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Royal Canadian Mounted Police (Re), 2024 OIC 42

Date: 2024-07-16
OIC file number: 5822-04248
Access request number: A-2020-08180

Summary

The complainant alleged that the Royal Canadian Mounted Police (RCMP) had improperly withheld information under paragraph 16(1)(a) (investigate bodies) of the Access to Information Act in response to an access request for the investigation reports into the deaths of two individuals. The allegation falls within paragraph 30(1)(a) of the Act. 

The RCMP showed that it met all the requirements of these exemptions. Furthermore, the Information Commissioner is satisfied that the RCMP considered all relevant factors and reasonably exercised its discretion to decide not to release the information. That being said, the Commissioner continues to recommend that consideration be given to amending section 26 of the Privacy Act and section 19 of the Access to Information Act (sections relating to personal information), in order to give the head of an institution the discretion to disclose personal information about a deceased individual to a parent or close relative for compassionate reasons, as is currently possible in several provinces. 

The complaint is not well founded.

Complaint

[1]      The complainant alleged that the Royal Canadian Mounted Police (RCMP) had improperly withheld information under paragraph 16(1)(a) (investigative bodies) of the Access to Information Act in response to an access request. The request sought information related to the investigation into the deaths of two individuals. The allegation falls under paragraph 30(1)(a) of the Act.

[2]      The Office of the Information Commissioner (OIC) is separately investigating the complainant’s allegation that the RCMP did not conduct a reasonable search for records in response to the access request (5822-04249).

Investigation

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

Paragraph 16(1)(a): investigative bodies 

[4]      Paragraph 16(1)(a) allows institutions to refuse to disclose information obtained or prepared by specific investigative bodies in the course of investigations.

[5]      To qualify for exemption under paragraph 16(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 the exemption, institutions must then show the following:

  • The information was obtained or prepared by one of the investigative bodies listed in Schedule I of the Access to Information Regulations.
  • The information was obtained or prepared during a lawful investigation that is within the authority of the investigative body.
  • The information concerns an investigation related to one of the following: 
    • the detection, prevention or suppression of crime;
    • the enforcement of any law of Canada or a province (including municipal laws); or
    • activities suspected of constituting threats to the security of Canada, as defined in the Canadian Security Intelligence Service Act.

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

Does the information meet the requirements of the exemption?

[8]      The complainant is legal counsel who represents the mother of the two deceased individuals, subject of the present request. The present request follows previous access requests and legal proceedings seeking additional information into the deaths of the two individuals. 

[9]      In response to the access request, the RCMP affirmed that a search for records had been conducted and that all of the information reviewed qualifies for exemption pursuant to subparagraphs 16(1)(a)(i) – the detection, prevention or suppression of crime and 16(1)(a)(ii) – the enforcement of any law of Canada or a province. The RCMP also confirmed that it had exercised its discretion and released some information to the complainant. Most of the information however, was withheld. 

[10]    The RCMP demonstrated that the records were created less than 20 years before the request was made, that they had been obtained or prepared by the RCMP, an investigative body listed in Schedule I of the Access to Information Regulations, and that the information was obtained or prepared during a lawful investigation into the detection, prevention or suppression of a crime and the enforcement of the Criminal Code of Canada and the Coroner’s Act.

[11]    I therefore must conclude that the information meets the requirements of subsection 16(1)(a).

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

[12]    Since the information meets the requirements of subsection 16(1)(a), the RCMP was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, the RCMP had to consider all the relevant factors for and against disclosure.

[13]    The RCMP does not have to provide a detailed analysis of each factor it considered and explain how it weighed one against the other. However, a blanket declaration that it had exercised its discretion and considered all relevant factors is not sufficient.

[14]    Based on the RCMP’s representations, the OIC determined that the RCMP took into consideration relevant factors for and against disclosure, including the integrity of its investigation and the privacy of the deceased individuals against the personal interests of the complainant. Ultimately, the RCMP decided not to disclose additional information to the complainant.

[15]    Although I must conclude that the RCMP correctly applied the Act in your case, I would like to mention that this investigation, as well as other recent investigations into unfortunately similar situations, highlight what I consider to be a gap with respect to the overlap between the Privacy Act and the Access to Information Act as they currently stand.

[16]    I have and will continue to recommend that consideration be given to amending section 26 of the Privacy Act and section 19 of the Access to Information Act (the sections relating to personal information), in order to give the head of an institution the discretion to disclose personal information about a deceased individual to a parent or close relative for compassionate reasons. I believe that such an amendment would allow the head of an institution to make a decision based on competing contextual factors, including compassionate reasons, as is currently possible in several provinces. 

[17]    I conclude that the RCMP considered all relevant factors when it decided not to disclose the information. The exercise of discretion by the RCMP was therefore reasonable.

Outcome

[18]    The complaint is not well founded

Review by Federal Court

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

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