Annual Report: 2006-2007

CHAPTER IV:

Case 9 – What Did CSIS Spend in Dealing with the Maher Arar Matter?

Background

An individual asked the Canadian Security Intelligence Service (CSIS) for records showing how much CSIS had spent on the Maher Arar matter. In response, CSIS denied the request pursuant to subsection 15(1) of the Act, which provides:

"The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the …detection, prevention or suppression of subversive or hostile activities …"

The requester could not understand why CSIS would withhold information that taxpayers have a right to know; he appealed to the Information Commissioner.

Legal Issue

Could disclosure of the requested records "reasonably be expected" to be injurious to the work of CSIS? Determining the answer to this question required the Commissioner to obtain an explanation from CSIS, on whom the legal burden rests for justifying reliance on subsection 15(1).

CSIS argued that giving any details as to how it allocates its resources could give insight into its operational priorities. In CSIS’ view, a potential hostile agency might determine, through a series of access requests, the level of resources deployed to particular areas of counter-terrorism activity.

Given the general nature of the records at issue, the very public context of the O’Connor inquiry, and the detailed information already public about CSIS activities with respect to Maher Arar, the Commissioner was not persuaded that the injury test contained in the exemption had been met. CSIS reconsidered the matter in light of the Commissioner’s concerns and decided to disclose the previously withheld records.

On that basis, the Commissioner recorded the matter as resolved.

Lesson Learned

There are many government institutions engaged in security, intelligence, policing, and enforcement activities, and they often have legitimate concerns about releasing any information which would give insight into their operational plans, priorities, and capabilities.

However, these agencies must be alert to their obligation to remain accountable through as much transparency as possible. Thus, when requests are received about the expenditure of public funds, these institutions should not follow an inflexible policy of denial; rather, they should consider all such requests on a case-by-case basis. And when subsection 15(1) is being considered as a basis for saying "no", it must be borne in mind that speculative fears of possible injury from disclosure are insufficient. There must be a reasonable expectation, at the level of a probability, that injury to the intelligence or enforcement activity will result.