Appendix A: Minister’s Office and members of the Minister’s staff

Review of access and consultation requests by the Minister’s Office

Requests that were identified for review at weekly access meetings during the time period under investigation were sent to the Minister’s Office as the last step in the review process. One departmental official and two members of the Minister’s staff testified that the Director of Parliamentary Affairs, who also confirmed this fact, had been responsible for access-related matters within the Minister’s Office since his arrival to PWGSC in July 2008.

The Director of Parliamentary Affairs testified that he received access files on behalf of the Minister’s Office and assigned them to his colleagues, who reviewed them based on their portfolio. The other ministerial staff members interviewed by the OIC confirmed this testimony. They also explained that they reviewed access and consultation requests in order to identify, manage, prepare and inform the Minister so that he could respond to the media.

When an access or consultation file was given to a member of the Minister’s staff, he or she would conduct a review of the information that the ATIP Directorate had decided to disclose. The evidence shows that, in some cases, ministerial staff members would advise the Director of Parliamentary Affairs that the information should not be released and gave their reasons for believing that (see, for example, file A-2008-00519). In those cases, the Director of Parliamentary Affairs gave directions to the ATIP Directorate that reflected his colleagues’ advice.

The evidence obtained in the course of this investigation shows that, as a general rule, members of the Minister’s staff would return the file to the Director of Parliamentary Affairs when they were satisfied or comfortable with the information the ATIP Directorate had decided to release. This signalled to the Director that he could sign the Notice of Release or Notice of Reply on behalf of the Minister’s Office. The Director of Parliamentary Affairs confirmed that he would return files to the ATIP Directorate after his colleagues had reviewed them and he had signed the notices.

The Director of Parliamentary Affairs testified that he signed the notices on behalf of the Minister’s Office because that was the process that was in place when he arrived at PWGSC.

The Director of Parliamentary Affairs relied on the advice of his colleagues in three separate cases among the files that were investigated by the OIC and in which he signed the Notice of Release or Notice of Reply, yet he acknowledged that he was unfamiliar with the subject matter. With regard to these files, his colleagues indicated that either the scope of the request should be narrowed or that exemptions should be applied (see files A-2008-00519, A-2008-00588 and AC-2009-00039).

With regard to the Health Canada consultation file pertaining to Chrysotile (file AC-2009-00039), the Director of Parliamentary Affairs signed the Notice of Reply on behalf of the Minister’s Office despite not having reviewed the documents. When questioned on this file, he acknowledged that he did not understand the nature of the documents received from the consulting department. Despite that, he included a direction to the ATIP Directorate to “exclude” some of the information his colleague, who had reviewed the file, advised not be disclosed. The Director of Parliamentary Affairs testified that he signed the Notice of Reply, even though he and his colleague the Policy Advisor did not discuss the information with which the Policy Advisor had concerns.

With regard to the request for information concerning the American President’s visit to Canada (file A-2008-00519), the Director of Parliamentary Affairs testified that he signed the Notice of Release without reviewing the file. The OIC was informed by the Director of Parliamentary Affairs that his colleague in the Minister’s Office, who had reviewed the request, did not think the information the ATIP Directorate had decided to release was relevant. When questioned on the email he sent to the ATIP Directorate in which he stated that only 1 of the 132 pages was relevant and should be released, the Director of Parliamentary Affairs testified that he was presenting his colleague’s views on the matter. He also testified that he relied on his colleague and that it was based on her position that he wrote the email to the ATIP Directorate.

Finally, with regard to the request for a public opinion research briefing note (see file A-2008-00588), the Director of Parliamentary Affairs signed the Notice of Release on behalf of the Minister’s Office. Included in the file folder returned to the ATIP Directorate were three pink post-it notes affixed to the briefing note on the public opinion research project. The post-it notes referenced monetary figures that had been circled in red ink on the briefing note. The Director of Parliamentary Affairs acknowledged writing the comments on the three post-it notes but did not think he was the one who had circled the monetary figures. He testified knowing very little about public opinion research and that he did not know why he had written those comments.

The administrative process in the Minister’s Office for handling requests

The evidence gathered in the course of this investigation shows that, during the time period at issue, once the Notice of Release or Notice of Reply had been signed by the Director of Parliamentary Affairs, the Administrative Assistant in his office, who was a departmental employee, would coordinate the receipt and return of purple folders to the department. The Administrative Assistant described her role as Administrative Assistant to the Director of Parliamentary Affairs. It is noted that, during her testimony, the Administrative Assistant referred, on four separate occasions, to the Director of Parliamentary Affairs’ role in “approving” access files sent to the Minister’s Office for review. For their part, ministerial staff members could not recall the exact nature of the Administrative Assistant’s responsibilities, other than that she was a departmental employee who offered administrative support to the Communications team in the Minister’s Office. The evidence also shows that the Administrative Assistant would send an email to departmental and ATIP officials that the notice had been signed and that the file was being returned to the ATIP Directorate.

These emails generally read, “Please take note that the above mentioned ATIP Request has been signed and returned to the ATIP Office.” This type of email was sent to the ATIP Directorate in four of the eight files examined by the OIC.

In one file (file A-2008-00519), the Administrative Assistant sent a different type of email indicating that the ATIP request was being returned to the Directorate “for modification.” [emphasis original] When questioned on her use of the words “for modification,” the Administrative Assistant explained that she had used the same words the Director of Parliamentary Affairs had written and underlined on a post-it note he included with the purple file he returned to her. When questioned on this file, the Director of Parliamentary Affairs testified that he could not recall the details surrounding his review of this request. He testified that he did not instruct the Administrative Assistant to send the “for modification” email or any email on the status of access requests.

Access-related training given to ministerial staff members

The Strategic Advisor to the Deputy Minister testified that PWGSC would give training on access matters to new ministerial staff members. This training was given by the Deputy Minister’s Office and the ATIP Directorate, and included a PowerPoint presentation that was generally given by the ATIP Chief.

The evidence shows that the members of the Minister’s staff involved in this investigation all received training on access matters, which was approximately one hour in length. Two ministerial staff members attended the same training session on November 7, 2008, which was held shortly after they arrived in the PWGSC Minister’s Office.

The PowerPoint presentation, “Overview of the Access to Information Act,” reviewed section 67.1 of the Act, the roles and responsibilities of the ATIP Directorate, PWGSC managers and employees, the timelines allocated for the processing of access requests, the delegation instrument, the duty to assist provision, and the processing of records in the Minister’s Office, among other items. When asked whether the training involved discussions about the fact that ministerial staff members did not have delegated authority for access matters, the ATIP official who delivered the presentation replied, “No, just mentioning that we were providing a central processing of requests and the decisions were made by our office; that was made clear. But not stating that they had no authority, no.”

One ministerial staff member testified that training participants were given a general overview of access matters within the department. This staff member could not recall, however, whether the training discussed exemptions. However, he did recall that there was a discussion about what kind of information in the Minister’s Office was “atip-able.” When asked what he meant by “atip-able,” he explained that this referred to information in the Minister’s Office that was subject to the Act. His testimony was supported by another member of the Minister’s staff, who mentioned that the concept of “atip-able” information was broached at a similar training session on the Act.

The Director of Parliamentary Affairs testified that during the training session he and his colleagues in the Minister’s Office were briefed on their role in reviewing information and the role of the public service in releasing information to the public. When asked what ministerial staff members were told concerning their role in reviewing information, the Director of Parliamentary Affairs testified that they were told they could review information going out and if they saw any information they felt should not be released, that they could submit their comments to ATIP officials, who would review their comments and make the final decision. He explained that he was also told that “they preferred it if we included a section of the Actwith anything that we thought should be taken out or included for that matter.” Finally, he explained that he and his colleagues were told during the training session that the ATIP Directorate preferred having the signature of the Minister’s Office on the notice before releasing information. The Director of Parliamentary Affairs testified that he could not recall who told him that he could submit comments about the information he thought should not be released and the applicable exemption.

Two departmental officials, one who attended the training session on November 7, 2008, and the other who delivered the training, testified that members of the Minister’s Office were not told during training that they could submit to the ATIP Directorate exemptions they felt should be applied to the records. They explained, however, that it was possible that ministerial staff members may have asked a question about their role if they saw something when reviewing access files. However, the official who delivered the training testified that she did not tell ministerial staff members that they could cite sections of the Act that they felt could apply. When asked whether someone else may have given this information during the ATIP training sessions, she explained that she was the only person who delivered training in the fall of 2008 and that such information did not come from the ATIP Directorate.

The OIC reviewed the PowerPoint presentation for the training session on November 7, 2008. One slide mentioned the role and responsibilities of the ATIP Directorate, with the first bullet reading, “Full authority under the Acts (ATI and Privacy Act) delegated by the Minister.” Slides 24 to 26 address the best practices for ministerial staff, which included segregating institutional records in the Minister’s Office and the handling of sensitive information. None of the slides in the presentation indicate that the Minister’s Office could comment on, or review, access or consultation requests. Slide 23 reads that the responsibilities of managers and employees are to “conduct a preliminary review of records and advise the ATIP Directorate on implications of disclosure and formulating appropriate recommendations.”

Based on the evidence of the departmental officials who gave the training and a review of the training material, the Commissioner is not prepared to accept that departmental officials told the Director of Parliamentary Affairs during the training session that he was entitled to request that information be withheld during the processing of an access request.

The Deputy Minister’s Strategic Advisor, who coordinated the training, testified that, in addition to this training, ministerial staff members were told that they could attend other training sessions for a “refresher,” when necessary.

The testimonial evidence given during the investigation also shows that the ATIP Directorate and the Deputy Minister’s Strategic Advisor played an educational role when ministerial staff members were involved in access-related matters. The Strategic Advisor stated that her responsibilities as liaison officer included an informal educational function. She explained that she frequently challenged and educated members of the Minister’s staff when they provided their interpretation of the Act to the ATIP Directorate. She gave examples of two files during which she called ministerial staff members in this regard (files A-2008-00519 and AC-2009-00039).

Generally, when the notices were signed by all levels of review, they were returned to the ATIP Directorate by way of the Deputy Minister’s Office, at which point the Strategic Advisor would become aware of any concern or direction from the Minister’s Office. The Strategic Advisor testified that when this happened, she would challenge ministerial staff members and explain to them that they could raise their concerns should they come across something, but that the ultimate decision rested with the ATIP Directorate. With respect to access meetings, the Deputy Minister’s Strategic Advisor testified that she told the Director of Parliamentary Affairs several times that, as ministerial staff members were reviewing files, they could make a suggestion or recommendation to the ATIP Directorate but not necessarily dictate in that regard. She testified that she reiterated verbally on many occasions that the ATIP Directorate had the decision-making authority with respect to access matters.

Duties and role of ministerial staff members in access matters

From July 22, 2008, to January 19, 2010, two main policy documents outlined the role of ministerial staff members with regard to access matters. The first was Treasury Board’s Policies and Guidelines for Ministers’ Offices (2008). The second was the Privy Council Office’s Accountable Government: A Guide for Ministersand Ministers of State (2008). The latter document provided that compliance with Accountable Government was a term and condition of appointment for public office holders (including ministers and members of their staff).

The Minister’s Director of Parliamentary Affairs testified that he was aware of Accountable Government and agreed that he was bound by the principles it contained. Another ministerial staff member was not aware of the document but agreed that it was not ministerial staff members’ role to give direction to public servants, as per Accountable Government.

Increasing involvement by ministerial staff members in access matters

The testimony established that prior to Minister Paradis’ appointment in the summer of 2008, ministerial staff members at PWGSC were not as involved in access matters. Departmental officials testified that the ministerial staff members’ level of involvement increased upon Minister Paradis’ appointment, with his staff members starting to attend weekly access meetings in the fall of 2008 and showing increased interest in access matters.

The evidence points to an increase in ministerial staff members’ involvement in the spring/summer of 2009, when they started including statements in the files they returned to the ATIP Directorate. Those statements were generally about how the exemptions should be applied and how the scope of the request should be narrowed. There were two ways in which ministerial staff members went about doing so. The first was by writing directly on the responsive records and returning the file to the ATIP Directorate (file A-2009-00033). The second was by affixing handwritten notes (e.g. post-it notes) directly on the responsive records or writing directly on the Notice of Release or Notice of Reply (files A-2008-00519, AC-2009-00039, A-2009-00169 and A-2008-00588).

The evidence also shows that in 2009 members of the Minister’s staff began communicating directly with the ATIP Directorate via email concerning access and consultation requests. If they questioned the release of certain information or if the Notice of Release or Notice of Reply was signed with comments, the Administrative Assistant that provided support to the Director of Parliamentary Affairs would send an email to departmental and ATIP officials, and copy ministerial staff members, all of whom were on a distribution list, to inform them of such. From there, direct communications between the department and the Minister’s Office would occur.

The Administrative Assistant in the Minister’s Office testified that she did not create the distribution list but that she was asked to send her emails to the people named on the list. The Director of Parliamentary Affairs testified that he did not instruct the Administrative Assistant to send such emails (see “The administrative process in the Minister’s Office for handling requests”).

The evidence shows that the Director of Parliamentary Affairs, who was copied on the emails, responded to these emails even though they were addressed to ATIP officials. The evidence also shows that, at times, the Director of Parliamentary Affairs brought his colleagues in the Minister's Office into the exchange and opened the lines of communication between his colleagues and departmental staff. Over time, this led to ministerial staff members engaging in direct contact with ATIP officials by email or telephone to discuss access files. An ATIP official testified that direct contact between ministerial staff members and ATIP officials had not occurred prior to the arrival of then PWGSC Minister Paradis. This official testified as follows: “We were never in direct contact with exempt staff before. It was peculiar.” [translation]