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:
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
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:
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 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.
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 form entitled "Record of a Person in a Scheduled Department or Agency Under the Security of Information Act (SOIA)" (TBS/SCT 330-316, see appendix A), shall be completed for each person.
The scheduled departments are listed below:
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.
Scheduled departments should proceed by forwarding the data to the Canadian Security Intelligence Service, as follows:
Scheduled departments shall, for each person, forward the data on the form entitled " Record of a Person in a Scheduled Department or Agency Under the Security of Information Act (SOIA)" (TBS/SCT 330-316) to the central registry of the Administrative Information Holdings, IHD, of the Canadian Security Intelligence Service (CSIS). The originally signed copy of this form shall also be forwarded to CSIS.
Scheduled departments should place a copy of form TBS/SCT 330-316 on the person's security screening file.
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,
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.
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.
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.
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.
and
The following persons are not to be designated as "persons permanently bound to secrecy":
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)
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.
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 the Security and Identity Management Division.
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
Data Flow Diagram for SOIA Information Gathering and Exchange - Display full size graphic
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 330-317 B. | 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
Forms and Letter
Form:
Record of a Person in a Scheduled Department or Agency Under the Security of Information Act (SOIA, TBS/SCT 330-316)
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)
The diagram details the various steps for both a Scheduled Organization and Designated Persons in the SOIA Information Gathering and Exchange process.
The process begins with the completion of a Record of a Person in a Scheduled Department or Agency (form TBS/SCT 330-316) by the Scheduled Organization.
At the same time, the Designated Person completes form TBS/SCT 330-317 A: Recommendation to Designate "Persons Permanently Bound to Secrecy" which identifies the requirement and makes a recommendation. This then generates a Form and Letter of Notice: "Persons Permanently Bound to Secrecy," TBS/SCT 330-317 B&C for Deputy Head approval.
An SOIA briefing is then given to the Designated Person. Following the briefing the Designated Person and DSO sign "Persons Permanently Bound to Secrecy," TBS/SCT 330-317 B&C.
If the Designated Person declines to acknowledge and/or sign the letter, the Security Official generates affidavit TBS/SCT 330-318. Copies of TBS/SCT 330-317 A, B&C and TBS/SCT 330-318are retained in the Personnel Security Screening File.
If the Designated person signs the letter, a copy of form TBS/SCT 330-316 is retained in Personnel Security and all original documentation for forms TBS/SCT 330-317 A, B&C and TBS/SCT 330-318 is forwarded to CSIS.
The original forms are retained within the CSIS repository in accordance with PSE 065.