I sent Trade an email asking them to clarify the non-existence of a mandate letter for the ACTA negotiating team. There is one, but it’s a mandate memorandum. For the record, let me note that letter and memo are synonyms and that the Access to Information Act requires the department to “make every reasonable effort to assist the person in connection with the request, [and] respond to the request accurately and completely” (4.(2.1)).

Procedural complaint aside, the conclusion of the response is that the ACTA negotiating team’s mandate is secret. Trade is negotiating a deal on the behalf of Canadian citizens who are not permitted to know what kind of deal they’re allowed to make. Parliament, once your vacation is over, please implement the Information Commissioner’s proposed fixes to the Act. It is insane that there’s a group out there empowered to commit Canadians to a course of action that they’re not allowed to know about in advance.

The actual response:

Since your request referred specifically to a “letter” that was described by MP Angus during Question Period, that is what our search was limited to.  As per our response dated January 14, 2009, a mandate in the form of a letter does not exist.  That is not to say that there is no mandate for the negotiations.

We have made some inquiries with officials in Trade, and they have advised us as follows:

A mandate is required, and it must be requested from Cabinet.  The request to Cabinet is made primarily in the form of a Memorandum to Cabinet which would include a description of the issues and proposed instructions for negotiators.  Cabinet would need to approve not only the request, but also the scope of the mandate as contained in the proposed instructions.

Please note however, the Memorandum to Cabinet is considered a Confidence of the Queen’s Privy Council for Canada and is excluded under section 69(1)(a) of the Access to Information Act.

Addendum: Following up with Trade reveals that there is a mandate, but it’s secret.

Back in December, MP Charlie Angus asked Canada’s Industry Minister Tony Clement for a copy of the mandate given to the Canadian negotiators attending the Anti-Counterfeiting Trade Agreement (ACTA) talks.

Suspecting that Angus was on to something, I sent in an Access to Information request asking for the mandate letter. I got a response today that I think may concern anyone following Canada’s role in the ACTA negotiations.

Please be advised that after a thorough search of our files, we were advised by department officials that a mandate in the form of a letter was never provided to the negotiators. We cannot comment on the statement made by MP Angus.

Anyone familiar with Trade Department procedures able to comment on this? Are negotiators typically provided with a written mandate? If so, does that mean that the ACTA negotiation is subverting normal process?

Click to see the whole Access to Information response

Addendum: Following up with Trade reveals that there is a mandate, but it’s secret.

In November, I filed a couple of Access to Information Act requests with the Canadian Trade Department trying to shine some light on the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA). ACTA in a nutshell: negotiations for a multilateral trade agreement with alarming implications for copyright reform based on leaked documents of an unusually secretive process (more info). In December, I wrote about Trade taking a 6 month extension above and beyond the 30 days that the Act permits them to answer my request. However, they did respond to one of the requests only a couple weeks later. They were able to respond so quickly because they released nothing to me.

The request:

The most recent draft text of the Anti-Counterfeiting Trade Agreement (ACTA), as well as a draft dated September or October 2009, to match the draft which the USTR released for consultation to several American corporations and individuals in August and September 2009.

The response:

We regret to inform you that the records you requested are all withheld pursuant to sections 13(1)(a) and 15(1)-International of the Act and therefore cannot be released to you.

I mulled this over for a while debating the next step. Given the hints that ACTA is being used to circumvent the recent public consultation in Canada on copyright reform, I decided to file a complaint with the Information Commissioner. I’m making a “public interest” argument for the documents to be disclosed. Unfortunately, it appears that our Act contains no explicit public interest override (unlike most of the Commonwealth nations), so hopefully there is some legal precedent for applying it here. Interestingly, the previous Information Commissioner proposed new legislation that would add such an override (more info). Forgive me a comment on our current Government, but it’s noteworthy that they haven’t implemented any of his suggestions to improve government transparency despite that goal being of their key election planks.

My complaint:

On December 15, DFAIT responded that all requested records were being withheld under 13(1)(a) and 15(1) of the Act. However, the records should have been released for the following reasons:

1. The Canadian position is for greater transparency. In a presentation on April 6, 2009, officials at DFAIT confirmed that they favour transparency in the ACTA process [1]. Disclosing documents requested under the Act would improve transparency in the process; withholding documents makes the process more opaque.

2. During question period on December 1, 2009, Industry Minister Tony Clement referred MP Charlie Angus to a university professor’s website to learn more about ACTA [2]. It is not the job of academics to ensure government transparency, and Members of Parliament should not need to rely on leaked documents. How can there be an effective government if opposition parties get their information from second-hand leaked documents? The public interest is being harmed by this secrecy. Disclosing the requested documents is in the public interest as disclosure would allow the Opposition access to information necessary to fulfil its role in Parliament.

3. Foreign governments party to the negotiation are releasing similar documents. The Council of the European Union released records under their sunshine legislation with the justification “Given the current agreed approach on transparency within ACTA the UK agrees with the Council’s response to the FOI access to documents request […] More broadly with respect to ACTA the UK considers that transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumours. We believe that the lack of transparency is unhelpful and do not believe that it is in the public interest.” [3]

Additionally, the United States has disclosed the requested records to over 42 individuals and organizations [4]. As other governments are disclosing similar documents, there is no justification for DFAIT to withhold the requested records.

4. Incomplete copies of ACTA and other working documents have been leaked, in both May 2008 [5] and November 2009 [6]. Key stakeholders believe that disclosure is in the public interest; enough so that they are leaking the documents. However, leaked documents provide at best a muddled and incomplete picture. Disclosing the requested documents will identify areas where the leaked documents are misleading or missing important details, and provide a complete picture for Canadians to understand what its government is doing.

5. The ACTA negotiations are specifically being held to circumvent transparent international forums like WIPO and to bypass Canadian public will expressed in the grassroots resistance to Bill C-61 and during 2009′s copyright consultation. Allowing the Government to forum shop and move to a less transparent and more secretive process is counter to the express public will on this topic. Disclosing the requested documents will allow the public to continue to comment meaningfully on copyright reform.

6. Other similar international agreements on intellectual property have been negotiated in a transparent manner. There is no reason for the ACTA negotiations to be held in secrecy when, for example, the two WIPO Internet Treaties were negotiated in the open in Geneva [7]. Withholding the requested documents is neither typical nor necessary in intellectual property negotiations, and as such they should be disclosed.

7. Public interest groups, academics, corporations, individuals, and government representatives are all requesting greater transparency. Disclosing the requested records would encourage that transparency and be in the public interest, not just for Canada but worldwide.

A short-list of calls for increased transparency:
- Canadian MP Charlie Angus
- Canadian New Democratic Party [NDP]
- Canadian Internet Policy and Public Interest Clinic, University of Ottawa
- US Congressman Mike Doyle (D-Pa)
- US Senator Ron Wyden (D-Ore)
- New Zealand Labour party (Official Opposition) [NZL]
- WIPO Director General Francis Gurry [WIPO]
- James Love, Knowledge Ecology International
- Gigi Sohn, Public Knowledge
- Electronic Frontier Foundation (EFF)

Conclusion

There is a compelling public interest case for the documents to be released and little rationale for withholding them. Disclosure would serve the Government’s calls for increased transparency in the ACTA negotiation process and is consistent with historic IP negotiations and the disclosures made by other governments party to the negotiations. The requested records should be disclosed.

Like many people, I’m concerned that the Anti-Counterfeiting Trade Agreement (ACTA) negotiations are being used to launder copyright reform through a secretive international trade agreement and do an end-run around the recent public consultations in Canada. However, it’s really tough to comment meaningfully on the subject without transparency into the process. In an effort to enlighten myself, I filed a couple of Access to Information (ATIP) requests with the Canadian Department of Foreign Affairs and International Trade (DFAIT).

One of my requests was deliberately wide-open, requesting any communication between the Trade Department and third-parties about ACTA. I’m trying to figure out who’s been consulted, who’s seen draft treaties, and so on. My second request was more specific, requesting the most recent draft text of the treaty as well as a copy contemporaneous with that shared by the United States government with a number of companies and organizations. While draft treaties are exempt under the Access to Information Act, I figured that since the treaty has already been disclosed to some parties, there’d be no statutory reason to withhold that version from me as well.

In response to both requests, DFAIT requested a 6 month extension. To put that in context, the statute allows for 30 days to respond to requests, allowing extensions for specific reasons. My requests were extended under section 9(1)(a), which allows an extension in cases where “the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution.” I can concede this for my first request, which as I mentioned is quite open-ended. However my second request is quite specific, and I had a hard time believing it could take 6 months to comb through the records. I emailed my contact for an explanation, and was told that:

because of the volume of requests that we have now, and our limited resources, we are taking extensions of 180 days for our requests

This is clearly not acceptable under the Act. Now, it’s not the fault of my contact or even the DFAIT ATIP office, which is under-funded and under-staffed. The contact that I spoke with there was extremely helpful and apologetic. Two years of Information Comissioner reports mention that the DFAIT ATIP office has requested additional funding to keep up with the workload, which vastly increased when the government adopted a policy that other departments needed to consult with DFAIT on any ATIP request which could prejudice Canadian foreign policy/international trade. The Information Commissioner’s latest report on DFAIT does a good job of summarizing the problem. I’m sympathetic with the overloaded workers on the ground there, but management absolutely needs to step up and fix the problem.

Given that the current government was elected on a platform of improved transparency, it is incumbent on them to properly fund one of the busiest transparency-focused departments. Unless, and forgive this baseless speculation, a delay in transparency makes it easier to conduct secret negotiations without the annoying necessity of having to involve those annoying—what are they called?—Canadian citizens.

See also:

• Canwest’s exposé: Foreign Affairs violating disclosure laws: experts
• ACTA timeline