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Correctional Service Canada (Re), 2025 OIC 2

Date: 2025-01-22
OIC file number: 5821-01013
Institution file number: A-2017-00167/CCM 336867

Summary

The complainant alleged that Correctional Service Canada (CSC) had improperly withheld information under subsection 19(1) (personal information) as well as several other provisions of the Access to Information Act in response to an access request. The request was for the entire CSC and Parole Board of Canada institutional file of a named inmate. The allegation falls under paragraph 30(1)(a) of the Act.

The records contain detailed, intimate and sensitive personal information relating to the inmate and other individuals. CSC showed that it had met all the requirements of subsection 19(1) when withholding this information. In addition, it showed, among other things, that it either did not receive or determined it was not appropriate to ask for the consent of the individuals to whom the information relates to disclose it, and that the public interest did not outweigh the invasion of privacy that would result from disclosure. As a result, CSC did not have to exercise its discretion to decide whether to disclose the information. The complaint is not well founded.

Complaint

[1]      The complainant alleged that Correctional Service Canada (CSC) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

  • paragraph 13(1)(c) (confidential information from government bodies);
  • subsection 14(a) (federal-provincial affairs);
  • paragraph 16(1)(c) (law enforcement or conduct of investigations);
  • paragraph 16(1)(d) (security of penal institutions);
  • subsection 19(1) (personal information);
  • paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
  • paragraph 21(1)(a) (advice or recommendations);
  • paragraph 21(1)(b) (accounts of consultations or deliberations);
  • section 23 (solicitor-client and litigation privilege); and
  • subsection 68(a) (material published or available for purchase).  

[2]      The access request was for the entire CSC and Parole Board of Canada (Parole Board) institutional file relating to a named inmate.

[3]      The allegation falls under paragraph 30(1)(a) of the Act.

Investigation

[4]      In response to the access request, CSC informed the complainant that more than 11,000 pages of records were retrieved and reviewed. Of these, 149 pages of records were disclosed in full to the complainant. CSC advised that all of the remaining pages were being withheld pursuant to subsection 19(1). In addition, portions of the  remaining pages were also withheld under subsections 14(a) and 68(a), paragraphs 13(1)(c), 16(1)(c), 16(1)(d), 20(1)(b), 21(1)(a), and 21(1)(b), and section 23 of the Act.

[5]      When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

Subsection 19(1): personal information

[6]      Subsection 19(1) requires institutions to refuse to disclose personal information.

[7]      To claim this exemption, institutions must show the following:

  • The information is about an individual—that is, a human being, not a corporation.
  • There is a serious possibility that disclosing the information would identify that individual.
  • The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[8]      When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

  • The person to whom the information relates consents to its disclosure.
  • The information is publicly available.
  • Disclosure of the information would be consistent with section 8 of the Privacy Act.

[9]      When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires them to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[10]      The records at issue make up the personal file of the named inmate which contain reports, statements, documentation, assessments and communication about the inmate and other individuals. The records contain highly detailed, intimate, and sensitive personal information.

[11]    CSC’s representations demonstrated that the information withheld under subsection 19(1) meets the requirements of the exemption—that is, that the information is about individuals, that disclosing it would result in these individuals being identified, and that it does not fall under any of the exceptions set out in the Privacy Act.

[12]    I conclude that the information withheld under subsection 19(1) meets the requirements of the exemption.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[13]    Since the information meets the requirements of subsection 19(1), CSC was required to reasonably exercise its discretion under subsection 19(2) to decide whether to disclose the information when one or more of the circumstances described in subsection 19(2) existed when it responded to the access request.

[14]    Under paragraph 19(2)(a), CSC was required to make reasonable efforts to seek consent from the individuals whose personal information appears in the records. If no efforts were made, CSC is required to explain why and show why it was reasonable not to seek consent in the circumstances.

[15]    During the course of the investigation, CSC confirmed that it sought, but did not receive, consent from the inmate named in the request. CSC also gave specific reasons why it would not have been appropriate to seek the consent of the other individuals to whom the personal information relates. In light of the information before the OIC, it was reasonable for CSC not to seek the consent of these other individuals. I conclude that the circumstances set out in paragraph 19(2)(a) did not exist when CSC responded to the access request.

[16]    With regard to paragraph 19(2)(b), an institution must take reasonable steps to discern whether personal information is publicly available. There is, however, no obligation for an institution to search every possible source (Information Commissioner v. Canada (Natural Resources), 2014 FC 917, at para.55).

[17]    In the present instance, I am satisfied that it was reasonable for CSC not to undertake any additional measures to ascertain whether any of the information at issue was publicly available so as to permit disclosure. I say this based on the nature and volume of the information at issue, as well as the complexity of any prospective search that would need to have been performed. As a result, I conclude that the circumstances set out in 19(2)(b) did not exist when CSC responded to the access request.

[18]    Finally, discretion is also triggered under paragraph 19(2)(c) when the disclosure would be in accordance with section 8 of the Privacy Act. Subsection 8(2) of the Privacy Act provides a number of circumstances where personal information under the control of a government institution may be disclosed, including where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.

[19]    Subparagraph 8(2)(m)(i) of the Privacy Act permits disclosure where both of the following conditions are met:

  • There is a public interest in the disclosure (meaning a greater interest than the requester’s private interest in the information being released).
  • This public interest in disclosure clearly outweighs the invasion of privacy that would result from disclosure.

[20]    The complainant believed that the public interest outweighed any privacy interests that might exist. CSC’s representations demonstrated that a delegated authority considered the public interest when deciding whether to disclose the personal information. CSC provided specific reasons — including the expectations of privacy of the individuals, the sensitivity of the information, and the harms that could result from disclosure — to support why it ultimately decided that any public interest in disclosure did not clearly outweigh the invasion of privacy that would result from the disclosure of the personal information of the inmate or of the other individuals within the records.

[21]    The OIC considered the nature of the information at issue as well as the representations made by CSC and the complainant. I am satisfied that CSC provided a sufficiently transparent and intelligible explanation for its decision, as required by Canada (Information Commissioner) v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1279, para. 92.

[22]    Further, in Fraser v. Canada (Public Safety and Emergency Preparedness), 2023 FCA 167, where records relating to two incarcerated individuals were sought, the Federal Court of Appeal agreed that, when the extent of the personal information sought by the appellants was weighed against the public interest in disclosure, “no public interest of sufficient weight emerges” that clearly outweighs the invasion of privacy that could result from disclosure (para. 93).

[23]    As part of their access request, the complainant provided the following:

“Constitutional principles touching upon issues of transparency and openness of judicial proceedings, inform how decision makers are to exercise their discretion under the Privacy Act and the Access to Information Act. There is a compelling public interest in the sought after records and the below stated constitutional principles are highly relevant to establishing that the public interest in disclosure clearly outweighs any privacy interest advanced…. There is no principled basis to draw a legal distinction between a judicial proceeding in a court of law and a judicial proceeding before the PBC [Parole Board] regardless of how they are characterized….As a matter of both constitutional and statutory law, all court hearings shall be open to the public….Any restriction in access to the sought after information has the effect of restricting our clients’ expression protected and guaranteed under s.2(b) of the Charter.”

[24]    In Fraser v. Canada (Public Safety and Emergency Preparedness), 2023 FCA 167, the Federal Court of Appeal agreed that the open court principle does not apply to CSC or the Parole Board because they are not adjudicative tribunals (paras 55, 61, 62). The Federal Court of Appeal also concluded that the applicants were not deprived of the opportunity under section 2(b) of the Charter to express their views, given their access to the Parole Board’s hearings, to the audio recordings of those hearings, and to the Parole Board’s decisions (para.93).

[25]    I conclude that the circumstance set out in paragraph 19(2)(c) did not exist when CSC responded to the access request.

[26]    There is no need to examine the issue of discretion as none of the circumstances set out in paragraphs 19(2)(a), (b) and (c) existed when CSC responded to the access request.

[27]    Since the information at issue meets the requirements of subsection 19(1), the OIC did not examine CSC’s application of subsections 14(a) and 68(a), paragraphs 13(1)(c), 16(1)(c), 16(1)(d), 20(1)(b), 21(1)(a), and 21(1)(b), and section 23 to withhold the same information.

Outcome

[28]    The complaint is not well founded.

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

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