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Censors must not arbitrarily black out public documents, panel rules

Censors can't just black out portions of public documents, casually deciding disclosure might bedevil foreign relations, a three-judge panel of the Federal Court of Appeals has ruled in a shot across the bow of a government accused of being too secretive.

The case dates back to 2007 when Stephen Harper's government blacked out all references to torture, extrajudicial killing and other violent mistreatment of detainees in Afghan hands, even as ministers were telling the House of Commons they were unaware of any nastiness.

Even after The Globe and Mail published the "blacked out" portions of the documents, the government refused to make them public under the Access to Information Act, saying that disclosure would undermine national security and wreck relations with the Karzai government in Kabul.

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"It's symbolic but it's important," said Michel Drapeau, a University of Ottawa law professor and Canada's foremost expert in the Access to Information Act. Prof. Drapeau, a retired colonel and author of the primary university textbooks on Access to Information, called the judgment a "shot across the bow" of government and "a most welcome victory."

The ruling against the Minister of Foreign Affairs concludes there was a "failure to exercise the discretion" required under the Act. In effect, the appeals court judges made no finding as to whether the censored passages should have been disclosed, only that there was no evidence of proper consideration by the minister and that the censorship was arbitrary.

"It means an end to willy-nilly censorship by invoking national security like pixie dust," said Amir Attaran, who had filed the original Access to Information request for the reports on Afghan governance and human-rights written annually by Canadian diplomats.

"The government was just slapping the national security excuse on anything it didn't want released," said Prof. Attaran, an associate law professor at the University of Ottawa. He expects the ruling will force government censors to be less cavalier with the blackout pens.

But the ruling stops short of saying ministers must explain why deletions were made. Rather it only requires that there be evidence that discretion was exercised; that there was a careful and appropriate consideration rather than arbitrary refusals to release information or the blacking out of embarrassing sections.

"The government has to exercise its discretion, but it doesn't have to explain," Prof. Drapeau said. However, he said, "the right of access is horrifying threadbare."

In recent years, ministries have increasingly handled access to information requests with blacked-out documents, often turning thousands of pages into black blocks, especially on politically sensitive issues like detainee abuse.

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It matters, Prof. Drapeau said, "mainly because the court opted to hear the case and has now clearly established the burden is on the government" to show that it has exercised discretion if it decides to withhold material.

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Paul More

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