Decisions

The complainant alleged that the Department of Justice Canada (Justice) missed the deadline for responding to a request under the Access to Information Act. On October 31, 2019, upon completion an investigation, the Information Commissioner sent Justice a recommendation to respond to the request by December 15, 2019. Justice did not accept the recommendation, but committed to have the records disclosed by April 27, 2020. The Office of the Information Commissioner (OIC) complaint file was therefore closed on the basis of this commitment disclosure date.  When Justice failed to respond to the request by April 27, 2020, the OIC received the current complaint regarding the ongoing refusal of access. Pursuant to subsection 10(3) of the Act, when an institution fails to give access to a record requested, or a part thereof, within the time limits set out in the Act, the head of the institution is “deemed” to have refused to give access. The complaint is well founded. The Information Commissioner ordered Justice to respond to the access request by September 30, 2020.

The investigation focused on the six offices of primary interest (OPIs) most frequently tasked with responding to access to information requests for the Department of National Defence (DND) between January 1, 2017 and December 21, 2018.

Over the course of several months, OIC officials interviewed the six OPIs and DND's Directorate of Access to Information and Privacy (DAIP) to better understand how DND responds to access to information requests. DND shared various internal tasking documents, manuals, processes and procedural guides, training materials, statistics and dashboard information regarding DND Access to Information and Privacy (ATIP) compliance.

Based on this information, the Commissioner identified issues and shared her findings with the Minister of National Defence, who agreed that significant improvements were needed to ensure that the institution was fully meeting its obligations under the Act. In order to remedy existing shortcomings, DND proposed several improvements which were then either accepted or built upon by the Commissioner. In January 2020, the Commissioner issued her recommendations to the Minister of National Defence who agreed to take corrective actions.

The complaint contested the decision by the Department of Justice Canada (Justice) to withhold the entire content of a Memorandum of Understanding (MOU) for the provision of legal services under section 23 (Legal advice and litigation privilege) of the Access to Information Act. Justice could not show that section 23 applied to the entirety of the record at issue – in particular, that the general identifying information such as the title of the MOU and the signature blocks are protected by the solicitor-client privilege. It was also determined that Justice had waived its solicitor-client privilege over some information in the MOU and therefore that particular information was not protected anymore. The complaint is well founded. The Information Commissioner recommended that Justice release part of the record and Justice has communicated its intention to implement this recommendation.

Despite numerous attempts to clarify a request for information, the National Defence (DND) ultimately did not respond to the request, being of the view that it did not meet the requirements of section 6 of the Access to Information Act (Act).  The Office of the Information Commissioner received a complaint that DND had not responded to the request within the time limits set out in the Act.

The complaint is not 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 institution provided the Office of the Information Commissioner (OIC) with documentation indicating that the complaint was made more than seven (7) weeks after the expiration of the sixty-day time-period set out in section 31. This documentation was forwarded to the complainant, along with a request that they provide representations in support of the validity of their complaint.

In their representations, the complainant pointed out that the covering letter that they had received from the institution in response to their request was undated, while the covering letter provided by the Institution to the OIC was actually dated. The complainant did not, however, contest the institution’s claim that a response to their request was provided on the date in question, nor did they take the position that their complaint was made within sixty days of their receipt of the institution’s response. Instead, they asked that the Information Commissioner exercise her “residual discretion” to extend the time period within which they could complain about the Institution’s response, explaining that they had intended to initiate their complaint within sixty days, but that the Institution’s response to their request was “misplaced” after it was received.

Having considered the complainant’s representations, as well as the documentary evidence that was provided to the OIC, the Information Commissioner concluded that the complaint did not meet the requirements of section 31. 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 could not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.

The Canadian Human Rights Commission (CHRC) refused to disclose information citing subsection 19(1) – Personal information, section 22 – Testing/auditing procedures, and section 23 – Solicitor-client privilege of the Access to Information Act .

During the course of the Office of the Information Commissioner (OIC)’s investigation, the CHRC agreed to disclose all information previously withheld under section 22 of the Act and portions that were previously withheld under solicitor-client privilege. While the CHRC refused to disclose the remainder of the withheld information, it did not convince the OIC  that such information met all the requirements for severance under subsection 19(1) and section 23 of the Act.

The OIC therefore issued a report recommending that the CHRC disclose portions of the information previously withheld as personal information and portions of the information previously withheld under solicitor-client privilege. The CHRC agreed with the recommendations and released additional information.

The complaint is well-founded.

The Royal Canadian Mounted Police (RCMP) had not responded to a request for information under the Access to Information Act more than two years after receiving it and is deemed to have refused to give access. During the investigation, the RCMP provided very little information about the records or the processing of the access request, to help determine a response date. Without these details and because the RCMP had still not responded to the access request, the Commissioner orders the RCMP to respond to the access request within 10 business days from the day the order takes effect.* The complaint is well-founded.

* The RCMP responded to the request on March 2, 2020, before the coming into effect of the order.

An institution made an application to the Information Commissioner for approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act (the Act). The institution alleged that the access request is both vexatious and an abuse of the right to make a request.

The institution explained that the requester was displeased with how the institution handled his affairs and that in the 17 years since, has submitted a total of 893 requests, many of which are closely related.

The Royal Canadian Mounted Police (RCMP) is deemed to have refused to give access to records requested under the Access to Information Act (Act). The RCMP was asked, and failed to provide adequate representations. Since the breach of the Act was ongoing, an initial report with intended order was issued. Following the receipt of the initial report, the RCMP responded to the access request rendering any prospective order pointless. The complaint is well-founded.

An institution made an application to the Information Commissioner for approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act.

The institution explained that, in response to a request not made under the Act (the “informal request”), it had already disclosed to the same requester some of the information sought in an access request (the “formal request”).

The institution sought the Commissioner’s approval to exclude the informally released records from the scope of the formal access request.