SPY CASE DOCUMENTS ARE MISSING: WATCHDOG
Seven-year quest for information under access law
OTTAWA• Federal officials lost or possibly destroyed sensitive records about the case of a naval officer convicted of selling secrets to Russia, an investigation by Canada’s information commissioner has found.
The commissioner’s probe, which involved the country’s top public servant and the prime minister’s national security adviser, left key questions unanswered because the classified records about the spy case could not be located.
The episode began seven years ago when The Canadian Press filed an Access to Information Act request with the Privy Council Office for briefing notes, emails and reports about the case of Jeffrey Delisle from a three-week period in the spring of 2013.
Delisle, a troubled junior naval officer, had been sentenced to 20 years in prison after pleading guilty to passing classified western intelligence to Russia in exchange for cash on a regular basis for more than four years.
The access law, intended to ensure government transparency, allows people who pay a $5 fee to ask for a wide array of federal documents, with some specific exceptions.
The Privy Council Office, the apex of the federal bureaucracy, responded in August 2013 that the records concerning Delisle would be entirely withheld from release because they dealt with matters such as investigations, international relations and detection of subversive or hostile activities.
The Canadian Press complained the following month to the information commissioner, an ombudsman for users of the law who has the power to review documents and decide whether they have been properly withheld.
The events that followed were detailed this month in a letter to the news agency from information commissioner Caroline Maynard.
The commissioner’s office asked in 2013 for an uncensored copy of the files to examine and the Privy Council Office said arrangements would be made for an investigator to view the sensitive records on site.
However, it appears more than five years passed before the commissioner’s office followed up.
In July 2019, the deputy director of the Privy Council Office corporate-services branch told one of the commissioner’s investigators the documents had “most likely” been inadvertently destroyed.
Maynard then issued an order to Greta Bossenmaier, the national security and intelligence adviser to the prime minister at the time, to produce the records — a move aimed at determining whether they had indeed been purged.
In late November, the Privy Council Office’s director of Access to Information replied on Bossenmaier’s behalf that the Privy Council
I CANNOT EFFECTIVELY ASSESS WHETHER PCO WAS JUSTIFIED.
Office could neither locate the records nor confirm if they had been destroyed.
The director provided a few more clues: in 2013, an access analyst viewed the records in a secure area of the office’s security and intelligence secretariat. They were then placed in a folder that appears to have been returned to a different cabinet.
“Should the documents be located, PCO will inform your office,” he wrote.
As the PCO had still not confirmed the status of the documents, Maynard asked Privy Council clerk Ian Shugart in a Dec. 30, 2019, letter to provide any existing records by Jan. 20.
“I also urged the clerk to ensure that PCO take the necessary steps to guarantee that all records relevant to ongoing (Access to Information) complaints are properly stored,” says Maynard’s letter to The Canadian Press.
The Privy Council Office’s assistant deputy minister replied to Maynard last month that the records could not be found and called the matter “an isolated incident.”
Since the incident, the PCO “has committed to ensuring a more rigorous approach” is taken with such requests, said Pierre-alain Bujold, a Privy Council Office spokesman.
The PCO says it now directs officials to make copies of sensitive documents, ensure the request number is prominently displayed, and place the file in a centralized vault for safekeeping and future reference.
Natalie Bartlett, a spokeswoman for Maynard, declined to comment, saying the access law doesn’t allow the office to discuss an investigation unless and until it is published in a report.
In her letter to The Canadian Press, Maynard, who became commissioner in March 2018, apologized for the delay in investigating the complaint.
“Your complaint has brought to the fore both the importance of institutions’ proper identification and preservation of responsive records, as well as the importance of conducting timely investigations.”
Maynard said that upon her appointment she instituted measures to ensure older complaints “continue to be actively pursued and that files do not remain unassigned for lengthy periods of time.”
She added that in this case, without the records, “I cannot effectively assess whether PCO was justified in refusing access, in whole or in part, under the act, nor can I prospectively recommend that information, incapable of being located, be disclosed.”