Immigration, Refugees and Citizenship Canada (Re), 2022 OIC 09

Date: 2022-02-10
OIC file number: 5820-00685
Institution file number: 2A-2019-18815

Summary

The complainant alleged that Immigration, Refugees and Citizenship Canada (IRCC) improperly withheld information under paragraph 21(1)(a) (advice or recommendations) of the Access to Information Act in response to an access request for records consisting of Fee Analysis Reports and fee monitoring dashboards that include cost recovery information for various immigration application programs from 2013-2019.

During the investigation, IRCC invoked section 23 (legal advice and litigation privilege) in addition to paragraph 21(1)(a) to the entire records.

IRCC could not show that it met all the requirements of these exemptions, in particular the information being withheld does not provide any advice or recommendations to IRCC’s senior management on decisions to be made. Overall, these reports appear to be purely factual and devoid of any specific advice.

The Commissioner sent an initial report to the Minister of IRCC, setting out the intended order to release the records in their entirety. The Minister informed the Commissioner that the information was released; therefore, the intended order became pointless and was not issued.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Immigration, Refugees and Citizenship Canada (IRCC) improperly withheld information under paragraph 21(1)(a) (advice or recommendations) of the Act in response to an access request for records consisting of Fee Analysis Reports and fee monitoring dashboards that include cost recovery information for various immigration application programs from 2013-2019.

Investigation

[2]      During the investigation, IRCC invoked section 23 (legal advice and litigation privilege) in addition to paragraph 21(1)(a) to the entire records. IRCC also realized that the initial search for records was incomplete and as a result, it reprocessed the request. An additional 181 pages of records were located and ultimately provided to the complainant on November 3, 2021.

[3]      This initial report concerns the records that were originally sent to the complainant. The complainant has made a new exemption complaint with respect to the additional records received on November 3, 2021. The new complaint will be investigated separately.

Paragraph 21(1)(a): advice or recommendations

[4]      Paragraph 21(1)(a) allows institutions to refuse to release advice or recommendations developed by or for a government institution or a Minister.

[5]      To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

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

• The information is advice or recommendations.
• The information was created by or for a government institution or Minister.

[7]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

[8]      However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to release the following:

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not officers or employees of an institution or members of a Minister’s staff at the time.

Does the information meet the requirements of the exemption?

[9]      IRCC claimed paragraph 21(1)(a) on Fee Analysis Reports and fee monitoring dashboards of federal revenues (i.e. fees) and expenses (i.e., processing costs) from various immigration programs between 2013-2019.

[10]    According to IRCC, the records were prepared by its Finance Division for the purpose of providing advice and recommendations to the IRCC’s Minister in assessing the impact of fees on public administration costs within the context of financial stewardship under the Financial Administration Act. IRCC explained that it uses the information to estimate the projected revenue of application fees and then presents the results to advise Senior Management through Fee Analysis Reports in the decision-making process. The numbers in the records therefore reflect IRCC’s own calculations and are “not final, verified numbers”, but rather a snapshot of projected revenues and expenses, used to determine if the existing system is revenue neutral.

[11]    In its representations, IRCC argued that paragraph 21(1)(a) applies to this information, claiming that the numbers in the records are estimates, not facts. IRCC referred to the Federal Court decision 3430901 Canada Inc. v. Canada (Minister of Industry), 1999 CanLII 9066 (FC), in which the Court held that it is not always possible to put "facts", "advice" and "recommendations" in airtight compartments, as many documents have more than one aspect.

[12]    While I agree with this general principle, the information at issue appears to fall into the category of “facts” rather than “advice” or “recommendations”. Even if the numbers provided by the Finance Division are in part based on estimates, this does not change the nature of the information on this specific case from “factual” to “advice”. Moreover, one would expect that the numbers provided to be sufficiently accurate since IRCC uses them to brief senior management on the fees being charged.

[13]    In addition, I note that the information being withheld does not provide any advice or recommendations to IRCC’s senior management on decisions to be made; it simply shows the cost recovery rate of various IRCC programs at a specific moment in time. The records do not contain any analysis that indicates whether the cost recovery rate is appropriate, nor do they provide any advice on whether fees need to be adjusted. Overall, these reports appear to be purely factual and devoid of any specific advice.

[14]    In light of the above, I conclude that the information in the Fee Analysis Reports and fee monitoring dashboards does not constitute advice or recommendations as intended in the Act. Rather, I am of the view that it is factual information that cannot be exempted under paragraph 21(1)(a). Consequently, there is no need to determine whether IRCC reasonably exercised its discretion to decide whether to disclose the information.

Section 23: legal advice and litigation privilege

[15]    Section 23 allows institutions to refuse to release information subject to solicitor-client privilege, or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to release information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[16]    To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

• The information consists of communication between a lawyer or notary and his or her client.
• That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
• The parties intend the communication and advice to remain confidential.

[17]    To claim this exemption with regard to litigation, institutions must show the following:

• The information was prepared or gathered for the dominant purpose of litigation.
• The litigation is either in progress or is reasonably expected to occur.

[18]    Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

[19]    When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[20]    Section 23 was applied to the same information identified under paragraph 21(1)(a). IRCC claimed litigation privilege.

[21]    In order to claim litigation privilege, institutions must demonstrate that the information was prepared or gathered for the dominant purpose of ongoing or anticipated litigation.

[22]    In its representations, IRCC has identified two ongoing class actions related to the fees IRCC charges for immigration applications. The first case is called the Hinton class action and has been ongoing for approximately 14 years. It posits that the federal government has been generating windfall revenues from Temporary Residence Fees. The second case is the Brink class action (filed in March 2021 – two years after the current access request was made) and it alleges that the fees charged are discriminatory to those who are not born in Canada.

[23]    Based on the representations provided, IRCC has not established that the Fee Analysis Reports or the fee monitoring dashboards were prepared or gathered for the dominant purpose of litigation. While I acknowledge that there is ongoing litigation that involves fees charged by IRCC, IRCC’s representations on paragraph 21(1)(a) clearly stated that the records were prepared for the purposes of monitoring its programs and briefing senior management, not for litigation purposes. Similarly, IRCC has not explained how these records were gathered for the dominant purpose of litigation, rather than for the dominant purpose of allowing senior management to monitor the fees being charged.

[24]    Instead, IRCC’s representations regarding section 23 largely focus on how much it would cost the federal government should the current litigations be successful and the impact of disclosing the information at issue. IRCC, however, failed to address the dominant purpose test.

[25]    In light of the above, I conclude that the information does not meet the requirements of section 23. Consequently, there is no need to determine whether IRCC reasonably exercised its discretion to decide whether to disclose the information.

Result

[26]    The complaint is well founded.

Order

On December 8, 2021, I provided my initial report to the Minister of Immigration, Refugees and Citizenship Canada, setting out my intended order as required by subsection 37(1) of the Act:

1. Release the records in their entirety, including all information previously withheld pursuant to paragraph 21(1)(a) and section 23.
2. Email a copy of the response letter to the Office of the Information Commissioner's Registrar (Greffe-Registry@oic-ci.gc.ca).

On January 14, 2022, the Minister gave me notice that IRCC would release the records in full.

My office received confirmation that IRCC did so on January 28, 2022.

Considering that the records were released in their entirety my intended order became pointless and will not be issued.

Section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.