Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 72-1995
December 20, 1995
INQUIRY RE: A decision to withhold from the Vancouver Province
portions of a report concerning document handling and security within the
Office of the Premier
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Introduction
As Information and Privacy Commissioner, I conducted a written inquiry on
October 6, 1995 under section 56 of the Freedom of Information and
Protection of Privacy Act (the Act). This inquiry arose out of a request
for review made by Donald James Hauka, a reporter with the Vancouver
Province, (the applicant), of a decision of the Office of the Premier (the
public body) to sever material from a 20-page report, dated April 10, 1995,
from James McIlvenna to Alan Barnard, Comptroller General, entitled "A Review
of the Executive Council Documentation Process." This report describes the
mandate of the review, the review's action plan, and the writer's findings and
recommendations.
2. Issues under review at this inquiry
This inquiry concerns the Office of the Premier's application of
sections 13(1) and 15(1)(k) of the Act to the report prepared by James McIlvenna
concerning document handling and security within government. The relevant
sections of the Act read as follows:
Policy advice, recommendations or draft regulations
13(1) The head of a public body may refuse to disclose to an applicant
information that would reveal advice, or recommendations developed by or for a
public body or a minister.
13(2) The head of a public body must not refuse to disclose under
subsection (1)
(a) any factual material,
...
(g) a final report or final audit on the performance or efficiency of a public
body or on any of its programs or policies,
...
(j) a report on the results of field research undertaken before a policy
proposal is formulated,
(k) a report of a task force, committee, council or similar body that has been
established to consider any matter and make reports or recommendations to a
public body,
...
(m) information that the head of the public body has cited publicly as the
basis for making a decision or formulating a policy, or
...
Disclosure harmful to law enforcement
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
...
(k) harm the security of any property or system, including a building, a
vehicle, a computer system or a communications system.
Information must be disclosed if in the public interest
25(1) Whether or not a request for access is made, the head of a public body
must, without delay, disclose to the public, to an affected group of people or
to an applicant, information
...
(b) the disclosure of which is, for any other reason, clearly in the public
interest.
3. Burden of proof
At an inquiry to refuse an applicant access to all or part of a record, the
head of the public body must prove that the applicant has no right of access
(section 57(1)). Thus the Office of the Premier, in this case, has to prove
that the Vancouver Province has no right of access to the severed
records.
4. The Vancouver Province's case
Between February 10 and April 10, 1995, James McIlvenna, a retired RCMP
officer, prepared a report on Cabinet confidentiality and security. His
recommendations went to Cabinet on May 3, 1995. The media claim that the
Premier promised to make the report public once it had cleared Cabinet.
(Submission of the Applicant, paragraphs 1.2, 1.3, and 1.4)
The applicant argues that the Office of the Premier has engaged in censorship
to such an extent that it is impossible for the public to know whether the
report's recommendations "have any foundation in logic or expertise."
(Paragraph 1.7) It suggests that the released parts of the report have "a
superficial flavour" and "the look and feel of a preliminary, unofficial, and
non-scientific investigation." (Paragraphs 1.8, 1.10; see also 6.4) The
government has even censored newspaper clippings that are in the public
domain.
The writer for the Vancouver Province wishes to "write accurate and
newsworthy reports of public interest" concerning the efficacy of Cabinet
confidentiality, the usefulness of the report in dispute, and the level of
performance and quality of work of its author. (Paragraph 1.13) The applicant
argues that the entire report can be disclosed without threatening Cabinet
secrecy. (Paragraph 6.2) The government is making it impossible to assess the
overall quality of its investigator's work. (Paragraphs 6.5, 6.6)
The applicant commented in detail on the section 13(1) severances adopted by
the Office of the Premier and made various assumptions, comments, and
suggestions about what has been omitted and why. (Paragraphs 5.5, 5.6) It did
the same for the
section 15(1)(k) severances. (Paragraphs 5.7, 5.8)
The applicant further claims that the Office of the Premier has severed
information that should be disclosed under various categories of section 13(2)
of the Act. (See paragraphs 6.9-6.19)
It also contests the Office of the Premier's application of the
section 15(1)(k) exception to the severed records, including an argument to the effect
that the "system" in question must relate to law enforcement to be protectible
under this section: "only an investigative procedure that carries the threat
of penalty in the context of a police or quasi-judicial proceeding will
constitute a `system' for purposes of subparagraph 15(1)(k)."
The System identified by the Government is exclusively a set of policies and
procedures for preparing and processing documents. It is not an investigative
apparatus, and it bears no relation to police or quasi-judicial proceedings.
For this reason, the System is not a "system" within the meaning of
subparagraph 15(1)(k). (See paragraphs 6.20-6.31, esp. 6.30)
Even if the report is found to be about a system, the applicant's view is that
its disclosure cannot reasonably be expected to cause harm, especially since
the Office of the Premier has presented no evidence to support its allegation
of harm. (Paragraphs 6.32, 6.46)
From a comparative perspective, the applicant described what it claims is
greater openness with respect to reports about security and confidentiality of
Cabinet records in the United Kingdom and the United States. (See paragraphs
6.35-6.41)
The applicant is especially exercised about the severance of pages 11 to 15 of
the report in dispute, since they concern fifteen media reports that the author
"speculates may have involved unlawful disclosure of Cabinet confidences .....
Because each of these incidents involved media coverage, details of the
supposed leaks are by definition in the public domain and their disclosure
could not harm the System." (Paragraph 6.50) The author did not contact the
newspaper reporters to learn from them whether unauthorized leaks to them
indeed occurred, as opposed to "deliberate, `tactical' leaks by government
itself ..." (Paragraph 6.53)
Finally, the applicant seeks to argue that the Office of the Premier should
have ordered disclosure of the unsevered report on the basis of section 25, the
public-interest override:
... an acute public interest exists that policies designed to preserve
government secrecy be based on adequate advice from competent advisors ....
In this case, the Government appears to have received superficial advice from
an advisor not qualified for the task ....
The inadequacy of the McIlvenna Report is again apparent from the fact that it
makes no reference to acoustic intelligence, communications security,
electronic surveillance, or computer-database security. The disclosed text
deals exclusively with a "hard copy" environment ....
More importantly, the McIlvenna Report seems to omit discussion of even
familiar security strategies [followed by a listing of 15 techniques that may
not be discussed in the severed portion of the report] ... (paragraphs
6.54-6.59)
5. The Office of the Premier's case
The overriding concern of the Office of the Premier is that "sensitive
information respecting the security of Cabinet records must be protected from
disclosure." (Submission of the Office of the Premier, paragraph 2) It argues
that the recommendations that it has severed under section 13 are located
throughout the report and their release "would clearly undermine the entire
process and leave the process open to further intrusions or breaches of
security." (Paragraphs 8, 9) In its submission, none of the factors listed in
section 13(2) apply, including subsection (g). (Paragraph 11)
The Office of the Premier claims that the severed records fall under the law
enforcement aspects of section 15 of the Act, especially section 15(1)(k): "A
government should be permitted to examine its security systems knowing that
such an examination will not be a public record ... the release of apparent
weaknesses in a system could be exploited by those seeking to do so (Paragraphs
15-30)."
The security consists of secrecy in the operation of Cabinet. The report deals
with the strengths and weaknesses of such an operation. Any release of the
workings of this system necessarily compromises the system itself. (Paragraph
30)
6. The reply submission of the Vancouver Province
The applicant essentially argues that the Office of the Premier has
tendered no evidence to support its burden of proof in this inquiry:
Rather than produce evidence, the Office of the Premier invites the Commission
and the Applicant to bow to the Government's alleged wisdom in security
matters. The Premier's Submission, in essence, says merely: "We believe
bad things might happen if an unexpurgated McIlvenna Report is released. Trust
us on this one." This familiar refrain from Government became obsolete
with passage of the Act. An applicant is now entitled to say to Government,
`Prove it.' (Reply Submission of the Applicant, paragraph 2.2)
The applicant rejects any claims that the McIlvenna Report concerns law
enforcement within the meaning of section 15: "The theoretical possibility
that a report given to government might lead to a real `law enforcement'
investigation does not trigger the s. 15 exception. A prima facie case for
punishment must result from the investigation report to which access is
sought." (Paragraph 6.4 and, generally, paragraphs 2.3, 2.4, 6.1-6.6)
The applicant also pointed out that in October 1995 the House of Commons
Standing Committee on Justice and Legal Affairs, Subcommittee on National
Security, tabled in Parliament its Report on Documentary and Personnel
Security, which investigates how documents prepared by the Canadian
Security Intelligence Service were leaked in August 1994. (Supplementary
Affidavit of Donald James Hauka, Exhibit A, tab 1) This report also refers
publicly to the federal government's security policy, "a public document, which
details all aspects of security organization and administration, information
technology security, and personnel security training." (Paragraph 2.7; see
also Treasury Board Secretariat of Canada, Administrative Policy Branch,
Security (Minister of Supply and Services Canada, 1994) in Affidavit of
Editha Corrales, tab. a))
The applicant has also reviewed a series of material facts that it claims the
Office of the Premier has misstated in its submission. (Paragraphs 3.1-3.5;
5.3)
The applicant argues that the McIlvenna Report falls squarely within the
compass of section 13(2)(g) of the Act and must be disclosed. (Paragraph
5.5)
7. The reply submission of the Office of the Premier
The Office of the Premier objects to the applicant's reply submission on the
grounds that it is a critique of the McIlvenna report rather than an argument
for disclosure based on the Act. Disclosure "would jeopardize the already
weakened security system at issue in the McIlvenna report," and the Office of
the Premier has "provided detailed and convincing evidence for the expectation
of harm."
The system being protected deals with highly confidential documents that have
in the past been improperly released. Further intrusions into the system
through an examination of how the deficiencies were corrected would render the
system useless. The public interest in maintaining this system overrides any
public interest in seeking the exact recommendations. (Reply Submission of the
Office of the Premier, paragraphs 1, 3, 6)
The Office of the Premier believed on October 6, 1995 that "release of this
report would be less damaging to the system if it were released some months
from now. This would ensure any security adjustments made were in place and
operating to a satisfactory standard." (paragraph 7)
The Office of the Premier also stated that avoiding embarrassment is not an
issue in its decisions on what to disclose in this matter: "Nothing in the
Report embarrasses the Public Body in terms of the functioning of the system.
Any embarrassment factor has long since passed with the earlier breaches of
security." (paragraph 11)
8. The Freedom of Information and Privacy Association (FIPA)'s case as an
intervenor
David F. Sutherland of Killam, Whitelaw & Twining, Barristers &
Solicitors in Vancouver, made the submission for FIPA. FIPA adopted the
extensive argument of the applicant.
FIPA argued that, based on British and U.S. examples, "secrecy about the
system of secrecy is not necessary. That type of secrecy is particularly
abhorrent to FOI core values." The fact that there have been fifteen known
breaches of security of Cabinet documents, as noted in the media, argues for
release of the full report in the public interest, since there may have been
even more such breaches that have not been reported: "Very powerful interest
groups - far more potentially damaging to the public interest - may have
received leaks, if the media has." Continued suppression leaves serious
questions about the quality and scope of the recent investigation itself.
FIPA argues that section 15(1)(k) has no appropriate application to the
disputed record, since there is no reasonable expectation of harm to a system.
Furthermore, under section 13(2), FIPA is of the view that the report can be
construed as an "audit" and 13(2)(g) applies to favour disclosure, as does
13(2)(k).
... FIPA argues that the information sought is necessary to the adequate and
appropriate functioning of a democracy. Confidence in that functioning is also
necessary. Short-term, political and partisan interests must step aside and
defer to the interests of the public. Acknowledging (as does the Act), that
Cabinet security is necessary, FIPA submits that scrutiny of the adequacy of
the system is necessary, not only to the adequacy, but also to confidence in
that adequacy.
9. Discussion
Detailed review of the severed records
When an applicant disputes the severances made by a public body, as in the
present case, my only recourse is to review the severances in detail, as I now
propose to do. The severed copy of the report contains nine almost completely
blank pages and another two that are more than half blank. Thus the Office of
the Premier has withheld about one-half of the 20 page report. (Affidavit of
Donald James Hauka, tab 3)
For reasons explained further below, I am accepting only some of the
severances under sections 13 and 15 of the Act, and re-severing the material
when I find that section 15(1)(k) in particular does not apply. Except for a
few sentences specifically noted below, I find that disclosure of the severed
information "will not harm the security of any property or system, including a
building ...."
The applicant argued that section 13(2)(g) favours disclosure of the portions
of the report severed under section 13(1), because the report in dispute is "a
final report ... on the performance or efficiency of a public body ...." The
applicant asserted this point; the Office of the Premier simply rejected it.
On the basis of such limited submissions from the parties, and the fact that
some of the information in the whole report does concern the security of
property and a system, I am reluctant to conclude, in this case, that the
language of section 13(2)(g) should prevail to force disclosure of the entire
report.
I also do not accept the argument of the Freedom of Information and Privacy
Association with respect to section 13(2)(k), because the report in dispute is
not "a report of a task force, ... or similar body that has been established to
consider any matter and make reports or recommendations to a public body."
Severances on page 5:
The Office of the Premier has appropriately severed two specific
recommendations under section 13 of the Act. In my view, it inappropriately
withheld all of the two preceding sentences, which describe the investigator's
understanding of what officials knew about the coverage of Cabinet confidences
by the Freedom of Information and Protection of Privacy Act. All except
the last clause of these sentences cannot be excepted from disclosure under
section 13, because they are factual information. Thus section 13(2)(a)
applies.
First severance on page 6:
The Office of the Premier has inappropriately withheld a descriptive paragraph
under section 15 of the Act. I find that section 15(1)(k) does not apply to
this information, because disclosure will not harm the security of any property
or system.
Second severance on page 6:
The Office of the Premier has inappropriately withheld two
descriptive paragraphs under section 15 of the Act. I find that
section 15(1)(k) does not apply to this information, because disclosure will not harm
the security of any property or system. They simply describe what the
investigator found in factual terms.
Severances on page 7:
The Office of the Premier has appropriately severed a number of specific
recommendations on this page under section 13. The two top sentences, however,
follow from the paragraphs on the bottom of page 6 (ordered released) and
should be released along with them, since I find that section 15(1)(k) does not
apply to this information, nor to the recommendations, because disclosure will
not harm the security of any property or system.
Severances on page 9:
The Office of the Premier has appropriately severed two specific
recommendations under section 13 of the Act. However, as above, I find that
section 15(1)(k) does not apply to them.
Severances on page 10:
The Office of the Premier retained two severances on this page in which the
investigator engaged in self-criticism of his research methods and assumptions.
The only material that should not be disclosed is the last sentence of the
second paragraph, which refers to a recommendation and should be protected
under section 13. What has been omitted, here and above, may be embarrassing
to government and to the author of its report, but cannot be protected under
section 15(1)(k) of the Act.
Severances on pages 11 to 15 concerning some media reports
The Office of the Premier seeks to except all of this material under
section 15(1)(k), which, in my view, it cannot do, since its disclosure will not harm
the security of any property or system. It is in fact overwhelmingly factual,
descriptive information of events within government sometime before known or
alleged leaks of "Cabinet confidences" appeared in the media. The events seem
to describe incompetent, careless, and perhaps illegal or unethical behaviour
that remains an embarrassment to government and also makes for interesting
reading to an interested taxpayer, since it seems evident that vaunted Cabinet
confidentiality was being breached on a regular basis by means and persons
seemingly unknown, including the possibility of "strategic leaks." An unkind
reader might conclude that the government's investigator found out nothing
about what actually happened as opposed to what might have happened. I note
that the Office of the Premier did not claim the protection of section 12 for
any of this material, or indeed, for any part of the report.
Remaining severances on pages 15 to 17:
These 2.5 pages present some actual findings of the investigator when he
visited several offices of the Premier in the legislative precinct. The Office
of the Premier has excepted them under section 15(1)(k). I find that most of
the text is simply descriptive. I have re-severed these pages, severing only
those sentences or parts thereof that actually describe conditions that might
indeed "harm the security of any property or system, including a building, a
vehicle, a computer system or a communications system." Thus I accept this
aspect of the Office of the Premier's argument under section 15(1)(k).
Severances on pages 18 and 19:
The Office of the Premier has appropriately severed the list of
recommendations under section 13 of the Act (but not under section 15(1)(k)).
However, it has inappropriately withheld a one paragraph descriptive comment by
the investigator as to his qualifications with respect to computer system
access and control. Sections 13 and 15(1)(k) of the Act do not apply to this
information.
Severance on page 20:
The Office of the Premier has inappropriately withheld two descriptive
sentences of "conclusion" by its investigator under section 15(1)(k) of the
Act. These should now be disclosed, because disclosure will not harm the
security of any property or system.
Disclosure of the recommendations
The Office of the Premier has withheld the text of the fourteen
recommendations in this report under sections 13 and 15. I conclude that
section 15(1)(k) has no application, but I agree that the Office of the Premier
has the authority to refuse access to this information under section 13(1). I
would like to point out, however, that the specific recommendations do not
appear to me to be controversial and, in light of my conclusions about the
applicability of section 15, release of the recommendations may provide further
context to the document.
10.
Order
I find that the Office of the Premier is not authorized to refuse access,
under sections 13 and 15, to parts of the record described in this Order. I
also find that the Office of the Premier is authorized to refuse access, under
section 13(1), to other parts of the record described in this
Order.
Under section 58(2)(a) of the Act, I require the Office of the Premier to give
the applicant access to those parts of the record which were inappropriately
severed, as described in this
Order.
Under section 58(2)(b), I require the Office of the Premier to reconsider its
decision to refuse access to those parts of the record which may be protected
under section 13(1).
December 20, 1995
David H. Flaherty
Commissioner