Canada begins formal participation in the Trans Pacific Partnership negotiations next week in Auckland, New Zealand. The TPP remains shrouded in secrecy (Peter Clark has published a detailed must-read guide that provides a complete assessment of the talks to date based on leaks and media reports), but it appears that some individuals and organizations may have privileged access to the text or other negotiation information. The Department of Foreign Affairs is creating a secret insider “Consulting Group” that will be granted access to secret and confidential information regarding the negotiations. A source this week provided a copy of the non-disclosure agreement that DFAIT is requiring members of the consulting group to sign, a copy of which is posted below.

The creation of an insider group is reminiscent of the Anti-Counterfeiting Trade Negotiations, where DFAIT spent months trying to pull together an ACTA insider group, only to drop the plan after the publication of the initial composition of the group (I obtained the information via an Access to Information request).

A TPP insider group raises a host of concerns including questions about who has privileged access, whether civil society groups will also have access and be invited to join, and the extent of behind-the-scenes consultations with industry groups. While DFAIT may seek to justify the creation of an insider group based on the need for expert advice, the lack of transparency with the TPP is now exacerbated by a two-tier approach to TPP information with a select, secret group gaining insider access to information. DFAIT should immediately disclose who has been invited to join the insider group, why it is has established a two-tier approach, and how it intends to ensure that all Canadians have access to the latest TPP developments. 

The NDA is posted below: that will be granted access to secret and confidential information regarding the negotiations. A source this week provided a copy of the non-disclosure agreement that DFAIT is requiring members of the consulting group to sign, a copy of which is posted below.

Declaration of Confidentiality and Undertaking of Non-Disclosure

I, the undersigned, hereby represent, acknowledge and undertake as follows:

1. [Please include the name of your organisation] has been designated by the Department of Foreign Affairs and International Trade of Canada (“the Department”) as a member of the Consultation Group in respect of the negotiations concerning Canada’s participation in the Trans-Pacific Partnership Agreement (“TPP”). In [name of organisation] I occupy the following position: ______________________.

2. [Name of organisation] has designated me to participate on its behalf in the Consultation Group in respect of the negotiations concerning the TPP. In order to participate effectively as a member of this Group, I will need access to certain sensitive information of the Department concerning or related to the TPP negotiations.

3. The Department has complete discretion as to which information it will disclose to me, and nothing in this Declaration and Undertaking obliges the Department to disclose any specific information.

4. Both I and the organisation I am representing within the TPP Consultation Group will treat any information disclosed to me by the Department and designated as “Confidential” or “Protected”, as not to be divulged and as subject to the Policy on Government Security of Canada, unless:

a) that information is expressly stated by the Department not to fall into that category;

b) it was lawfully in my possession prior to disclosure and entered the public domain through no fault of my own, in which case I must not attribute the Department as the source of that information or as having endorsed it; or

c) the Department authorizes me to disclose a summary or part of that information to another person, in which case I will abide by the terms and conditions imposed by the Department for that disclosure.

5. I will protect all information disclosed to me by the Department and falling within the scope of paragraph 4 with due diligence to avoid disclosure or dissemination to anyone, except those individuals within my organisation to whom I am directly accountable and who require this information in order to support the Department’s negotiating process. [Name of organisation], and individuals to whom I disclose information within this organisation, are equally bound to the protection and non-disclosure protocols outlined in paragraph 4.

6. Both I and the organisation I am representing within the TPP Consultation Group further undertake:

a) not to make any use of the information disclosed to me and falling within the scope of paragraph 4 for any purpose other than for the purpose of participating in the TPP Consultation Group; and

b) that all documents, in hard or electronic form, containing such information will be stored in a secure manner.

Moreover, I acknowledge that any disclosure, discussion, communication or use of the above information other than as provided in this Declaration and Undertaking may constitute a violation of the Policy on Government Security of Canada.

7. If, despite my best good faith efforts, information is disclosed contrary to this Declaration and Undertaking, I will promptly notify the Department of any unauthorized use or possession of that information that comes to my attention and of what steps I have taken to deal with that unauthorized use or possession.

8. Upon the request of the Department, I will return any documents disclosed to me or destroy them and give the Department my written certification of their destruction.

9. Both I and the organisation I am representing within the TPP Consultation Group will continue to be bound by the terms of this Declaration and Undertaking indefinitely or until released in writing by the Department. i