Privy Council Office (Re), 2023 OIC 19
Date: 2023-06-12
OIC file number: 5820-00631
Institution file number: A-2018-00075
Summary
The complainant alleged that the Privy Council Office (PCO) had improperly withheld information under subsection 15(1) (national security, defence) and 19(1) (personal information) of the Access to Information Act in response to an access request for historical Canadian intelligence assessments records contained in specific files. The complaint falls within paragraph 30(1)(a) of the Act. PCO showed that it met all the requirements of subsection 19(1). However, PCO could not show that it met all of the requirements of subsection 15(1), in particular, how the release of the subject information would harm national security and/or the defence of Canada. The Information Commissioner ordered PCO to disclose the records in their entirety. PCO gave notice to the Information Commissioner that it would not be implementing the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that the Privy Council Office (PCO) had improperly withheld information from disclosure under subsections 15(1) (international affairs, national security, defence) and 19(1) (personal information) of the Access to Information Act in response to a request for historical Canadian intelligence assessments records contained in specific files.
Investigation
[2] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
[3] On March 8, 2022 and November 28, 2022, PCO provided supplementary disclosures to the complainant and released some information that was previously withheld. PCO maintains that the remaining information is justifiably withheld from disclosure under subsections 15(1) and 19(1).
[4] The Office of the Information Commissioner’s (OIC) investigation determined that PCO was justified in its use of subsection 19(1) in those instances that are within the scope of the complaint and withheld under that provision.
[5] However, I am not satisfied that PCO has justified its use of subsection 15(1) on the information that remains withheld from release. My findings on these remaining exemptions follow.
Subsection 15(1): international affairs, defence
[6] 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)).
[7] 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.
[8] When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.
Does this information meet the requirements of the exemption?
Distribution Markings
[9] PCO invoked subsection 15(1) to withhold every mention of distribution markings throughout the records at issue. PCO has maintained that the redaction of the distribution marking in question is a government-wide policy. PCO’s position is that even though other institutions have released this marking, the release of this information by PCO can pose a reasonable threat to international relations, as it is impossible to know whether a foreign partner will take offence at the Canadian Government withholding certain information from them. On this basis, PCO's position appears to be that no information about Canada’s partners should ever have been disclosed under the Act, contrary to the obligations or the purpose of the Act.
[10] However, as demonstrated during the investigation, this distribution marking is not consistently redacted by other federal government institutions - notably Library and Archives Canada (LAC) and the Canadian Security Intelligence Service (CSIS) - which seems to discredit the claim of injury made by PCO. Looking at previous disclosures made under the Act by other institutions, there are dozens of examples of documents in the public domain where these markings are disclosed.
[11] The OIC’s investigation identified several examples of documents released by CSIS and LAC.
[12] In support of non-disclosure, PCO further argued that the release of the fact that the record was meant for certain parties is not the norm in the intelligence community. However, several examples of United States disclosures of this type of information can be found via the National Security Archive (https://nsarchive.gwu.edu/).
[13] In a recent disclosure made by PCO, none of these markings were redacted from any of the records in this release, which dated from the 1990s.
[14] Finally, given that no apparent harm was noted in relation to the previous disclosures, this tends to confirm that the use of section 15 is not justifiable in this case, unless PCO was able to provide evidence in support of reasonable expectation of probable harm occurring as a result of disclosure.
[15] PCO has not demonstrated how the release of this marking on the subject records could harm either the conduct of international affairs, harm Canada’s national defence or the detection, prevention or suppression of specific subversive or hostile activities. Furthermore, PCO’s representations, thus far, have alluded to perceptions of possible harm, which fails to demonstrate that there is a reasonable expectation that the harm could occur by the release of the identified information. This expectation of harm must be probable, as opposed to merely possible.
[16] In light of the above, I am of the view that the information does not meet the requirements of the exemption.
Names of Communications Security Establishment (CSE) employees
[17] PCO invoked subsection 15(1) to withhold the names of CSE employees on seven pages of the responsive records. As a result of the investigation, PCO agreed to release the names of CSE employees on three pages, only.
[18] In its representations, PCO referred to a meeting between PCO and the Department of Fisheries and Oceans in relation to OIC complaints against the protection of intelligence officer names. According to PCO, the OIC agreed with the redaction of analyst names in the past and therefore should agree on the non-disclosure in the present circumstances. Each OIC complaint is investigated on a case-by-case basis and institutions must meet the requirements of the exemption in each case of redaction.
[19] Evidence gathered during the investigation demonstrates that the CSE employees’ names have been previously released. For example, several disclosures of Intelligence Advisory Committee (IAC) reports show the attendees, including the mention of CSE and the name of the person attending the meeting. Some examples shared with PCO during the investigation include documents released by LAC titled ‘’IAC Doc 86-03 - 87-03 - Science and Technology in the IAC’’, ‘’IAC Doc 85-03-15 IAC Geographic Working Group’’ and ‘’IAC Minutes 81-08-26‘’.
[20] PCO also referred to a CSE policy regarding the redaction of their former employees’ names. The CSE policy that is referred to has not been shared and PCO has not demonstrated how disclosing the names of individuals who were the subject of reports over 37 years ago could be harmful. It is not sufficient to say that it would be "risky" to disclose names but, instead, PCO should have demonstrated how a probable risk of harm exists with respect to those names, specifically.
[21] As demonstrated during the course of the investigation, there are similar historical documents in the public domain, where names of CSE employees have been disclosed,
[22] It should be noted that the risk regarding the disclosure of names of current or recent employees working at CSE would be easier to justify withholding under section 15. The difference here, however, is that the records at issue are 37 years old and clear evidence of any probable harm if those names were disclosed, has not been provided by PCO.
[23] PCO also stated that for CSE employees who are not department heads with public standing, regardless of whether they have left the government, identifying these individuals as former intelligence experts places them and their families at risk for foreign surveillance and espionage (with possible injury to national security). After analyzing the documents shared with PCO during the investigation where CSE names were disclosed, it is unlikely that the individuals in the reports were all heads of departments. In any case, it would have been relevant to receive confirmation of the positions of the employees mentioned in the 37 year-old reports. This also raises the question of how PCO came to the conclusion that some names could be disclosed, but not the others.
[24] In this particular case, PCO has not demonstrated how the reasonable expectation of probable harm required by subsection 15(1) could occur should the names of subject CSE employees be released.
[25] In light of the above, I am of the view that the information does not meet the requirements of the exemption.
Distribution list of allies
[26] Page 85 of the responsive records includes a distribution list from 1984 mentioning Canada’s Allies. PCO maintains against the release of such information on the basis that it does not have the ability to determine whether the relationship between a Five Eyes ally and the subject-country in an intelligence report could be harmed, if disclosed. PCO also suggests that they need to maintain the integrity of the Five Eyes intelligence sharing agreements.
[27] For the purposes of this investigation, it would have been relevant to see details about the policy PCO is referring to, which PCO did not provide. The argument in support of non-disclosure of records based on government policy is not sufficient, in and of itself, in demonstrating whether disclosure may be permitted based on the criteria set out in subsection 15(1), particularly where there is a lack of detail about that policy.
[28] As demonstrated to PCO during the investigation, substantial documentation from open publications and releases through access requests is already in the public domain. These documents contain significant details on Canada’s intelligence relationships.
[29] Furthermore, the United States released a significant amount of documents mentioning members of the Five Eyes community (i.e. declassified documents on www.nsa.gov). To that, PCO argues that the release of documents by the Canadian allies has no bearing on Canadian policy.
[30] PCO also questions the OIC’s reference to the National Security Agency (NSA), stipulating that the NSA documents were not comparable to the records at issue. PCO advised that it exercises discretion and more closely mirrors the approach of the Central Intelligence Agency (CIA) as opposed to that of the NSA. According to PCO, control markings (Rel to, NF, etc.) are severed from CIA documents released through the Freedom of Information Act (FOIA) and the CIA practice is to remove references made public. In support of this argument, PCO referred to the reading room section on the CIA’s website (https://www.cia.gov/readingroom).
[31] The OIC reviewed the links shared by PCO in order to verify the validity of this argument.
[32] The OIC determined that several documents marked CONFIDENTIAL - U.S. EYES ONLY appear publicly accessible via the CIA reading room (https://www.cia.gov/readingroom/docs/CIA-RDP82S00527R000100260014-4.pdf). This appears to discredit the argument that CIA systematically withholds from release this type of information, and rather, serves to further the argument that such information should not be withheld as a matter of mere practice, but rather after a careful case-by-case analysis of the records at issue.
[33] When looking at some of the documents on the CIA’s website mentioned above, it is possible to find CIA-approved documents authorized for publication from countries such as Canada, the United Kingdom and Australia. It is also possible to find documents authorized to the Five Eyes group partners, with the mention S/NOROFM/REL AUS, CAN, UK/WNINTEL (https://www.cia.gov/readingroom/docs/CIA-RDP07S00452R000300920002-1.pdf).
[34] Since the United States has a different rating system, other documents that have been declassified by the CIA mention SECRET NOFORN, which stands for no foreign nationals. This mark applies to any information that cannot be disclosed to a non-US citizen (https://www.cia.gov/readingroom/docs/CIA-RDP07S00452R000300880008-0.pdf, https://www.cia.gov/readingroom/docs/CIA-RDP93T00837R000400080010-1.pdf).
[35] In light of the above, I am of the view that the information does not meet the requirements of the exemption.
Nuclear development programs
[36] PCO redacted pages 7 and 8, in their entirety, on the basis that the information found therein is not publicly available.
[37] As demonstrated during the investigation, several IAC assessments on this subject from the same time period have already been released without redactions. One example in particular was identified to PCO due to its very almost identical content.
[38] The argument raised by PCO that the priorities of countries may remain the same regarding the intention of pursuing clandestine nuclear development does not justify the application of the exemption, since this information is already in the public domain. PCO's argument that disclosure of nuclear development information sets a dangerous precedent for members of the security and intelligence community would have been considered in a different context.
[39] Furthermore, PCO mentions in its representations that the fact that LAC, a federal government institution, released similar information in the past should not be used as indicative of no harm. However, the fact remains that records are in the public domain as a result of a release provided by another government institution.
[40] Based on the representations provided, I am not satisfied that harm to the interests set out in subsection 15(1) could reasonably occur through disclosure. Therefore, I am of the view that the information does not meet the requirements of the exemption.
Technology transfer
[41] In its representations, PCO argued that the information found at page 1 and 5 highlights previous gaps in defenses against espionage and acquisition of technology by foreign intelligence services. Other documents are available in the public domain regarding the information located on page 1 and 5. In addition, many documents exist in the public domain on this subject (We now know … a little bit more: Canada’s Cold War defectors - Timothy Andrews Sayle, 2021 (sagepub.com)).
[42] Most importantly, PCO has failed to demonstrate the injury that may occur should the information dating back to 1984 be released.
[43] In light of the above, I am of the view that PCO did not demonstrate that the information meets the requirements of the exemption.
Region-based Working Group
[44] PCO has redacted sections of two documents from January 1982, dealing with a planned assessment of a particular geographic region (pages 49 to 55). In its representations, PCO mentioned that the release of this information would risk injuring Canada’s relations with its allies and with the countries being assessed. PCO asserts that because there is a likelihood that the information contained in these pages came from allies, it was not to be disclosed.
[45] In addition to the documents already shared during the investigation, the OIC found similar information in “IAC Doc 77-01-24 - Middle East Working Group” and “IAC Doc 82-03 - 82-12 - IAC Working Groups”. Further to a review of the above-mentioned documents that all deal with the Working Group aspect, it is difficult to accept the validity of PCO's argument that disclosure of information about other countries would have an impact on Canada's relations with them.
[46] PCO did not demonstrate how the harm as set out in section 15 would be probable as a result of disclosure of this information.
[47] Having carefully considered PCO’s representations, I am not satisfied that the criteria needed to withhold information under subsection 15(1) has been met.
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[48] Since PCO was of the view that the information meets the requirements of subsection 15(1), it was required to reasonably exercise its discretion to decide whether to nonetheless disclose the information. In doing so, it had to consider all the relevant factors for and against disclosure.
[49] An institution’s decision not to disclose information must be transparent, intelligible and justified. The OIC will deem the institution’s explanation sufficient when it provides details of how it made the decision, and when the documents related to the institution’s decision-making process shed light on why the institution proceeded as it did.
[50] In its representations, PCO stated that it exercised its discretion, by consulting internal experts and considering current relevance and public interest.
[51] Even if PCO had successfully demonstrated that the requirements of the exemption were met, I am not satisfied that PCO properly exercised its discretion when it decided against disclosing the information that remains withheld. In reaching this conclusion, I am of the view that PCO did not properly consider and give weight to all relevant factors, including the purpose of the Act, public availability of subject information, the age of the records and the public interest in disclosure.
Result
[52] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the Clerk of the Privy Council to disclose the responsive records withheld under subsection 15(1) in their entirety.
The Clerk must abide by the terms of subsection 37(4) when disclosing any records in response to my order.
On February 13, 2023, I issued my initial report to the Clerk of the Privy Council setting out my intended order.
On March 29, 2023, the Assistant secretary to the Cabinet, Ministerial Services and Corporate Affairs gave me notice that PCO would not fully implement my order and would maintain the redactions under subsection 15(1) to specific portions of pages 1, 5, 7, 24, 26, 49 and 56.
PCO provided submissions in its notice in an effort to bolster its application of subsection 15(1) on the specific information on these pages. Many of these submissions were duplicative of representations previously provided during the investigation, although some additional information was also included. In essence, PCO disagrees with my finding that the information withheld did not meet the requirements of subsection 15(1).
While I understand PCO’s willingness to convince me that its application of the exemption is right, the fact of the matter is that its timing to make additional representations was inappropriate and not in accordance with processes set out in the Act. Certain investigative steps are dictated by the Act. Of relevance, paragraph 35(2)(b) specifies that in the course of the OIC’s investigation of complaint, the head of the institution is to be given a reasonable opportunity to make representations. PCO was provided this opportunity, and provided detailed representations during my investigation.
The Act does not envision that following the issuance of my initial report institutions are further authorized or entitled to provide additional representations and / or raise additional basis for refusing access. Paragraph 37(1)(c) expressly states that my initial report is to set out the period within which the head of the government institution shall notify me of the action taken or proposed to be taken to implement the order or recommendation made or reasons why no such action has been or is proposed to be taken. My initial report made explicitly clear that this was not a new opportunity for additional representations to be made.
Having reviewed and considered all representations received during the course of the investigation, I concluded that PCO had failed to convince me that it had applied the Act correctly to the entirety of the information found in the records.
I must remind the Clerk that, if she does not intend to fully implement my order, she must apply to the Federal Court for a review pursuant to the statutory timelines highlighted below.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, this order takes effect on the 36th business day after the date of this report.