Privy Council Office (Re), 2024 OIC 26

Date: 2024-05-09
OIC file number: 3217-00061
Access request number: A-2016-00670/SD

Summary

The complainant alleged that the Privy Council Office (PCO), when responding to a request under the Access to Information Act, had improperly withheld information under subsection 13(1) (confidential information from government bodies), and subsection 15(1) (international affairs, national security, defence). The request was for historical information regarding the Intelligence Advisory Committee from 1982 to 1983.

During the investigation, PCO informed the Office of the Information Commissioner (OIC) that it would be disclosing all information which it had previously withheld, with the exception of certain specific categories of information, which it continues to withhold under subsections 13(1) and 15(1).

The Information Commissioner concluded that none of the withheld information under investigation meets the requirements of subsection 13(1) or subsection 15(1). The Commissioner recommended that PCO disclose this information. 

The institution gave notice to the Commissioner that it would not be implementing her recommendation.

The complaint is well founded.

Complaint

[1]   The complainant alleged that the Privy Council Office (PCO) had improperly withheld information under subsection 13(1) (confidential information from government bodies), subsection 15(1) (international affairs, national security, defence) of the Access to Information Act in response to an access request for records related to a review of Intelligence Advisory Committee products between 1 January 1982 and 30 June 1983. The allegation falls within paragraph 30(1)(a) of the Act.

Investigation

[2]   When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

[3]   The Office of the Information Commissioner (OIC) was not convinced that the exemptions had been properly applied in all instances. As a result, on April 18, 2023, PCO informed the OIC that it would be disclosing all information which it had previously withheld under subsection 15(1) when it responded to the access request, with the exception of:

• The names and titles of Liaison Officers from other countries (on which PCO is now applying both paragraph 13(1)(a) and subsection 15(1));
• Information regarding the visits of Intelligence Community members from other countries (on which PCO is now applying paragraph 13(1)(a) and subsection 15(1));
• Dissemination markings of classified reports (subsection 15(1));
• Names of the Communications Security Establishment (CSE) employees (subsection 15(1)); and,
• Certain Intelligence Report titles (subsection 15(1)).

[4]   PCO has not provided the OIC with a date for this supplementary disclosure. PCO stated that their Intelligence Assessment Secretariat must first review the 16 pages of records and then consult with other government departments prior to release, including: the Canadian Security and Intelligence Service; Global Affairs Canada; and/or National Defence.

[5]   I agree that PCO should disclose all of the information that it has proposed can be disclosed. It is not clear why further consultations would need to be undertaken in this regard. I conclude that all information with the exception of the categories listed above should be disclosed to the complainant without further delay.

[6]   The complainant does not object to the redaction of the names of Liaison Officers from other allied countries; therefore, the OIC did not further pursue investigation into this category of information.

[7]   Concerning the application of exemptions on the remaining categories of information that PCO continues to maintain, my analysis is as follows.

Subsection 13(1): confidential information from government bodies

[8]   Subsection 13(1) requires institutions to refuse to release information obtained in confidence from certain government bodies.

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

• The information was obtained from one of the following government bodies:
  • a government of a foreign state or an institution of a foreign state;
  • an international organization of states or an institution of such an organization;
  • a provincial government or institution;
  • a municipal or regional government or institution; or
  • an aboriginal government or council listed in subsection 13(3).
• The information was obtained from the government body in confidence—that is, with the understanding that it would be treated as confidential.

[10]    When these requirements are met, institutions must then consider whether the following circumstances exist:

• The government body from which the information was obtained consents to its release.
• That body has already made the information public.

[11]    When one or both of these circumstances exist, subsection 13(2) requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[12]    During the course of the investigation, PCO invoked subsection 13(1) to the following information.

Titles of Liaison Officers from other countries 

[13]    PCO invoked subsection 13(1) to withhold the titles of Liaison Officers from other allied countries throughout the records at issue.

[14]    While it can be inferred that the titles of Liaison Officers at issue were obtained from a foreign state, PCO has not provided specific evidence that this information was obtained in confidence, as required by subsection 13(1).

[15]    The complainant submitted that the fact of the close liaison relationships among members of the “Five Eyes” intelligence alliance is described in many public sources (see, among many examples, Richelson, The US intelligence Community, Chap. 13 “Liaison with Foreign Services,” and Richelson, The Ties That Bind, Chap. 7 “The Mechanics of Cooperation and Exchange”). The fact that allied Liaison Officers regularly attended Canadian IAC meetings is well demonstrated by a number of records released by several departments, including PCO, as well as in published works.

[16]    As part of the investigation, the OIC was able to verify that titles of Liaison Officers have been consistently released by allied countries in similar records. The OIC’s own research points to numerous examples of where allied countries released the titles of their own Liaison Officers, and those of other countries, including Canada.

[17]    Therefore, for the purposes of this investigation, I find that publicly available information and previous disclosures made by Canada and allied countries discredit any argument in support of this type of information being received in confidence. I find that PCO has not established that the titles of Liaison Officers were obtained in confidence.

[18]    In light of the above, I conclude that titles of Liaison Officers from other allied countries do not meet the requirements of subsection 13(1).

Information regarding the visits of Intelligence Community members from other countries

[19]    PCO invoked subsection 13(1) to withhold any information regarding the visits of Intelligence Community members from other countries throughout the records at issue. PCO has maintained that this is information obtained in confidence from a foreign government. PCO further represented that allied intelligence services apply the same policy of redacting the names and positions of visiting foreign delegations. PCO is of the view that the release of this information would therefore be injurious to Canada’s reciprocal relationship with our allies.

[20]    As noted above, the complainant does not object to the redaction of the names of working level Intelligence Officers from foreign countries. Regarding the remaining information, while it can be inferred that the titles of employees were obtained from a foreign state, PCO has not provided any evidence that any of the other information regarding the visits was in fact obtained from a foreign country, as the visits appear to have been organized by Canada. In addition, PCO has not provided any evidence regarding an expectation of confidentiality. While PCO maintains that allies redact similar information, the OIC’s research indicates that this is not the case. Several examples of intelligence-related visits to and from Canada from the same era are publicly available through documents released by the United States (US) and the United Kingdom (UK).

[21]    In light of the above, I conclude that the information regarding the visits of Intelligence Community members from other countries does not meet the requirements of subsection 13(1).

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

[22]    The investigation determined that PCO failed to meet the requirements of subsection 13(1). As a result, the examination of PCO’s exercise of discretion is unnecessary.

Subsection 15(1): international affairs, national security, defence

[23]    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)).

[24]    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.

[25]    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?

[26]    PCO originally applied subsection 15(1) to all pages of the records. Although PCO confirmed that additional information will be disclosed, it has indicated that the following portions of the responsive records will continue to be withheld under subsection 15(1).

Titles of Liaison Officers from other countries 

[27]    PCO invoked subsection 15(1) concurrently with subsection 13(1) to withhold the titles of Liaison Officers from other allied countries throughout the records at issue.

[28]    PCO has not provided sufficient evidence on how releasing the titles would harm the conduct of international affairs, or defence or national security, or how there is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[29]    As part of the investigation, the OIC was able to verify that titles of Liaison Officers have been consistently released by allied countries in similar records. The OIC’s research points to numerous examples of where allied countries released this type of information, including the titles of their own Liaison Officers, and those of other countries, including Canada.

[30]    Regarding disclosure of this information by Canada, the OIC is aware that the titles of Liaison Officers were made public in the IAC Minutes for 1980 and 1981, which have been publicly available for a number of years, through separate access requests to the federal government, and no apparent harm to Canada’s relationship with allies has resulted.

[31]    PCO represented that when specific Liaison Officers from other countries are missing from the attendance sheet, it implies that discussion topics were deemed unsuitable to share with said ally. PCO maintained that disclosure would prove injurious to Canada’s relationship with that ally and jeopardize future intelligence sharing agreements.

[32]    In response to PCO’s claim that attendance implies which topics Canada wished to discuss with which allies, the complainant argues that the almost invariable reason for an allied Liaison Officer to miss an IAC meeting is because they had more pressing commitments elsewhere, or were out of town. In the complainant’s view, it  would be extremely unlikely that an allied Liaison Officer would be deliberately disinvited from an IAC meeting.  

[33]    The complainant represented that on occasion issues were discussed with some Liaison Officers but not others. All participants were aware of this and understood that it was normal practice. For example, the Canadian Liaison Officer to the United Kingdom Joint Intelligence Committee was not included in the UK/US/Australia discussions on Iraq in 2002-03 (see Barnes, “Getting it Right,” p. 944). The complainant submits that if there was a subject that the IAC wanted to discuss with a particular Liaison Officer they would be quietly asked to remain behind after the meeting. On the minutes of the meeting, the attendance of all of the allied Liaison Officers would be indicated for the first part of the meeting. No mention would be made in the minutes that a Liaison Officer remained behind for further discussion.

[34]    I am not convinced by PCO’s speculative arguments. Publicly available information and disclosures made by Canada and allied countries discredits PCO’s argument of harm reasonably occurring should this information be disclosed. That the harm may occur as a result of disclosure must be a reasonable probability and not a mere possibility. 

[35]    In light of the above, I find that titles of Liaison Officers from other allied countries do not meet the requirements of subsection 15(1).

Distribution markings of classified reports

[36]    PCO invoked subsection 15(1) to withhold every mention of distribution markings throughout the records at issue. PCO has maintained that the redaction of distribution markings of classified reports is a government-wide policy. PCO’s position is that even though other institutions have released the markings, 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.

[37]    However, I am aware that PCO itself has disclosed dissemination markings, most recently in response to another request for IAC documents from 1984 (request A-2018-00075).

[38]    Given that no apparent harm was noted in the previous disclosures, this tends to confirm that the use of subsection 15(1) is not justified in this case, unless PCO would be able to provide evidence in support of reasonable expectation of probable harm occurring as a result of the disclosure of the distribution markings in question in the current file.

[39]    In my view, PCO has not demonstrated how the release of these markings 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. 

[40]    In light of the above, I find that the numerous mentions of distribution markings do not meet the requirements of subsection 15(1).

Names of CSE employees

[41]    PCO invoked subsection 15(1) to withhold the names of CSE employees throughout the records at issue, with the exception of publicly known heads and deputy heads, and that CSE has specified that only the names of those employees can be released.

[42]    Evidence gathered during the investigation demonstrates that the CSE employees’ names have been previously released. For example, several disclosures of IAC reports show the attendees, including the mention of CSE and the name of the person attending the meeting. Most recently, PCO released the names of CSE employees participating in IAC meetings in the 1980s in response to access request A-2018-00075.

[43]    PCO has not demonstrated how the reasonable expectation of probable harm required by subsection 15(1) could occur should the names of the CSE employees at issue be released, particularly in light of previous disclosures. 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 35 years old and clear evidence of any probable harm if those names were disclosed, has not been provided by PCO.

[44]    In light of the above, I find that the names of CSE employees do not meet the requirements of subsection 15(1).

Certain Intelligence Report titles 

[45]    PCO invoked subsection 15(1) to withhold certain intelligence report titles throughout the records at issue. PCO has maintained that certain country names or topics are identified for specific severances if they are otherwise identified on intelligence priorities lists from the period, thereby implying that Canada may or may not have been using all overt and covert means at its disposal to acquire information on these countries. PCO further represented that the question of if this activity is still sensitive after the passage of time, is problematic in that PCO would need to know when the activity actually ended (and if it has ended) for PCO to be reasonably sure that there would be no further harm to the national interest if this information were released.

[46]    In the matter of Bronskill v. Canada (Canadian Heritage), 2011 FC 983, the Court asserted that in order for subsection 15(1) to apply, the institution cannot rely on an umbrella rationale and that there must be a direct relationship between disclosure and an alleged injury.

[47]    Based on a review of the records and PCO’s representations, the injury resulting from disclosure is not apparent, particularly considering that the record at issue contains only the titles of the reports and does not reveal the content of the reports in question. PCO did not provide any evidence that the redacted titles have any ongoing operational relevance or that confirmation of covert operations could be determined from the redacted information. Likewise, PCO offered no detail to support its claim that bilateral operations could be negatively impacted by disclosure, nor what the specific injury would be.

[48]    As demonstrated during the investigation, several IAC assessments on this subject from the same time period have already been released without redactions.

[49]    In light of the above, I find that the intelligence report titles do not meet the requirements of subsection 15(1).

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

[50]    The investigation determined that PCO failed to meet the requirements of subsection 15(1). As a result, the examination of PCO’s exercise of discretion is unnecessary.

Outcome

[51]    The complaint is well founded because:

• PCO did not properly apply subsection 13(1) or subsection 15(1) to the records relevant to the access request.

Recommendations

I recommend that the Clerk of the Privy Council:

1. With the exception of the names of Liaison Officers from other allied countries, disclose the records in their entirety;
2. Provide a new response to the request no later than 60 business days after the date on the final report.

Initial report and notice from institution

On March 19, 2024, I issued my initial report to the Clerk setting out my recommendations.

Institution will not implement recommendations

On May 3, 2024, the Assistant Secretary to the Cabinet, Ministerial Services and Corporate Affairs gave me notice that PCO would not be implementing my recommendations. PCO stated that “while this file will not be disclosed in its entirety, a high percentage of the previously withheld information will be released. In line with an ongoing interdepartmental declassification initiative for similar historical intelligence records, upwards of 80% of the content may be disclosed. Additionally, in line with findings set forth in the aforementioned declassification initiative, the age of the records in question plays a role in the ability to release information that was previously withheld. Factors affecting a record’s disclosure include: advancements in intelligence gathering techniques, counter-intelligence capabilities, and requirements for intelligence. An example of this is the amount of detail recorded in the minutes (including discussions of sources) which varies from year to year. These issues account for the increased use of exemptions over time.”

PCO confirmed that it will not respond within 60 business days after the date on the final report, as per my recommendation. Rather, PCO intends to provide a supplementary response to this request as soon as possible. However, PCO will first complete consultations with CSE, Global Affairs Canada and National Defence. Once these consultations have been completed, PCO stated that they will expedite the final processing of the records.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right 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.