Withhold

• Author: Craig Forcese/Leah West
• Pages: 512-551

512

CHAPTER 12

WITHHOLD

While agencies must share informat ion and intelligence with the right

people, intelligence and related, sensitive inform ation must not be

available to the wrong people. For this reason, governments must with-

hold national security intel ligence and information, placing lim its on

open disclosure rule s that are the hallmarks of eective democratic

governance. The result is secrecy. To be clear: secrecy is not the object-

ive. Rather, secrecy may be the mean s to preserve the usefulness of

national securit y intelligence and information. If threat actors know

the government has detected their actions, they might change their

behaviour to foil a government response or li mit future detection. Like-

wise, if threat actors know how governments collect information, they

might use alternative method s of communication or employ safeguards.

Revealing the identities of sources not only compromises them and the

information they provide, but it may also jeopardize their safety, and

the safety of those around them. It is not sur prising, therefore, that

intelligence services, such as CSIS, wish to protect from disclosure

information that may, among other things:

a) ident ify or tend to identif y Service employees or i nternal pro-

cedures and admi nistrative met hodology of the Serv ice, such as

names and f‌ile numb ers;

b) identify or tend to identi fy investigative techniques a nd methods

of operation utiliz ed by the Serv ice;

c) identi fy or tend to identify Serv ice interest in individua ls, groups

or issues, includi ng the existence or abs ence of past or present

Withhold 513

f‌iles or investigations, the intensity of investigations, or the

degree or lack of success of i nvestigations;

d) identify or tend to identify hum an sources of inform ation for the

Service or the content of i nformation provided by a human source;

e) identify or tend to identify r elationships th at the Service m ain-

tains w ith foreign securit y and intelligence agencie s and would

disclose in formation received in conf‌idence f rom such sources;

and

f) identify or tend to identi fy informat ion concerning the telecom-

munication system uti lized by the Se rvice.1

Secrecy, however, comes with a cost. Governments may also use

security justi f‌ications “to suppress precisely the k inds of speech that

provide protection against government abuse,” including damage to the

environment, corruption, wast ing of public assets, and other forms of

wrongdoing by government ocials.2 National secur ity should not be

used to cloak governments from cr iticism or accountability.3 It may also

be that tran sparency can enhance, rather tha n prejudice, national secur-

ity by increasing t he f‌low of information essentia l to the coordination

of national security eorts. Over-classif‌ication can be perilous — for

instance, intelligence marked “top secret” receives limited circulation,

and can only be acted upon by a limited number of people. And “a

policy of transparency can be a powerful ‘force multiplier,’ which helps

to build a state that is resi lient as well as respect ful of citizen right s.”4

Deciding where to draw thi s line on secrecy is one of this book’s

hard dilemma s. As with other area s, it requires state conduct that is

lawful, proportionate to the threat, and necessar y. Several federal stat-

utes attempt to reconcile accountability with secrec y. The most notable

of these are the Access to Information Act,5 the Can ada Evidence Act,6 and

1 CSIS aant’s te stimony, reported in Canada (Attorne y General) v Khawaja, 2007

FC 490 at para 132 [Khawaja], varied 20 07 FCA 342 (on is sue not relevant to

this pas sage). Se e also the similar l ist produced in Canada (Attorn ey General) v

Canada (Commission of Inqu iry into the Actions of Canadian O cials), 20 07 FC

766 at para 69 [Canada (Attorn ey General)].

2 Sandra Coliver, “Comment ary on The Johannesburg Principle s on National Sec-

urity, Freedom of Expression a nd Access to Information” in Sandr a Coliver et al,

eds, Secrecy and Libe rty: National Security, Freedom of Express ion and Access to

Information (The Hague: Mar tinus Nijho Publishers, 1999) at 12–13.

3 See discus sion in, for example, David Paciocco, “When O pen Courts Meet

Closed Govern ment” (2005) 29 Supreme Court Law Re view (2d) 385 at 396–97.

4 Alasda ir Roberts, “National Sec urity and Open Govern ment” (2 004) 9:2 George-

town Public Policy Revi ew 69 at 82.

5 RSC 1985, c A-1 [Access Act].

6 RSC 1985, c C-5 [C EA].

NATIONAL SECUR ITY LAW514

the Security of Information Act.7 Several other, less specialized st atutes

also include controls on government information. Read together, these

authorities comprise a complicated patchwork with var ying def‌initions

of overlapping scope. To date, there has been no attempt to overhaul

legislation comprehensively in this area. Thus, collective application of

these laws leaves us without clearly discern able lines between infor-

mation, the disclosure of which truly prejudices national security, and

other less problematic disclosure.

In this chapter, we examine t he question of secrecy, or what we ca ll

“withhold.” We focus f‌irst on “closed” gover nment — the rules that li mit

disclosure of executive branch in formation. We then examine “closed”

courts and tribun als, and the chal lenge of keeping secrets in criminal,

civil, and admin istrative proceedings.

PART I: CLOSED GOV ERNMENT

In a liberal democracy, governments should be tran sparent. As one of the

founders of the United States, James Madison, noted “a popular govern-

ment without popular information or the mean s of acquiring it is but a

prologue to a farce or a tragedy, or perhaps both. Knowledge will forever

govern ignorance; And the people who mean to be their ow n Gove rnors,

must arm themselves w ith the power which knowledge gives.”8 Madi-

son’s sentiments repeatedly arose in di scussions of what would become

the United States Freedom of Information Act (F OIA), 9 introduced in 1966.

There, proponents of the access law argued “free people are, of necess it y,

informed; uninformed people can never be free.”10 In signing the FOIA,

President Lyndon Johnson noted, “this legislation springs from one of

our most essential pr inciples: A democracy works best when the people

have all the informat ion t hat the security of the Nation permits. No one

should be able to pull curtains of secrecy around decisions which can

7 RSC 1985, c O-5 [SOIA].

8 Letter from Jame s Madison to WT Barr y (4 Aug ust 1822) i n S Padover, ed, The

Complete Madison (New York: Harper, 1953) at 337, cited in T Murray Rankin ,

Freedom of Information in Can ada: Will the Doors Stay Shut? (Ottawa: Canadian

Bar Assoc iation, 1979) at 1.

9 Freedom of Information Act of 4 July 1966, Pub L No 89- 487, 80 St at 250 (5 USC

§ 552).

10 Fr eedom of Information: Heari ngs on S 1666 and S 1663. Before the Subcomm

on Admin Pract ice and Procedure of the Senate C omm on the Judiciary, 88th

Cong 3 (1964) (statement of Sen. Edward Long), cited i n Charles J Wichmann

III, “Ridding FOIA of t hose ‘Unanticipated Cons equences’: Repaving a Neces-

sary Road to Fr eedom” (1998) 47:6 Duke Law Journal 1213 at 1217.