      Subsection 15(1) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to harm the conduct of international affairs, or defence or national security (for example, information related to military tactics, weapons capabilities or diplomatic correspondence, as set out in paragraphs 15(1) (a) to (i)).

[6]      To claim this exemption, institutions must show the following:

  • Disclosing the information could harm one of the following:
  • the conduct of international affairs;
  • the defence of Canada or any state with which Canada has an alliance or treaty, or any state with which Canada is linked, as defined in subsection 15(2); or
  • the detection, prevention or suppression of specific subversive or hostile activities, as defined in subsection 15(2).
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[7]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[8]      I am not satisfied that the disclosure of the withheld information could reasonably be expected to harm any of the interests protected under subsection 15(1).

[9]      In reviewing LAC’s application of subsection 15(1), I note that a significant amount of information pertaining to Hugh George Hambleton is within the public domain. For instance, it is a matter of public record that:

[10]    Hugh Hambleton was an economics professor who, in addition to his academic work, worked for NATO. Once at NATO, he provided classified documents to Soviet intelligence agents.

[11]    Hambleton’s spying was uncovered in the 1970s, and drew comment from the media and members of Parliament, who debated the case in the House of Commons.

[12]    Following a series of interviews, the Canadian Government decided in 1980 that there was insufficient evidence to charge him under the Official Secrets Act. However, when Hambleton travelled to the UK in 1982, he was tried and convicted for espionage by a British Court.

[13]    He served time in prison in the UK and then subsequently in Canada. He was released under supervision in 1989, and died in 1995. The Official Secrets Act was replaced by the Security of Information Act in 2001.

[14]    Parliamentary Debates, as reflected in Hansard, reveal that detailed information about the Hambleton case were publicly discussed by, then, Government Ministers, along with the Department of Justice advice on the case (including the need for new legislation in light of the limitations of the now–defunct Official Secrets Act), and information regarding cooperation on the case with the British Government (see: https://parl.canadiana.ca/browse/eng/c/debates/32-1. (Volume 18 and 19, 27 October 1982 to 1 February 1983)).

[15]    By way of example, volume 18 of Hansard includes the following:

  • Image 998: Bob Kaplan, then‐Solicitor General of Canada: “I have said, and I will repeat, that the RCMP have co‐operated with the British officials to bring this case to the point at which it is now….”
  • Image 1050: Bob Kaplan ‐ “…it is true that the Security Service had a continuing contact and exchange of information with Mr. Hambleton from the time that the decision was made that there should be no prosecution, and that he was told that if he did go to Great Britain he could meet a hostile reception.”
  • Image 1053: Bob Kaplan “…it is true that Mr. Hambleton did indicate publicly that he had been giving information to the Soviet Union, but he indicated that it was open source information, and that is normal.”
  • Image 1058: Bob Kaplan “…this is not to say that there would not be a prosecution ever under this Statute, but as McDonald recognized and many other observers recognized, that Act is due for a major overhaul.”

[16]    Volume 19 includes:

  • Image 9: Bob Kaplan: “In the Hambleton case, as I indicated, the opinion of the Department of Justice is that a prosecution on the evidence the Security Service had been able to gather would have been unsuccessful.”
  • Image 9: Mark MacGuigan, then‐Minister of Justice and Attorney General of Canada: “…the decision was made not to prosecute in the Hambleton case as the evidence was not adequate, in the opinion of the Department of Justice, to sustain a prosecution.”
  • Image 45‐6: Mark McGuigan: “I have spoken of the fact that there are some deficiencies in that legislation, and I hope to bring forward amendments to remedy them, but in the meantime we will certainly in good faith attempt to apply the Act in every case where the fact warrant.”
  • Image 149: Bob Kaplan: “Hambleton was giving the Service information, which information the Service was sharing with the other friendly intelligence services, including MI5.”

[17]    All of the following items undermine any claim that the redacted information could reasonably be expected to result in a harm described in subsection 15(1):

  • the public availability of information pertaining to Hugh George Hambleton;
  • information made public through the UK trial process;
  • the passage of time since the 1980s; and
  • evidence of a statement concerning the ability of the information in the briefing to be disclosed.

[18]    I find that LAC did not fulfil its burden of demonstrating that the entirety of the information at issue, which it refuses to disclose, meet the requirements of the exemption.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[19]    The investigation determined that LAC failed to meet the injury test. As a result, the examination of LAC’s exercise of discretion is not necessary.

Result

[20]    The complaint is well founded.

Recommendations

I recommend that the Minister of Canadian Heritage:

1. Disclose the responsive records in their entirety no later than 10 business days after the date the Minister receives the Final Report.

2. Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe‐Registry@oic‐ci.gc.ca).

On November 16, 2021, I issued my initial report to the Minister of Canadian Heritage setting out my intended recommendations.

On December 16, 2021, the Minister of Canadian Heritage gave me notice that he would not be implementing my recommendations because LAC “disagrees that the records do not pose a potential risk under subsection 15(1)”.

Section 41 of the Access to Information Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

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