Administrative Procedures for Scheduled Departments and Designation by Notice of
Selected Persons
March 17, 2003
On December 24, 2001, amendments to the Official Secrets Act, as
adopted by Parliament became law. The Act was renamed the Security
of Information Act (SOIA). The revised Act, among other things,
modernizes the espionage provisions and introduces new concepts, such as "special
operational information" and "persons permanently
bound to secrecy."
In general terms, "special operational information," which is
defined in section 8 of the Act, describes the most operationally
sensitive government information, which the government is taking measures to
safeguard. The unauthorized disclosure of such information would cause obvious
damage to the Government of Canada.
The following are examples of this type of information:
- Past and current confidential sources of information, intelligence, or
assistance to the Government of Canada.
- Places, persons, groups, or entities who were, are, or are intended to be
targets of covert collection efforts by government.
- The identity of any person engaged in such covert collection activities.
- Military operational plans for armed conflicts.
- The means used by government to protect information, including encryption
and any vulnerabilities.
- Similar information to the above that relates to or is received from
foreign entities or terrorist groups.
Another new concept is that of "persons permanently bound to secrecy."
These are persons held to a higher level of accountability for certain
unauthorized disclosures. While all persons may be subject to the provisions of
section 4 of the Security of Information Act (dealing with unauthorized
disclosure generally), there are now specific provisions dealing with the
unauthorized disclosure of "special operational information" by "persons
permanently bound to secrecy."
Unauthorized disclosure of this type of information by these persons will be
subject to sanction
- whether the information is true or not;
- whenever the information was obtained by the persons, e.g. before being
designated or after having left the position that triggered the persons to
be "permanently bound to secrecy"; and
- however the persons obtained the information.
The above applies to such persons even after they have changed positions,
left government service, or finished a contract.
Persons may become part of this special regime in two ways:
- Automatically: as current or former members or employees
(including former members or employees as of December 24, 2001) of
particular departments set out in the schedule to the Act (such as the
Canadian Security Intelligence Service, the Communications Security
Establishment, and certain branches of the Royal Canadian Mounted Police);
or
- Selectively: if a deputy head is of the opinion that, by
reason of a person's office, position, duties, contract or arrangement,
the person had, has, or will have authorized access to "special
operational information" and
it is in the interest of national security to permanently bind that person
to secrecy, this person may be notified that he or she has been so
designated. Designation should not be the norm. It should generally only
apply to those with an intimate knowledge of "special
operational information."
A person need only be "permanently bound to secrecy" once during
their lifetime, either through employment in a scheduled department or by
designation.
The purpose of this operational standard is to provide administrative
procedures for
- departments that are listed in the schedule to the Act, (referred to as
scheduled departments, see section 3 of this Standard); and
- the designation by notice of employees in non-scheduled departments and of
persons and government contractors in scheduled and non-scheduled
departments. (See section 4 of this Standard.)
Departments shall consult with the Treasury Board of Canada Secretariat
if there is a requirement to amend the schedule.
This standard addresses also selection criteria to help identify persons who
may be designated by notice. In addition, the standard emphasizes the importance
that security awareness and briefings act as a preventative measure to encourage
persons to safeguard "special operational information."
The SOIA creates specific offences for "persons permanently bound to
secrecy." However, all employees, members and government contractors have
responsibilities to safeguard sensitive information under the Government
Security Policy.
A. Current or former members or employees
All current or former members or employees of scheduled
departments are "permanently bound to secrecy" by virtue of their
employment. Scheduled departments should include in the letter of offer
of employment a statement that the individual will be "permanently bound to
secrecy" or otherwise ensure that incoming members and employees are
advised. Scheduled departments are to maintain documentary proof of the employment
status of current or former members or employees.
The scheduled
departments are listed below:
- Canadian Security Intelligence Service
- Communications Security Establishment
- National Research Council Canada - Communications Branch
- Office of the Communications Security Establishment Commissioner
- Office of the Inspector General of the Canadian Security Intelligence
Service
- Royal Canadian Mounted Police - Criminal Intelligence Program
- Royal Canadian Mounted Police - Protective Operations Program
- Royal Canadian Mounted Police - Security Service
- Royal Canadian Mounted Police - Technical Operations Program
- Security Intelligence Review Committee
Departments should submit written recommendations to the Treasury Board of
Canada Secretariat in order to request amendments be made to the Schedule to the
Act.
B. Recording procedures
Scheduled departments should proceed by forwarding the data to the Canadian
Security Intelligence Service, as follows:
- new entrants - at the time the person commences employment in a scheduled
department or area;
- current members or employees - at the time of the updating of the person's
security clearance, if the person has not already been entered into the
Canadian Security Intelligence Service central registry; or
- departing members or employees - as part of the departmental security exit
process, if the person has not already been entered into the Canadian
Security Intelligence Service central registry.
Scheduled departments need neither collect nor forward data to the central
registry at the Canadian Security Intelligence Service on former members or
employees.
Non-members and non-employees working in scheduled departments are not
automatically "persons permanently bound to secrecy." If such persons
need to be "permanently bound to secrecy," then the process identified
in section 4 applies.
Subsection 10(1) of the Act
provides that persons, who are neither members nor
employees of scheduled departments, may be designated, by notice in writing, to
the effect that they are "permanently bound to secrecy" because, by
reason of their office, position, duties, contract or arrangement, the persons
had, have, or will have authorized access to "special operational
information" and it is in
the interest of national security to permanently bind those persons to secrecy.
By way of guidance, designation will not normally be required
for the vast majority of persons,
- who may be provided with some "special operational information"
as part of the intelligence they receive from departments; and/or
- who are aware of particular aspects of such information; and/or
- who may from time to time give support and assistance to
scheduled departments.
However, those persons who have intimate knowledge of
"special operational information" should be designated. To assist the
Departmental Security Officers in determining whether a person has intimate
knowledge of "special operational information" and whether to
recommend to the deputy head that a person should be designated, criteria and
examples are provided. Circumstances may exist where the person would not
necessarily hold a security clearance and nevertheless have intimate knowledge.
Even where the deputy head is not of the opinion that a
person had, has, or will have intimate knowledge of "special operational
information" to the extent expressed in the criteria and examples, the
deputy head may consider it appropriate to designate the person in the interest
of national security because of the particulars of the "special operational
information" that the person had, has, or will have access to.
(a) Government contractors
The deputy head of Public Works and Government Services Canada (PWGSC) may
designate contractors as "persons permanently bound to secrecy", when
PWGSC is the contracting authority. Contractors operating under PWGSC contracts
may be designated by another deputy head, where that deputy head has been
authorized for this purpose by the Minister of Public Works and Government
Services.
Contractors for whom PWGSC is not the contracting authority
may be designated as "persons permanently bound to secrecy" by the
deputy head of the department that awards the contract.
(b) Secondments, attachments, and working agreements with the Government of
Canada
Persons seconded, attached, or under a working agreement with a department
may be designated by the deputy head of the host department,
unless they are already "persons permanently bound to secrecy."
Departments should ensure that secondment, attachment, or working agreement
documentation indicates that the person may need to be "permanently bound
to secrecy."
After the designation process has been completed, the host department shall
provide the person's home department with copies of the
"Recommendation to Designate" form, the "Notice of
Designation" form, the "Notice of Designation" letter and, if it
has been used in the process, the "Affidavit of Service" form. This
documentation should also be retained within the home department's personnel
security screening file.
(c) Exceptional Cases
The Act at section 8(2)(e)
deals with those exceptional cases where it may be difficult to identify a
relevant deputy head. It is recommended, therefore, that the Departmental
Security Officer contact their departmental Legal Services when presented with
such cases.
The Departmental Security Officer should consider the following in
determining whether to recommend that a person be a "person permanently
bound to secrecy".
The criteria and examples are only guidelines and are not
exclusive.
(a)
- Did, does or will the person's duties require close and regular access
to "special operational information"?
- Did, does or will the person's formal duties involve the provision of
regular assistance to activities involving "special operational
information"?
- Did, does or will the person's workplace or official working arrangement
necessarily imply the acquisition of intimate knowledge of "special
operational information"?
- Was, is or will the person be in a situation where intimate knowledge of
"special operational information" is provided over time?
- Is the information previously obtained by an individual in the course of
his or her duties still viewed to be of a highly sensitive nature, requiring
that he or she be notified.
and
(b)
- Are there factors in the interest of national security that will make it
necessary to designate the person?
- In addition to the Manager's recommendation, the Departmental Security
Officer may conduct a review of the person's security screening file, as
part of his or her analysis.
- Persons in departments and certain government contractors, who work
with "special operational information" on a regular
basis. (e.g. analyze, write reports, review, and/or make recommendations).
Such persons may include ministerial staff and policy and program analysts.
- Departments may include in arrangements and agreements with organizations
outside of the Government of Canada (e.g. police forces, provincial and
municipal governments, and private sector organizations) that their
employees may be designated as "persons permanently bound to
secrecy" as a result of their activities involving "special
operational information."
- Government contractors and others who provide specific project
support to activities that involve "special operational
information." Such persons would
- work within a department listed in the schedule and
other departments where they would be working "along
side" members or employees, such that they would acquire intimate
knowledge of "special operational information"; or
- be in a position, normally a senior position, within a private sector
organization where, over time, these persons would gain
intimate knowledge of "special operational
information."
- Foreign exchange officials who are working on a regular basis with
"special operational information" as part of their official duties
may be designated.
- The Treasury Board of Canada Secretariat may issue technical documentation
to provide additional guidance.
C) Persons who cannot be designated by notice
The following persons are not to be designated as
"persons permanently bound to secrecy":
- the Governor General
- the lieutenant governor of a province
- Ministers of the Crown.
- a judge receiving a salary under the Judges
Act ; and
- a military judge within the meaning of subsection 2(1) of the National
Defence Act.
Questions related to the designation of other Governor-in-Council appointees
(e.g. deputy ministers, associate deputy ministers, heads of agencies or crown
corporations) should be directed to the Director of Security Operations, Privy
Council Office.
A Departmental Security Officer may recommend in writing to another
Departmental Security Officer that a person from that other department should be
designated.
Where a person is designated by the deputy head of the host
department, the person's home department shall be informed
and provided by the host department after the briefing, with copies of the
following documents: "Recommendation
to Designate" (TBS/SCT 330-317A), "Notice
of Designation" (TBS/SCT 330-317B), "Notice
of Designation" (TBS/SCT 330-317C) and, if used because the person
declined to sign, "Affidavit of
Service" (TBS/SCT 330-318). Another copy of this documentation shall be
retained on the person's personnel security screening file or, in the absence
of a personnel security screening file, the personnel file at the person's
home department.
In these cases, departments should be guided by the procedures outlined in
sections 4 A) and 4 B) of this Standard.
Each case should be assessed individually to determine whether designation is in
the interest of national security.
When a decision is made to recommend to the deputy head that a former member
or employee should be designated, the procedures specified in paragraph D)
above, which include the face-to-face meeting and briefing of the designated
former member or employee shall be followed.
Departmental Security Officers are encouraged to consult with the Treasury
Board of Canada Secretariat for guidance and assistance. (See
section 10)
- "Persons permanently bound to secrecy" do not obtain a higher
security clearance level by reason of their designation, nor do they gain
unlimited, special access to safeguarded information. The
need-to-know principle remains.
- While it is preferable that a person has a security clearance, it is not a
requirement for a person to be "permanently bound to secrecy."
- The Departmental Security Officer may review the security screening file
of a person who is to be "permanently bound to secrecy."
-
The Canadian Security Intelligence Service shall, on behalf of the
Government of Canada, record and store in the central registry of the
Security Screening Branch, the information and documentation that it
receives on all persons who are "persons permanently bound to
secrecy."
- When a person is "permanently bound to secrecy" under the Act,it
is a good security practice, as it is the case of all persons
holding a security clearance, to conduct update and exit interviews as part
of the security screening cycle. The following apply therefore to both of
those groups of persons.
- Departmental Security Officers in scheduled and non-scheduled departments
should ensure that subject interviews are conducted with all persons that
have undergone a renewal of their security screening at the Level III (TOP
SECRET) in accordance with section 10.5(b) of the Government
Security Policy. As it is also the case for TOP SECRET renewals,
where CONFIDENTIAL or SECRET level security screenings have been renewed,
the "Security Screening Certificate
and Briefing Form," TBS/SCT 330-47, shall be completed as
confirmation that the person has been reminded of their security
obligations.
- Departmental Security Officers, in the case of government contractors
working on contracts issued by their department, are to ensure that subject
interviews and the "Security
Screening Certificate and Briefing Form," TBS/SCT 330-47, are or
have been completed.
- When a person "permanently bound to secrecy" stops
working with a department, he or she is required to undergo an exit
interview conducted by a security official or an appropriate security exit
procedure, both of which shall include a formal sign off of the form
TBS/SCT 330-47.
- Individuals shall be reminded of their ongoing obligations under the Act
and the consequences of any violations.
The Security Awareness Program is an ideal method through which the security
responsibilities of persons, including those who have been "permanently
bound to secrecy", should be reinforced. Scheduled departments and
departments with designated employees must conduct a security awareness program
as required under section 10.5 of the Government
Security Policy. Security awareness messages may be disseminated by
means of briefing sessions, videos, reading material, posters, and pop-up images
on the computer screens.
Breaches of security that fall within the offence provisions of the Act are
extremely serious. Departmental Security Officers shall ensure that the deputy
head is advised of such incidents as soon as possible. Security access
privileges to classified information and/or to secure premises may be suspended
by the appropriate official until administrative, disciplinary and/or criminal
processes have come to an end. The end result of these investigations or
prosecutions may be taken into consideration by the appropriate official in
determining whether to restore, or limit, the security access privileges or
whether to revoke or alter the security clearance.
Departmental Security Officers may refer to section 10.15 of the Government
Security Policy for examples of the reporting procedures. It should be
noted that prosecutions involving "special operational information"
shall not commence without the consent of the Attorney General of Canada.
Departments are to conduct damage assessments for breaches of security
regarding "special operational information." They are to make
recommendations based on the lessons learned from their investigation of those
breaches. Such recommendations are to be shared with the Treasury Board of
Canada Secretariat, so in turn the benefits may be shared with other
departments, as per section 10.15 of the Government
Security Policy.
The Treasury Board of Canada Secretariat, in consultation with other
departments, shall review this standard after two years to assess its
effectiveness.
Government Security
Policy, Feb. 2002
Policy on the Management
of Government Information Holdings
National Archives
of Canada Act, 1987
Privacy Act,
1983
Security of
Information Act, Dec. 2001
Enquiries concerning this standard should be directed to the Departmental
Security Officer in each department. For interpretation of the standard, the
Departmental Security Officer should contact
Security Policy Group
Information and Security Policy Division
Government Operations Sector, Treasury Board of Canada Secretariat
8th Floor, East Tower, L'Esplanade Laurier
Ottawa ON K1A OR5
Telephone (613) 946-5046 or 957-2534
Facsimile: (613) 952-7287.
Arrangement: a formal or
informal employment agreement between a department and one or more parties.
Attachment: includes
personnel on temporary or permanent assignment to a department.
Department: any current or
former department, division, branch, or office of the Government of Canada. (SOIA,
subsection 8(1))
Designation by notice: the
process whereby a person in a non-scheduled department, or a non-member or
non-employee in a "scheduled department", is "permanently bound
to secrecy" pursuant to subsection 10(1) of the SOIA.
Former members or employees:
this includes individuals who were members or employees of the departments
listed in the schedule prior to December 24, 2001.
Government contractor: a
person who has entered into a contract or arrangement with the Government of
Canada and includes an employee of the person, a subcontractor of the person,
and an employee of the subcontractor. (SOIA,
subsection 8(1))
Home department: the
department to which the member or employee belongs.
Host department: the
department to which a member or employee has been seconded, attached, or at
which the member or employee is working under an agreement.
Member: a member of the Royal
Canadian Mounted Police or of the Canadian Armed Forces.
Scheduled department: any
current or former department, division, branch, or office of the Government of
Canada that has or had a mandate that is primarily related to security and
intelligence matters, which is listed in the schedule to the Act. (SOIA,
section 9)
Special operational information:
defined in section 8 of the SOIA, "means information that the Government of
Canada is taking measures to safeguard that reveals, or from which may be
inferred
- the identity of a person, agency, group, body or entity that is or is
intended to be, has been approached to be, or has offered or agreed to be, a
confidential source of information, intelligence or assistance to the
Government of Canada;
- the nature or content of plans of the Government of Canada for military
operations in respect of a potential, immediate or present armed conflict;
- the means that the Government of Canada used, uses or intends to use, or
is capable of using, to covertly collect or obtain, or to decipher, assess,
analyze, process, handle, report, communicate or otherwise deal with
information or intelligence, including any vulnerabilities or limitations of
those means;
- whether a place, person, agency, group, body or entity was, is or is
intended to be the object of a covert investigation, or a covert collection
of information or intelligence, by the Government of Canada;
- the identity of any person who is, has been or is intended to be covertly
engaged in an information- or intelligence-collection activity or program of
the Government of Canada that is covert in nature;
- the means that the Government of Canada used, uses or intends to use, or
is capable of using, to protect or exploit any information or intelligence
referred to in any of paragraphs (a) to (e), including,
but not limited to, encryption and cryptographic systems, and any
vulnerabilities or limitations of those means; or
- information or intelligence similar in nature to information or
intelligence referred to in any of paragraphs (a) to (f)
that is in relation to, or received from, a foreign entity or terrorist
group." (SOIA,
subsection 8(1))
![Diagram for SOIA Information gathering and Exchange](/web/20061201103431im_/http://www.tbs-sct.gc.ca/pubs_pol/gospubs/tbm_12a/images/sia-lpi1tm_e.gif)
Data Flow Diagram for SOIA
Information Gathering and Exchange
Data Flow Diagram for SOIA Information Gathering and Exchange
Forms and Letter
|
Manager
|
DSO
|
Deputy Head
|
Person Permanently Bound to Secrecy
|
Record of a Person in a Scheduled Department or Agency Under the SOIA,
TBS/SCT 330-316.
|
|
x, y
|
|
|
Recommendation to Designate "Persons Permanently Bound to
Secrecy" Under the SOIA,
TBS/SCT 330-317 A.
|
x, y
|
x, y
|
|
|
Notice of Designation "Persons Permanently Bound to Secrecy"
Under Section 10 of the SOIA,
TBS/SCT 330-317B.
|
|
X
|
y
|
y
|
Notice of Designation "Persons Permanently Bound to Secrecy,"
TBS/SCT 330-317 C.
|
|
x, y
|
|
y
|
Affidavit of Service - Security of Information Act,
TBS/SCT 330-318.
|
|
x, y
|
|
|
|
Legend:
|
x -
|
Completes details
|
|
|
|
y -
|
Signs forms
|
|
Form:
Recommendation to Designate
"Persons Permanently Bound to Secrecy" Under the Security of
Information Act (SOIA, TBS/SCT 330-317A)
Form:
Notice of Designation "Persons
Permanently Bound to Secrecy" Under Section 10 of the Security of
Information Act (SOIA, TBS/SCT 330-317B)
Letter:
Notice of Designation - "Persons
Permanently Bound to Secrecy" (TBS/SCT 330-317C)
Form:
Affidavit of Service - Security of
Information Act (TBS/SCT 330-318)
|