Annual Report: 2002-2003

Since the terrorist attacks in the United States on September 11, 2001, the Canadian government has taken a number of initiatives designed to restrict public access to information and restrict the ability of the Information Commissioner to independently review government refusals to disclose information. In last year's report, Parliament's attention was drawn to the fact that the Antiterrorism Act (introduced as Bill C-36) gave the Minister of Justice the authority to issue a certificate which would not only cloak information in secrecy, but also terminate any ongoing investigation by the Information Commissioner related to such information. (See pages 15-20, 2001-2002 Annual Report.)

As well, the Privy Council Office, since the September 11th tragedy, insisted that it be involved in the review of all access to information requests concerning post-9-11 matters.

It can be reported that, in this reporting year, no secrecy certificates have been issued under the antiterrorism legislation to terminate access investigations. As well, PCO has ceased requiring departments to seek its review of all requests concerning antiterrorism/security matters. That is the good news!

The bad news is that Citizenship and Immigration Canada has asked Cabinet to give it a greater ability to cloak information in secrecy by designating its enforcement and intelligence branches as an "investigative body" under the Access to Information Act. Only investigative bodies may avail themselves of the exemption set out in paragraph 16(1)(a) of the Act, which authorizes such bodies to keep their records secret for twenty years, without the necessity of demonstrating that an injury to law enforcement or investigations could result from disclosure.

In the 20 years since the access law has been in force, this is the first new application for investigative body status. The Information Commissioner was given an opportunity to comment on the application and he recommended that the application be denied. The text of his letter of recommendation to Justice Canada is appended to this report at pages 129 to 130 (Appendix A).

Canadians continue to complain about excessive secrecy on the part of government institutions which play a role in ensuring public safety. The most high profile example this year involves the refusal of Transport Canada to disclose information about the results of their tests of airport baggage and passenger screening. The Information Commissioner is investigating a complaint against a refusal to disclose even the results of past tests which have been disclosed in response to previous requests. This high level of caution was also of concern, this year, to members of the Standing Senate Committee on National Security and Defence which undertook an examination of security at Canadian airports.

In January of 2003, the Senate Committee issued a report entitled: The Myth of Security at Canada's Airports. Here is what that report has to say about the government's refusal to disclose security-related information:

"The Committee recognizes the need to balance the public's right to know against the interests of national security. But unreasonable secrecy acts against national security. It shields incompetence and inaction, at a time that competence and action are both badly needed. The Parliament of Canada Act designates Parliament as the primary agent in providing Canadians with good, balanced government. The Committee sees itself as helping to perform this role on behalf of all Canadians, and considered the resistance of some people who chose to hide behind a false wall to be most inappropriate." (p. 13).

The Access to Information Act was intended to move us beyond a form of government accountability based solely on trusting the word and good faith of public officials. While trust in our public officials is important, and usually deserved, the Access Act allows us to verify that our trust is well-placed. This important role of openness in our society is not given adequate weight by our public officials who are involved in security-related work.