Letter to the Chair of the Standing Committee on Access to Information, Privacy and Ethics on Recommendation 6.3 and Special Delegation Requirements


Mr. Blaine Calkins, M.P.
Chair, Standing Committee on
Access to Information, Privacy and Ethics
House of Commons
Ottawa ON  K1A 0A6


Dear Mr. Calkins:

Thank you for your letter of June 3, 2016. Please find my response to your questions below.

Recommendation 6.3

Currently, for grants, loans and contributions over $25,000, institutions must proactively disclose on a quarterly basis the name of the recipient, location of the recipient, date, value of the funding, whether the funding is a grant, loan or contribution, the purpose of the grant, loan or contribution and additional technical comments, such as whether the funding is a multi-year commitment or the reporting was belated.Footnote 1

Institutions are not required to proactively release information about grants, loans or contributions of less than $25,000. In addition, they are not required to proactively release the terms associated with these grants, loans or contributions, or information on the status of repayment and compliance with the terms.

Accessing information related to the repayment of loans is a recurring complaint received by my office.

The first reported complaint dates back to 2003–2004, and concerns difficulties obtaining access to repayment information regarding the Technology Partnerships Program. At the time of reporting, $1.6 billion had been contributed to organizations such as Pratt & Whitney and Bombardier.Footnote 2 The requester had asked Industry Canada about whether or not these organizations had ever repaid the loans. Initially, Industry Canada agreed to disclose the total amount of repayments, but not repayments by individual organizations, citing the exemption for third party information. It was only after intervention from the Information Commissioner that the requested information was disclosed per organization.

In the last ten years, this issue has also been the subject of litigation. More recently, in 2014 Bombardier commenced litigation to prevent disclosure of information concerning grants and contributions it had received from government programs, including repayment information. Bombardier claims that the information should be withheld under the exemption for third party information. My office is an added party in these proceedings.

In order to address these ongoing investigation issues, I have recommended that, as part of a publication scheme, institutions should be required to proactively publish information about all grants, loans or contributions given by government, including the status of repayment and compliance with the terms of the agreement.

Increased transparency surrounding the spending of public funds enhances accountability. Proactive disclosure regarding the status of repayment and compliance with the terms of the agreement will allow Canadians to scrutinize whether recipients are abiding by the terms and conditions of repayment.

As with other loans, student loans would already be subject to disclosure if requested under the Access to Information Act (the Act), subject to exemptions, such as the exemption for personal information. Disclosing this information proactively in individual form could be onerous for institutions; however, I would recommend, at a minimum, proactive disclosure of the terms associated with student loans, the status of repayment and compliance with the terms in aggregate form.

Special delegation requirements

Under subsection 59(2) of the Act, the Commissioner (or Assistant Commissioner) may only delegate the investigation of a complaint based on a refusal of access under paragraphs 13(1)(a) or (b) (the exemptions for information obtained in confidence from a foreign state, international organization, or institution thereof) or section 15 (the exemption for international affairs and defence) to a certain number of specifically designated employees.

The number of employees who can undertake these investigations is fixed by the President of the Treasury Board. The maximum number of special delegation investigators is currently set at twelve (12).

In my office, there are presently seven specially delegated investigators.Footnote 3 Of these, two have Top Secret clearance and have undergone indoctrination with Communication Security Establishment Canada (CSEC). As such, they have clearance to view records that relate to signals intelligence (or SIGINT). Two others have Top Secret clearance. The remaining three have Secret clearance.

Special delegation files are assigned based on the requisite level of security needed.

For all investigation files, security measures are put in place to meet the security classification of the records. For Top Secret (SIGINT) records, investigators view records at the originating institution.

As Information Commissioner, I currently hold Top Secret with SIGINT security clearance.

There are 451 active special delegation files in the inventory. Of those, 168 are designated Secret and nine are Top Secret or higher.Footnote 4

I hope this submission is of assistance to the Committee. I remain available for any further assistance it may require as it completes this importance study.

 

Sincerely,

 

Suzanne Legault
Information Commissioner of Canada

 

c.c.:   Mr. Joël Lightbound, First Vice-Chair
Standing Committee on Access to Information, Privacy and Ethics

Mr. Daniel Blaikie, Second Vice-Chair
Standing Committee on Access to Information, Privacy and Ethics

Michel Marcotte, Clerk
Standing Committee on Access to Information, Privacy and Ethics

 

Footnotes

Footnote 1

The requirement to publish this information was announced by the government as part of its Management Improvement Agenda on October 21, 2005.

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Footnote 2

The terms and conditions of the Technology Partnerships Program expired on December 31, 2006. In total, the Technology Partnerships Program gave $3.16 billion in disbursements.

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Footnote 3

The maximum complement of twelve special delegation investigators is not currently met due to staff turnover and resource level issues. However, I intend on designating more special delegation investigators in the near term.

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Footnote 4

The percentage of special delegation files designated as Top Secret or higher is consistently small.

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