Export Development Canada releases documents years after Globe challenges access to information disclosure

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Export Development Canada’s access to information office says it has improved how it conducts internal searches for documents after a second Globe and Mail challenge led it to discover an additional 882 pages of files about a controversial loan.

The heavily redacted documents include notes about the first time EDC’s board of directors was briefed on a US$41-million loan to the Gupta brothers of South Africa to buy a Bombardier luxury jet – a transaction that became public through Globe and Mail reporting in 2017. At the time of the board meeting, the Guptas were at the centre of one of South Africa’s biggest corruption scandals, which involved allegations of using their connections to then-president Jacob Zuma to win contracts and influence cabinet appointments. The brothers have denied all wrongdoing.

Most details of the EDC discussions are redacted under Section 24 of the Access to Information Act, which the agency uses to withhold what it says is sensitive client information.

Earlier this month, The Globe launched its Secret Canada project, which includes a first-of-its-kind, searchable database of freedom of information requests made to multiple levels of government across the country. A Globe audit of more than 250 public-sector entities also found that governments, as well as the many agencies that report to them, are not meeting their legal obligations to release information.

When The Globe originally filed a request for the documents in 2018, EDC refused to process it and refunded the $5 administrative fee, arguing that the request itself fell under Section 24. The Globe challenged the search refusal and, five years later, EDC disclosed 121 pages, of which 47 were fully redacted. Many of the remaining pages were partially redacted. The documents mostly contained e-mails of EDC staff discussing Globe coverage of the Gupta loans.

The Globe again challenged the inadequacy of EDC’s search in January of this year and on June 14, the agency’s access to information office said it had found an additional 882 pages of documents briefing its chief executive officer about the loan. However, about 800 pages are redacted in their entirety under a variety of exemptions, such as Section 18, which is a special exemption to protect EDC’s trade secrets. Many of the 800 pages are withheld for being “not relevant” or duplicates of other released pages.

When asked about how the most recent search for documents differed from earlier attempts, EDC said its access to information protocols have been updated. “We recognize that our initial search for records may have been narrow compared with our current process,” EDC spokesperson Jessica Draker said in an e-mail.

She said the agency’s ATIP personnel conducted an expanded search that included additional document storage locations, network drives and Outlook inboxes belonging to a wider group of employees. Searches were also conducted for records of the board of directors and the risk management committee, of which the chief executive officer is a member, and employees were asked to use an expanded list of keywords to conduct their searches.

“This is now standard procedure when processing requests for CEO briefings,” Ms. Draker said.

She said many of the pages marked as having no relevance were provided by staff “out of an abundance of caution,” but were not about the subject of The Globe’s request.

“We regret the delay in providing a complete response to your access to information request,” Ms. Draker said, adding: “We are committed to continuous improvement of our processes, including those related to access to information.”

EDC also acknowledged that the transaction with the Guptas provided “powerful lessons” for the agency and caused it to re-evaluate the risk of transactions involving “politically exposed persons.”

One of the newly disclosed documents is a briefing note sent to the EDC board on July 26, 2017, after The Globe’s initial stories. The note, which was sent by Catherine Decarie, who was then senior vice-president of corporate affairs, discusses media interest in the file and acknowledges that EDC could publicly share more information about its due diligence. The document said EDC sought and received “limited consent” from its “customer” to share information about it with the media.

“Ultimately, the question being asked is how can Canadians trust that we make the decision they would have wanted us to make,” the note said. “This is a really tough test, and we recognize that we will never be able to fully satisfy all Canadians (or all of our detractors) in this regard.”

However, the agency also argued it had to be careful about what it could say publicly. “When companies deal with EDC it is important that they have the same protections regarding their commercially sensitive information that they would have when dealing with any bank or financial institution,” the note said.

Matt Malone, a law professor who studies trade secrets at Thompson Rivers University in Kamloops, B.C., said EDC’s reports to Parliament show the agency fully releases records in response to a request about 3 per cent of the time, which is among the worst rates of all federal institutions.

“EDC is openly hostile to access to information,” Prof. Malone said.

He said he thought the Section 18 trade-secrets exemption should be reined in by Parliament, as it is being “abused” by EDC. Four Crown corporations have extra power to withhold documents under that exemption: EDC, Canada Post, the Public Sector Pension Investment Board and Via Rail.

The Office of the Information Commissioner has repeatedly challenged those Crown corporations on the use of that exemption, arguing it is used too broadly. One case – which includes a request to EDC for aid provided to Canadian companies doing business in Honduras – is currently being heard at the Federal Court of Canada.

South African authorities laid charges of fraud and corruption against Atul and Rajesh Gupta, and the pair were arrested in the United Arab Emirates last year. They were released in February when a Dubai judge denied an extradition request. The New York Times reported in April the brothers’ whereabouts were unknown.