Canada's top spy agency has given VICE a "we can neither confirm nor deny."
This post originally appeared on VICE Canada.
"We neither confirm nor deny that the records you requested exist. We are, however, advising you, as required by paragraph 10(1)(b) of the Act, that such records, if they existed, could reasonably be expected to be exempted."
Translation: We're not telling.
In January, VICE filed an Access to Information (ATI) request, asking for a slew of financial reports from the Canadian Security Intelligence Service. The specific documents we're after are invoices for thousands, if not millions of payments made from various law enforcement bodies to Canada's telecommunications companies.
For a decade, up until a surprise 2014 Supreme Court ruling, Canada's investigators made informal requests to the country's cellphone and internet providers for their customers' personal information. They never had to go to a judge to make those requests. As an incentive, police paid nominal amounts of money per request—$1.50 here, $10 there—that they wouldn't normally pay for requests authorized by a warrant.
A VICE investigation published in January revealed that Canada's federal police made hundreds of thousands of those requests, costing taxpayers some $1.6 million.
Canada's top court shut that down in June 2014, ruling that those searches were unconstitutional and that if police want information from telecommunications companies, they need to apply to a judge.
Police and the Harper government contended that the Personal Information Protection and Electronic Documents Act, or, PIPEDA, gave them the authority to do so. The court ruled that it did not. But they also argued that the searches were minimally intrusive, and that they were only ever requesting "phonebook information"—name, address, phone numbers.
However, VICE revealed last May that the searches weren't that simple: :aw enforcement was obtaining users' passwords and GPS coordinates, among other things.
CSIS was one client of the program, so VICE requested information on how much they paid out to cellphone and internet companies while citing its authority under PIPEDA.
Citing sections of the Access to Information Act that allows departments to withhold information that they feel could be injurious to ongoing investigations and/or "the detection, prevention or suppression of subversive or hostile activities," CSIS refused to acknowledge if the documents VICE requested even exist.
CSIS pointed to three different sections of the act to bolster its refusal to fork over the documents, but did not explain how disclosing financial documents on a mass warrantless access program could feasibly harm its investigative abilities. It's also unclear why the RCMP could disclose the information but why CSIS cannot.
Under the act, "subversive or hostile activities" are defined as espionage, sabotage, terrorism, hijacking, spying for a foreign state, or violent activism." As guidelines set out by the Treasury Board state, "the exemption may be invoked only for the specific activities listed in the definition."
The guidelines also state that, for a department to claim that releasing information could hurt an investigation, the information it is releasing has to have come from that investigation—that is, CSIS could refuse to hand over information it obtained from the cell phone companies but not, seemingly, documents relating to the general program.
VICE did not ask for any documents about specific investigations.
CSIS is the spy agency that is about to be given broad new powers by the Conservatives' new anti-terrorism legislation, C-51. Critics of the bill have underlined the fact that there is a complete lack of adequate oversight of the spy agency. The spooks' review body, SIRC, has frequently been frustrated by a refusal of the agency to hand over various documents. Last year's annual report dropped words like "intolerable misrepresentation" and "disturbing," in referring to CSIS's refusal to provide documents to the high-security-clearance committee.
Vincent Gogolek, Executive Director of the BC Freedom of Information and Privacy Association, says that "CSIS seems to respond to everything that way right now."
He adds that, if the information requested directly pertained to an investigation—like a receipt for a hotel booking with a CSIS agent's name—it's reasonable for the agency to exempt the information. But, he says, "it normally would have to be just that specific."
The exemption that CSIS is requesting here, however, appears to be too broad, he says.
Gogolek points out that the RCMP is using the same excuse to avoid releasing its case files on former NDP leader Tommy Douglas, citing those documents as "operationally sensitive."
VICE has filed a complaint to the Office of the Information Commissioner, who has the power to investigate and mediate cases where the government is obfuscating their duty to release information. They have, in the past, even sued the federal government to get documents released.
The Commissioner's office, however, is drastically underfunded.
Speaking before a committee in December, Suzanne Legault, the Commissioner, told Members of Parliament that she had just $37,000 in funds left for the rest of the fiscal year (another four months.) Legault told the committee she has a backlog of 2,200 complaints, while the influx of files to her office is rapidly increasing.
Meanwhile, the minister responsible for the Access to Information regime, Tony Clement, told VICE in January that everything is A-OK.
"Canadians' right to access is healthy right now," Clement said.
"I'm quite willing to take credit for that. Our government is willing to take credit for that."
When an independent group graded Canada's ATI system, it got an F.
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