Decisions

The Information Commissioner rejected a complaint as it did not meet the requirements of section 31 of the Access to Information Act.

Section 31 specifies, among other things, that: “If the complaint relates to a request by a person for access to a record, it shall be made within sixty days after the day on which the person receives a notice of a refusal under section 7, is given access to all or part of the record or, in any other case, becomes aware that grounds for the complaint exist.”

The word “shall” in various provisions throughout the Act has consistently been interpreted as imposing a mandatory obligation. (see for example: Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), [1997] 1 FC 164; Canada (Information Commissioner) v. Canada (Minister of Industry), 2007 FCA 212).

This interpretation is also consistent with section 11 of the Interpretation Act, R.S.C., 1985, c. I-21, which specifies that: “The expression “shall” is to be construed as imperative and the expression “may” as permissive.” 

In the present instance, the complainant confirmed that they received the response from the institution to their request in October 2021. The institution’s response included a notice that the complainant was entitled to complain to the Information Commissioner concerning the processing of their request within sixty days of the receipt of the response. The complaint was submitted in January 2022 and was therefore made after the expiration of the legislative timeframe to file a complaint.

The Information Commissioner does not have the authority to receive and accept complaints submitted after the expiration of a statutory timeframe. In Statham v. Canadian Broadcasting Corporation, 2010 FCA 315, the Federal Court of Appeal made clear that no provision within the Act confers power on the Information Commissioner to extend the time frames set out in the Act (paragraph 46).

Accordingly, the Information Commissioner did not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.

The complainant alleged that Correctional Service Canada (CSC) had improperly withheld information under subsection 19(1) (personal information) as well as paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 21(1)(a) (advice or recommendations) of the Access to Information Act in response to an access request for a contract between CSC and a third party, Presidia Security Consulting Inc. (Presidia). The complaint falls within paragraph 30(1)(a) of the Act.

Over the course of the investigation, CSC decided to no longer rely on paragraph 21(1)(a) and to disclose additional information following the response to the request. The Information Commissioner remained of the view that some information withheld under subsection 19(1) and section 20 was also improperly withheld. CSC agreed that the information previously withheld pursuant to subsection 19(1) did not meet the requirements of the exemptions on certain pages but maintained its application of section 20.

Therefore, the Information Commissioner ordered that the Commissioner of the Correctional Service of Canada release the specific information that was previously withheld pursuant to subsection 19(1) and section 20 to the complainant. Following this order, CSC has released the additional information.

The complaint is well founded.

The complainant alleged that the time extension taken by Transport Canada to respond to a request under the Access to Information Act is unreasonable.

Transport Canada notified the complainant that, pursuant to paragraphs 9(1)(a), 9(1)(b) and 9(1)(c), it would require an additional 510 days to complete the processing of the request.

Transport Canada demonstrated that the time extensions were necessary and for a reasonable period, given the circumstances.

The complaint is not well founded.

The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 15(1) (national security) and subsection 19(1) (personal information) of the Access to Information Act in response to an access request for information relating to “Active Measures ‐ The Soviet Bloc Practice of Deception, Disruption and Defamation”.

The extent to which information pertaining to the subject matter of the request is already within the public domain undermines claims that disclosure of the redacted information could reasonably be expected to result in a harm described in subsection 15(1).

In light of the above, and in the absence of any justification from LAC, the Information Commissioner found that LAC failed to demonstrate that any of the withheld information meets the requirements of the exemption.

The Information Commissioner recommended that LAC disclose all remaining withheld information. LAC gave notice to the Commissioner that it would not implement her recommendation.

The complaint is well founded.

The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies), subsection 15(1) (national security) and paragraph 19(1) (personal information) of the Access to Information Act in response to an access request for a 1989 RCMP Security Service briefing on Hugh George Hambleton.

In reviewing LAC’s application of subsection 15(1), the Office of the Information Commissioner (OIC) found that a significant amount of information pertaining to Hugh George Hambleton is within the public domain. For instance, it is a matter of public record that: Hambleton, during his employment at NATO, provided classified documents to Soviet intelligence agents. Hambleton’s spying was uncovered in the 1970s, and drew comment from the media and members of Parliament, who debated the case in the House of Commons. Hambleton served time in prison in the UK and then subsequently in Canada.

The Information Commissioner found that LAC did not fulfil its burden of demonstrating that the information at issue, which it refuses to disclose, meets the requirements of the exemption.

The complaint is well founded.

The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to respond to an access request within the time limits set out in the Access to Information Act.

On September 2, 2020, CSIS received an access request for records pertaining to specific operational reviews concerning co-operation between CSIS and the Royal Canadian Mounted Police (RCMP). CSIS claimed a 240-day extension of time pursuant to paragraph 9(1)(b). This time extension was found by the Office of the Information Commissioner (OIC) to be valid; therefore, the extended due date for a response was May 31, 2021.

On October 12, 2021, the OIC received a second complaint, which confirmed that CSIS had ultimately failed to respond to the complainant by the extended due date.

To date, the complainant has waited for over a year for a complete response; eight months have passed since the expiry of the time extension. This lack of responsiveness is in clear contravention of CSIS’ obligations under the Act and undermines the credibility of the access system.

Under subsection 36.1(1) of the Act, an order was sent to the Minister of Public Safety and Emergency Preparedness to complete the processing of the access request and provide a response to the access request by no later than 36 business days after the date of the Final Report.

The complaint is well founded.

The complainant alleged that National Defence (DND) performed an incomplete search for records in response to a request under the Access to Information Act for the Official Radio Log Book of the HMCS Shawinigan from August 1, 2016 to October 31, 2016.

During the investigation, the Office of the Information Commissioner (OIC) learned that DND tasked the appropriate program area, the Royal Canadian Navy (RCN), with the retrieval of the requested records. However, the RCN responded that the requested records had been “lost”.

Despite DND’s Summary Investigation, DND failed to reach any definitive conclusions as to how or when the HMCS Shawinigan Tactical Communication log came to be lost.

The investigation highlights the implications of deficiencies in records management and the impact this may have on the right of access. However, there is no basis upon which the OIC can conclude that DND failed to conduct a reasonable search for the records sought or that responsive records could reasonably be found.

A copy of this report will be sent to the Minister of National Defence as a reminder of the importance of good records management practices.

The complaint is not well founded.

The complainant alleged that the Royal Canadian Mounted Police (RCMP) had improperly withheld information under paragraph 16(1)(c) (law enforcement) and subsection 16(2) (facilitating the commission of an offence) of the Access to Information Act in response to an access request for information on a specific RCMP vehicle from 9:40 to 10:10 on February 19, 2017, as well as records of payments for the RCMP from the City of Williams Lake.

The RCMP applied paragraph 16(1)(c) concurrently with subsection 16(2) on the GPS coordinates of RCMP vehicle WL6100 from 9:40 to 10:10 on February 19, 2017. The coordinates were recorded in 5-second intervals.

In its representations, the RCMP indicated that the release of the GPS coordinates could facilitate illegal activities, reduce perpetrators’ chances of being caught, and make law enforcement more difficult.

Having carefully considered the RCMP’s representations and having reviewed the specific responsive record, the Information Commissioner was unable to conclude that the information meets the requirements of paragraph 16(1)(c) and subsection 16(2). The Commissioner was not satisfied that the criteria needed to withhold information under paragraph 16(1)(c) has been met.

The complaint is well founded.

The complainant alleged that Public Services and Procurement Canada (PSPC) missed the deadline for responding to two access requests under the Access to Information Act. The requests were for records related to the Prison Farm program run by CORCAN at Collins Bay and Joyceville institutions.

The complaints are well founded.

The Information Commissioner ordered the Minister of PSPC to provide a final response to both access requests forthwith.

PSPC gave notice that it would contribute its best efforts to complete both requests prior to March 31, 2022.