Thank you, Mr. Chair. Good afternoon, honourable members of this committee. It really is a pleasure for me to be here today. I'm very grateful to have been invited to speak to Bill .
First, I wish to commend the government on tabling legislation to create a parliamentary oversight body for our national security agencies. The recommendation to create such an oversight committee dates back many years. The committee could, with a properly designed legal framework, do much to increase public trust in our national security agencies. However, I do have some concerns with the bill. These concerns are very much based on my own experience in an oversight role as the Information Commissioner of Canada. My comments today will be directed, first, to the review function of the proposed committee, and second, to the application of the Access to Information Act to the newly created secretariat that will support the committee.
With respect to the review function of the committee, I have concerns with the following six areas: first, the ministerial override of the committee's review function; second, the committee's ability to obtain information; third, the time frames to provide information to the committee; fourth, the private nature of the committee's meetings; fifth, the limitations placed on other review bodies when collaborating with the committee; and sixth, the final nature of decisions made by ministers.
The committee will have a broad mandate to review matters related to national security and intelligence. A broad mandate is important as it will allow the committee to direct its inquiries as it sees fit.
However, clause 8(b) of the bill undercuts this mandate by providing that the minister of a department may override a review where the minister determines it would be injurious to national security.
This override essentially turns the committee's broad mandate into a mirage. It will undermine any goodwill and public trust that may have built up towards the committee and, by extension, the national security agencies it oversees.
My next area of concern will Bill is the exclusions to the committee's right to obtain information. These are found at clauses 14 and 16 of the bill. Based on my seven years' experience as Information Commissioner, I can tell you that exclusions to oversight significantly undermine the review function. Under the Access to Information Act, but for a few exclusions, I have access to all records during my investigations so that I may independently review decisions on disclosure.
The notable exception to my review power is cabinet confidences. Cabinet confidences are excluded from the application of the Access to Information Act. This means that when I investigate a complaint about cabinet confidences, I cannot require that those records be provided to my office. I cannot independently assess whether they are, in fact, cabinet confidences and therefore not subject to the right of access. This severely curtails my ability to provide effective oversight of this exclusion. I still do investigate complaints about the application of cabinet confidences to the best of my abilities. In fact, in 2015-16, I was able to conclude, in 12% of complaints closed, that the cabinet confidences exclusion was not well applied, even without being able to see the records. I can tell you that consistently, year over year, that percentage varies between 10% and 20%, and that's without seeing the records, and it's only on cabinet confidences. Based on my experience, I am of the view that the committee will face difficulties in fulfilling its mandate if it cannot obtain relevant records.
In contrast to the committee, as the Information Commissioner of Canada, I have the authority to review records related to national security and intelligence. There is, in fact, a large discrepancy between the records that I can see and what the committee will be able to see. I have prepared a chart setting out those differences.
Based on my experience viewing those records, there is a tendency for institutions to interpret exemptions in an over-broad manner.
My final concern related to the exclusions at clauses 14 and 16 is that they include no explicit consideration of the public's interest in providing the committee with this information. A public interest component would require that the minister balance the public interest against the national security interest when deciding whether to disclose the information to the committee.
My third area of concern with the bill is found at subclause 15(3). This provision states that, after the appropriate minister receives a request for information, he or she must provide or cause the information to be provided to the committee “in a timely manner”. Similar language to this is used in the Access to Information Act, which provides that extensions in responding to access requests may be taken for “a reasonable period of time".
I have found over the years, as have all my predecessors in the last 30 years, language like this to be vague and open to abuse. In the access world, delay is a frequent subject of complaint by requesters. Where timeliness is at issue without resolution, requesters and I can seek redress from the Federal Court. Under Bill , there is no such dispute resolution mechanism should information not be provided to the committee in a timely manner.
My fourth concern with the bill relates to the private nature of the committee's meetings. Clause 18 provides that:
||Meetings of the Committee are to be held in private if any information that a department is taking measures to protect is likely to be disclosed during the course of the meeting or if the Chair considers it to be otherwise necessary.
This strikes me as an unclear threshold for the committee to go in camera and could easily result in nearly all of these meetings being private.
I next wish to discuss clause 22 of the bill.
This clause provides that the review bodies of the RCMP, CSIS and CSEC may provide information under their control to the committee related to the fulfilment of its mandate. In fact, these bodies are directed to co-operate with the committee at clause 9 of the bill.
However, this direction to co-operate and share information is weakened by clause 22(2) of the bill. This clause prevents the review bodies from sharing with the committee all the information listed in the mandatory exclusions at clause 14. It also prevents the review bodies from sharing information that a minister had decided to withhold from the committee, per clause 16. I have already voiced my concerns with clauses 14 and 16. It is my view that clause 22 compounds those issues and will prevent the review bodies from co-operating in a meaningful way with the committee.
The sixth area of concern I have with this bill is the final nature of decisions made by ministers. The bill prohibits the committee from seeking judicial review of a minister's decision. This can be found at clause 31 of the bill. I have concerns that giving the minister final decision-making authority could lead to overly broad interpretations of the law that favour non-disclosure to the committee.
I am concerned with how the Access to Information Act will apply to the secretariat of the committee. Bill proposes to extend coverage of the Access to Information Act to this new institution, which is designated with assisting the committee in fulfilling its mandate.
The purpose of the ATIA is to provide a right of access to all records under the control of institutions that are subject to the act, subject to limited and specific exceptions. Balancing the right of access against claims to protect certain information is clearly at the core of the access to information regime. Extending coverage of the act to the secretariat is a positive step and a positive aspect of Bill in ensuring transparency and accountability of this new institution.
However, given the way it is drafted, it is not clear to me how much information requesters will actually be able to obtain from this institution. Bill , at clause 35, adds an exemption to the Access to Information Act that is, in my view, overly broad and could result in the secretariat having only the veneer of transparency. The bill proposes to exempt from the right of access any record that contains information created or obtained by the secretariat or on its behalf in the course of assisting the committee in fulfilling its mandate.
This is drafted as a mandatory exemption, which means that once the secretariat has determined that the exemption applies, it is under a legal obligation to refuse any kind of access.
My issue with the breadth of this exemption is three-fold.
First, the proposed exemption is mandatory. Discretionary exemptions are preferable because they allow for a balancing of factors, including the public interest in disclosure.
Second, it applies to any record that contains the protected information. When language like this is used in an exemption, it means that once it has been determined that a record contains protected information, the entire record is protected. This is the case even if only a small portion of the record actually contains information that legitimately requires protection. This essentially nullifies an institution's otherwise mandatory obligation to sever and disclose non-protected parts of a record.
Third, the exemption applies to any information obtained or created in the course of assisting the committee in fulfilling its mandate. This begs the question: what is considered to be assisting the committee on fulfilling its mandate? Does it encompass assistance of a more administrative, technological or financial nature?
One thing is certain: if we have to deal with a financial document that contains a mention of something that was said during a committee meeting and is protected, the actual text of the provisions means that the entire document must be protected. In my view, the exemption, as currently drafted, goes beyond protecting national security.
I have raised several concerns about Bill , many of which have been raised by other participants in this committee review, that I believe will impede the committee in carrying out its mandate, but there are also relatively simple solutions to address these concerns.
First, there should be no ministerial override of the committee's review function.
Second, the committee should have robust access to records, with no limitations. This is necessary in order for the committee to properly fulfill its mandate.
I do not recommend giving the committee broad access to national security and intelligence information lightly. I am acutely aware of the security risks posed in sharing information like this. However, I would point out that, at my office, we are entitled to review records of any security classification, up to and including records that relate to signals intelligence. For all investigation files, security measures are put in place to meet the security classification of the records. In the 30-plus years my office has seen these records, we have never had a security breach. It is my belief that similar security measures could be put in place for the national security and intelligence committee and its secretariat.
It is also important to understand that giving access to information to the committee does not necessarily mean disclosure of the information to the public. In the event that limitations on the committee's access to information are deemed to be necessary, I recommend that a public interest override be added. This way ministers will be required to determine if non-disclosure to the committee is necessary and proportionate as compared to the public interest in having the committee review the information, bearing in mind the accountability function of the committee.
Third, there should be a precise number of days to provide information to the committee. In my experience, 30 days is generally sufficient time. Extensions should be available, but only with the permission of the committee.
Fourth, it should be clearly stated in the bill that the committee's meetings will be public by default. Meetings should only go in camera where a clear threshold is met, such as where disclosure of the information during a public meeting would be injurious to national security, and only for the length of time necessary.
The process would be similar to what we see in court, when they handle particularly sensitive cases. The open-court principle applies, and the court does not proceed in camera unless it is absolutely necessary.
Fifth, there should be no limitations placed on other review bodies when collaborating and sharing information with the committee.
Sixth, decisions made by ministers should be reviewable by the Federal Court. If, for example, there was a provision that made it possible to gauge public interest in the disclosure of the committee's information, those decisions could be reviewed by the Federal Court.
Hand in hand with this recommendation, I would also recommend that if it is determined that some exclusions to the committee's access to information are necessary, any disputes about the application of exclusions should be subject to judicial review. This will limit over-claiming of exclusions.
Finally, the exemption under the Access to Information Act for the secretariat should be discretionary and focused on protecting only the information that is subject to the review function of the committee.
I also recommend that the exemption protect only information and not any record. This is a nuance, but it is a significant nuance, in terms of having the ability to sever information that should be disclosed from the information that needs to be absolutely protected from disclosure. This will result in meaningful access to the secretariat.
Events such as the recent Federal Court decision regarding CSIS's retention of Canadians' metadata, the revelation that Quebec's provincial police have been spying on journalists, and the Snowden affair have eroded the public's trust in its security and intelligence agencies.
The work of the committee will be a key pillar in regaining that trust and increasing the accountability framework of our national security agencies. However, if we want the committee to be successful, it must function under an appropriate legal framework. At present, in my view, Bill does not strike the right balance between protecting the national security interest and maintaining transparency and accountability. In its current form, I do not believe the committee will be able to achieve its goals.
In closing, I would like to thank the committee for the opportunity to present my views on Bill , and I'm pleased to answer any questions you may have.