Information commissioner Suzanne Legault is opposing the federal government's bid to overturn a court order to reconsider its refusal to publicly release much of the Douglas dossier.
Her decision to wade into the fray is something of an about-face for Legault's office.
Initially, her office maintained the government had "properly withheld" information on Douglas from The Canadian Press, which requested the file in 2005 under the Access to Information Act.
The Canadian Press successfully obtained a court order last August for fuller disclosure of the file, but the Harper government is now appealing that ruling.
The appeal is set to be heard on Oct. 3.
Lawyer Paul Champ said it appears the information commissioner's office now regrets having backed the government's decision to heavily censor the Douglas file.
"I think it's fair to say they've seen the error of their ways," said Champ, who is representing Jim Bronskill, a reporter for The Canadian Press, in the case.
Yannick Landry, general counsel for Legault's office, refused to comment on the watchdog's apparent change of heart. He said the information commissioner is not delving into the details of the case, but is intervening only on the broad principles raised by the government's appeal.
"The issues that the appellant is raising are really important in terms of administration of the Access to Information Act and that's why the commissioner wanted to intervene in this appeal," Landry said.
The government argues that Federal Court Justice Simon Noel erred when he concluded that Library and Archives Canada should take into account its mandate to preserve historically significant documents and make them accessible to Canadians when responding to access to information requests.
In a factum filed with the Federal Court of Appeal, the government argues that the Access to Information Act essentially trumps the Library and Archives Canada Act.
"The LACA and ATIA are not related to the same subject matter and have different objectives and purposes," says the factum, filed on behalf of the minister of Canadian Heritage, who is responsible for the archives.
"Nothing in the ATIA allows or permits the exemptions contained therein to be interpreted by reference to the mandate of the government institution responding to the (access) request ...
"Indeed, requiring consideration of a departmental mandate would result in inconsistent and potentially absurd results, such as different government institutions having differing obligations under the ATIA."
For instance, the government says, "It is conceivable that some security institutions could be permitted greater latitude in the exemptions applied."
Security exemptions are the primary basis on which Library and Archives, on the advice of the Canadian Security Intelligence Service, has withheld at least one-third of the 1,142-page Douglas dossier and heavily censored much of the rest.
CSIS maintains full disclosure of the file could jeopardize the lives of confidential informants and give away secrets of the spy trade, even though some of the information was compiled as much as 70 years ago by the now-defunct RCMP Security Service.
The spy agency has said intelligence files should be kept under wraps "maybe longer" than 100 years, although "perhaps not forever."
Legault's office has filed an factum in support of Noel's conclusion that the Access to Information Act and Libraries and Archives Canada Act are "complementary statutes" that ought to be read together.
"Although LAC has a broader object than that set out in the ATIA, this does not mean that their purposes are at odds or that it was improper for (Noel) to consider the mandate of LAC when reviewing a decision by LAC to refuse access under the ATIA," Landry says in the factum.
"In the context of this case, it is submitted that the relevant factors which must be considered in the exercise of discretion include the historical value of the records, the public interest in the records, the passage of time and the statutory mandate of the government institution (LAC)."
Champ said the government's position is illogical.
"I think it is logically inconsistent to take that position that documents shouldn't be released because they're too secret but they're in the possession of Library and Archives Canada in the first place because of their historical importance."
Champ said he suspects CSIS is driving the appeal, more because it's concerned about the precedent that could be set than it is about disclosing more information on Douglas, one-time premier of Saskatchewan, father of medicare and first federal NDP leader.
"They are concerned about future requests for other information about other historical figures and they want to maintain every defence they can to prevent the disclosure or release of those documents," he said.
"They don't know what documents will be at issue in future but they want to maintain every defence they can."
The uncensored material in the Douglas file released thus far shows that RCMP security officers shadowed Douglas from the late 1930s to shortly before his death in 1986.
They attended his speeches, analysed his writings and eavesdropped on private conversations. The Mounties were particularly interested in Douglas' links to the peace movement and the Communist party.
Library and Archives initially released just over 400 pages of the Douglas file in response to Bronskill's access to information request. It released another 300 pages shortly before the case was first heard in court last year.
However, much of the material has been blacked out and about one-third of the pages in the file continue to be withheld altogether.Suggest a correction