By Alan Barnes
In recent decades, Canadian historians have become reliant on the Access to Information and Privacy (ATIP) process for the release of government historical records. This was not supposed to happen: when the Access to Information Act (ATIA) was passed in 1983 it was not intended to replace the existing mechanisms for declassifying government records and making them available to researchers. But since the implementation of the Act the federal government has let all of its other declassification programs effectively lapse. Paul Marsden describes the dire impact this has had on the work of historians in “Lost and Fonds”, his recent article in the Literary Review of Canada.
In practical terms, this reliance means that historians seeking government records on Canadian foreign policy, defence, intelligence and security matters have to navigate the complexities of the ATIP process, and deal with two primary obstacles: Section 15, which allows the government to withhold information that could harm Canadian international affairs, defence or security; and Section 13, which protects information received in confidence from a foreign government. There is no question that some information requires protection in order to safeguard Canadian interests, but is that what is really happening?
Little understanding—on both sides—of how the access system is actually working
Unfortunately, there is little understanding of how the ATIP process is actually working, what is being redacted and on what basis. This applies to those on both sides of the process because each request is handled on an individual basis where only a few people are aware of the specific records—and redactions—involved in each case.
Researchers are generally only familiar with the responses that they receive and are not aware of how other requests are being handled. Working in isolation, it is difficult to see the bigger picture and to get a feel for the full extent of the problem. Researchers generally do not know what has been redacted from a release and have no way of judging the validity and reasonableness of the deletions. They are at the mercy of the good faith of the department in applying the exemptions allowed by the ATIA in a reasonable manner. This does not always work out well.
“We don’t know what our adversaries will use against us”
There is also misunderstanding within government about how the Act is being implemented, and what is actually being “protected.” Many of the government officials involved in the process seek to justify their cautious approach to the release of records with variations on the mantra “we don’t know what our adversaries will use against us.” But departmental ATIP staffs are generally not familiar with the specifics of the records in question, and are largely responding to the advice they receive from the operational and policy groups of their departments, which have little interest in promoting the release of historical documents. Departmental staffs generally do not know how other departments have handled specific requests, and how redactions were carried out. There is no overall direction to departments to ensure that redactions are actually protecting information that could be useful to Canada’s current adversaries or that would be harmful to Canadian interests more broadly.
We now have a better idea of what is happening
There is a need to foster a better understanding of how the ATIP operates when dealing with historical records, especially those foreign policy, defence, intelligence, and national security matters. Fortunately, it is now possible to get a better idea of how this process is actually working.
Since 2015 researchers working under the aegis of the Canadian Foreign Intelligence History Project (CFIHP) have been conducting a comprehensive campaign of ATIP requests seeking the release of records dealing with foreign intelligence matters in Canada. This effort has now amassed a large collection of documents which provide useful insights into how the ATIA is being implemented, and in particular how exemptions are being applied by departments. This overarching analysis is possible because in many cases copies of the same document have been released by different departments in a redacted and unredacted form. In this way, the specifics of many of the redactions can be examined and an independent judgment made about whether they are justified.
Below are several examples of redacted releases, with comparative documents to indicate what material was deleted. These records deal with foreign intelligence matters, but the conclusions drawn from these examples can equally be applied to a wide range of records dealing with foreign policy, defence, and national security.
The following examples are drawn from documents dating between 1949 and 1991. They were part of various ATIP releases between 1994 and 2021. The titles below link to full-page versions of the examples.
Example 1 – Extract from Joint Intelligence Summary No. 27, 28 October 1952
This example is from an intelligence summary produced by the Joint Intelligence Committee. Example 1a is almost entirely redacted. The reviewers were apparently unaware that a full, unredacted set of these intelligence summaries is held in the open files of the Directorate of History and Heritage in the Department of National Defence. Considerable time was therefore wasted reviewing records that were already available to researchers.
Example 1 – JIC Intelligence Summary
The redactions in Example 1a did not meet the harm test required by Section 15: there can be no reasonable expectation that releasing this information on Soviet air force activities in Austria or Soviet interest in Afghanistan almost 70 years ago would negatively affect Canadian international affairs or defence. The information has been available in DND open archives for a number of years with no harm to Canadian interests. Further, there is no indication that this information came from a foreign government in confidence, the requirement for redactions under Section 13.
Example 2 – Extract from IAC Minutes, 30 August 1972
This example is an extract from the minutes of the Intelligence Advisory Committee. Several sections have been redacted, citing Section 15. The unredacted version demonstrates again that these redactions do not meet the required harm test.
Example 2 – IAC minutes
An item discussing “FBIS” for the RCMP was redacted. The reviewers may not have been aware that this refers to the “Foreign Broadcast Information Service,” operated by the CIA on behalf of the US government to provide English translations of foreign radio broadcasts and media articles. Wikipedia provides a useful description (https://en.wikipedia.org/wiki/Foreign_Broadcast_Information_Service). This item of the minutes certainly did not relate to a sensitive security matter that required protection.
An item discussing “CANUS 73” and the “Hudson Bay Problem” was redacted. A large number of other documents related to the annual CANUS series of intelligence assessments on the threat to North America have been made available in other releases.
The caveat “Canadian Eyes Only” was redacted, although it is hard to see how this would protect Canadian international affairs or defence. Rather this appears to be an internal practice of the department which has no basis in the requirements of the ATIA.
Example 3 – Extract from PCO Report, “An Idea of National Intelligence,” February 1989
This example is a two page extract from a longer report prepared for PCO dealing with broad issues related to foreign intelligence in Canada. The version of the report from which Example 3b was extracted was much more lightly redacted than Example 3a, even thought it was released by the same department over 20 years earlier. This suggests that departments are currently even more stringent in their application of Section 15 exemptions than in the past. This is a result of the government policy—which has no basis in the ATIA—to destroy release packages after two years, which means that any subsequent request for the same document has to go through the complete review process again. The result of this practice is not only such inconsistencies in redactions, but unnecessary work—and expense—for the department, and unnecessary delay in the re-release of the records.
Example 3 – Idea of Intelligence
The redacted sections in Example 3a describe in the most general and anodyne terms Canadian foreign policy objectives—objectives that were publicly described in many government publications of the time. The reviewers appear to have applied a rule of thumb to “redact any mention of Canadian policy.” However, this was done without any consideration of the context of the information and without a proper application of the required harm test.
Example 4 – Extract from R. Reid memo to A.D.P. Heeney, 27 June 1949
This example is a page from a memorandum dealing with the creation of a new DEA division to handle defence, intelligence and security liaison matters, to be called the “Defence Liaison” or DL division.
Example 4 – Reid Memo
In Example 4a the department redacted a comment on the “minor advantage” of the title of the new division in providing “’cover’ for the more secret security and intelligence work,” citing Section 15(1) – Security. It is difficult to see how this redaction protected any truly sensitive security information.
Example 5 – Extract from IAC Brief, “Intelligence Requirements and Priorities,” 21 December 1977
This example demonstrates the redaction of details of intelligence priorities related to national unity and economic interests. These are not surprising, and after 40 years can no longer be considered sensitive. This information was released without redaction in the second version without harm to Canadian interests.
Example 5 – Intelligence priorities
Example 6 – Extract from JIC Paper, “Proposal for a Reorganization of the Canadian Intelligence Organization,” 22 May 1958
This example comprises three pages from a policy paper prepared for the Joint Intelligence Committee. Two versions were released; both were redacted to some extent, but there was very little overlap—no more than three or four sentences—in the redactions made by the two departments. This demonstrates the very subjective nature of the review process. Material that is truly sensitive should be immediately recognizable to any informed reviewer; the fact that the two departments came to very different conclusions of what had to be protected suggests that the judgments were made on the basis of arbitrary rules of thumb (e.g. “redact all mention of allies”, or “redact all mention of COMINT”) rather than being the result of a considered judgment concerning the potential harm to Canadian international affairs or defence.
Example 6 – Intelligence organization
The redactions to Example 6a largely involve removing mention—no matter how cursory—of certain sources of information, particularly references to “COMINT” (communications intelligence). However, the reviewers did not take into account the very large quantity of documentation on this subject that has already been made public, including the release by the Communication Security Establishment (CSE) of substantial portions of a classified internal history of its predecessor, the Communications Branch of the National Research Council.
The redactions in Example 6b, on the other hand, mainly involved references to working with allies. For example, in paragraph 1 the “recent agreement” between the US, UK and Canada refers to the Tripartite Intelligence Alerts Agreement. Considerable documentation on this agreement, including its negotiation and implementation, has already been released, without harm to Canadian interests. In paragraph 3 a very general description of senior intelligence committees in the UK and the US was redacted; this information is available in many published sources, including the official history of the UK JIC, and on the public CIA website.
Example 7 – IAC report, “Gulf Crisis Intelligence Items,” 18 January 1991
This example comprises a two-page IAC current intelligence report. Two versions of this report were provided in the same release package, separated by a number of other documents. Different redactions were made to each version, demonstrating the arbitrary nature of the review process; if this information was truly sensitive, this would have been clearly obvious to all reviewers.
Example 7 – IAC Gulf War report
Some of the redactions appear to concern judgments made by IAC analysts, likely indicating the application of a rule of thumb such as “delete any analytic judgments.” However, the deleted judgments are not particularly surprising (e.g. “Reports of thousands of Iraqi soldiers defecting are probably exaggerated.”) and any sensitivity they might once have had has long been overtaken by the passage of time. There can be no reasonable expectation that the release of this information would harm Canadian international affairs.
Example 8 – Extract from “Summary of Conclusions ICSI Executive Committee Meeting,” 18 June 1982
This example is an extract from the conclusions of a meeting of the Executive Committee of the deputy minister-level Interdepartmental Committee on Security and Intelligence.
Example 8 – ICSI Conclusions
The redacted section in Example 8a notes deficiencies in Canada’s strategic intelligence assessment capabilities at the time. This says nothing about Canada’s current assessment capabilities, since presumably there have been plenty of opportunities to rectify these deficiencies in the intervening 40 years. By invoking Section 15, the department is asserting that the release of this information would harm Canadian international affairs, but this claim does not seem to be justified. Rather, it appears that the department is seeking to withhold information that would reflect poorly on the intelligence community.
The caveats “Canadian Eyes Only” and “Handle via COMINT Channels Only” were also redacted, on the basis that this too would harm Canadian international affairs and defence. However, CSE, the Canadian signals intelligence agency, has released documents with these caveats without triggering such harm. This document is an example of the problem of over-classification: there is nothing in the content that actually touches on sensitive communications intelligence matters.
Some key conclusions
The CFIHP’s extensive experience of obtaining historical government records through the ATIP process—as reflected in these examples and many other cases—has led to a number of inter-related conclusions:
- Departmental reviewers have little knowledge of what historical records are open to researchers in public archives or have been previously released in response to ATIP requests, and as a result a great deal of time is spent reviewing records that are already available to researchers;
- Reviewers receive little guidance on how to deal with historical intelligence records;
- Reviewers therefore fall back on informal—and arbitrary—“rules of thumb” to guide their work;
- These rules of thumb have no basis in the ATIA and are often applied in a manner that is inconsistent with the requirements of the Act;
- Many redactions are arbitrary and highly subjective, and departments often disagree on what redactions are appropriate; and
- Recent releases are sometimes more heavily redacted than the same records released decades earlier.
Lack of knowledge of what has been released
The Access to Information process is an extremely cumbersome mechanism to manage the release of historical government records. It was never intended to fill this role. Departmental reviewers lack knowledge of the historical record and usually are not aware of what documents are already available. Consequently much time and effort is spent in re-reviewing documents that have already been released. This is not the fault of the ATIP staffs: they are not set up to deal with these kinds of requests and lack the appropriate tools.
The government has no mechanism to track what records are currently available to researchers, either in open archives or released through Access requests. The only fairly comprehensive—but nevertheless still incomplete—listing of available documents is provided by the CFIHP database. Departments have been offered access to the database to use as a reference tool to avoid unnecessarily re-reviewing documents. Only Global Affairs Canada and the Office of the Information Commissioner have so far taken advantage of this offer.
Global Affairs has made other efforts to deal with the challenges of reviewing historical intelligence records. It has brought in an archivist to organize the departmental Special Registry of intelligence and security documents and provide advice on the historical context of the records. It has also brought in retired Foreign Service officers on contract to review the files; with time they will become more familiar with the historical context of the files and what records are already available to researchers.
Other departments have been less proactive. Some have brought in retired officials with intelligence experience, but these contracts do not seem to have been long enough for the reviewers to develop a deep familiarity with the historical context of the records. Other departments have done even less and have simply left the process of reviewing historical records to their ATIP staffs and current desk officers. Having no knowledge of the historical context of these files, they generally default to the most restrictive response since this is the bureaucratically safe option.
Lack of guidance and use of rules of thumb
The inconsistent and arbitrary redactions illustrated in the examples above are not surprising in light of the fact that departmental reviewers receive minimal guidance on handling historical intelligence records. The government has provided no overall direction to departments on what specific types of intelligence-related information should be redacted. The direction provided to reviewers by individual departments is minimal and addresses only very limited aspects of the work.
As a consequence, reviewers appear to fall back on a series of informal “rules of thumb” for deciding on redactions. The examples above illustrated several of these, such as “redact any mention of allies,” “redact any mention of COMINT,” “redact any analytic judgments,” and “redact any mention of Canadian policy.” Many others can be inferred from a review of other recently released documents, for example the redaction of any mention of economic intelligence, intelligence priorities or even the names of foreign countries (even if they no longer exist!).
A particularly glaring case is the redaction from committee minutes and other documents of the titles of planned and completed intelligence assessments. This action was likely based on a rule of thumb to redact all information describing subjects of interest to the Canadian intelligence community. Such a rule makes some sense when dealing with contemporary intelligence matters, but its rote application to historical records leads in many cases to absurd situations, such as deleting mention of a planned report on “the Middle East situation” in 1973. Implementing this rule without an awareness of the large quantity of documents that have already been released leads to such examples as the redaction of the title of a 1952 paper dealing with Soviet military radar systems; the reviewer was not aware that an unredacted copy of the full report had already been released by another department.
Redactions are not justified by ATIA
Consequently, many of the redactions being made to historical records do not meet the requirements of the ATIA. The default position of the Act is that requested records should be released; only information that falls within a number of specifically defined categories can potentially be withheld.
Of these, Section 15 is the most critical for historians seeking records on foreign policy, defence, and intelligence matters. The government’s own internal guidelines for implementing the ATIA lay out specific requirements for the application of this section: “It is essential to remember that the types of information listed in subsection 15(1) will not automatically be exempted. For the exemption to apply to any category of information described in the provision, the head of a government institution must be able to demonstrate that there is a reasonable expectation of probable harm to one of the three specified public interests flowing from disclosure.”
To meet this requirement, the department should be able to demonstrate for each redaction how the release of the information is likely to harm Canadian international affairs, defence or security. It should be able to describe how the release of the information is likely to harm relations with a particular country or how it would injure Canada’s ability to carry out its foreign or defence policy. It is clear that this requirement was not met in the examples described above—and in a very large number of similar cases encountered by the CFIHP. There is nothing in the Act authorizing the blanket application of the kinds of “rule of thumb” described above. Each redaction requires a specific judgment concerning the likelihood of harm.
It is also clear that the sensitivity of certain information diminishes with the passage of time, reducing or eliminating any potential harm that might have existed. This factor is frequently ignored in departmental decisions on redactions.
Section 13 is also often misapplied. This exemption only covers information that has been received from a foreign government in confidence, not information that “might have” come from a foreign government. So a copy of a US National Intelligence Estimate in a Canadian file could justifiably be withheld—if it has not subsequently been released by the US government. But a Canadian assessment incorporating a range of information—none of it explicitly identified as coming from a foreign source—is in a different category and should not be withheld on the basis of Section 13.
Frequently, mentions in Canadian documents of the policies, actions or opinions of foreign countries or officials are redacted on the basis of Section 13. For example, the mention of allies being disappointed with Canada’s modest contribution to the pool of allied intelligence are often redacted using this section. Such discussions are not “information obtained in confidence from a foreign country.” If they are truly sensitive—and this may be arguable—then Section 15 is the appropriate exemption to apply, along with the required harm test.
Protecting information from our adversaries – Is this really what’s happening?
The natural desire to ensure that Canada’s adversaries do not obtain information via ATIP that would harm Canadian interests provides an emotional—and thus potentially powerful—argument to justify efforts to restrict the release of historical records on intelligence and foreign affairs. It is difficult to argue against in principle. But is this really what recent redactions have been protecting? Once one delves into specifics, the argument quickly falls apart. There are of course some records which if released would be injurious to Canadian interests, but truly sensitive historical documents that need protecting are very limited in number.
The examples above are representative of the many thousands of documents on Canadian intelligence affairs that are contained in the CFIHP database. The release of these and similar historical records cannot reasonably be seen as providing aid and comfort to Canada’s current adversaries. So continued restrictions on the release of these records, far from protecting them from our adversaries, instead “protects” them from historians and the Canadian public more generally.
There is a strong public interest in making these records available so that the Canadian side of the story can be properly told. Currently, Canadian researchers on intelligence issues and many aspects of foreign and defence policy must rely on records released by other countries—particularly the US and the UK—to inform their work. This situation means that Canadian experiences, contributions, and achievements are likely to be overlooked, or submerged in someone else’s story. The release of these records ultimately serves the broader national interest of ensuring that Canadians have a better understanding of the history of these important facets of government. With a greater understanding of how the Access to Information Act is currently being implemented, historians and departmental reviewers alike should be in a better position to work together to ensure that Canadian historical records on foreign policy, defence, intelligence, and security are made available to Canadians.