Information Commissioner of Canada
30 Victoria Street
Dear Commissioner Maynard,
I am writing on behalf of the Canadian Historical Association to express our concern about ongoing problems accessing historical information generated by Canada’s security services.
We understand that these records are more sensitive than most but also recognize that the public has both the right and obligation to monitor our secret services in order to preserve democracy at its most fundamental level. Currently, Canada’s policies on reviewing historical material related to security services are more restrictive than our closest allies, they hamper important historical inquiry, and ultimately undermine our ability to operate as a democracy. This has been a longstanding concern of ours and we have written CSIS and the Library and Archives of Canada on previous occasions.
The current policy has five fundamental flaws.
First, it takes an inordinately long period of time to gain access to material that is ultimately deemed to be releasable. CSIS and the Library and Archives of Canada (LAC) routinely fail to meet the statutory deadlines for delivery of materials. We have examples of applications taking four years to completion. This precludes graduate students from making this a subject of research and ultimately steers scholars away from one of the most important elements of our national history. Moreover, once material has been cleared for one scholar it should be open to all, but currently that is not the case and the same material gets reviewed anew with each request, slowing access and consuming staff time. Between them, CSIS and the LAC have failed to meet the needs of Canadians for information vital to the operation of our democracy in a timely fashion and there has been no accountability for those failures.
Second, the current process is designed to protect the reputation of the security service rather than the public interest. CSIS/CSE staff with no historical training and no accountability to anyone else, can and do deny access to material that they deem harmful to their image or that of their predecessor, the RCMP security service, despite the fact that it is in the public interest to know how security services have operated in the past and where they may have violated democratic principles. Sometimes access is denied because the reviewers do not have the qualifications to assess historical documents. It is only with such information that Canadians can discuss and establish safeguards going forward to prevent our security services (including the Communications Security Establishment) from overreaching their authority and threatening the rights of Canadians.
Third, the finding aids and subject lists for these files are themselves restricted leading historians to blindly submit requests, in one case for over 50,000 pages because the size of the files was unknown.
Fourth, much security-related historical material from the late 1940s and 1950s is held by the Privy Council Office which has not followed standard records management procedures and transferred these to the jurisdiction of the archives. We have learned that important DND files have been discarded rather than transferred to the archives. When requests are made of individual departments like Justice, the staff handling these materials do not have historical training and are unable to assess them so their default is to redact them.
Fifth, one of the most egregious ways the government is keeping documents hidden is by claiming itself a “client” in some instances or a “solicitor” when giving legal advice to departments and invoking and abusing solicitor client privilege. This makes doing any kind of legal history made impossible because you are unable to track how legislation changes and the reasons for the changes, and the government has used this for documents back 80 years.
We can know that some of the denials to access made by CSIS are not based on national security because in rare circumstances it is possible to find copies of these materials released by the American or British archives, or in unclassified files elsewhere in government. From these we learn both that Canadian regulations are out of step with our democratic counterparts and that CSIS is not applying the appropriate national security tests to some materials they refuse to release. It is clear that there needs to be an independent arbiter to review such requests that has public interest at the centre of their mandate. The effect of all these delays and obstacles means that historians are driven away from the study of security-related issues despite their importance, and graduate students have no chance of accessing files in a time frame that would allow them to complete their degrees.
We urge a change in the legislation that would automatically release historical material after a certain period unless the agency makes a specific appeal to the Information Commissioner or trained staff at the National Archives to prevent release and offer a clear rationale based on national security or other legal grounds. We also urge a mandatory transfer of historic files to the National Archives where they can be assessed by trained staff for retention or disposal.
We welcome your investigation into this issue and we can offer to link you to historians who continue to be denied access or face inordinate delays in trying to write the histories of the most central and secretive institutions in our democracy.
Canadian Historical Association