Summary of the Meeting of the National Security Transparency Advisory Group (NS-TAG) - April 21, 2021
Held via Videoconference
- Michèle Audette
- William Baker
- Khadija Cajee
- Mary Francoli
- Harpreet Jhinjar
- Thomas Juneau (co-chair)
- Myles Kirvan
- Justin Mohammed
- Bessma Momani
- Dominic Rochon (co-chair)
- Jeffrey Roy
- “Transparency by Design”: Definition, Evaluation and Institutionalization of National Security Transparency – Part VI
Invited Guests and Speakers:
- Elizabeth Goitein – Co-Director, Liberty & National Security Program, Brennan Center for Justice
- Dr. Thorsten Wetzling – Project Director, Digital Rights, Surveillance and Democracy, Stiftung Neue Verantwortung
- Prof. Dr. Jean-Patrick Villeneuve – Associate Professor of Public Administration and Management at the Università della Svizzera italiana (USI); Director, Public Integrity Research Group
National Security Community Members Present (as observers):
Canada Revenue Agency, Communications Security Establishment, Department of National Defence, Financial Transactions and Reports Analysis of Canada, Global Affairs Canada, Public Safety Canada, Royal Canadian Mounted Police.
- Opening of the Meeting and Roll Call
- Discussion on the second Report
- Transparency Secretariat Update
- Discussion Session with Guest Speakers: “Transparency by Design”: Definition, Evaluation and Institutionalization of National Security Transparency – Part VI
- Closing Remarks
The tenth virtual NS-TAG meeting took place on April 21, 2021, on the theme “Transparency by Design: Definition, Evaluation and Institutionalization of National Security Transparency – Part VI.”
The NS-TAG discussed their second report, including the potential timeline for publication. Members shared their final thoughts and comments on the draft report. The Transparency Secretariat briefly updated members on some considerations for the third theme and on the start of the second part of a stocktaking exercise to support implementation of the National Security Transparency Commitment.
During the session with guests, panelists shared views on: over-classification of documents-why it happens and measures to prevent it; the importance of accountability and culture change; European projects on the topic of digital rights, surveillance and democracy; the international repository of legal safeguards and oversight innovation; and the challenges and limits of transparency.
Key Takeaways of the Discussion Session with Guests:
- Guest speakers put forward that the main driver of over-classification is an imbalance in incentives. National security officials are incentivized to over-classify information because, from their perspective, it is less risky and less time consuming than making tailored classification decisions for every document. A culture of secrecy in national security agencies also reinforces the reflex to over-classify.
- Guest speakers also suggested that another incentive for over-classification is bureaucratic. It is easier to get things done in government when there are fewer people who are involved, and classifying information automatically reduces the number of people who can be involved in some decision-making as a result of security clearances and the “need to know” principle.
- Guest speakers noted that while officials face harsh sanctions for failing to protect sensitive information, they are rarely (if ever) penalized for over-classifying documents. In some international contexts, classifiers are not required to justify their decisions, and no one reviews their judgements, meaning no or limited accountability. More accountability in general could lead to less over-classification.
- Access to information legislation and mechanisms should be built on criteria for secrecy, not criteria for disclosure. Criteria should be narrow, specific, and it should not be possible to keep certain categories of information secret, such as information on laws and authorities.
- Guest speakers put forward a variety of measures that government agencies can implement to start rebalancing these practices:
- Make it harder to classify. If not already a practice, require –– officials to document the specific reasons for classification and require them to think of how the information could be presented, at least in part, in an unclassified form. For example, classification decisions could be accompanied by justifications. Documents can be written in a way so that certain parts do not contain classified information and then can be easily processed for release. This also encourages the routinized use of more widely accessible, non-bureaucratic language.
- Establish accountability mechanisms on over-classification. This can include audits on classification decisions as indicators in performance metrics (organizational and staff related).
- If audits uncover an official who was consistently over-classifying unnecessarily and frequently, that person’s classification decisions would continue to be monitored going forward with possible performance evaluation repercussions. This would help to foster a culture of accountability.
- Establish a safe zone for officials who fear making mistakes when it comes to under-classifying information and facing serious consequences. This can include safe harbor provisions for making classification decisions. Errors made in good faith should not be subject to sanctions for failure to classify properly.
- On the issue of culture change, guest speakers noted that it is possible for an agency to ignore a statement of principles (which may guide a bigger picture cultural change initiative), but that it is much harder for an employee or manager to ignore a negative performance evaluation.
- Specifics on a number of European projects regarding digital rights, surveillance, and democracy were also discussed. These projects included:
- GUARDINT, which is a publicly accessible, open-source archive that compiles legal documents, oversight reports, court decisions, and regulatory frameworks;
- EION, a space where European intelligence oversight officials can come together and have regular discussions on shared oversight challenges and oversight cooperation; and
- A project titled “about:intel” which is a multi-stakeholder discussion forum on policy and practice of intelligence and surveillance.
- The international repository of legal safeguards and oversight innovation, which offers examples of legal provisions and good oversight practices.
- Guest speakers and members exchanged ideas on the challenges and limits of transparency. Too often, promises are made in the name of transparency, but they are not kept. This is partially because there is a poor definition and understanding of why organizations want to be transparent. There are also issues relating to managing citizen expectations, the cost of the process versus the effectiveness of the results, as well as the challenge of measuring governance issues. Different cultural contexts also play into a specific government’s unique challenges and opportunities for transparency.
- Providing the public with information does not necessarily lead to understanding and recognition of information. This is a first step; you need intermediation and interpretation. Using language that people can understand is important. For example, data should be shared with context. Governments should understand what the public wants to have disclosed. It is also crucial not to set expectations only for a single audience as there are multiple audiences.
- ‘To be more transparent about being transparent’, national security agencies should say not only what they are releasing, but also what they are not releasing. It is necessary for people to understand the transparency process, the entry points and the criteria for the government to withhold information.
- Finally, the disclosure of legal decisions or interpretations was briefly discussed. A key point was that a possible challenge in certain jurisdictions is that while more legal decisions are released, there is little information on the number of decisions that have not been released. This makes it difficult to understand the proportion of decisions that are released.
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