Library and Archives Canada (Re), 2022 OIC 06
Date: 2022-01-31
OIC file number: 3214-00380
Institution file number: A-2013-00157/JFC
Summary
The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 15(1) (national security) and subsection 19(1) (personal information) of the Access to Information Act in response to an access request for information relating to “Active Measures ‐ The Soviet Bloc Practice of Deception, Disruption and Defamation”.
The extent to which information pertaining to the subject matter of the request is already within the public domain undermines claims that disclosure of the redacted information could reasonably be expected to result in a harm described in subsection 15(1).
In light of the above, and in the absence of any justification from LAC, the Information Commissioner found that LAC failed to demonstrate that any of the withheld information meets the requirements of the exemption.
The Information Commissioner recommended that LAC disclose all remaining withheld information. LAC gave notice to the Commissioner that it would not implement her recommendation.
The complaint is well founded.
Complaint
[1] The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 15(1) (national security) and subsection 19(1) (personal information) of the Act in response to an access request for information relating to “Active Measures ‐ The Soviet Bloc Practice of Deception, Disruption and Defamation”.
Investigation
[2] The responsive record is an RCMP Security Service Brief dated February 1, 1979, on the topic of “Active Measures ‐ The Soviet Bloc Practice of Deception, Disruption and Defamation”.
[3] In response to the request, LAC withheld the record (33 pages) in its entirety.
[4] Over the course of the investigation, LAC decided to no longer to rely on subsection 19(1) to withhold information.
[5] Upon review, the Office of the Information Commissioner (OIC) questioned LAC’s application of subsection 15(1). Specifically, the OIC noted that several publications existed on the topic of Active Measures, and suggested that the record be reviewed by a subject matter expert.
[6] On December 4, 2020, LAC issued a supplementary release, disclosing some information, but continuing to withhold information on pages 5, 9, 10, 14, and 16‐27 of the responsive records under subsection 15(1) of the Act.
Subsection 15(1): national security
[7] 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)).
[8] 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.
[9] 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?
[10] LAC has not identified the basis for harm to national security, be it to the conduct of international affairs, defence of Canada, or the detection, prevention or suppression of hostile activities. In addition, LAC has not provided any representations on the harm that could result from the disclosure of the withheld information.
[11] LAC confirmed on October 8, 2021, that it has no further representations to offer on this file.
[12] Soviet Active Measures were a topic of public discussion in the 1980s, with much information coming from defectors from the Soviet Bloc.
[13] For example, Ladislav Bittman wrote a book about Active Measures, “The KGB and Soviet Disinformation” and published it in 1985. Mr. Bittman is, in fact, considered to be the ‘father’ of disinformation studies. Ladislav Bittman was a Czech intelligence officer who defected to the United States and taught a course on Active Measures at Boston University for several decades.
[14] P. Unsinger’s “Review of Bittman Book”, International Journal of Intelligence and Counterintelligence 1(2), 137‐179, cites several relevant passages directly from Mr. Bittman’s texts. For example, it provides:
“The overall purpose of disinformation is not only to deceive but to cause damage to the target. The victim of disinformation must be lead to inflict harm on himself, directly or indirectly – either by acting against his own interests on the basis of spurious information or by remaining passive when action is needed.”
[15] Bittman asks, what makes the information credible if the source is anonymous or unreliable? He answers this:
“Most disinformation clearly serves the receivers’ needs by playing on his prejudice and bias. In developing countries, for instance, disinformation focuses on existing stereotypes and prejudices against Western countries…
Disinformation is a kind of game in which the participants play one of three roles: operator, adversary or unwitting agent. The adversary might be foreign states, its ruling authorities, or even individual citizens of the state. The unwitting agent is a fame player who is unaware of his role and is exploited by the operator as a means of attacking the adversary.”
[16] Similarly, Anatoly Golitsyn, in his book on disinformation, “New Lies for Old”, (1984), wrote:
“The decision in principle to revert to the whole‐scale use of strategic disinformation, taken in 1957, triggered off a spate of research into precedents and techniques. For example, the Central Committee called for secret publications….and in particular a secret training manual for internal use only, written by a GRU officer, Popov…and for another manual written by Colonel Raina of the KGB entitled On the Use of Agents of Influence. (6)”
“6. The author’s account of disinformation is based on Shelepin’s articles in the secret KGB magazine Chekist; on Popov’s manual and of the author’s conversations with Grigerenko, Sitnikov…..” (page 41)
“When Shelepin created the new disinformation department, Department D. in January 1959, he ensured that its work would be coordinated with the other disinformation services of the party and government machine: that is, The Central Committee, the Committee of Information, the disinformation department in the Soviet Military Intelligence Service, and the two new ‘activist methods’ departments in the KGB…” (pages 50‐51)
[17] Information about the evolution of Soviet Intelligence agencies is also the subject of published material. For example, Amy W. Knight, an employee of the Library of Congress of the United States, published a book titled, “The KGB: Police and Politics in the Soviet Union” in 1990. Another example of this writing was a public CSIS report titled “Succeeding the KGB”, which appeared in the Commentary Series in the early 1990s.
[18] The extent to which information pertaining to the subject matter of the request is already within the public domain undermines claims that disclosure of the redacted information could reasonably be expected to result in a harm described in subsection 15(1).
[19] In light of the above, and in the absence of any justification from LAC, I find that LAC has failed to demonstrate that any of the withheld information meets the requirements of the exemption.
Did the institution reasonably exercise its discretion to decide whether to release the information?
[20] 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
[21] 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 recommendations.
On December 16, 2021, the Minister of Canadian Heritage gave me notice that he would not be implementing my intended recommendations because LAC “disagrees that the records do not pose a potential risk under subsection 15(1)”.
On a final note, this file is a good example as to why a declassification program is needed within our government. LAC’s response to this access request was to withhold the records in their entirety, without any representations on the harm that could result from disclosure. Once presented with the OIC’s thorough review of the literature and other public material available on this topic, LAC disclosed a substantial amount of information, years after the access request had been submitted.
In addition to making a general contribution to transparency, responsibility and open government, declassification and the dissemination of Canada’s important historical national security and intelligence records benefit the public. A proper declassification system based on regular reviews and consensus by experts would enable researchers and others to gain access to records that are no longer sensitive to national security, through mechanisms other than the Act, in a more timely fashion.
Section 41 of the 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.