Treasury Board of Canada Secretariat (Re), 2022 OIC 15

Date: 2022-03-03
OIC file number: 3217-00208
Institution file number: A-2016-00916

Summary

The complainant alleged that the Treasury Board Secretariat of Canada (TBS) had improperly withheld information under subsection 19(1)(personal information) and paragraphs 18(b) (negotiations by government institutions), 21(1)(a) (advice or recommendations), 21(1)(c) (positions or plans developed for negotiations) and 21(1)(d) (plans related to personnel management or administration) of the Access to Information Act in response to an access request for records pertaining to increased use of sick leave prior to retirement.

Over the course of the investigation, the complainant decided it was no longer necessary for the Office of Information Commissioner to investigate subsection 19(1) and reduced the scope of the complaint to pages 2, 3, 4 and 12 of TBS’s response.

TBS could not show that it met all the requirements for the remainder of these exemptions since the information on the pages at issue was of a statistical and dated nature. TBS failed to demonstrate how the information at hand could reasonably lead to interference with negotiations or represent a “take away” to bargaining agents regarding future plans for personnel management or administration.

The Information Commissioner recommended that TBS disclose in full, all pages at issue. TBS gave notice that it would not be implementing the recommendations.

Even if sick leave has been proven to be a sensitive issue, the Information Commissioner urged TBS’s President to reconsider its position, and to right the historical wrong that occurred during the processing of this access request; if not on the basis of the law, in the name of transparency.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Treasury Board Secretariat of Canada (TBS) had improperly withheld information under subsection 19(1)(personal information) and paragraphs 18(b) (negotiations by government institutions), 21(1)(a) (advice or recommendations), 21(1)(c) (positions or plans developed for negotiations) and 21(1)(d) (plans related to personnel management or administration) of the Access to Information Act in response to an access request for records pertaining to increased use of sick leave prior to retirement.

[2]      Over the course of the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate subsection 19(1). The complainant also reduced the scope of the complaint to pages 2, 3, 4 and 12 of TBS’ response.

Investigation

Paragraph 18(b) : negotiations by government institutions

[3]      Paragraph 18(b) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

[4]      To claim this exemption with regard to competitive position, institutions must show the following:

• Disclosing the information could injure the competitive position of a government institution.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[5]      To claim this exemption with regard to contractual or other negotiations, institutions must show the following:

• Contractual or other negotiations are under way or will be conducted in the future.
• These negotiations are associated with the economic interests of Canada.
• Disclosing the information could interfere with the negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

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

Does the information meet the requirements of the exemption?

[7]      TBS applied paragraph 18(b) on pages 2, 3 and 12 to withhold statistics and analyses about sick leave usage.

[8]      TBS claimed this exemption on the basis that it pertained to contractual or other negotiations. Specifically, TBS explained that, “sick leave is a term of employment which has proven to be a sensitive issue” and that it has been “the centerpiece of negotiations throughout the last two rounds of collective bargaining.”TBS’ representations also put forward the notion that the sick leave usage data as shown on the records “could give bargaining agents the impression that replacement of the current sick leave system with a system that is a ‘take away’ (less days of coverage)”and noted that the release of the records would “very probably cause harm in the form of not being able to negotiate a new system”.

[9]      In its representations, TBS also suggested that “as the contingent liability associated with the accumulated sick leave informed the Government’s position during negotiations, revealing the information as presented could also be tactically disadvantageous …”, that revealing this information would provide bargaining agents with specific designs for future “pension plans”, and that releasing this information would have “impeded the Employer’s capacity to reach a settlement on behalf of the Government of Canada”.

[10]    With regard to exempting the information on the basis that it would interfere with negotiations, TBS has not demonstrated how the disclosure of the information at issue, which is mostly statistical and dated, could reasonably lead to interference with negotiations. To this effect, TBS explained that releasing the records would cause bargaining agents to view the proposed system as a “take away.” However, TBS’ own representations indicate that negotiations to implement this new system have been underway since 2014 and bargaining agents do not appear to have agreed to TBS’ proposed changes. As such, it is clear that even without the information at issue, bargaining agents appear to have already taken the position that the proposed system may not be in the best interests of those they represent.

[11]    In addition to the above, TBS also asserted that disclosing the information at issue “would very probably” cause harm to its competitive position in the form of not being able to negotiate a new system. However, TBS did not provide any evidence to substantiate the link between the statistical data being requested and how it would be used to support the bargaining agents’ position instead of their own (the Employer’s).

[12]    In light of the above, I conclude that the information does not meet the requirements of paragraph 18(b) because TBS has failed to demonstrate that there is a reasonable expectation of harm if the information were to be released.

[13]    I have therefore examined whether TBS had properly applied the other exemptions claimed to the same information.

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

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

[15]    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.

[16]    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.

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

[18]    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?

[19]    TBS applied paragraph 21(1)(a) to page 12 of the records to withhold a briefing note regarding sick leave use in the Federal Public Service.

[20]    When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified. Despite being raised in the request for representations that was sent to TBS (through a section 35 letter), TBS did not provide any representations to substantiate the application of this exemption.

[21]    Since it is not in itself apparent that the information protected meets paragraph 21(1)(a) and without proper representations from TBS, I conclude that TBS has failed to demonstrate how the records constitute advice or recommendations that were created by or for a government institution or Minister.

[22]    I have therefore examined whether TBS had properly applied paragraphs 21(1)(c) to the same information.

Paragraph 21(1)(c) - positions or plans developed for negotiations

[23]    Paragraph 21(1)(c) allows institutions to refuse to release positions or plans developed for negotiations by or on behalf of the Government of Canada.

[24]    To qualify for exemption under paragraph 21(1)(c), the records that contain the information must have been created less than 20 years before the access request was made.
[25]    To claim this exemption, institutions must then show the following:

• The information consists of positions or plans developed for negotiations or related considerations; and
• The negotiations are being, or are to be, carried on by or on behalf of the Government of Canada.

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

[27]    However, subsection 21(2) expressly prohibits institutions from invoking paragraph 21(1)(c) to refuse to disclose the following:

• documents which contain the reasons or records of decisions affecting the rights of a person taken by institutions in the exercise of their discretionary powers or in the exercise of their judicial or quasi-judicial functions; and
• reports drawn up by consultants or advisers who were not, at the time these reports were drawn up, directors, officers or employees of an institution or members of the minister's staff.

Does the information meet the criteria for the exception?

[28]    TBS applied paragraph 21(1)(c) on pages 2, 3 4, and 12 to withhold statistics and analyses about sick leave usage.

[29]    Having reviewed the records, it is clear that the data and information found on these pages is neither a position nor a plan developed for negotiations for the Government of Canada. The information on the pages in question consist of statistics that do not provide any insight about the design, description or details of a future sick leave plan for the purposes of negotiation or otherwise.

[30]    Furthermore, while TBS indicated that the data was prepared for a 2014 round of collective bargaining, I note that the information on pages 4 and 12 were in fact prepared in 2016 in response to two newspaper articles, published in 2015 (“A sickness in the system”) and 2016 (“Ottawa’s Toxic Sick Leave”) respectively. This would seem to be a clear indication that the information found on these pages was not developed for the purposes of negotiations.

[31]    In light of the above, I conclude that the information does not meet the requirements of paragraph 21(1)(c) because the information does not consist of positions or plans developed for negotiations or related considerations.

[32]    I have therefore examined whether TBS had properly applied paragraph 21(1)(d) to the same information.

Paragraph 21(1)(d) - plans related to personnel management or administration

[33]    Paragraph 21(1)(d) allows institutions to refuse to release plans related to institutions’ personnel management or administration when these plans have yet to be put into operation.

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

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

• The information consists of plans.
• These plans relate to the institution’s personnel management or administration.
• These plans have not yet been put into operation.

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

[37]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(d) 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 criteria for the exception?

[38]    TBS applied paragraph 21(1)(d) on pages 2, 3, 4 and 12 to withhold statistics and analyses about sick leave usage.

[39]    In its representations, TBS indicated that the information in question was relevant to possible negotiations related to the proposed plan that is yet to be put in place, and that this information was part of a decision-making process about the Government’s plan relating to pre-retirement leave.

[40]    Having reviewed the records, it is apparent that the data and information found on these pages is not a plan. Rather, the pages in question consist of statistics that do not provide any insight about the design, description or details of a proposed sick leave plan.

[41]    I conclude that the information does not meet the requirements of paragraph 21(1)(d)  because the information on pages 2, 3, 4 and 12 does not consist of a plan relating to personnel management or administration.

Result

[42]    The complaint is well founded.

Recommendations

I recommend that the President of the Treasury Board:

1. Disclose all pages at issue in full.
2. Email a copy of the response to the Office of the Information Commissioner’s Registrar (Greffe‐Registry@oic‐ci.gc.ca)

On December 3, 2021, I issued my initial report to the President of the Treasury Board setting out my intended recommendations.

On February 2, 2022, the President of the Treasury Board gave me notice that she would not be implementing my recommendations. This decision appears to be based on the same rationale that was provided during the investigation, which I ultimately found, and continue to find, does not meet the tests set out in the existing jurisprudence.

I urge the President to reconsider her position, and to right the historical wrong that occurred during the processing of this access request; if not on the basis of the law, in the name of transparency.

Section 41 of the Access to Information 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.