Inside Politics

Information blackout in a post-9/11 world

Now that most of our troops are safely home from Afghanistan, specific questions now focus on what the men and women left behind will do? It's a query that comes into sharper focus on the 10th anniversary of 9/11.

But if we thought that some Afghanistan-related matters fell into an information black hole during a mission in which 157 men and women in the Canadian Forces died, be prepared for a similar disconcerting state of affairs.

It's only natural to ask questions about what kind of training Canadian Force's personnel will be doing "behind the wire" in Kabul. But we might not receive many answers.

Last year, I asked the department of Foreign Affairs for "All briefing notes generated from January 1, 2010 to Nov. 8, 2010, by a discussion of training of our troops in Afghanistan post-2011." As I expected, the department informed me it needed an extra 180 days beyond the initial 30-day period it has to respond. Though I dislike extensions, I decided to wait this one out, rather than complain. It seemed reasonable, given the sensitivity of the request. And being reasonable is sometimes wise, given that many access-to-information offices are overworked and understaffed.

Six months after the 180-day extension request, I received another response, this one indicating that I wouldn't be getting anything. Nothing! The department was using Section 69 of the Act, specifically section "e", to "exclude" the information. What's particularly unfortunate about an exclusion is that you have no legal right to complain to the information commissioner. So a department's word is final. The department in question is saying "What you're asking for is too sensitive and important to divulge."

Generally speaking Section 69 deals with sensitive material deemed too important to be subject to public discussion. And it differs from an exemption, under Section 15, which is discretionary and can be subject of a complaint to the information commissioner. Section 69 deals with draft legislation, recommendations to cabinet or, in my case, "records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, (Privy) Council." It's a jargon-laden phrase, but you get the idea.

I complained anyway, and then filed another access-to-information request for all the records generated within the department by my initial request. This is a tactic I would advise anyone to use, as it can sometimes yield interesting information, such as sensitivities your request may have provoked.

So what did I get?

A few weeks ago, I received a 53-page document filled with emails among a dizzying roster of officials in Foreign Affairs, the Privy Council Office and Justice department.

The request was heartening because it was clear officials took my request seriously. They spent 210 days emailing each other for clarification about the wording of my request for "briefing notes." In at least one instance, an official determined that I may have been asking for the wrong thing because briefing notes "simply means this and not briefing material which would include Decks (PowerPoint presentations) and other such documents."

At no point did any one contact me to discuss changing the wording to achieve more precision - which is expected of department officials according to a "duty to assist," one of the changes the Harper government made to strengthen the access law. For the record, I have complained to the Information Commissioner.

After much discussion about the wording of my request, it emerges there actually was a 75-page document, which I will never see.

It's worth noting that a succession of information commissioners have joined the current commissioner, Suzanne Legault, in demanding that the law be amended to allow them to at least review records that are excluded under Section 69, a section responsible for denying information to an increasing number of individuals between the the years 2005-2006 and 2008-2009. There was a slight dip in 2009-2010, the latest year for which Treasury Board statistics are available.

Needless to say, I agree government should not possess the final word on these exclusions, especially on important security files such as Afghanistan and the role Canadian men and women are still playing to bring peace and democracy to a country still struggling to achieve self-sufficiency. No, we're not asking for the government to reveal state secrets or compromise the ability of the federal cabinet to make decisions. But to be told we can't have anything - that's too much.

Secrecy after 9/11

Section 69 is not the only problem when it comes to keeping information secret.

One of the sad legacies of 9/11 is that Liberal and Conservative governments have relied more heavily on matters of "national security" to withhold information. The part of the Access to Information Act that allows a government to withhold information for security reasons is Section 15.

In 1999-2000, before the terrorist attacks, this section constituted five per cent of the total number of exemptions. In 2009-2010, the latest year for which federal government statistics are available, such exemptions comprised 22 per cent of the total number of exemptions. This four-fold increase over that 10-year period is the largest of any category in the Access to Information Act by a wide margin.

So national security, whether it be an exclusion under Section 69 or an exemption under Section 15, has allowed Liberal and Conservative governments over the last 10 years to withhold a growing number of records from public scrutiny.

Few would argue that national security is an important consideration when deciding what records should be released. However, an unfettered right to withhold information makes governments unaccountable. An unchecked right to withhold records, including those that even Canada's information watchdog can't examine, is undemocratic and unacceptable.

If you have any specific information on this matter you'd like to share, please feel free to contact me at david_mckie@cbc.ca
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