Vol. 144, No. 14 — July 7, 2010

Registration

SOR/2010-145 June 17, 2010

ACCESS TO INFORMATION ACT

Regulations Amending the Access to Information Regulations

P.C. 2010-770 June 17, 2010

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to paragraph 77(1)(f) of the Access to Information Act (see footnote a), hereby makes the annexed Regulations Amending the Access to Information Regulations.

REGULATIONS AMENDING THE ACCESS TO INFORMATION REGULATIONS

AMENDMENT

1. Item 4 of Schedule I to the Access to Information Regulations (see footnote 1) is replaced by the following:

4. Intelligence and Targeting Operations Directorate, Canada Border Services Agency

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Schedule I of the Access to Information Regulations and Schedule II and III of the Privacy Regulations designate federal government entities that are considered investigative bodies for the purpose of disclosing personal information and for the protection of information under the Access to information Act (ATIA) and the Privacy Act (PA).

The Canadian Border Services Agency (CBSA), created on December 12, 2003, integrated the customs program of the former Canada Customs and Revenue Agency, the Intelligence and Enforcement programs from Citizenship and Immigration Canada (CIC) and the border inspection component of the food inspection programs from the Canadian Food Inspection Agency.

After these programs were integrated, the names of certain existing investigative bodies were not updated in the schedules of the Access to Information Regulations and the Privacy Regulations. This creates difficulties for these divisions as their security partners and other investigative bodies are hesitant to share personal information with them because their current names are not listed in the schedules. This calls into question whether they benefit from an accurate and valid designation as investigative bodies for the purposes of the ATIA and the PA.

As a result of this, an amendment to the Access to Information Regulations (Schedule 1) and the Privacy Regulations (Schedule II and Schedule III) is necessary to modernize the designation of the following divisions of the Enforcement Branch of the CBSA: the Inland Enforcement Division, the Intelligence and Targeting Operations Directorate, and the Criminal Investigations Division.

Description and rationale

These amendments add three entities of the CBSA to Schedule II of the Privacy Regulations: the Criminal Investigations Division, the Intelligence and Targeting Operations Directorate, and the Inland Enforcement Division, thus designating them as investigative bodies for the purpose of subsection 8(2)(e) of the Privacy Act. Two of these units are “legacy” entities that were formerly part of the Department of National Revenue (Customs and Excise) and who had the investigative body status in their previous forms. The third one, the Inland Enforcement Division, will receive a new designation, thus furthering its role in investigating offences under the Immigration and Refugee Protection Act (IRPA). The ability for this entity to obtain personal information collected by other federal departments is crucial to its carrying out its mandate. These designations will allow other federal government institutions and agencies, such as Canadian Security Intelligence Service (CSIS), Royal Canadian Mounted Police (RCMP), Canada Revenue Agency (CRA), Citizenship and Immigration Canada (CIC) and Department of Foreign Affairs and External Trade (DFAIT) to provide relevant personal information to these CBSA units.

These amendments also add to Schedule I of the Access to Information Regulations and to Schedule III of the Privacy Regulations the Intelligence and Targeting Operations Directorate of the CBSA, thus designating it as an investigative body for the purposes of paragraph 16(1)(a) of the ATIA and paragraph 22(1)(a) of the PA. This designation allows CBSA to claim an exemption from disclosure under the ATIA and the PA to protect information under the control of the federal government pertaining to law enforcement and investigations. Without the legal assurance that CBSA can adequately protect from disclosure sensitive information, such as information related to on-going investigation, other federal departments may refuse to share information needed by CBSA in relation to its investigation.

Finally, these amendments delete the now obsolete references to units designated under the former Department of National Revenue (Customs and Excise).

These amendments are consistent with the National Security Policy and contributes to furthering the Government of Canada’s commitment to enhancing the security of Canadians, securing Canada’s border, and improving information sharing within the intelligence and law enforcement community.

The amendments strengthen CBSA’s enforcement posture by improving its intelligence gathering capacity in facilitating crucial information sharing with other federal institutions and agencies.

Consultation

The Department of Justice consulted with the Canada Border Services Agency and the Department of Public Safety. They both support this proposal.

The main stakeholders, the Office of the Privacy Commissioner (OPC) and the Office of the Information Commissioner (OIC), have been consulted in writing by Department of Justice officials on the proposed designations.

Regarding the designation of the Intelligence and Targeting Operations Directorate and the Criminal Investigations Division, the OPC noted that the same administrative units held the designations when they were housed within the former Department of National Revenue. Given that the loss of status was simply the result of a machinery of government change, and no expansion of mandate was apparent, the Office had no significant concerns with the designation being carried over to the new organizational structure. The OPC indicated that it sees no substantive privacy issue in this proposal. Regarding the designation of the Inland Enforcement Division, the OPC indicated that the proposal appears to be reflective of the move towards more integrated enforcement models, and the need is clearly supported by the mandate of the Division. The OPC’s concern was with the Criminal Investigations Division’s request for investigative body designation for the purpose of paragraph 22(1)(a) of the PA. The CBSA has since withdrawn its application to have this Division designated as an investigative body for the purpose of paragraph 16(1)(a) ATIA and paragraph 22(1)(a) of the PA. Thus, this is no longer an issue.

For its part, the OIC has indicated that it does not support the investigative body designation proposal relating to the Intelligence and Targeting Operations Directorate and the Criminal Investigations Division, regardless of the fact that the Intelligence and Targeting Operations Directorate’s responsibilities include those of the former Intelligence Division of the Department of National Revenue. The OIC indicated that the “position of the Office is to support the fewest possible entries to the Schedule of investigative bodies.”

Regarding the Intelligence and Targeting Operations Directorate, the CBSA has decided to pursue its application for two reasons. First, this directorate must be given investigative body status pursuant to paragraph 16(1)(a) of the ATIA to be able to adequately protect from disclosure sensitive information obtained or prepared during the course of its investigations. The CBSA is aware that the OIC, as a matter of principle, is opposed to the use of paragraph 16(1)(a) of the ATIA, and in fact, has called for its repeal, but the lack of a designation would hinder the ability of this directorate to deliver on its mandate.

No external consultations took place in view of the administrative nature of these Regulations.

Implementation, enforcement and service standards

CBSA investigative and enforcement units are already involved in investigations and law enforcement, and the infrastructure and personnel are currently in place. These amendments will not require any new resources.

Contact

Elisabeth Renaud
Senior Counsel
Public Law Policy Section
Department of Justice
Telephone: 613-948-1478

Footnote a
R.S., c. A-1

Footnote 1
SOR/83-507

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