Access to information restricted

By Zak Markan
The press may have the pen, but the military has the whiteout:
the tug-of-war over the release of detainee documents

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To listen to an excerpt from an interview with Jeff Esau,
click “play”
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In this audio clip, Freelance journalist Jeff Esau gives some examples of access requests where it makes sense for the Department of National Defence to withhold information.

To read from the Access to Information Act

Click here
(please make sure “pop ups” are not blocked)

By Zak Markan

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All it took was a few suspicious bruises to throw the morality of Canada’s mission in Afghanistan into doubt.

Hand-written medical reports contained in detainee transfer logs from April 2006 showed that three captured Taliban fighters who were in Canadian custody had bruises and contusions that looked like capture injuries, not battle wounds, said freelance journalist Jeff Esau.

“It’s more like the kind of thing where you’d give somebody a good thrashing once you got a hold of them,” said Esau, who was in the Canadian Forces and taught senior officers about the Access to Information Act for three years. Thanks to Esau and other journalists who used access requests, Canadians learned about allegations of detainee mistreatment by Canadian Forces and began to question the government about human rights in Afghanistan.

“These are questions that these bruises and contusions started raising,” Esau said. “It started getting people asking: ‘What are we doing with (detainees) anyway? And how do we know the Afghans aren’t beating them up or torturing them?'”

The media’s coverage on detainee documents in early 2007 forced the Department of National Defence (DND) to launch investigations into allegations of abuse. The issue continues to be a political headache for Prime Minister Stephen Harper and his government, who for months have had to answer grueling opposition questions about detainee treatment.markan2_01.jpg

“All these questions are coming (in the House of Commons), and most of the information that can be reported in the media is coming through ATI from National Defence about the detainees” said Esau.

But since mid-March 2007, DND has refused to release any more information about Afghan detainees. The military now argues documents such as transfer logs and medical exams, if released, threaten the success of Canada’s mission in Afghanistan and put Canadian soldiers’ lives at risk.

DND claims the records are exempt from disclosure under the ATI Act. And the Harper Government insists organizations like the Military Police Complaints Commission do not have the mandate to hold public hearings into detainee treatment and have gone to federal court to try and stop such proceedings.

Some journalists and freedom of information experts are skeptical of the military’s reasons for withholding Afghan detainee documents. They argue DND is using the security provisions in the ATI Act to shield itself and the government from potentially embarrassing disclosures about the mission in Afghanistan. And some say the creation of a special advisory group in the military, the Strategic Joint Staff, is undermining the public’s fundamental right to know what DND is up to.

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Esau said the military stopped releasing any files about detainees on March 12 2007, the day the joint staff started reviewing access requests concerning Afghanistan.

Through other access requests Esau learned that the joint staff, created by the chief of defence staff Gen. Rick Hillier, had spoken extensively with the director of the access to unformation and privacy staff at DND, Julie Jansen. The joint staff persuaded her in March that all the detainee transfer logs fell under Section 15(1) of the ATI Act, a clause allowing government departments to exempt documents from disclosure that are thought to reasonably threaten national security.

“They’re really casting a wide net on what section 15(1) means,” said Esau. “But it’s clear the SJS got the message from — I’m assuming it’s their boss (Hillier) — saying: ‘Don’t release those … detainee documents anymore. This is killing us.'”

Not only is the joint staff looking at every access request that has to do with Afghanistan — it’s also reviewing other requests it said could affect operational security, including records on throwing garbage overboard from navy ships, said Ottawa Citizen reporter David Pugliese.

“I have yet to receive an answer on what’s the operational security aspect of garbage being dumped by ships,” said Pugliese, who covers military issues and wrote a piece about the joint staff reviewing access requests.

Pugliese said the amount of time it took the military to process access requests increased substantially in March when the joint staff started reviewing documents. And though the military’s official stance is that the joint staff only vets information with an eye to monitoring operational security, Pugliese said he has contacts inside the military who tell him the group is actually trying to run damage control over potentially embarrassing documents.

Having an organization like the joint staff make second-level reviews and shadow the decisions of the military’s access director undermines the ATI Act , said Michel Drapeau, a former Canadian Forces officer and co-author of an annual annotated guide on Access to Information and Privacy in Canada.

“It’s not only slowing (the process) down, but it dilutes information and serves as a check to the delegated powers of the (access) coordinator,” said Drapeau. Under the ATI Act, only the military’s access director, Jansen, has the authority to sever information in an access request, Drapeau said.

“I am not (the joint staff’s) puppet, as I am referred to in many papers,” said Jansen.

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Though Jansen said she makes all final decisions about what military information does and doesn’t get disclosed under the ATI Act, neither she nor the joint staff have explained why detainee documents now fall under section 15(1).

DND spokesperson Lt.-Col. Jamie Robertson said detainee logs and documents are exempt from disclosure for valid operational reasons and not because the joint staff or the military are trying to hide embarrassing information.

“If there’s something embarrassing, believe you me, it will make its way to the front page of a newspaper,” said Robertson. “But to imply somehow that people are sitting around trying to muzzle and cover up information is complete nonsense.”

Lt.-Col. Dana Clarke of the joint staff agreed. In an e-mail response, Clarke said the military became so overwhelmed with detainee access requests that terrorists could piece together parts of requests to create a good picture of important Canadian tactics or operations in Afghanistan. He said previously released detainee documents can’t be shown either because they are “now known to pose a threat, given the overwhelming number of requests we must respond to.”

Still, neither Clarke nor Robertson could give any concrete examples of how releasing detainee information threatened Canadian soldiers’ lives or operational security.

“You can trot out reasons, but they have to be legitimate, otherwise you make a farce of the whole system,” said Globe and Mail reporter Alan Freeman, who’s written several pieces on Canada’s mission in Afghanistan. “How is it a security threat?.Do you think it’s a surprise to the Taliban that NATO takes prisoners?”

Though he isn’t sure about the joint staff’s motives, Pugliese said the military uses section 15(1) of the ATI Act all the time to sever information and it’s not often worthwhile to file access requests anymore.

“I’m finding there are more leaked documents,” said Pugliese. “ATIs now at the defence department are taking easily up to a year, and if you complain to the information commissioner, their process is so jammed up that they take another year.”

Though she couldn’t confirm the average time it takes for the Office of the Information Commissioner to investigate access complaints against the military, Assistant Information Commissioner Suzanne Legault said there are more than 100 information complaints relating to Afghanistan, 71 of which are against DND. Legault said that all investigators have heavy caseloads, but the situation could improve this year because the office is getting more money to investigate complaints.

The military’s severing of all detainee documents is only part of the wider problem of political concerns “polluting” the public’s right to information, said Ann Rees, a journalism instructor at Kwantlen University College in B.C. who wrote a in-depth series for The Toronto Star in 2003 on freedom of information and the federal government.

She said an elaborate system of “red-flagging” politically contentious information requests still exists in all government departments. Access staff and public relations people within each ministry meet regularly to monitor embarrassing access requests and even sever information. This collaboration leads to longer wait times and increased fees for requests, thereby discouraging the public from making even the simplest inquiries, Rees said.

“So that role of the (information) commissioner is absolutely key, and the right of appeal is absolutely key to the access to information process,” said Rees. She said it’s worthwhile for requesters to make complaints if they believe government departments are jerking them around.

“If you file a complaint, almost inevitably you will get more information than you get initially from the department,” Rees said.

The information commissioner’s sole job is to investigate access complaints and stand up for requesters — something it hasn’t done enough when it comes to detainee documents, Drapeau said.

“This has been covered by national newspapers and has been the subject of editorials … and the very office that should wake up and seize this is the information commissioner, and (he) has been totally silent on it,” said Drapeau, adding the commissioner has the right to initiate his own investigations under the ATI Act.

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Rees said a culture of secrecy and a contempt for releasing embarrassing information exists. “Very often bureaucrats have real difficulty with the idea that they are accountable in various ways to the public,” Rees said. She adds that one way of combating unnecessary secrecy would be to change the ATI Act or pass other legislation so communications people and access staff wouldn’t be allowed to speak to one another about access requests before files are sent to requesters. Rees said that would allow access staff to focus on just applying the ATI Act without factoring in political considerations.

Though he doesn’t know if there’s a high degree of political interference over the release of detainee files, Esau said he’s filed unanswered access requests asking if higher political offices like the Privy Council Office gave directions to DND on how to respond to detainee requests. And the information commissioner hasn’t finished investigating Esau’s access complaints against DND about withholding detainee documents, though Esau said it takes time for them to process complaints.

Meanwhile, the Canadian Forces National Investigation Unit is still investigating whether or not soldiers abused Afghan detainees. And despite government efforts to stop public hearings into detainee treatment, the Military Police Complaints Commission said it will not bow to the Conservatives and will begin hearing from witnesses May 1.

“I think the Canadian military just wants this to go away, but because of media reports they’ve had to act,” said Esau.

He said withholding detainee documents creates doubt about the military’s credibility. Esau said it fuels frustration as to why DND didn’t launch investigations when it first had the three detainees’ medical reports in April 2006.

“It’s only after stuff hits the newspaper that anybody starts doing the right thing,” Esau said. “There are question marks in people’s minds.”