A federal cabinet minister's aide killed the release of a sensitive report
requested under freedom-of-information in a case eerily similar to a notorious
incident in the sponsorship scandal.
A bureaucrat had to make a mad dash
to the department's mailroom last July to retrieve the report at the last minute
under orders from a senior aide to then-Public Works minister Christian Paradis.
The order was issued by Sebastien
Togneri, Paradis' parliamentary affairs director, in a terse email after he had
been told the file was already on its way to The Canadian Press, which had
requested it.
"Well unrelease it," Togneri said in
a July 27 email to a senior official in the department's Access to Information
section.
"What's the point of asking for my
opinion if you're just going to release it!"
The document was an annual report on
Public Works' massive real-estate portfolio, which contained factual information
on high vacancy rates and weak returns on investment. Such reports had never
been made public before.
The department's real-estate branch
had consented to the full release, and the Access to Information office at
Public Works had determined after extensive consultation that there was no legal
basis to withhold any of the report.
The file, though, was deemed
"sensitive" - partly because it was a media request - and was sent to the
Conservative minister's office for review. The office initially gave the green
light, but had a change of heart on the very day it was being mailed out.
Togneri insisted that only one small
section of the report be released, despite the uniform view among Access to
Information officials that the entire 137-page document could not be withheld
under the legislation.
The matter was eventually brought to
the attention of the department's director-general, Sylvia Seguin-Brant, who
wrote a memorandum arguing that despite objections from the minister's office,
the entire report should indeed be released.
"The decision has been made in a
fair, reasonable and impartial manner with respect to the processing of this
request," she wrote, referring to the bureaucrats' handling of the file.
The decision to release the entire
document was made after consulting with Justice Department lawyers.
In the end, though, the department
released only a heavily censored version just as Togneri had insisted - 82 days
later than allowed under the law. The final release included just 30 pages.
Internal documents showing how Public
Works handled the file were released to The Canadian Press under the Access to
Information Act.
The incident is reminiscent of
another Public Works report, on the sponsorship scandal, requested by a Globe
and Mail reporter a decade ago.
The Gomery Commission into the
scandal determined in 2004 that the minister's office tried to interfere with
the release of the report. In that case, the senior public servant in charge of
Access to Information, Anita Lloyd, decided the move was unethical and illegal.
After consulting her personal lawyer
three times, Lloyd refused to sign off on the file.
When her resistance became widely
known, she was hailed as a hero for standing up to her political masters, when
the department was headed by then Liberal minister Alfonso Gagliano.
The latest incident is a rare glimpse
into the murky world of so-called "amber-lighted" or "red-flagged" Access to
Information requests, terms applied to files the government deems politically
sensitive and which are subject to close review by a minister's political staff.
Paradis was shuffled last month to
the Natural Resources portfolio, taking Togneri with him as his director of
parliamentary affairs.
Togneri did not respond to requests
for comment.
Paradis' current communications
director said Togneri's intervention was to suggest the Access to Information
section offer fewer pages to the requester without charge rather than the entire
137 pages for a fee of $27.40, which had already been paid.
"He went through and thought that a
huge section of a very big report wasn't relevant and that you should be given
the option of paying to get it or get the (smaller) chapter" without charge,
Margaux Stastny said in an interview.
"No one can overrule Access
officers."
The options were never provided to
the requester, however. Instead, the department simply sent the censored report
and refunded the fee.
Stastny said she could not explain
why Togneri's intervention caused Public Works to miss its legislated deadline
by 82 days. "There should not have been a significant delay."
The Canadian Press complained last
October about the apparent political interference at Public Works to the
information commissioner of Canada. The complaint was fast-tracked last week
when the office determined the file raises significant issues related to the
accountability of government, said spokeswoman Sandra George.
A lawyer specializing in the Access
to Information Act called the case "troubling," saying it was unprecedented.
"This is a manifestation of political
interference with the administrative processes," Michel Drapeau said in an
interview.
"I've never in my career seen a
minister basically do or tell a bureaucrat how to do his job and how to apply
the law."
Seguin-Brant's memo on whether to
release the entire document did consider whether The Canadian Press might be
persuaded to accept a partial release if fees were waived.
But there were dangers, she said.
"Since he is from the media, he would
likely want to know why he cannot get the entire record and what it contains
before agreeing to receive the relevant section only," she wrote.
"Nothing can stop the requester from
obtaining access to the document. He may perceive this as though the department
is not being open and transparent, and is trying to withhold information that
can be disclosed."
After receiving the censored report
and complaining to the information commissioner, The Canadian Press requested
and received the remainder of the report.
The full report showed, among other
things, that Public Works' repair and maintenance costs for its building
portfolio is much higher than in the private sector, as are vacancy rates.
The document showed that the average
vacancy rate in Public Works-managed real estate was 5.1 per cent, far above its
internal target of 3.5 per cent.