Decisions

The complainant alleged that the Department of Finance Canada (Finance) failed to respond to a request for information within the time limits set out in the Access to Information Act.

The Information Commissioner found that the delay in responding to the requests mainly rests with Finance’s Office of Primary Interest, the Federal-Provincial Relations and Social Policy Branch, which has failed to provide records to Finance’s Access to Information and Privacy office in a timely fashion.

The Information Commissioner ordered the Minister of Finance to provide a final response to the request for information submitted on July 22, 2020 forthwith.

Finance gave notice that it would be implementing the order and respond to the request on a priority basis.

The complaint is well founded.

The complainant alleged that the Royal Canadian Mounted Police (RCMP) did not respond to four access requests within the 30-day time limit set out in section 7 of the Access to Information Act.

The investigations showed that the RCMP did not meet its obligation, in all four requests, to respond within the 30-day time limit. The RCMP could not demonstrate how the operational challenges posed by the COVID-19 pandemic justified the significant delays in obtaining responsive records from its Offices of Primary Interest (OPIs).

Given the 2020 systemic investigation and the public commitments that were made by the former Minister of Public Safety on behalf of the RCMP, the Information Commissioner was disappointed that some of the problems that were identified have yet to be addressed.

The Information Commissioner ordered the Minister of Public Safety and Emergency Preparedness to prepare a final response to each of the four requests forthwith.

The RCMP gave notice that the complainant had agreed to consolidate all four requests into one (A-2020-02614) and that the RCMP would respond to this request by March 18, 2022.

All four complaints are well founded.

The complainant alleged that Public Services and Procurement Canada (PSPC) did not process their access request in accordance with the Access to Information Act. Specifically, the complainant alleged that PSPC obstructed their right of access under the Act by concealing the requested records. The request focused on a list of contracts awarded in connection with the COVID-19 pandemic.

This investigation centred on the processing of the request under the Act, since it is not the Office of the Information Commissioner’s role to investigate allegations under section 67.1. Although there were serious failures in the processing of the access request, the Commissioner is not of the opinion that there is any evidence of an offence.

The complaint is well founded.

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.

The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information in response to a request for the name, file number and pleadings of cases filed with the Tax Court of Canada for a specific period, which had section 245 of the Income Tax Act (ITA) as a basis for a reassessment by the Canada Revenue Agency. The information at issue has been protected under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act.

When responding to the request, Justice created a two‐page printout, generated from information stored in its iCase database, through a search for cases involving section 245 of the ITA within an “issues” field. During the OIC’s investigation, Justice further retrieved the requested pleadings and entirely exempted them under section 23 of the Act.

The investigation showed that although Justice opted to generate a list of relevant cases through information inputted by legal counsel into its iCase database, it did not establish that the identification of information responsive to the request hinged on information subject to either legal advice privilege or litigation privilege. Therefore, Justice could not justify the application of section 23. The Information Commissioner recommended that Justice disclose the responsive records in their entirety.
Justice gave notice to the Information Commissioner that it would not be implementing the recommendation and remains of the view that disclosure of the information would lead to indirect access to privileged information.

The complaint is well founded.

The Office of the Information Commissioner (OIC) received a complaint under paragraph 30(1)(f) of the Access to Information Act alleging that the Treasury Board of Canada Secretariat (TBS), in its role as administrator of the federal access to information system, failed to provide adequate support to government institutions during the COVID-19 pandemic. The complainant alleged that this, in turn, impeded, and continues to impede, the right of access to government information the Act affords.

The complainant also alleged that TBS’s failure to adequately support government institutions in managing their access to information and privacy (ATIP) offices and processing access requests during the pandemic was contrary to the principles of openness and transparency.

The investigation showed that TBS was engaged in reminding institutions of their obligations under the Act, made efforts to clarify institutions’ responsibilities under the Act and policy, and addressed matters of misinterpretation on the part of at least some institutions.

The Information Commissioner was, therefore, unable to conclude that the guidance provided by TBS during the period covered by the investigation was inappropriate. Given the scope of TBS’ limited authority to exert any direct control over institutions’ day-to-day access to information operations, the Commissioner concluded that the support provided to institutions, in the early months of the pandemic, was adequate.

The complaint is therefore not well founded.

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.

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.