2011-2012 2. Ensuring compliance with the Act

Our core business is investigating complaints, in support of our mission to defend and protect the public’s right of access to public sector information. This chapter includes examples of noteworthy complaint investigations we completed in 2011–2012. These cases illustrate important principles in the Access to Information Act that institutions must respect when processing requests, such as the duty to assist and the proper application of exemptions, as well as procedural issues, such as the requirement to retrieve and review all responsive records, regardless of whether any of them will actually be released. At the end of the chapter is a review of our work on our annual report cards and our ongoing systemic investigations.

Fees

Foreign Affairs and International Trade Canada (DFAIT) received two requests for briefing books provided to the Minister of Foreign Affairs on Afghanistan and the Geneva conventions. Our investigation of the subsequent complaints concerned three issues: DFAIT’s authority to charge fees for the search and preparation of electronic records, DFAIT’s apparent practice of automatically charging preparation fees for any request of 500 or more responsive pages and the fees charged to the complainant.

Subsection 11(2) of the Act allows institutions to charge search and preparation fees for “non-computerized” records in accordance with subsection 7(2) of the Access to Information Regulations. However, for this request, DFAIT had applied these fees to electronic records, such as emails and word-processing files.

During our investigation, we questioned DFAIT’s authority to assess fees in relation to what we determined were computerized records. DFAIT officials said that the drafters of the Regulations intended that “non-computerized” records would include any record (including an electronic record) that does not have to be produced from a machine-readable record, as described in subsection 7(3) of the Regulations.

We disagreed with this approach, based on the ordinary meaning of the word “non-computerized,” which in our view cannot include records that are stored or created on a computer.

Lessons learned

Although the Access to Information Regulations may well be outdated and have been overtaken by advances in technology, it is our view that, without modifying subsection 7(2) of the Regulations, institutions do not have the ability to charge fees for searching for and preparing computerized records.

Even when authority to charge fees exists, institutions must take all relevant factors into account when deciding to do so and may not decide to automatically charge them based on one factor, in this case the volume of records.

Consultations

Industry Canada received a request in July 2009 for documents related to arrangements made by Bell Canada and Telus Corporation to jointly build and/or share wireless networks. The requester subsequently complained to us about the 210-day extension the institution took to respond to the request and that it missed that deadline. Our investigation focused on the institution’s practices associated with consultations, and its overall lack of a timely response.

Despite having taken an extension to consult with other institutions about the request, Industry Canada did not begin its consultations until after the lengthy extension had expired. In addition, the institution carried out those consultations consecutively, not concurrently—waiting to complete one consultation before embarking on the next.

Industry Canada also failed to complete the consultations with third parties within the time frame set out in the Act (sections 27 and 28). In addition, officials gave extensions to third parties to provide a response to the notice and entered into negotiations with them about the terms of the proposed disclosure. Neither of these ways of proceeding is consistent with the obligations set out in section 28.

Early in the summer of 2011, we asked for and received a formal work plan from Industry Canada, setting out how and when it would respond to the request, but the institution did not meet any of its commitments. In the end, the institution responded in December 2011.

Even though Industry Canada issued a response, we wrote to the Minister of Industry outlining all of the issues uncovered during our investigation and made specific recommendations to the Minister on ways to improve its process. Industry Canada agreed to take action in response to our recommendations and committed to the following, among other things: holding consultations with multiple parties concurrently, respecting the deadlines set out in the Act for third-party consultations, beginning consultations as soon as possible, not allowing an unreasonable response time and responding to the request in the absence of a response to a consultation when the consulted institution does not respond in a timely way.

Although it took Industry Canada more than two years to respond to the request, we are pleased that it agreed with the Commissioner’s recommendations and has modified its practices in the manner recommended by the Commissioner.

Lessons learned

Institutions must manage consultations with other government institutions and third parties according to the legislative provisions of the Act and the duty to assist requesters. Consultations should be conducted concurrently and at the earliest opportunity in the processing of a request. The consulting institution should make clear that in the absence of a timely response to a consultation request, it would decide whether or not to release the records.

Third-party consultations must also be conducted in a manner that respects the timelines set out in section 28 of the Act. This precludes extensions, multiple notices and negotiations with third parties. The entire consultation should take approximately 60 days, based on the timelines set out in the Act.

Records retrieval

The Canadian Broadcasting Corporation (CBC) received a request in November 2010 for information about any financial assistance it had given to support films and documentaries about, among other subjects, the Quebec Nordiques. The subsequent complaint focused on the CBC’s response to the request, in which the institution said that it might not have any such records, and that even if the records did exist, they would most likely be excluded from disclosure under section 68.1 of the Act (which excludes information about the CBC’s journalistic, creative or programming activities from the Act).

The complaint focused on the CBC’s failure to retrieve any responsive records. During our investigation, we discovered the CBC had published guidelines indicating that it would refuse access to records that would be excluded under section 68.1 without retrieving them to confirm whether or not the exclusion would apply. This practice is contrary to section 25 of the Act, which requires institutions to disclose portions of records that may be reasonably severed. It is also contrary to the duty to assist requesters, which requires institutions to provide accurate and complete responses to requests for information. In addition, it could hinder our ability to investigate complaints in a timely manner and risks records being disposed of under the institution’s disposal policy, thereby compromising requesters’ rights under the Act. Our position was confirmed by a recent Federal Court of Appeal decision (paragraph 53), which concluded that institutions must retrieve all responsive records so as to determine whether any exemptions or exclusions apply and whether severance is possible.

The CBC has modified its guidelines. These now require that the requested records be retrieved and provided to the access to information office, despite the possibility of their being excluded under section 68.1 of the Act.

Lessons learned

Officials must retrieve and process all responsive records even when they are of the initial view that the records will be exempted or excluded. The principle of severance found in section 25 requires no less. Complying with the Act in this manner also ensures the integrity and efficiency of the investigative process, which is intended to protect requesters’ rights.

Staffing shortages

In July 2009, Transport Canada received a request for information about the investigation of an accident that had occurred the previous year. The requester complained to us 18 months later when she still had not received a response.

Our investigation found that Transport Canada had neglected the request for extended periods of time. We learned that this had happened because the institution did not have enough staff to handle the volume of requests it had to process. Indeed, the analyst handling this request had more than 60 other requests assigned to her. Following our intervention, Transport Canada agreed to respond by a specific date but, given the already lengthy delay, we kept our complaint file open to ensure that the date was met. In the end, Transport Canada met its commitment date but it had to reassign the file to a consultant to be able to do so.

Lessons learned

This investigation shows that institutions must devote adequate resources to fulfilling their duties under the Act. When an access to information office is understaffed, the right of requesters to a timely response is likely to be violated—in this case, severely.

Aggregate costs and possible harm under subsection 16(2)

In 2011–2012, we investigated two complaints into whether institutions had properly withheld information under subsection 16(2) of the Act (law enforcement and investigations) about the costs of certain security operations.

Both institutions—the Royal Canadian Mounted Police (RCMP) and the Canadian Air Transport Security Authority (CATSA)—claimed that releasing information about the aggregate costs of security operations could compromise their objectives by making it possible to determine human resource levels and deployment strategies, thus revealing gaps in security. In neither case, however, was the institution able to provide a cogent and evidence-based explanation that this was a probable outcome.

Lessons learned

Institutions must provide evidence of a reasonable expectation of harm that would result from disclosing aggregate costs; speculating about possible harm that may occur due to information derived from the released records is insufficient.

Solicitor-client privilege

The Canadian Wheat Board (CWB) received a request in March 2010 for the legal fees, internal and external, associated with the termination of an employee. The subsequent complaint focused on whether the CWB correctly refused to release any information, on the grounds that it was protected by solicitor-client privilege.

This investigation took longer than it should have because the CWB did not want to provide us with the responsive records over which it had claimed solicitor-client privilege. Indeed, we did not receive the records until after we had issued a production order.

Upon reviewing the responsive records, we were unconvinced that the CWB had properly applied the solicitor-client privilege exemption (section 23) to all the withheld information. We based our view on recent jurisprudence that held that when it can be shown that privileged communications cannot be deduced from the disclosure of the fees, the fees are considered “neutral information” and are no longer protected by the privilege. In our view, disclosure of the aggregate amount of fees in this instance would not reveal privileged communications. Consequently, we recommended that the CWB release the total amount of fees paid. The CWB subsequently released the aggregate costs.

Lessons learned

When it can be determined that aggregate fees constitute “neutral information” they are not privileged. Moreover, this case shows that we will not hesitate to issue production orders for records when required.

Proper use of exemptions: sections 16 and 19

In December 2010, the Commission for Public Complaints Against the RCMP (CPC-RCMP) received a request for the audio recording of a conversation between an RCMP constable and a dispatcher instructing the officer to respond to the scene of reported gunshots. As a result of the incident, two individuals died. The requester received a copy of the transcript of the call and complained to us when the CPC-RCMP refused to release the audio recording. The institution claimed the information was exempt under both section 16 (law enforcement and investigations) and section 19 (personal information). However, our investigation found that the information in the recording did not qualify for either exemption.

We concluded that the recording did not fall within the scope of section 16 because, among other reasons, we were of the view that releasing the audio recording could not harm the investigation, since a written transcript had already been disclosed to the requester. We also determined that all disciplinary investigations were concluded.

We also found that section 19 did not apply to the audio recording, since it was made in the course of professional duties by two members of the RCMP and therefore did not constitute personal information, as defined in the Privacy Act.

We wrote to the head of the CPC-RCMP and recommended the release of the audio recording. The institution accepted our recommendation and subsequently released the audio recording to the requester.

Lessons learned

Institutions must demonstrate a reasonable expectation of harm to an ongoing investigation when relying on section 16. Moreover, an audio recording made in the course of professional activities did not, in this instance, constitute personal information.

Proper use of exemptions: subsection 20(1)

Telefilm Canada received a request in September 2007 for the service agreement between it and the Canadian Television Fund. The requester subsequently complained to us when Telefilm Canada refused to release large sections of the document because they contained either personal or third-party information.

With regard to the personal information, the institution eventually agreed to seek the consent of the individual concerned and release the information.

With regard to the third-party information, we found that Telefilm Canada had not shown that the withheld information was properly covered by subsection 20(1). In particular, we concluded that the information was not of a financial, commercial, scientific or technical nature, nor was it information supplied to the institution by the third party. After receiving formal recommendations from us, Telefilm Canada released the outstanding third-party information.

Lessons learned

When an institution claims that information is personal information we will ask that it seek consent for release whenever it is reasonable to do so. Also, information that is the result of a contractual negotiation and is included in a contract is not information supplied by a third party.

Proper use of exemptions: subsection 15(1)

The Canadian International Development Agency (CIDA) received a request in July 2011 for all records about the Canada Fund for Local Initiatives in Honduras for 2011–2012.

CIDA consulted with DFAIT about this request and, based on its initial, informal advice, withheld the records in their entirety, citing subsection 15(1) (international affairs and defence) and paragraph 21(1)(c) (negotiations by the government). Later, however, in a formal response to the consultation, DFAIT recommended that CIDA release all but one paragraph of the records, which it did. The requester complained to us about CIDA’s decision to withhold that information.

During our investigation, we asked CIDA to revisit its use of subsection 15(1) to withhold the one paragraph, which contained an assessment by Canadian officials of the operations of a Honduran partner. After consulting with DFAIT, CIDA agreed that, with the passage of time, disclosing this information would no longer harm the conduct of international affairs.

Lessons learned

When applying section 15(1), institutions must not rely solely on the advice provided by consulted institutions but must ensure that they make a decision based on their assessment of the records and the proper exercise of discretion. In the end, CIDA properly acknowledged that the passage of time had rendered the information releasable and accordingly provided it to the requester. In our view, this is consistent with the duty to assist.

Informal versus formal access

A taxpayer’s representative received a notice from the Canada Revenue Agency (CRA) in December 2010 that it would be auditing one of his clients. The representative asked that CRA supply him, at the end of the audit, with a copy of the supporting material. The CRA auditor informed the representative that he had to make a formal access to information request for such records, which the representative subsequently did. The representative also complained to us about CRA’s position that requests for taxpayer information had to be made pursuant to the Access to Information Act.

We concluded that the position set out by the auditor was inconsistent with subsection 241(5) of the Income Tax Act, which allows CRA to provide taxpayers, or an authorized representative, with their own tax information.

Had CRA provided the requested information informally, the requester would have received it without paying any fees. CRA subsequently agreed to waive the fees and reimbursed the requester. It has also provided training on this issue to employees.

Lessons learned

In line with the duty to assist and the principle that the Act complements other means of accessing government information, officials should, when they have the ability to do so, make every reasonable effort to provide information informally. Institutions should also include this point in access awareness training.

Inadequate search for records and cooperation with the investigative process

In December 2007, National Defence received a request for all records indicating where and to whom copies of specific reports from DFAIT about democracy and human rights in Afghanistan were circulated within the institution. National Defence conducted three searches for the records but maintained that no records could be found. We carried out an investigation into the requester’s complaint about this response, during the course of which the requester said that he would be satisfied to receive the names and contact information for National Defence officials responsible for Afghanistan policy. The institution provided this information and we closed the file.

That would have been the end of the matter, except that in November 2009 the House of Commons Special Committee on the Canadian Mission in Afghanistan heard from a retired general that his staff routinely received Afghanistan-related reports from DFAIT and that “easily 100 people around this town as well as in theatre must have also seen these reports at the time.” In January 2010, in light of this and other information, the Information Commissioner initiated a complaint to investigate whether National Defence had, in fact, conducted a thorough search for the records and whether the information subject to the request did exist and should have been disclosed.

In the course of the investigation, it became clear that some access officials at National Defence had a limited understanding of the institution’s information delivery and information holding systems, and that this had negatively affected their ability to search for the records in question. It also became clear that a relatively simple request to the originating institution, in this case DFAIT, would have allowed access officials to identify possible records. Given the passage of time, it became clear that no responsive records were still in existence.

We issued formal recommendations to the Minister of National Defence in light of our findings—that training be provided to National Defence staff about the duty to assist, that access office staff learn about and remain familiar with the institution’s various information distribution systems, and that the Minister ensure that access officials cooperate with us in all future investigations, which had not been the case with this file.

The Minister forwarded our recommendations to the access coordinator for response. It is our view that, since our findings and recommendations were, in large part, critical of the access office, it would have been more appropriate to have them addressed at a higher level. In addition, the response we did receive did not adequately address our concerns or indicate whether our recommendations would be followed. In light of this, we considered this complaint to be well founded but not resolved.

Lessons learned

Access analysts must ensure that they are familiar with the methods of information distribution within their institutions. They must also ask the proper questions when seeking records from program areas.

It is also essential for senior leaders in institutions to ensure that their access to information offices are functioning properly and working with the Commissioner to resolve complaints in a timely and constructive manner.

When recommendations are made to the head of an institution about the functioning of its access office, persons at a senior level should deal with them.

What is a reasonable search for records?

In 2008, Library and Archives Canada (LAC) received a request for information about a man who attempted to sabotage a B.C. smelting operation in 1939. The requester complained to us when LAC withheld information. He was also concerned about the possibility of missing records.

Since the initial response only provided 165 pages of records, we questioned the completeness of LAC’s search through its holdings. As a result of our intervention, LAC carried out additional searches and expanded the record groups it reviewed. The requester received seven supplementary releases as a result of these efforts. In addition, LAC decided to no longer rely on subsections 13(1) (information obtained in confidence) and 19(1) (personal information) to withhold records. It also released almost all of the information it had initially withheld under subsection 15(1) (defence of Canada).

We concluded that, although the requester was not satisfied with the search conducted by LAC, the institution had, in the end, conducted a reasonable search when it reviewed seven additional record groups and explained why records might not have been preserved.

Lessons learned

While the original search LAC conducted was not adequate, the analyst was extremely professional and conducted multiple additional searches and communicated extensively with the requester according to the duty to assist. In the end, we concluded that LAC provided the requester with a meaningful response to his request.

Inadequate search for records: record retention and back-up systems

On November 3, 2010, CRA received a request for electronic records identified in a discussion forum on international tax operations issues. The records were located on CRA’s intranet site.

CRA tasked the appropriate areas for the requested records but determined that the discussion forum identified in the request had been removed from CRA’s intranet site in approximately February 2009. As such, on November 30, 2010, CRA responded to the requester, advising that no records deemed responsive to his request were located, since the discussion forum identified no longer existed. On December 15, 2010, the requester complained to us about this response.

It was CRA’s view at the time that it was not required to search for records anywhere other than its live server and that any back-ups were done for emergency restoration purposes only. Therefore, the records could not be considered under its control for the purposes of the Access to Information Act.

There were many complex issues to address in this investigation, involving such things as electronic records, retention periods, back-up tapes and training, as well as the duty to assist.

During the course of the investigation, we asked CRA to conduct a more thorough search, geared toward identifying and reviewing CRA’s record retention policy as well as its disposition authority and comparing them to Treasury Board policy and LAC directives and best practices. As a result, we discovered that CRA did in fact have the requested records.

During its secondary search for the records and after consulting with its internal information technology and records management staff, CRA was able to locate the requested records and successfully recreate the live environment required to bring them back to readable format. This outcome was satisfactory to the complainant.

Lessons learned

When conducting a search for records, institutions must search any and all systems within their control and capability to search. It is not sufficient to simply search what is live and readily available. Back-up tapes, CDs, DVDs as well as any archived records within the institution’s control must also be searched in order for an institution to have conducted a thorough search and met its obligation under the Access to Information Act.

Control of records

The Canadian Human Rights Tribunal (CHRT) received a request in August 2010 for a copy of a consultant’s report it had received from the Attorney General of Canada in connection with a human rights dispute. The CHRT responded to the requester that it could not release the report, since it had returned it to the Attorney General.

Our investigation focused on whether the CHRT had control of the records being sought at the time it received the request. As it turns out, the CHRT is comprised of two sides that act relatively independently of each other: the corporate side, including the access office, and the quasi-judicial Tribunal side. Due to the lapse in time between when access requests come in and when they are communicated to subject matter experts, the Tribunal Registry was informed of the request for the report on the day after it had returned the document to the Attorney General.

We concluded that since the report was physically located in the Registry of the CHRT at the time of the request, it was under the control of the institution, which consequently had a legal obligation to process it.

Lessons learned

When an institution receives a request, and the record is in its possession when the request is received, it cannot claim that the record is not under its control. This case highlights the importance of the timely communication of requests in safeguarding the rights of requesters.

Report cards

During 2011–2012, we prepared our third major report under the Three-Year Plan for Report Cards and Systemic Investigations.

This report re-assesses the performance in 2010–2011 of 18 institutions that performed at the average level or worse in the 2008–2009 report card exercise. We found signs of improvement among the institutions in terms of the timeliness of their responses to access to information requests. For example, the average time institutions took to complete requests received during the reporting year decreased in 12 institutions compared to 2008–2009. Of particular note was that two institutions—the Royal Canadian Mounted Police and Environment Canada—were able to respond to new requests received in 2010–2011 in, on average, fewer than 30 days, the time frame set out in the Access to Information Act.

In terms of overall compliance, we are pleased to see that 13 institutions got a better grade than in 2008–2009. Two stayed at the same grade and three got a lower grade (see Figure 5, here).

We also followed up on six system-wide issues (leadership, delegation orders, consultations, time extensions, resources and records/information management) that we identified in our 2008–2009 report. We issued recommendations in these areas to the Treasury Board Secretariat (TBS), as the system administrator, to prompt improvements across institutions. One key target of our recommendations was the statistical information that TBS collects each year about access activities in institutions, and how this information needed to be augmented to provide a more complete picture of access operations. TBS added elements to its annual statistical questions, including number of pages processed, complexity of requests and deemed refusals. The results will be published in the Fall 2012 InfoSource Bulletin.

We tabled our special report containing the report cards in Parliament in May 2012. Later in 2012–2013, we will wrap-up our work under the three-year plan with re-assessments of the performance of Canada Post and the Canadian Broadcasting Corporation. These institutions received very poor grades in the 2009–2010 report cards.

In light of the general improvement we found, however, we have suspended the report cards initiative for at least two years, in order that we may dedicate all our investigative resources to pursuing individual complaints. Nonetheless, we will remain vigilant in our oversight role and continue to address the issue of timeliness through specific investigations and ongoing meetings with institutions’ senior officials, and will monitor the trends TBS’s expanded statistics bring to light.

We will also review institutions’ annual reports to Parliament on their access to information operations, since we recommended to those institutions that were the subject of our 2010–2011 report cards that they report in that vehicle on their progress implementing our recommendations. In addition, we call on Parliament and TBS to review these reports and act on concerns. This oversight is crucial, due to the fragility of the access system, particularly in light of recent budget cuts, which may have a negative effect on the access to information system. In addition, despite indications that Canadians are receiving more timely service from the access to information system, we have outstanding concerns about certain institutional practices.

Systemic investigations

We continued to pursue systemic investigations in 2011–2012. One is on delays caused by consultations conducted with other government institutions, and the associated time extensions. The second is on interference with processing access to information requests. We expect to complete both these investigations in 2012–2013 and report our results to Parliament.