Last week I received some more documents pertaining to the PICNIC wiretapping program. There were exemptions applied and this didn’t completely surprise me. Portions were blacked out with the institution citing two subsections of the Access to Information Act: 15 (1) and 20 (1) (c). Subsection 15 (1) covers international affairs and defence and I expected some redactions with this subsection cited (though I don’t agree with it, the documents are from 1951). The other I wasn’t familiar with. I had expected 15 (1) or 19, which covers protection of privacy and personal information, or subsection 23 which covers solicitor/client privilege, but 20 (1) (c) was new to me. So I investigated a bit. Below is subsection 20 (1) (c):

20(1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains …
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to , or could reasonably be expected to prejudice the competitive position of , a third party

So the subsection is meant to protect a third party from a release that could result in a financial loss and also affect their competitive position. Based on the documents I was given (which involved discussions of how to keep the secret wiretapping order secret) and the surrounding text that wasn’t redacted, I have good reason to believe the subsection was invoked to hide Bell Canada’s name in the documents. It raises an interesting question, particularly for those researching national security and its history, a history that has often led to government partnerships with the corporate sector. Government contracts have been awarded for numerous elements of the security state, from the construction of surveillance infrastructure, to software programs, to even who could build the most secure filing cabinet. In the case of wiretapping and Bell, the PICNIC documents do reveal that the government promises confidentiality for their role in it. When does that promise end, especially if the technology is still in use? It becomes a problem when you consider how many other companies are involved in the security industry and how do you balance these historic promises of anonymity with the public’s right to know?

In the case of historical research, it is certainly a question that institutions should consider when applying exemptions, but in this case, (if it is Bell) where it is already known that Bell was a participant in this program, and further, regardless of the third party, the passage of time and historical value outweigh the promises of anonymity that were made in 1951 (I think). The institution that applied this exemption, I think, failed to take into account subsection 20 (6). It reads:

Disclosure authorized if in public interest
(6) The head of a government institution may disclose all or part of a record requested under this Act that contains information described in any of paragraphs (1)(b) to (d) i
a) the disclosure would be in the public interest as it relates to public health, public safety or protection of the environment; and
b) the public interest in disclosure clearly outweighs in importance any financial loss or gain to a third party, any prejudice to the security of its structures, networks or systems, any prejudice to its competitive position or any interference with its contractual or other negotiations.

The issue here would be proving that this disclosure is in the public interest and not just in the interests of the researcher. As I understand it, this exemption in the past was invoked in cases surrounding the release of environmental testing results and was contested in requests involving the agriculture sector. I don’t know of a case involving national security (but would definitely like to hear about it if someone does). Certainly I think it would be in the public interest to know more about this given that the government had permitted wiretapping to go on without any oversight by Canada’s courts in this period and it may have played a detrimental role in people’s lives, particularly if they were dismissed from their job, say in the public sector, for something heard in a wiretapped conversation. I certainly don’t think a national security exemption or international affairs redaction was warranted given, again, we’re talking about 1951 and any spy worth their salt didn’t use the phone to discuss secrets. Even government workers were explicitly told in security manuals not to disclose sensitive government information over the phone. What do you think? Where do we draw the line over protecting the corporate sector’s role in our security history?

(Underlines in 20(1) (c) not in original)

 

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