2015-2016 2. Investigations

The Information Commissioner is the first level of independent review of government decisions relating to requests for access to information under the control of government institutions. The Access to Information Act requires the Commissioner to investigate all the complaints she receives.

Appendix A contains detailed statistical information related to the complaints the Commissioner received and closed in 2015–2016.

Resources intensive investigations

In 2015–2016, the Commissioner dealt with several resource intensive investigations. These investigations are highly complex and require, often for extended periods of time, the dedicated attention of teams of investigators, legal counsel and senior officials at the Office of the Information Commissioner of Canada (OIC).

For example, there was a systemic investigation into Parks Canada’s approach to processing access requests (see, “The importance of leadership”), an ongoing systemic investigation in response to a complaint made by the Environmental Law Clinic (see “Scientists and the media”) and an investigation into three of the oldest complaints in the Commissioner’s inventory related to records in a minister’s office (see “The effort to access records in a ministers’ office”).

The effort to access records in a ministers’ office

The Commissioner closed one of the OIC’s most lengthy investigations in 2015–2016.  The investigation related to complaints, made in September 2006, concerning the adequacy of responses provided by the Treasury Board Secretariat (TBS) to three requests relating to the release of former Information Commissioner Reid’s special report to Parliament about proposed legislative amendments to the Access to Information Act. More particularly, the complaints alleged that, owing to an incomplete search for records, TBS failed to provide all records responsive to the underlying requests.

The legislative amendments to the Act addressed in Commissioner Reid’s special report formed a small part of the bill that became the former government’s Federal Accountability Act. The President of the Treasury Board at that time, the Honourable John Baird, was the sponsor of this bill.

The Commissioner’s initial investigation into TBS’s response to the three requests revealed that five Offices of Primary Interest (OPIs) had been tasked to retrieve responsive records, and that these OPIs had conducted appropriate searches and gathered responsive institutional records for processing. It also revealed that the Office of the President of the Treasury Board (OPTB) had not been tasked to retrieve responsive records because TBS took the position, based on the policy guidance in effect at the time, that records held exclusively in a minister’s office were not considered to be under the control of a government institution and, therefore, were not subject to the Act.

In light of the fact that this precise issue was then before the Federal Court, the investigation was placed on hold in December 2006 pending the outcome of the judicial process.  The Federal Court handed down its judgment in June 2008. It was appealed to the Federal Court of Appeal and, subsequently, to the Supreme Court of Canada (SCC), which issued its decision in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (PM’s Agenda Case) on May 13, 2011 (background: “Control of records”).

Shortly after the release of the SCC’s decision, the Commissioner reactivated her investigation and determined that she needed to review the ministerial records that were held in the OPTB at the time of the requests in order to ascertain whether any of them were under the control of TBS in keeping with the two-part test set out by the SCC in the PM’s Agenda Case (see “Ministers’ offices” for a description of the two-part control test and, if so, whether any were responsive to any of the three requests under investigation.

In early January 2007, Mr. Baird was appointed Minister of the Environment and left the OPTB to assume these new responsibilities. Mr. Baird was responsible for four other ministerial portfolios while this investigation was ongoing: Minister of Transport (October 2008 to August 2010), Leader of the Government in the House of Commons (August 2010 to May 2011), Minister of the Environment (November 2010 to January 2011) and Minister of Foreign Affairs (May 2011 to February 2015).

Over a nearly two year period, the Commissioner made extensive efforts first to locate and, subsequently to obtain relevant ministerial records deriving from Mr. Baird’s tenure as President of the Treasury Board.

In particular, the Commissioner communicated with the Chief of Staff to Mr. Baird, the Director of TBS Access to Information and Privacy (ATIP), officials from Library and Archives Canada (LAC), as well as the official who had acted as the departmental liaison between TBS and the OPTB during the relevant time period, none of whom were able to confirm the location of the relevant ministerial records.

In light of this finding, the Commissioner next contacted Mr. Baird’s office–first through his then Chief of Staff and subsequently to him directly–in order to locate the ministerial records from the relevant time period. Eventually, Mr. Baird’s Chief of Staff confirmed that Mr. Baird had retained the relevant ministerial records from this period through five subsequent ministerial appointments.

After significant resistance to provide the Commissioner with the ministerial records deriving from this period, Mr. Baird ultimately agreed to turn some records over to her (see, “Actions to retrieve records from Minister Baird’s office”). The Commissioner reviewed those records and identified those that were relevant to the underlying access requests. Mr. Baird’s ministerial office then provided these to TBS for processing.  As a consequence, in April 2014, an additional 127 pages of responsive records were provided to the complainant in relation to one of the three underlying requests.

While this investigation was ongoing, two important policy documents were issued, one by TBS and one by Library and Archives Canada (LAC), which provide guidance with respect to the management of records located in ministers’ offices.

In particular, in June 2015, TBS issued a new information management protocol, entitled Information Management in a Minister’s Office, which notes that, unless they are explicitly exempted, ministers’ offices are subject to TBS policies and, therefore, that they are required to implement the TBS Policy on Information Management and its various supporting policy instruments, including the Directive on Recordkeeping and the Standard on Email Management.

For its part, LAC issued Guidelines on Managing Records in a Minister’s Office in October 2015, which replaced the previous guidelines from 1992.  These new guidelinesprovide information regarding the efficient and effective storage, management, retrieval and disposal of records created or received in a minister’s office and set out measures for ensuring the proper management of records located in ministers’ offices, including institutional and ministerial records. They also recommend that ministers’ offices implement these practices from the time ministers assume office until they either change portfolios or leave office.

In keeping with this recent policy guidance and mindful of the way in which ministerial records deriving from Mr. Baird’s tenure as President of the Treasury Board were handled in the circumstances under investigation and the implications that this had for the ability of TBS to meet its obligations under the Act, the Commissioner recommended a series of measures that should be adopted by all ministers’ offices going forward. These recommendations ensure that ministers, as the heads of government institutions subject to the Act, are accountable throughout their terms in office, including when they change ministerial portfolios or leave office.

The Commissioner’s recommendations included:

• identifying a senior member of each minister’s staff to ensure that each ministerial office implements and complies with its information management obligations;
• ensuring that ministers and their staff receive training to ensure that all categories of records are managed in accordance with applicable information management policies;
• conducting audits on a periodic basis to ensure that information practices implemented in ministers’ offices are complying with such policies; and
• ensuring that ministers and their staff receive appropriate training with respect to their responsibilities under the Act, including in relation to investigations conducted by the OIC.

The current President of the Treasury Board, Mr. Brison, responded positively to the majority of the Commissioner’s recommendations (see box, “Response from the President of the Treasury Board”).

With respect to the Commissioner’s recommendations that ministers’ offices should be tasked to conduct searches for relevant records on the same basis that any other OPI is tasked and that audits of the information management practices should implemented in ministers’ offices on a periodic basis, TBS has replied that these recommendations will be considered as part of the government’s review of the Access to Information Act (see “Upcoming legislative amendments and government review of the Access to Information Act”).

In providing her recommendations, the Commissioner underscored that, with the recent change in government and the swearing in of a new Cabinet, this was an opportune moment to ensure that ministers implement robust information management practices in establishing their offices. These practices underpin the ability of government institutions to meet their obligations under the Act and, ultimately, safeguard the rights of requesters.

Noteworthy investigations

In 2015–2016, the Commissioner’s most noteworthy investigations covered a wide range of topics, from to duty to assist issues, to failures to make even basic searches for records, in addition to refusals of access.

Duty to assist

The duty to assist arose as a central issue in several investigations in 2015–2016.

Processing the request without regard to the identity of the requester

According to the duty to assist, institutions have a responsibility to process requests without regard to the identity of the requester. In 2015–2016, the Commissioner investigated a series of complaints against Treasury Board Secretariat’s (TBS) online access to information request tool where it was alleged that the duty to processing a request without regard to the identity of the requester was being violated.

In order to complete access to information requests using the online tool, requesters had to provide identifying information, such as their date of birth and/or their title (Mr. or Ms.), when making requests to specific institutions, without an option to decline. Failure to provide this information meant requesters could not use the online tool and instead had to resort to the paper access to information request form. Requesters complained about having to provide this information.

In her investigation of these complaints, the Commissioner noted inconsistencies between the online tool and the paper form. On the paper form, there is no section that asks for date of birth or gender salutation information from requesters.

The Commissioner’s investigation also revealed that different institutions asked for different identifying information, sometimes depending on the records being sought. For example, the online tool for the Canada Border Services Agency and Immigration, Refugees and Citizenship Canada (formerly Citizenship and Immigration Canada) required date of birth information for requests for case files or personal records, but not for corporate records and other policy documents. The Royal Canadian Mounted Police required date of birth information for all requests, regardless of the type of information sought.

Overall, the Commissioner found that the mandatory requirement to provide date of birth and gender salutation information in the online request tool was arbitrary and unnecessary. As a result, the Commissioner was of the opinion that TBS had breached the duty to assist requesters. Furthermore, by forcing requesters to use the paper form if they didn’t wish to provide their identifying information in the online tool, TBS had effectively created two different processes for requesting the same type of information, creating a potential barrier to access for any requester who wished to use the online tool.

TBS has committed to address these issues and will make the necessary changes to the online request system by June 2016, allowing these fields to be optional except in cases where the information sought in the request is his or her own personal information, to ensure privacy rights are protected.

Providing complete, accurate and timely information to requesters as part of the duty to assist

The Commissioner closed another investigation in 2015–2016 that highlighted the negative repercussions that can occur when an institution fails to meet its obligations under the duty to assist, including the obligation to respond to the request accurately and completely, and provide timely access.

In September 2013, National Defence (DND) received a request for notes, memos, and any reports, including drafts, related to the crash of a Chinook helicopter in southern Afghanistan in May 2011. DND provided a partial response, exempting some information under paragraph 16(1)(c) of the Act, which exempts information the disclosure of which could harm law enforcement activities and investigations. The requester complained to the Commissioner about this response in October 2013.

DND informed the Commissioner during her investigation that a final version of the report the requester was seeking would be published in May 2014. This information was relayed to the requester and, in light of DND’s commitment to publish the report, the requester decided to discontinue his complaint.

In September 2014, it came to the Commissioner’s attention that DND had failed to release the report as initially discussed. DND was contacted, who advised the Commissioner that the report would be published in the next three to six months, thus extending the release date to anywhere from December 2014 to March 2015.

As a result of this delayed publication date, the Commissioner initiated a complaint. During the investigation of this complaint, she came to the conclusion that DND could not have reasonably expected to complete the report by May 2014 as it had initially proposed. When this date was suggested, integral stages of the investigation had not yet been commenced. The Commissioner was not made aware of this information during the first investigation.

DND ultimately released the records at issue 18 months after the access request was made, and ten months after the publication date initially provided to the Commissioner. The delay in releasing the records to the requester, and the second investigation in its entirety, could have been avoided if DND had met its basic obligations under the duty to assist and provided an accurate, complete and timely response at the outset.

As part of the duty to assist, the Commissioner consistently recommends to institutions that if they notify a requester that the information they are seeking is to be published, the institution should continue to monitor the publication of the information and send a follow-up response to the requester when the information is published, or notify them if publication is to be delayed. To avoid situations like the one described in this investigation, the Commissioner recommended in her report Striking the right balance for transparency that extensions be available when the requested information is to be made available to the public. This ensures that requests remain open and active within institutions.

An example of a request processed in compliance with the duty to assist

The final notable duty to assist investigation from 2015–2016 involved the Canadian Radio-television and Telecommunications Commission (CRTC) and was related to a request made for records concerning an individual. The individual who was the subject of the request objected to the release of this information and subsequently complained to the OIC about how the access request was processed. Amongst other concerns, the complainant alleged that the request was not processed in a fair, impartial and transparent manner and requested that the OIC review the handling of the access request.

As part of the investigation, the OIC obtained a copy of the processing file for this request, which outlined the steps taken in the search, retrieval and processing of relevant records. The OIC also reviewed the CRTC’s policies and procedures for processing access requests alongside TBS requirements.

The OIC’s investigation revealed that the CRTC appropriately handled the request in accordance with policies and procedures and met its duty to assist obligations – appropriate individuals were tasked to search for records to provide a complete response; exemptions and exclusions were properly applied; officials with delegated authority under the Act provided the necessary approvals for disclosure and interim releases were provided where possible to provide timely access to records. As a result, the complaint was not well founded.

Failing to make complete searches

When requesters feel that the response they receive from an institution is missing records, they can complain to the Commissioner. The Commissioner can then investigate a number of factors, such as the adequacy of the search for responsive records, the institution’s records management practices or whether any records were in fact created that were responsive to the request.

In 2015–2016, the Commissioner closed two notable investigations that featured inadequacies in searching for responsive records.

Searching for records when employees are co-located within an office

The first investigation involved National Defence (DND), where a request was made to DND about the process to submit a “Spectrum Supportability Application” to the Spectrum Management Office. This office is a part of Innovation, Science and Economic Development Canada (ISED) (formerly Industry Canada), not DND; however, DND can have employees located in this office.

The requester asked DND for records about this same process followed by ISED. DND’s response to the requester was that no records existed.

The Commissioner’s investigation revealed, however, that after finding no responsive records within its own institution, DND made no effort to reach out to ISED to obtain the requested information, despite ISED being named in the request. In her investigation, the Commissioner learned that DND currently had an employee co-located at the Spectrum Management Office who had not been contacted during the initial search.

As a result of the Commissioner’s intervention, the DND employee co-located at the Spectrum Management Office was tasked with searching for responsive records. 54 responsive pages were found and released in their entirety to the requester.

RCMP officers’ notebooks

The second investigation concerned the Royal Canadian Mounted Police (RCMP) and related to a request for specific records generated in response to an incident, including notes from the notebooks of four named RCMP officers. The RCMP’s response to the requester was that no records existed. The requester believed that records should exist, and complained to the Commissioner.

During her investigation, the Commissioner learned that the four RCMP officers who had been identified in the request were not asked to provide their notebooks so that they could be reviewed by access officials for processing. She also learned that it is standard RCMP practice for these notebooks to be held by each individual officer in their private residence. The notebooks are not turned over to the RCMP for storage after they are full or after the officer has retired. This is despite the fact that the RCMP Operational Manual provides that notebooks are the property of the RCMP. The manual also makes clear that these notebooks are subject to the Access to Information Act and outlines how long they should be retained.

During her investigation, the RCMP initially informed the Commissioner that one of the officers had been found and had no responsive records; however, it was unable to locate three of the officers.  Later it was discovered that one was still working for the RCMP, but under another name, and two had subsequently retired. The RCMP was unwilling to seek out the retired officer’s current addresses so they could be tasked with searching for their notebooks. Noting that these individuals held records that were subject to the Act, the Commissioner undertook her own search for the retired individuals. The Commissioner’s investigation ensured that all the officers referenced in the request were contacted either by the RCMP or by her staff and that a thorough search was conducted. As a result of the investigation, additional records from the officers’ notebooks were released to the requester.

The Commissioner’s investigation also shed light on an ongoing records management issue at the RCMP relating to officer’s notebook. Although the RCMP Operational Manual makes clear that these notebooks are under the control of the RCMP and subject to the Act, this investigation highlighted the practical difficulties of obtaining these records when these notebooks are not returned post-employment. In a 2014 internal audit of investigator’s notes, the RCMP recommended that it should assess and document the risks that its current retention and storage practices pose, specifically as they relate to members who retire or leave the RCMP. The Federal, Provincial and Territorial Heads of Prosecutions Committee has also noted retention and storage of notebooks at officers’ homes post-employment as an issue for the Canadian justice system.

The Commissioner will follow up with the RCMP on the issue of retention of officer’s notebooks and obtaining access to them.

Update on the missing records certification process with CRA

In her 2014–2015 Annual Report, information management and document retrieval was identified by the Commissioner as a persistent issue at the Canada Revenue Agency (CRA) when it comes to identifying and retrieving records in response to access requests (background: “Missing records at the Canada Revenue Agency”). To resolve this issue and provide assurances to requesters that all records were being appropriately searched for and retrieved, the Commissioner instituted a certification process.

The certification process has proven effective. Since it was implemented, the Commissioner has received 45 certifications. Complaints about missing records against the CRA have decreased significantly. In 2015–2016, the number of missing record complaints was reduced by nearly half (52 in 2015–2016 as compared to 93 in 2014–2015).

Refusals of access

Section 69 (Cabinet confidences)

Under the Act, Cabinet confidences are excluded from the right of access, subject to certain limited exceptions. The rationale for excluding cabinet documents from the Act is to allow ministers to discuss issues within Cabinet privately so as to arrive at decisions that are supported by all ministers publicly, regardless of their personal views.

The exclusion for Cabinet confidences was invoked by institutions 3,089 times in 2014–2015. The Commissioner registered 35 complaints regarding Cabinet confidences in 2015–2016, representing 1.7 percent of exemption complaints. The low rate of complaints regarding Cabinet confidences can be correlated, in part, to a trend in recent years of requesters specifically asking institutions not to process records containing Cabinet confidences (background: “Self-censoring of requests”).

In her special report to modernize the Act, the Commissioner set out a number of problems with the protection in the Act for Cabinet confidences, first being that the use of an exclusion to protect Cabinet confidences has significant repercussions on the Commissioner’s ability to provide effective oversight when investigating a complaint that concerns a government institution’s refusal to disclose Cabinet confidences (see “Section 69 (Cabinet confidences)”).

In addition, the Commissioner also noted in her report that the exclusion for Cabinet confidences is unnecessarily broad, especially when compared to other jurisdictions. Section 69(1) of the Act sets out a non-exhaustive list of types of records that are to be considered Cabinet confidences.  This list includes records not traditionally considered to be part of the Cabinet paper system.  For instance, pursuant to section 69(1)(g) even records containing information about the content of any Cabinet record are to be excluded.

Dates, times and locations of Cabinet meetings

In 2015–2016, the Commissioner concluded an investigation that exemplified the over breadth of this exclusion, and the limitations of the Commissioner’s oversight.  In 2010, a request was made to the Privy Council Office (PCO) for dates, times and locations of meetings of Cabinet and committees of Cabinet from 2006 to the time of the request. In response, PCO claimed the information could not be disclosed as the requested records were Cabinet confidences. Specifically, PCO claimed the requested records were agenda of Council or records recording deliberations or decisions of Council. PCO later added that some of the records were protected because they contained information about the contents of Cabinet confidences.

The requester asked the Commissioner to investigate this response. As part of her investigation, the Commissioner received a schedule prepared by the Clerk of the Privy Council that provided tombstone information on seven types of documents that were being withheld (note that the Commissioner is unable to review Cabinet records as part of her investigation in order to consider the substance of what is claimed to be excluded). The first five described agendas for separate date ranges. The remaining were a document related to an agenda of Council and a calendar, also related to an agenda of council.

Not convinced that merely the dates, times and locations of Cabinet meetings constituted Cabinet confidences, the Commissioner sought representations from PCO, who maintained that the records had to be excluded. PCO also took the position that, since the responsive records satisfied the criteria of Cabinet confidences, it had no obligation to sever the records. The Commissioner was of the view that severance should be considered, especially in light of the factual material the requester was seeking.

At the close of her investigation, the Commissioner was still of the view that PCO had not met its burden of proof and, as such, recommended disclosure of the requested information. PCO did not heed this recommendation and, as a result, the complaint was well-founded, but not resolved. The complainant did not wish to pursue the matter further.

The records that the requester was seeking related to the Cabinet of the previous government. Under the new government, itinerary information for the Prime Minister, including time and date information for Cabinet meetings as a whole to which the Prime Minister is attending, is proactively disclosed on a daily basis.

Inconsistent application between institutions of the Cabinet confidences exclusion

Although in the normal course the Commissioner is unable to review Cabinet confidences as part of her investigations, there are some unusual circumstances that can arise that allow the Commissioner to see unredacted versions of records over which an institution has claimed Cabinet confidences. In these instances, the Commissioner conducts an in-depth review of the records at issue.

In 2015–2016, such a circumstance arose and revealed an inconsistent application of the Cabinet confidences exclusion.  In this example, a similar request was made to both PCO and Global Affairs Canada (formerly the Department of Foreign Affairs, Trade and Development). Both institutions provided to the requester a form letter from the Department of Justice Canada as responsive to the request. However, while PCO disclosed the letter in whole, Global Affairs Canada withheld one paragraph, citing section 69. Noting the similarities between the two letters (as far as the requester could tell, the body of the letters was exactly the same), and the discrepancy between PCO and Global Affairs Canada’s response, the requester complained to the Commissioner and provided her with copies of both letters. As a result of the Commissioner’s investigation, Global Affairs Canada consented to releasing the paragraph it had withheld as a Cabinet confidence.

Assessing the Cabinet confidences process

In 2013, the process for reviewing records during the processing of access requests to determine whether they contain Cabinet confidences was changed. Instead of a mandatory consultation by an expert group at PCO, institutions must now consult with their departmental Legal Services, with consultations made to PCO only in certain circumstances (background “Section 69”).

In her last annual report, the Commissioner cited concerns about the implications of this change, especially with respect to the consistency of the application of section 69. She committed to continue to monitor the application of section 69 in light of these concerns (see “Shedding light on decision-making by Cabinet”).

The Commissioner’s concerns with this process remain. Since her last report, issues have arisen with regard to the consistency of representations that should be provided to the Commissioner during a complaint investigation of the Cabinet confidences exclusion.

The Commissioner has about 70 complaints related to Cabinet confidences outstanding. As she investigates these complaints over the next year, she will be in a better position to assess the extent of her concerns and any other issues with the Cabinet confidences process. The Commissioner has also asked senior officials within her office to work with TBS, the Department of Justice Canada and PCO on these changes to ensure consistency in their approach and to make certain that institutions understand the Commissioner’s investigative process for Cabinet confidences.

An advisory notice setting out the Commissioner’s expectations during Cabinet confidences investigations will be forthcoming in 2016–2017. In the meantime, the Commissioner will continue to monitor the use of the Cabinet confidences exclusion to ensure its consistent application, to the extent possible without the ability to review the records.

Section 21 (Advice and recommendations to government)

The exemption for advice and recommendations to government protects information relating to policy- and decision-making.

Institutions invoked this exemption 8,878 times in 2014–2015. 38 percent of the exemption complaints the Commissioner registered in 2015–2016 (271 files) involved section 21.

In her report to modernize the Access to Information Act, the Commissioner highlighted the exemption for advice and recommendations as being particularly problematic (see “Advice and recommendations (section 21)”). In its current form, this exemption extends far beyond what must be withheld to protect the provision of free and open advice. In the Commissioner’s view, this exemption should be narrowed so that it strikes the right balance between the protection of the effective development of policies, priorities and decisions on the one hand, and transparency in decision-making on the other. Illustrative examples of the over breadth of the exemption for advice and recommendations from 2015–2016 can be found in the Highlights chapter (see “Presentation deck and speaking notes” and “Public opinion research”).

Putting a plan into operation

Paragraph 21(1)(d) allows an institution to withhold records that contain plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation. In 2015–2016, the Commissioner had an opportunity to investigate the application of this exemption when a complaint was made about National Defence’s (DND) use of this exemption.

In 2013, a request was made for a copy of a briefing note relating to DND’s work force adjustment situation. DND withheld the majority of the note on the basis that the work force adjustment plans would not be fully implemented until 2015, relying on paragraph 21(1)(d) to prevent disclosure.

During the Commissioner’s investigation, DND alleged that releasing the information could cause unnecessary stress within the workforce at DND. To release the information at that time could give an inaccurate account of the final number of employees who could be subject to work force adjustment and be misleading to the employees of DND, as well as the public. DND instead suggested that once the work force adjustment is complete, final numbers could be released.

The Commissioner determined that, based on a plain reading of paragraph 21(1)(d), a plan or plans should be considered to have been put into operation once it has been formally approved, notice has been given by a final authority of the plan’s existence and the implementation of that plan has begun. There is nothing in the Act to support DND’s reading of the Act that the plan must be fully implemented in order for it to be considered to have been “put into operation”.

As such, the Commissioner was of the view that paragraph 21(1)(d) was not applicable and found the complaint to be well-founded.

DND eventually agreed during the Commissioner’s investigation to disclose the information given the passage of time, while still maintaining it had appropriately applied paragraph 21(1)(d).

Section 23 (Solicitor-client privilege)

The exemption for solicitor-client privilege, section 23, is a discretionary exemption that applies both to information privileged as legal advice and records that were created for the dominant purpose of contemplated, anticipated or existing litigation (commonly known as litigation privilege).

Institutions applied this exemption 2,255 in 2014–2015. The Commissioner received 178 complaints about this exemption in 2015–2016, representing 25 percent of the exemption complaints she received that year.

In her report to modernize the Access to Information Act, the Commissioner made two specific recommendations with regard to the exemption for solicitor-client privilege. The first was that a time limit be applied to the exemption as it applies to legal advice privilege. While litigation privilege expires at the conclusion of litigation, legal advice privilege has no time limit. A time limit on this exemption as it applies to legal advice would take into consideration the government’s public interest mandate. This mandate justifies differences in the operation of solicitor-client privilege with respect to the government. The second recommendation was that, in the interests of transparency and accountability, the solicitor-client exemption may not be applied to aggregate total amounts of legal fees.

Does litigation privilege apply to collected records?

In 2015–2016, the Commissioner investigated a complaint against the National Research Council (NRC) related to litigation privilege.

The investigation concerned a request made in May 2013 for specific records sent to the NRC by Marine Atlantic Inc. (Marine Atlantic is a Crown Corporation that offers ferry services between Newfoundland and Labrador and Nova Scotia.) These records were sent to the NRC so that it could conduct a study on behalf of Marine Atlantic. The subject of the study was a collision between a Marine Atlantic ferry and a wharf in Atlantic Canada.

The NRC identified records and 11 video files as responsive to the request, but refused to disclose them, citing litigation privilege, due to an upcoming hearing before a labour relations board related to the collision. The requester complained to the Commissioner about this response.

As a result of her investigation, the Commissioner was of the view that some of the records and videos, such as the ship’s scheme, tidal charts, weather reports and CCTV videos, were created before there was a reasonable prospect of litigation. Moreover, these documents would have been produced regardless of the collision. The Commissioner’s position was that documents produced during or as a result of the study were privileged information, but records collected for the study were not protected by litigation privilege and therefore should be released.

The NRC did not agree with the Commissioner’s position, but agreed to waive its privilege in order to release the paper records that were clearly collected and not created for the study.  Five videos were also released (with the identities of some individuals obscured in two of the videos). Other exemptions were applied to the remaining videos to justify their withholding.

Section 15 (International affairs)

Section 15 protects information the disclosure of which could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities.

It was invoked by institutions 11,890 in 2014–2015 and made up 22 percent of the exemption complaints received by the Commissioner in 2015–2016 (158 files).

In her report to modernize the Access to Information Act, the Commissioner made recommendations to section 15 and 69.1 (the exclusion for information that has been certified as confidential under section 38.13 of the Canada Evidence Act) of the Act as they relate to national security. She also made a recommendation to sections 15 as it applies to international affairs. The purposes of these recommendations are to clarify and streamline the application of the exemptions in the Act and improve access to historical information.

Obtaining graphs about the Support to Lawful Access program

In December 2012, DND received a request regarding the Communications Security Establishment Canada’s (CSEC) Support to Lawful Access program. Specifically, the requester wanted to know, over a certain period of time, the number of requests made to CSEC to provide technical and operational assistance to federal law enforcement and security agencies, and whether CSEC had accepted or rejected those requests. The requester asked for this information in graph form, if possible.

In April 2013, CSEC assumed control of the processing of this request. Prior to this time, DND processed all requests regarding CSEC, which was treated as an office of primary interest by DND’s access to information officials.

In response to the request, CSEC disclosed four pages of graphs, but withheld specific information claiming, in part, that releasing the information could result in injury to the defence of Canada and its allies.

The requester complained to the Commissioner about the response, noting in particular that the application of exemptions was vague, arbitrary and overbroad.

Through her investigation, and particularly via face to face meetings, CSEC was able to provide the Commissioner with detailed rationale regarding the application of section 15, and the factors considered in the exercise of discretion, as it applied to specific requests under the Support for Lawful Access. This included clear examples of how releasing the specific requests for support could reasonably be expected to result in injury. However, in the Commissioner’s view, CSEC was not able to justify how injury could result in disclosing aggregate information and categorical information found in the graphs. CSEC reconsidered its position and agreed to release further information, such as sub-total and total information in the graphs, to the requester.

This investigation also presented a learning opportunity for CSEC. The request was the first that CSEC had to process, and through her investigation, the Commissioner was able to provide guidance and share expertise to assist CSEC in processing future requests.

Section 16 (Law enforcement and investigations)

Section 16 generally protects information related to law enforcement. It is used by a range of institutions, such as the RCMP, the Canadian Human Rights Commission and the CRTC.

Institutions invoked section 16 11,587 times in 2014–2015 and it was the subject of 43 percent of the exemption complaints the Commissioner registered in 2015–2016 (306 files).

The Commissioner’s report to modernize the Access to Information Act contained recommendations to simplify the exemption for law enforcement and investigations in order to streamline the application of this exemption and reduce the concurrent application of multiple exemptions.

Law enforcement exemption used to withhold agreement in robocalls scandal

In 2015–2016, the Commissioner closed an investigation related to the voter suppression scandal, or robocalls, of the 2011 federal election. At issue in this investigation was the Canadian Radio-television and Telecommunications Commission’s (CRTC) application of section 16, in addition to other exemptions, to withhold information of great public interest.

This investigation related to a request made in May 2013 for any official communication between the CRTC and RackNine Inc. The CRTC had conducted an investigation against RackNine for violations of the Unsolicited Telecommunications Rules. The CRTC found RackNine to be in violation of these rules and fined it $60,000.

In response to the request for official communications between the CRTC and RackNine, the CRTC decided to withhold a four page agreement between itself and RackNine, save for the title and signature block, citing simultaneously section 16 and the exemption for legal advice, section 23. This agreement addressed the CRTC’s concerns that resulted from its investigation and the terms the CRTC and RackNine had come to in order to resolve those concerns.

With respect to the application of section 16, the CRTC claimed that releasing the agreement in full could jeopardize outstanding investigations related to the robocalls scandal. The Commissioner disagreed, noting that most of the information in the agreement was already in the public domain and contained some factual and generic information. Without further evidence, the Commissioner was not convinced injury to the CRTC’s outstanding investigations would result if the agreement was disclosed.  

As for the legal advice exemption, the CRTC alleged that since the process that led to both parties signing the agreement was subject to legal advice, the agreement itself should also be subject to legal advice privilege. The Commissioner disagreed with this as well, noting that there was no legal advice between solicitor and client in the agreement.

Ultimately, as a result of the Commissioner’s intervention, the CRTC agreed to review the exemptions and released almost all the information it had previously withheld.

Streamlining investigations at the Office of the Information Commissioner of Canada

In 2015–2016, the Commissioner focused on streamlining her investigation processes to establish clear procedures and to increase predictability for complainants and institutions. This was accomplished through two major initiatives: (1) a simplified investigation process for time extension and deemed refusal complaints; and (2) a focus on training and procedures for investigators.

Simplified investigation processes for time extension and deemed refusal complaints

A significant project undertaken by the Commissioner in 2015–2016 focused on improvements in investigation processes. Generally, the Commissioner receives two types of complaints: complaints about refusals of access and administrative complaints. Administrative complaints deal with matters such as time extensions and delays. These complaints represent about 35% of the Commissioner’s investigative workload. Wherever possible, the Commissioner processes administrative complaints as quickly as she can because in most instances, until the complaint is resolved, the complainant has not received any records.

In March 2015, an important decision was released from the Federal Court of Appeal that promised to introduce much-needed discipline into the process of taking and justifying time extensions by institutions. In turn, this decision provided an opportunity for the Commissioner to reconsider her approach to investigating time extension and delay complaints.

The Court determined that a deemed refusal arises whenever the initial 30-day time limit has expired without access being given, in circumstances where no legally valid extension has been taken (Information Commissioner of Canada v. Minister of National Defence, 2015 FCA 56; background: “The culture of delay”). According to the Court, in order to be a valid and reasonable extension, institutions “must make a serious effort to assess the required duration [of the extension], and that the estimated calculation be sufficiently rigorous, logic[al] and supportable to pass muster under reasonableness review.”

In light of the Court of Appeal’s decision, the Commissioner now expects institutions to provide detailed representations at a very early stage in the investigation process explaining, with supporting documentation, how extensions are justified and reasonable when regard is had to the circumstances. If the Commissioner finds that an extension is not reasonable, the request will be considered in deemed refusal. This will trigger the right to seek a judicial review of the extension taken by the institution.

In support of this new set of expectations, the Commissioner has revised her investigation process for time extension and deemed refusal complaints so that it is clearer, consistent and simplified. Form letters and templates seeking representations from institutions have been created that ensure a uniform experience, and give clear direction for investigators at the OIC, as well as for analysts and coordinators within institutions.

Piloting of the new process commenced with seven institutions in February 2016 with very positive feedback (see box, “Pilot of the simplified process”).

The Commissioner anticipates that this new simplified process will result in administrative complaints being resolved more quickly, which will, in turn, lead to earlier disclosure of records.

Focus on training and procedures for investigators

2015–2016 also saw a renewed focus on training and procedures for investigators, with the intent of bringing more rigour to the investigative process. The OIC hired new investigators in early 2016. This cohort of new investigators benefited from an updated, comprehensive training suite. This new training suite, developed by experienced investigators, legal counsel and senior management at the OIC, was created to ensure a consistent approach across the OIC in the conduct of its investigations.

Although mandatory for new investigators, these training sessions were also made available to other OIC employees who could benefit. (Proactive identification of training needs is in alignment with the OIC’s performance management model. See “Performance management of investigators.”)

A mediator from the Office of the Information and Privacy Commissioner of Ontario was also invited to the OIC in 2015–2016 to provide mediation training to investigators. Complaints are primarily resolved through mediation and persuasion at the OIC and the Commissioner plans to roll-out a mediation project for all investigations in the near future.

In 2016–2017, the Commissioner will be developing an investigation manual and a code of procedure to bring further predictability to the investigations process (see “New tools for complaints and investigations”).