Refusal complaints

The OIC also receives complaints about institutions’ use of exemptions and exclusions to withhold information. These refusal complaints tend to take longer to investigate than administrative complaints. The OIC received 1,039 new refusal complaints (roughly the same amount as in 2018–19) and closed 1,253 in 2019–20, nearly equal to what the OIC achieved the year before.

Nearly 800 of the complaints the OIC closed in 2019–20 dated from prior to April 1, 2018. The OIC has reduced the number of older files in the inventory by 66 percent over two years.

Closing older files has been a priority for the Commissioner since her appointment. The Commissioner has sought permanent funding to allow the OIC to augment its investigative capacity so it can respond to complaints more quickly. OIC staff also identified the 50 oldest files in its inventory and began dedicated efforts to close them in 2019–20.

Overall, the OIC closed a total of 5,528 files of all types in 2019–20. This meant that the OIC was able to keep the increase in its inventory of complaints to a minimum.

In March 2020, the OIC began to get a sense of the impact that the COVID-19 pandemic would have on investigations. Institutions began to inform the OIC that, given their limited capacity for remote work, they might not be able to meet dates they had previously committed to for responding to complainants or the OIC.

Investigations involving the Royal Canadian Mounted Police

The OIC registered 355 complaints against the RCMP in 2019–20, ranking it second on the OIC’s list of the top institutions that were subject to complaints that year. Sixty-three percent of these complaints were about delays, continuing a pattern the OIC has noted for several years. This led the Commissioner to initiate a systemic investigation into the RCMP’s processing of access requests. The investigation will be completed in 2020–21.

Law enforcement exemption must be limited to legitimate investigations

Complaint investigations involving the RCMP often centre on information touching on very personal situations, including the interactions of members of the public with law enforcement agencies.

For example, the OIC completed an investigation in 2019–20 into the RCMP’s response to an access request that it could neither confirm nor deny the existence of records that listed the names and dates of anyone who had accessed the complainant’s file in the Canadian Police Information Centre’s (CPIC) database. The complainant, who had been criminally accused of assaulting an individual, was of the view that one of that individual’s relatives—a police officer (but not with the force that investigated the incident)—had unlawfully accessed his personal information in the CPIC.

The RCMP generally does not release information on ongoing investigations. Indeed, in its response to the access request, the RCMP said that if the requested records did exist, they would be exempted in their entirety because releasing them would have harmed an active investigation.

However, RCMP access officials subsequently acknowledged that the access to the complainant’s personal information in the CPIC was not part of a lawful investigation and that, therefore, the exemption did not apply. With the consent of the other police force, the RCMP released the records.

Seeking to release information on compassionate grounds exposes shortcomings in the law

The OIC completed a number of investigations resulting from complaints from individuals seeking information about RCMP inquiries into the deaths of family members. The complainants were concerned because the RCMP had withheld information they had asked for so they could get a better understanding of the circumstances surrounding the deaths.

The RCMP had protected the information under parts of section 16 (law enforcement and investigations). The Commissioner determined that the information met the requirements of the exemption and was also satisfied that the RCMP had reasonably exercised its discretion to decide to withhold the information. Among the factors the RCMP considered was that the Privacy Act protects the personal information of deceased individuals for 20 years after their death.

These investigations, however, highlight shortcomings in the interplay between the Privacy Act and Access to Information Act that limit the ability of institutions to release information about a deceased individual to a spouse or other close relative on compassionate grounds, as is possible in several provinces.

In a September 2019 submission to the Department of Justice Canada’s review of the Privacy Act, the Commissioner recommended that the sections in both that law and the Access to Information Act that deal with personal information be amended accordingly.

Investigations involving the Canada Border Services Agency

The OIC registered 136 complaints about the handling of access requests by Canada Border Services Agency (CBSA) in 2019–20, ranking it fifth on the OIC’s list of the top institutions that were subject to complaints that year.

Classified records challenging for institutions and the OIC

Processing access requests and investigating complaints involving Secret and Top Secret records— information that, if compromised, could injure the national interest—presents challenges both for institutions and for the OIC. Institutions need adequate digital infrastructure and processes in place. This increases institutions’ personnel, information technology and information management security requirements. It also makes it difficult for the institutions processing the requests to seek the advice of other institutions on the application of exemptions and to share working copies of the records with the OIC during complaint investigations. In all cases, institutions and the OIC must tightly safeguard highly classified information.

In early 2020, almost 20 percent of the complaints in the OIC’s inventory related to access requests for national security-related information. Of these, investigations into whether institutions conducted reasonable searches for records or into the application of exemptions involved about 45,000 pages of classified information. However, access requests for records associated with delay and time extension complaints could involve additional millions of pages of classified documents. In short, investigating these files is an immense task.

The Commissioner received permission from the President of the Treasury Board to increase the number of investigators with special delegation to examine institutions’ application of exemptions to records associated with international affairs, national security and defence. This means the OIC can more promptly begin these complex investigations. Complaints requiring special delegation to investigate accounted for 8 percent of all complaints about the application of exemptions in 2019–20.

In September 2019, the Commissioner met with senior officials from the Privy Council Office, including the Prime Minister’s then national security and intelligence advisor, regarding that institution’s substantial inventory of national security and intelligence-related complaints involving mainly historic records to develop specific strategies for dealing with them effectively.

However, a more fundamental fix is also called for—establishing a declassification system. The OIC published a declassification strategy for national security and intelligence records in February 2020 that includes 15 recommendations.

With a proper system of declassification and review of historical national security and intelligence-related records, many of the records associated with access requests and complaints could have been declassified and sent to Library and Archives Canada (LAC), and could now be more readily accessible to researchers and others who seek access to them. But, in the absence of such a declassification regime, they remain at the original institution, inaccessible except through an access system ill suited to this specific purpose.

Even when records are transferred to LAC, investigating complaints is challenging when the information remains classified. Such was the case with an investigation completed in 2019–20 involving the RCMP Security Service file on René Lévesque, which comprised some 2,750 pages of records, all classified Top Secret. While the OIC was able to secure three supplementary releases of information since LAC originally responded to the request (totalling close to 85 percent of the withheld information), it took nearly 15 years to do so and numerous consultations between LAC and the Canadian Security Intelligence Service (CSIS). Although the latter was cooperative with both LAC and the OIC, CSIS’s involvement and the time and effort required (not least because of the need for personnel with Top Secret security clearance, along with special storage, secure computers and secure transmission of material) would have been reduced if these records, which date back 50 years or more, had been declassified.

“Protected” designation for some information does not protect it all from disclosure

A related issue arises when institutions decide to broadly rely on the designation of records as “Protected” to withhold information rather than looking at whether the information qualifies for exemption under a specific provision.

For example, Global Affairs Canada withheld requested export permits in their entirety under various parts of subsection 20(1) (confidential third-party information). In justifying the use of paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), access officials told the OIC that because the system used to store and process applications for export permits was rated for records designated up to Protected B, the records must have been communicated with a reasonable expectation of confidence that they would not be disclosed.

The Commissioner was not persuaded by this argument, noting that a document’s security designation does not establish that all the information it contains originated and was communicated with a reasonable expectation that it would not be disclosed. Global Affairs’ position was further undermined by the fact that its predecessor, the Department of Foreign Affairs and International Trade, had previously released the types of information at the centre of the complaint. The investigation resulted in additional information being disclosed to the complainant.

Solicitor-client privilege versus transparency

Under section 23, institutions may withhold information protected by solicitor-client privilege. This exemption was cited in nearly 16 percent of the complaints about institutions’ refusing access to requested records the OIC received in 2019–20.

Releasing legal hours worked is in the public interest

One notable investigation related to the application of section 23 the OIC completed in 2019–20 involved the names of employees and external counsel who had worked on two public inquests into the high-profile 2007 suicide of an individual in custody, along with the hours the employees and external counsel had worked and the cost of their services.

Legal billing is often the subject of investigations. Rates, hours worked and the names of counsel are presumed to be subject to solicitor-client privilege; however, it can be difficult to determine when that presumption can be put aside and the information released.

The Department of Justice Canada had disclosed the total amount of legal fees incurred. In urging the institution to disclose additional information during the investigation, the Commissioner underlined the government’s commitment to openness and setting a higher bar for transparency.

At the conclusion of the investigation, the Commissioner was of the view that the Minister of Justice should have considered the public interest more thoroughly when exercising his discretion to decide whether to release the information withheld under section 23, and recommended that he re-exercise his discretion. The Minister did so but ultimately decided to withhold the names and costs associated with the individuals who had been involved in the inquests.

However, the Minister did agree to release the sub-total of hours the various individuals worked, highlighting the importance of institutions’ considering all the factors for and against disclosure when making decisions on access.

There’s more to a reasonable search than meets the eye

Among the responsibilities institutions have when responding to access requests is to carry out a reasonable search for records. A number of factors can affect whether an institution’s search is reasonable.

A second search, specifically defined, located responsive records

One complaint centred on the fact that Correctional Service Canada (CSC) had been unable to locate any records containing the number of males identifying as transgender housed in women’s correctional facilities, and their convictions.

During the investigation, the OIC learned that CSC does track gender considerations and gender fluidity but nothing as specific as males identifying as transgender who are housed in women’s correctional facilities. This likely explains why no records were found during the first search. The OIC pressed CSC to conduct a second search. In doing so, CSC found and then released a one-page document that contained the details the complainant sought.

Sometimes searching for records in the possession of another party is necessary

A second investigation centred on whether Natural Resources Canada (NRCan) should have searched for records it did not have possession of but did have control over due to a contractual arrangement with a third party.

During the investigation, the OIC reviewed how NRCan had processed the access request and examined the records to identify any irregularities in what NRCan disclosed. In doing so, the OIC came to the view that NRCan might have had control of a number of additional records that were in the possession of the third party.

Despite disagreeing with the basis for the Commissioner’s recommendation to ask the third party for responsive records, NRCan followed the recommendation. However, in the end NRCan confirmed that the third party did not have any responsive records.

The format of records can be as important as the content

Government institutions have an obligation to make every reasonable effort to provide records in response to access requests in the format requested. Individuals can have any number of reasons for asking for records in a particular format—from how they wish to use the information to whether they have Internet access.

In one investigation closed in 2019–20, the complainant had sought records in a particular format in order to shed light on whether a First Nations band council election had been conducted fairly. In particular, the complainant wished to receive colour copies of seven contested ballots so he could see the colour of the marks on them and determine whether those marks had been made fraudulently.

Access officials at Crown–Indigenous Relations and Northern Affairs Canada (CIRNAC) told the OIC that they could not produce the contested ballots in colour because they had to process all records to be released using the institution’s redaction software, which converted material to black and white.

The OIC informed CIRNAC that relying on this technicality as a reason for failing to produce the document in the format requested did not fulfill its duty to make every reasonable effort to provide records in the format requested. The OIC suggested other methods to process the document in colour, such as marking colour copies with a stamp to show that they had been disclosed. Ultimately, CIRNAC produced a colour version of the contested ballot that was of greatest importance to the complainant.