2014-2015 Appendix A: Summaries of the access and consultation requests

1. Access to information request A-2008-00519

On February 25, 2009, PWGSC received the following request:

All records as may be required to find about changes in your daily activities in preparation for and during the visit of the President of the United States to Canada. [translation]

On March 4, 2009, this request was designated “high profile” at the weekly access meeting. By letter to the requester dated March 23, 2009, PWGSC took an extension of 150 days, pursuant to paragraph 9(1)(b) of the Access to Information Act, in order to conduct consultations on this request. This made August 24, 2009, the extended due date to respond to the request.

The Notice of Release was signed on July 23, 2009, by the ATIP Directorate. The notice indicated that “information has been severed as recommended by Foreign Affairs and International Trade. 15(1) and 19(1).”

Also on July 23, 2009, the Assistant Deputy Minister of PWGSC’s Real Property Branch signed the notice. The Deputy Minister’s Office signed the notice the following day. In accordance with the department’s zero-tolerance policy, all levels of review were required to sign the Notice of Release no later than July 31, 2009.

On July 29, 2009, an Administrative Assistant in the Minister’s Office sent an email to various individuals working in the ATIP Directorate, the Deputy Minister’s Office and the Minister’s Office, advising that “the ATIP request has been returned to the ATIP Office for modification.” [emphasis original]

When questioned on her use of these words, the Administrative Assistant testified that she had used the same words the Director of Parliamentary Affairs wrote and underlined on a post-it note he included with the purple file he returned to her. For his part, the Director of Parliamentary Affairs testified that he did not instruct the administrative assistant to send the “for modification” email.

The post-it note that was affixed to the Notice of Release read as follows:

If the only modification was the “work stop order” found on the last page of the ATIP, then we should not be releasing the remainder of the ATIP.

The Minister’s Special Assistant who was responsible for the Real Property portfolio testified that she believed the post-it note to be in her handwriting and that it was meant for her colleague, the Director of Parliamentary Affairs. She explained that the post-it note was the explanation to justify the question and concern that she had (i.e. with the information the ATIP Directorate had decided to release). She explained that she wanted to understand why PWGSC was giving out more pages to the requester when only one page (i.e. the work stop order) responded to the request. She further testified that she was not directing anybody because she knew that her responsibility and her role was to ask questions, to seek more information and to understand why the ATIP Directorate was applying the Act in certain ways. She explained that she raised her concerns with the Director of Parliamentary Affairs but that she was not aware that the file would be returned to the ATIP Directorate for modification. She again testified that her post-it note was not a suggestion to the ATIP Directorate but rather the justification of a question she had regarding what the ATIP Directorate was proposing to release.

Upon reading the email from the Administrative Assistant that the ATIP request was being returned to the ATIP Directorate “for modification,” the Deputy Minister’s Strategic Advisor replied to all, “Wasn’t [the information] release[d] on a previous ATIP request?”

The ATIP Acting Manager who was part of the email string forwarded the Strategic Advisor’s question to another ATIP Acting Manager and the analyst who had processed the request. Despite not being the intended recipient of the email, the Director of Parliamentary Affairs responded by email that, although “some of the documents have been released,” the requester was “looking for a specific document” in this case and that “we reviewed the atip and one document related to the demand is relevant and actually fully answers the request.” He also wrote that the ATIP Directorate should speak with the Minister’s Special Assistant, who had reviewed the request, if the Directorate required a more in depth-analysis. The Director of Parliamentary Affairs included his colleague on that email response.

Shortly thereafter, the Special Assistant replied to everyone on the chain as follows:

Our department specifically states that the only documentation they have pertaining to this is a work stop order. This document is found on the last page of the ATIP. Therefore, this should be the only part of the ATIP to be released.

An ATIP Acting Manager who had processed the request confirmed that at no time during the processing of this request did she, or anyone in the ATIP Directorate, request assistance from the Minister’s Office to interpret the scope of requests.

The Deputy Minister’s Strategic Advisor testified that she telephoned the Minister’s Special Assistant after reading her email to advise her that the ATIP Directorate had the decision-making authority on all ATIP matters.

The ATIP Director and the Acting Director General, Executive Secretariat, Corporate Services, Policy and Communications Branch, were both copied on the email from the Minister’s Special Assistant in which she explained that the documentation that responded to the request was the work stop order found on the last page of the ATIP. The Acting Director General explained that she did not take action because the ATIP Director was the functional authority responsible for access matters, and because the issue was not escalated to her level. As such, she relied on the ATIP Director to manage the issue.

The ATIP Director testified that he was not intimately involved in the processing of this request, since as of July 22, 2009 he was acting as Director General, Executive Secretariat, Corporate Services, Policy and Communications Branch. He also explained that he did not take action when reading the email from the Minister’s Special Assistant because he relied on his employees to manage issues raised by the Minister’s Office, and the Director of Parliamentary Affairs, whom he believed, at the time, had delegated authority on access matters. Finally, he explained that the Acting Director General, Executive Secretariat, the person whom he was replacing, was also copied on the Special Assistant’s email and that she was more familiar with the environment in the department, given her extensive experience.

Between July 29, 2009, and July 31, 2009, the ATIP Directorate worked to resolve the issue that was raised by the Minister’s Office. On July 30, 2009, an ATIP Acting Manager emailed both the Director of Parliamentary Affairs and the Special Assistant to inform them that two separate offices of primary interest (OPI) had provided records in response to this request. The Director of Parliamentary Affairs responded to that email as follows:

Only the work stop order document relates to the original ATIP request. The other documents may demonstrate the organization that went into preparing the visit however, they don’t represent changes to the daily operations. Hence, they are not relevant.

When questioned on the nature of his emails to the ATIP Directorate, the Director of Parliamentary Affairs testified that he was putting forward both his views and those of his colleague in the Minister’s Office that the wrong information was going to be released.

In an email to members of the Minister’s staff and others, an ATIP Acting Manager reiterated her belief that all the records were responsive to the request. Another ATIP Acting Manager agreed with this position. In order to “add more weight” to the ATIP Directorate’s view that the information sought was responsive to the request, one of the ATIP Acting Managers emailed that she would seek written confirmation from the relevant OPI that the records were, in fact, responsive to the request.

On July 31, 2009, the OPI provided written confirmation that the documents in question were responsive to the request. The ATIP Acting Manager forwarded this confirmation to both the Director of Parliamentary Affairs and the Special Assistant, writing, “with your agreement I will return the purple folder for sign-off.” The Director of Parliamentary Affairs responded as follows:

I encourage the ATIP department to remove everything but the workorder. It is part of daily operations to prepare for diplomatic visits. Hopefully, the ATIP that will be sent back up will have that change.

With no further communication between the ATIP Directorate and members of the Minister’s Office staff, the Deputy Minister’s Strategic Advisor emailed one of the Acting ATIP Managers on August 5, 2009, and asked, “Is this still an issue for you guys?” to which the ATIP Acting Manager responded as follows:

Yes, this is still an issue for me since the OPI has confirmed that this is not part of their daily operations. Those documents do not contain sensitive issues other than those exempted, and therefore, in the spirit of the Act, should be released.

The Deputy Minister’s Strategic Advisor testified that she then phoned the Director of Parliamentary Affairs and explained that the ATIP Directorate had the delegated authority to decide the scope of the request. She also reiterated, by way of email, the ATIP Directorate’s position that the information provided by the OPI was responsive to the request. She concluded her email by writing, “Are you OK to proceed as is?” to which the Director of Parliamentary Affairs replied, “Okay I give up.” He explained that this response meant that he and the Special Assistant accepted that their concerns were no longer valid.

The Deputy Minister’s Strategic Advisor emailed one of the ATIP Acting Managers to “please release” the records. The ATIP Acting Manager later asked, “Do we have to send the purple [file] back to MO for sign-off[?]” The Deputy Minister’s Strategic Advisor replied, “Please send me the file[.] I will get a signature very fast…” The ATIP Directorate awaited a signature from the Minister’s Office on the Notice of Release before releasing the records. One of the ATIP Acting Managers described such a signature as a “blessing” [translation] by the Minister’s Office or an approval of sorts for the information to be released.

The Deputy Minister’s Strategic Advisor thus obtained the Director of Parliamentary Affairs’ signature on the notice on August 5, 2009. On August 6, 2009, the responsive records—that is, the entire 132 pages (and not just the one-page work stop order)—were disclosed, one day later, in keeping with the ATIP Directorate’s decision to release.

As per PWGSC’s zero-tolerance policy of disclosing the requested information within six working from the date of the notice, this meant senior management had until July 31, 2009 to sign it and disclose the information. In this case, although the extended due date of August 24, 2009, was met, the Minister’s Office signed the notice three days late, on August 5, 2009, thereby failing to follow PWGSC’s zero-tolerance policy. This led to a delay in releasing the information to the requester.

2. Access to information request A-2008-00588

On March 30, 2009, PWGSC received a request for a number of briefing notes, one of which dealt with a public opinion research project.

On April 8, 2009, this request was designated “high profile” at the weekly access meeting. By letter to the requester dated April 22, 2009, PWGSC took an extension of 140 days, pursuant to paragraph 9(1)(b) and (c) of the Act, in order to conduct consultations. As such, the extended due date to respond to the request was September 16, 2009.

The Notice of Release was signed by the ATIP Directorate on June 29, 2009.

The notice indicated that the ATIP Directorate “considered the recommendations made by the Acquisition Branch for one of the requested briefing notes and determined that the information could not be severed in its entirety as some of the information had already been made public in newspaper articles and on the Competition Bureau Website.” The ATIP Directorate further indicated that “the other briefing notes were being released as per recommendations made by the OPIs.” The ATIP Directorate also decided to release the monetary figures set out in the briefing note on the public opinion research project.

In accordance with the department’s zero-tolerance policy, all levels of review were required to sign the notice by no later than July 8, 2009.

On July 3, 2009, an official in the Assistant Deputy Minister’s Office (Corporate Services, Policy and Communications Branch) signed the notice and provided written comments in support of the ATIP Directorate’s decision.

Already two days beyond the time allocated for review under the zero-tolerance policy, the Deputy Minister’s Office signed the notice on July 10, 2009.

On August 4, 2009, the Director of Parliamentary Affairs signed the notice on behalf of the Minister’s Office. Included with the purple file returned to the ATIP Directorate were three pink post-it notes affixed to the briefing note on the public opinion research project. The post-it notes referenced monetary figures that had been circled in red ink in the briefing note. The post-it notes read as follows:

Research projects #s should not be released

None of these #s should be released

Should not be released.

The Director of Parliamentary Affairs acknowledged writing the three post-it notes that were affixed to the requested record but did not think he was the one who had circled the monetary figures. He testified knowing very little about public opinion research and that other than putting a signature on the notice, he had nothing to do with the file.

Also on August 4, 2009, the purple file was returned to the Deputy Minister’s Strategic Advisor. She testified that she read the post-it notes from the Minister’s Office and felt that the office had made good points, which she wanted to convey to the ATIP Directorate. Shortly thereafter, she emailed the ATIP Acting Manager as follows:

Please come and pick up the file. We will need to discuss the figure issue.

The Strategic Advisor testified that she emailed the ATIP Acting Manager on August 4, 2009, to pick up the file so that they could discuss the points raised by the Minister’s Office. She explained that she then phoned the ATIP Acting Manager to discuss what she felt were good points made by the Minister’s Office. The strategic advisor testified that she was not directing the ATIP Directorate to apply exemptions to the briefing note but rather asking the Directorate to take into account the comments by the Minister’s Office.

On August 5, 2009, the ATIP Acting Manager replied by email:

We are looking at your comments.

The ATIP Acting Manager then looked into the issues raised by the Minister’s Office. She explained that, in the end, the figures in question were severed because she was satisfied that the exemption did, in fact, apply. She added that she would have maintained her initial position to release the information had she felt that the exemption did not apply.

On August 6, 2009, the Deputy Minister’s Strategic Advisor emailed the ATIP Acting Manager as follows:

Thank you for taking our considerations. You may now release the ATIP.

The Strategic Advisor explained that she used a poor choice of words in that email and that what she meant to say was that she was comfortable and to thank the ATIP Directorate for taking into account the comments of the Deputy Minister’s Office, which was the originator of the document.

On August 6, 2009, the responsive records were released in accordance with the directions from the Director of Parliamentary Affairs to remove the monetary figures in the briefing note on the public opinion research project.

For this file, the Deputy Minister’s Office signed the Notice of Release two days after what was mandated by the zero-tolerance policy. The Minister’s Office signed 17 days after that (i.e. August 4, 2009), and the information was released two days later. This is an example of PWGSC’s zero-tolerance policy of releasing the information six working days after the date of the notice not being respected.

Despite the fact that the notice had been signed by all levels of review, the evidence shows that the ATIP Directorate did not release the records until the issue with the Minister’s Office had been resolved. The evidence also shows that the ATIP Directorate—ultimately agreeing with the directions of the Director of Parliamentary Affairs—chose to release the responsive records with severances to the monetary figures.

3. Consultation request AC-2009-00039

On June 16, 2009, PWGSC received a consultation request from Health Canada with respect to an access request it had received, part of which is reproduced below:

On June 30, 2009, this request was designated “interesting” at the weekly access meeting.

After this meeting, the Director of Parliamentary Affairs emailed the Minister’s Policy Advisor, who was responsible for advising on asbestos-related issues, to inform him that the consultation file would be coming to the Minister’s Office for review: “We are going to have to carefully read this atip....A doctor writes bad things about Chrysotile.”

The Notice of Reply was signed on July 6, 2009, by the ATIP Directorate. The notice indicated that the ATIP Directorate’s recommendation was that the requested information be “all disclosed; communiquer en entier.”

Included with the file was the ATIP Directorate’s draft email response to Health Canada, which stated, in part, “The documents you have sent have been reviewed. PWGSC has no objection to the disclosure of the records.” The ATIP Directorate’s initial recommendation, then, was that the requested records be fully disclosed.

In accordance with the department’s zero-tolerance policy, all levels of review were required to sign the Notice of Reply by no later than July 14, 2009.

The Notice of Reply was signed by the Assistant Deputy Minister of the Parliamentary Precinct Branch on July 7, 2009. Three days later, on July 10, 2009, the Deputy Minister’s Office signed the notice.

On July 16, 2009, the Minister’s Policy Advisor, who was responsible for asbestos files, reviewed the request. He testified that requests concerning asbestos-related issues were important or of interest to the then-Minister because asbestos mining occurred in his riding.

On July 20, 2009, four days beyond the time mandated by the zero-tolerance policy, the Director of Parliamentary Affairs signed the notice on behalf of the Minister’s Office. He wrote directly on the responsive records to “please exclude the following that is highlighted.” The Minister’s Policy Advisor testified that he was the one who highlighted those portions of the records to which the Director of Parliamentary Affairs referred. He also testified that he highlighted those portions of the records because he felt they could somehow hinder intergovernmental relations.

On July 21, 2009, an administrative assistant in the Minister’s Office emailed individuals in the ATIP Directorate, the Deputy Minister’s Office and the Minister’s Office, advising that the Minister’s Office had signed three requests, including this consultation request, and that they were being returned to the ATIP Directorate. When the files were returned to the ATIP Directorate, the ATIP Acting Manager replied to the Administrative Assistant that she would need additional information from the Director of Parliamentary Affairs regarding his note to “please exclude the following that is highlighted.”

Within minutes, the Director of Parliamentary Affairs, who was copied on the email exchange between the Administrative Assistant and ATIP Acting Manager, replied to both directly that they should contact a colleague of his in the Minister’s Office, namely the Policy Advisor who had reviewed the file. The Director of Parliamentary Affairs included the Policy Advisor in his email response. The Administrative Assistant, who was copied on this email, asked that the Minister’s Policy Advisor respond to the ATIP Directorate’s question as soon as possible. Shortly thereafter, the Policy Advisor emailed the ATIP Acting Manager, the Director of Parliamentary Affairs, and the Administrative Assistant as follows:

Those comments are inappropriate and improper, not relevant to the request and should not be disclosed.

When questioned on why he thought the comments were “inappropriate and improper,” the Minister’s Policy Advisor testified that he felt the highlighted sentences may have hindered intergovernmental relations. He also testified that, in sending this email, his intent was to convey an opinion to the ATIP Directorate and that the purpose of his email was to clarify the Director of Parliamentary Affairs’ earlier statement to “please exclude the following that is highlighted.”

The Deputy Minister’s Strategic Advisor testified that, after reading the “inappropriate and improper” email, she phoned the Minister’s Policy Advisor to explain, among other things, that the ATIP Directorate did not see any exemption that could be applied to the records at issue and that the ATIP Directorate was the decision-maker. She also explained that the ATIP Directorate could only make recommendations on consultation requests and that, in this case, Health Canada would ultimately decide whether to follow the recommendations.

One ATIP official who was questioned on the involvement of ministerial staff members in the processing of access and consultation requests testified that the Director of Parliamentary Affairs was generally not shy about letting the ATIP Directorate know of his concerns.

For her part, the ATIP Acting Manager responded to the Policy Advisor’s email of July 21, 2009, as follows:

FYI—While I understand your concerns, it would be difficult to apply any severances to the records based on these reasons. Please note that the Access to Information Act was created to provide access to records under the control of federal institutions, and limit the application of severances. Therefore, the legislators did not include a section in the Act for “inappropriate and improper” comments. Unless you can provide us with additional information regarding the injury that this information could have on PWGSC, if released, we will not be in a position to recommend the application of exemptions to these records. This said, it would be appreciated if you could respond to this email as soon as possible, as we were to respond to Health Canada by July 22,2009, [… .] Do not hesitate if you require any additional information or have any questions/concerns.

The Minister’s Policy Advisor did not immediately respond to that email. Instead, on July 23, 2009, he emailed, “as requested,” a copy of the consultation request (with attachments) to a ministerial staff member in the Office of the Minister of Health because, as per his testimony, he had identified potential issues for the PWGSC Minister’s Office and had discussed them with his ministerial counterpart at Health Canada.

When his counterpart at Health Canada asked what changes he was looking for, the Policy Advisor in the PWGSC Minister’s Office replied as follows:

I would like to apply severances on informations that could show tension and dissension between the departments, over the issue of the expert panel on chrysotile asbestos. For instance, I invite you to look at the attached document (Item #7 and the last sentence of the first page of this document).

His counterpart in the Office of the Minister of Health responded, “thanks.”

The Policy Advisor in the PWGSC Minister’s Office testified that his involvement in the file ceased at that point and that he does not know what transpired after last emailing his counterpart at Health Canada.

During these exchanges between ministerial staff members, the ATIP Acting Manager received telephone calls from the ATIP office at Health Canada requesting an update on the consultation file still at PWGSC. The ATIP Acting Manager testified that she called the Minister’s Policy Advisor at PWGSC when he did not respond to her email about the legislators’ not including a section for “inappropriate and improper comments” and that she left him a voice message. She explained that they played “phone tag” and that, a few days later, he left her a voice message about how he had spoken “with the Minister’s Office at Health Canada and that everything was okay and to contact the analyst in the ATIP shop [at Health Canada] to make sure the recommendations would be followed.”

As instructed, the ATIP Acting Manager then spoke with the ATIP analyst responsible for the file at Health Canada to discuss PWGSC’s recommendations for exemptions to the responsive records. She testified that the ATIP analyst at Health Canada told her that the OPI there concurred with the exemptions recommended by PWGSC.

The ATIP Acting Manager then reversed her initial recommendation and wrote to the PWGSCATIP analyst as follows: “Please change response to indicate the portions where we recommend sec. 21(1). Please send to me after for final review.”

The ATIP Acting Manager testified that she also spoke with her counterpart at Health Canada to verbally advise it of PWGSC’s recommended severances to the responsive records.

The ATIP Acting Manager testified that she changed her initial recommendation (to disclose all the information) to apply the exemption at section 21(1)(a) of the Act. She acknowledged that this new “recommendation” sought to apply section 21(1)(a) of the Act to those portions of the records that were highlighted by the Director of Parliamentary Affairs. She testified that she changed her recommendations based on the position of her counterpart at Health Canada that the OPI, whom she qualified as an expert on the subject matter, believed the highlighted information could qualify for exemption. She testified that she was taking the word of her counterpart at Health Canada that what the Minister’s Office had highlighted would be exempt under the Act, and that she let the recommendations go on that basis.

On August 27, 2009, PWGSC responded to Health Canada that “portions of the records be exempted pursuant to section 21(1)(a) of the Act (see highlighted information).”

This “new” recommendation by the ATIP Directorate was in keeping with the note included with the Notice of Reply by the Director of Parliamentary Affairs on July 20, 2009 and the statements in the Minister’s Policy Advisor’s July 21, 2009, email that the highlighted portions of the responsive record are “inappropriate and improper, not relevant to the request.”

As mentioned, the Minister’s Office failed to follow PWGSC’s zero-tolerance policy when it signed the Notice of Reply six days after the time allocated for reviewing and signing notices. This resulted in a delay in releasing the information to the requester.

Despite the fact that the Notice of Reply had been signed by all levels of review, on July 20, 2009 (i.e. four working days after what was mandated by PWGSC’s zero-tolerance policy) the evidence shows that the ATIP Directorate only responded to Health Canada on August 27, 2009, when the issue with the Minister’s Office had been resolved. The involvement of the Minister’s Office resulted in the ATIP Directorate’s reversing its initial recommendation to release everything to recommending to Health Canada, as per the wishes of the Minister’s Office, that portions of the records be severed.

4. Access to information request A-2009-00033

On April 27, 2009, PWGSC received a request for:

A list of all QP [Question Period] notes created for Minister of Public Works and Government Services Canada from April 13, 2009 to April 27, 2009.

On May 6, 2009, this request was designated “interesting.”

The Notice of Release was signed by the ATIP Directorate on May 14, 2009. The notice indicated that the ATIP Directorate had “considered the recommendations made by the Communications Sector” and “determined that the information can be released in its entirety.”

The document to be released was a list of QP notes created by the OPI in response to the request. In this list of QP notes, the word “(French)” was included next to the title of those notes that had been drafted in French.

In accordance with the department’s zero-tolerance policy, all levels of review were to review and sign the notice by no later than May 22, 2009.

On May 19, 2009, the Assistant Deputy Minister of the Corporate Services, Policy and Communications Branch signed the notice, with a comment pertaining to a typographical error in the list. The Deputy Minister’s Office signed the notice on May 22, 2009.

Also on May 22, 2009, the Director of Parliamentary Affairs signed the notice on behalf of the Minister’s Office but crossed out the word “(French)” in the responsive record a total of 14 times. He included the words “see comments” under his signature. Note: the responsive record in this file had been created by PWGSC in order to respond to the request. It contained a list of the requested notes that included the word “(French)” next to the titles of the 14 notes drafted in French.

On May 26, 2009, an administrative assistant in the Minister’s Office sent an email to individuals in the ATIP Directorate, the Deputy Minister’s Office and the Minister’s Office, indicating that the “ATIP Request has been signed and returned to ATIP office.” Shortly thereafter, the Minister’s Director of Parliamentary Affairs replied to this email indicating, in another example of a ministerial staff member directing the ATIP Directorate on how to apply the Act and the proper scope of a request, that the notice was “signed to go out on the condition that the changes I requested be made.”

When questioned about this email, the Director of Parliamentary Affairs testified that it was a “suggestion” that the ATIP Directorate make changes to the document that he felt were needed.

The Director of Parliamentary Affairs testified that he did not want the word “(French)” to appear on the list of QP notes because “it was wrong[;] this was an inaccurate description” of the QP notes. He further explained that all QP notes drafted for the Minister were translated in both official languages the day they were made and that to tell the requester that there was only a French QP note was inaccurate. In response to the Director of Parliamentary Affairs, the ATIP Acting Manager informed him that the ATIP Directorate would look at his requested changes. After receiving the file from the Minister’s Office and taking into account the input from the Minister’s Office, the ATIP Acting Manager emailed the Director of Parliamentary Affairs as follows:

We have received the purple folder and we will remove the reference to “French” in the list.

The ATIP Acting Manager testified that the ATIP Directorate implemented the changes requested by the Director of Parliamentary Affairs because it did not believe it was restricting access to information, although the Acting Manager also testified that no exemptions were at play but that the issue for the Minister’s Office concerned the scope of the request. She explained that the list of QP notes was created by the department in response to the request and that it was still providing the information requested, even in removing the 14 instances of the word “(French).” The ATIP Chief agreed that the modification was made because the word “(French)” “was not essential information” but rather “additional information”.

On May 27, 2009, the requested information was released and, in accordance with the directions of the Director of Parliamentary Affairs, the 14 references to “(French)” were removed.

Despite the fact that the Notice of Release had been signed by all levels of review, albeit not within the six-day timeline mandated by PWGSC’s zero-tolerance policy, the evidence shows that the ATIP Directorate did not release the information until the issue with the Minister’s Office was resolved. This again led to a delay in releasing the information to the requester.

5. Access to information request A-2009-00169

On June 26, 2009, PWGSC received an access request for 11 Question Period notes, one of which dealt with visible minorities.

On June 30, 2009, the request was designated “high profile” and, on July 24, 2009, PWGSC took an extension of 90 days pursuant to paragraph 9(1)(b) of the Act to conduct consultations. The extended due date for responding to the request was therefore October 26, 2009.

The Notice of Release was signed on September 22, 2009 by the ATIP Directorate. The notice indicated that certain information had been “severed as recommended by the Department of Justice” and that National Defence and Defence Construction Canada had “no objection to the disclosure of information related to their institutions.”

In accordance with the department’s zero-tolerance policy, all levels of review were required to sign the notice by no later than September 30, 2009.

On September 29, 2009, the Assistant Deputy Minister, Corporate Services, Policy and Communications, signed the notice. On the same day, the Deputy Minister’s Office signed the notice.

On October 8, 2009, in the context of another access request, an administrative assistant in the Minister’s Office sent an email to officials working in the ATIP Directorate that a file had “been signed and returned to the ATIP Directorate.” Shortly thereafter, the Director of Parliamentary Affairs emailed the ATIP Acting Director (copying others in the ATIP Directorate and the Administrative Assistant) as follows:

Note that I have not yet signed off on A-2009-00169.

Minutes later, he emailed the ATIP Acting Manager and the Administrative Assistant explaining that this other access request could be released but that he had “a problem with 169.”

The ATIP Acting Manager replied to this email as follows:

Please let us know what the problem is and we will look at the records again.

On October 19, 2009, 13 days beyond the time allocated by the zero-tolerance policy for the different levels of review to sign the notice, the Director of Parliamentary Affairs signed the notice. Also on that day, an Administrative Assistant in the Minister’s Office sent an email to people on the same distribution list advising that the notice had been signed by the Minister’s Office and the file returned to the ATIP Directorate.

Enclosed with that email was an attachment for the action of the Director General, Executive Secretariat, to draft a letter to the requester setting out that the visible minorities note had not been approved or requested by the Minister’s Office. The Deputy Minister’s Strategic Advisor acknowledged writing the attachment for the Director General.

When the file was returned to the ATIP Directorate, there was a handwritten note on the Notice of Release, also dated October 19, 2009, which read as follows:

I am strongly opposed to releasing the visible minorities note because this was never requested, nothing was sent up to alert of this issue and the note was never in the QP book of the Minister. A note must be included relaying that information in the ATIP release. In future ONLY QP notes that are approved and/or put in the QP book will be considered “QP notes.” [emphasis original]

The Director of Parliamentary Affairs acknowledged in his testimony that he was the one who wrote this note on the notice to the ATIP Directorate. He testified that he did so because he was opposed to the visible minorities note being released, since “it never came to us for approval[;] it was never [in] the Minister’s book” or in “the back up book” and, as such, was “not a QP card.” He further testified that, if the ATIP Directorate wanted to keep the visible minorities note in the release, then some kind of explanation should be given to the requester so as to not give the false impression that the visible minorities note was really a QP card.

The Director of Parliamentary Affairs explained that the part of his handwritten note indicating that “a note must be included” was a suggestion to the ATIP Directorate to provide an explanation to the requester. He indicated that the last part of his note—that “in the future, only QP notes that are approved and/or put in the QP book will be considered ‘QP notes’”—was intended as a comment on the process of drafting QP notes in the department, since this was of concern to him.

According to the ATIP Acting Director, if a QP card fit within the scope of a request, it would be released to the requester, unless a valid exemption could be applied. She explained that, as far as she was concerned, the QP card on visible minorities, whether a draft or the final version, was not subject to any exemption.

The Director of Parliamentary Affairs testified that, prior to signing the notice, he discussed the QP note issue, and this particular QP note, with the Assistant Deputy Minister of Corporate Services, Policy and Communications because she was responsible for parliamentary affairs for the department. He explained that going to the Assistant Deputy Minister was about fixing a departmental process that he felt was broken, since PWGSC was including QP notes that were not approved or part of the Minister’s binder. He also spoke with the Assistant Deputy Minister because he felt the visible minorities note was not a QP note. For her part, the Assistant Deputy Minister explained that this was an example of a situation in which the Minister’s Office was right in pointing out that some of the QP notes had not been seen or requested. She explained that there was a general feeling of embarrassment that the department needed to explain this somehow, to avoid creating a risk of embarrassment for the Minister.

Between September 29 and October 19, 2009, the Corporate Services, Policy and Communications Branch worked towards resolving, with the Minister’s Office, the draft QP note issue. Numerous emails were exchanged between Communications and the Assistant Deputy Minister’s Office and between Communications and ATIP officials. A legal opinion was also sought by the Assistant Deputy Minister on the issue of the visible minorities QP note being a draft and the Director of Parliamentary Affairs’ not wanting to release it.

The Deputy Minister’s Strategic Advisor testified that she first became aware of the Director of Parliamentary Affairs’ handwritten note on the notice when the file was returned to the Deputy Minister’s Office on October 19, 2009. She testified that she phoned the Director of Parliamentary Affairs after reading his email and explained to him that all responsive records (including drafts) had to be provided to the ATIP Directorate, which had the decision-making authority in this regard. She testified that, during this telephone call, she advised the Director of Parliamentary Affairs that it might be a good idea to provide the requester with an explanation about the draft nature of the QP note. After their conversation, the Strategic Advisor testified that she spoke with the Assistant Deputy Minister about the issue of draft documents, at which point it was decided that the requester would be provided with an explanation.

Between October 21 and 26, 2009, the ATIP Directorate and Communications coordinated the drafting of a response letter to the requester to include an explanation regarding the preparation of QP notes at PWGSC and the circumstances surrounding the QP note on visible minorities.

On October 26, 2009, the responsive records were released as per the ATIP Directorate’s initial recommendation. The response letter for the requester was amended to add four paragraphs explaining the process of drafting QP notes in anticipation of questions posed in Parliament, and how the visible minorities note had not been requested or approved.

The ATIP Acting Director, who coordinated the response, testified that, in her experience, it was uncommon that an explanatory note be provided in the response letter to the requester. She explained that she had never before seen explanatory paragraphs like the ones in the response letter in this file. She did explain, however, that the ATIP Directorate’s role is to assist requesters in understanding the information they are receiving and that the Act does not prevent PWGSC from providing additional information in this regard.

The Director of Parliamentary Affairs testified that he agreed that the visible minorities note should be released once he learned that it had been previously released in the context of another access request. He explained that he “agreed that the visible minorities card or note should—because it was identified from another record, that it should be sent out, absolutely.”

For this file, the Minister’s Office failed to respect PWGSC’s zero-tolerance policy when it signed the Notice of Release 13 days after the time allocated for review. This also led to a delay in responding to the requester. Even after the Minister’s Office signed the notice, the ATIP Directorate worked to resolve the issue raised by the Minister’s Office. Only on October 26, 2009, were the records released to the requester.

The evidence shows that the directions of the Minister’s Office resulted in the ATIP Directorate’s including additional paragraphs in the cover letter sent to the requester regarding the fact that the visible minorities note had not been approved.