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2012-2013 Investigations

Table of contents

Time extensions must be both valid and reasonable

Complaint: Transport Canada took time extensions totalling 540 days to respond to a request for records related to the development of a joint Canada–U.S. declaration on security and competitiveness.

Investigation: The OIC determined that the extension under paragraph 9(1)(a) was invalid, since Transport Canada had not met the requirements of the provision. The paragraph 9(1)(b) extension was unreasonable, due to Transport Canada’s not having initiated consultations on the records for almost a year, largely because of one sector’s reluctance to provide records it deemed to be sensitive.

Outcome: After initially proposing to respond to the request more than two months after the combined extensions had expired, Transport Canada committed to responding one month before that deadline, as the result of a formal recommendation from the Information Commissioner.

Information Commissioner’s position

  • To validly claim an extension under paragraph 9(1)(a), institutions must be able to demonstrate that the request involves a large volume of records or that searching for those records would unreasonably interfere with operations. Transport Canada was able to do neither.
  • For an extension under paragraph 9(1)(b) to be considered reasonable, institutions must promptly initiate the consultations for which the extension was taken.

Published: 2012–2013 annual report

Extension length must reflect actual time required for tasks

Complaint: The Department of National Defence (DND) took time extensions totalling 1,100 days to respond to a request for information about the sale of surplus military assets to Uruguay.

Investigation: The OIC learned from DND that the necessary consultations would only take 160 days, considerably fewer than the 880 days it claimed under paragraph 9(1)(b). DND did not justify the 230 days it had claimed under paragraph 9(1)(a) to process the responsive records.

Outcome: DND did not accept the Information Commissioner’s recommendation to respond to the requester within 90 days of the expected completion of the consultations.

Information Commissioner’s position

  • Subsection 9(1) requires extensions to be “for a reasonable period of time.” In this case, since the consultations for which the extension under paragraph 9(1)(b) was taken could be completed in far less time than claimed, the extension was not, in fact, reasonable.
  • Institutions must justify any extensions they take. For extensions under paragraph 9(1)(a) to be valid, institutions must demonstrate that the request involves a large volume of records or that searching for those records would unreasonably interfere with operations.
  • The Information Commissioner subsequently sought judicial review of DND’s actions. In a 2015 ruling (Information Commissioner of Canada v. Minister of National Defence, et al., 2015 FCA 56, rev’g 2014 FC 205; OIC summary of decision), the Federal Court of Appeal established that an unreasonable extension is not legally valid and amounts to a deemed refusal, giving a right of review to the Federal Court. It also set standards for institutions for how they must justify the use and length of extensions.

Published: 2012–2013 annual report
Related: Information Commissioner of Canada v. Minister of National Defence, et al., 2015 FCA 56, rev’g 2014 FC 205; OIC summary of decision

Extensions are allowed; just inform the requester

Complaint: Health Canada missed the 30-day deadline for responding to a request for records about a television advertisement and had not taken a time extension.

Investigation: The OIC learned that the request had lain dormant for significant periods and that Health Canada has not started the necessary consultations promptly.

Outcome: The Information Commissioner formally asked Health Canada for the date it would respond to the requester. The institution provided a date but, in end, only responded a month after that.

Information Commissioner’s position

  • The Act includes provisions for taking reasonable time extensions when responding to requests within 30 days will not be possible. Institutions must simply inform the requester within 30 days of receiving the request that they will be doing so.
  • At the same time, institutions must not delay processing requests and initiating any necessary consultations.
  • Timeliness is fundamental to the right of access. Receiving a response in a timely manner ensures information is still relevant and that the government can be held to account for its decisions at appropriate times.

Published: 2012–2013 annual report

Institutions must retrieve records to prevent their being disposed of

Complaint: The Correctional Service of Canada (CSC) withheld in their entirety all staff disciplinary investigation reports produced in its Pacific Region over two years, citing subsection 19(1).

Investigation: Upon reviewing CSC’s file on its processing of the request, it became clear that access officials had, instead of retrieving the records, only reviewed samples of similar records. The OIC determined, after examining the samples, that CSC could have removed certain details that would have identified individuals and released the remaining information.

Outcome: The complaint was well founded, but the requester did not receive the requested records, since CSC had disposed of them.

Information Commissioner’s position

  • CSC failed to properly respond to the request. It did not retrieve the records, did not produce the records in response to the OIC’s request to see them and disposed of the them, despite being aware of the investigation and of requests to be provided with copies.
  • As such, CSC wholly failed in its duty to assist the requester and irremediably harmed the requester’s rights.

Published: 2012–2013 annual report

Duty to assist requires willingness to keep searching for missing records

Complaint: Aboriginal Affairs and Northern Development Canada (AANDC) provided an incomplete response to a request for information about the Food Mail Program. AANDC then instructed the requester, who had identified specific missing documents, to submit a new request.

Investigation: Despite the OIC’s showing AANDC access officials the complainant’s detailed list of records, they refused to search for them. A subsequent formal letter produced no results.

Outcome: In the end, the complainant received the additional documents in response to the second request.

Information Commissioner’s position

  • AANDC’s refusal to retrieve all responsive records, even in the face of evidence of their existence, as well as its insistence that the requester make a second request, was a complete failure to meet the duty to assist.
  • The additional documents released turned out to be responsive to the first request. The requester should not have been forced to make a second request to receive them.

Published: 2012–2013 annual report

Information about institution’s general administration must be released

Complaint: Canada Post withheld the majority of two guidelines on procurement under its unique exemption, section 18.1.

Investigation: The OIC questioned whether the guidelines, which Canada Post issued to employees evaluating responses to requests for proposals, constituted commercial information, as section 18.1 stipulates.

Outcome: Canada Post released the records in their entirety.

Information Commissioner’s position

  • The guidelines were not commercial information. However, even if they were, they related to Canada Post’s general administration, since they served to ensure sound management practice. Canada Post must release information related to its general administration under subsection 18.1(2).
  • The dictionary definition of “administration” includes the “management of business.”

Published: 2012–2013 annual report

Public interest mechanism in Public Servants Disclosure Protection Act prevails

Complaint: The Public Sector Integrity Commissioner (PSIC) refused to release, under subsection 19(1), the names of the recipient and the subject of a report concerning allegations of wrongdoing at Human Resources and Skills Development Canada (HRSDC).

Investigation: The OIC found that the identity of the report’s recipient, HRSDC’s chief executive officer, should be disclosed, since receiving such a report was part of his role as a government employee (the exception to subsection 19(1) found at paragraph 3(j) of the Privacy Act). However, the OIC agreed that the name of the report subject could not be released in the public interest under another provision of the Privacy Act, paragraph 8(2)(m).

Outcome: PSIC released the identity of the chief executive officer but not the subject of the report.

Information Commissioner’s position

  • Paragraph 8(2)(m) allows institutions to disclose personal information when the public interest in doing so outweighs any invasion of privacy, subject to any other Act of Parliament.
  • Under the Public Servants Disclosure Protection Act, the identity of report subjects may only be disclosed in accordance with that Act. As result, paragraph 8(2)(m) does not apply.
  • The only public interest mechanism that would allow PSIC to identify report subjects is found in the Public Servants Disclosure Protection Act.

Published: 2012–2013 annual report

Signatures provided in professional capacity must be released

Complaint: The Privy Council Office exempted as personal information under subsection 19(1) the signatures and initials of various senior public servants on correspondence and routing slips related to a briefing note for the Prime Minister.

Investigation: The OIC found that the individuals had provided their signatures to authenticate that they had viewed and approved the briefing note in their professional capacity.

Outcome: Although PCO did not accept the Information Commissioner’s recommendation to release the signatures, it later released most of them with the consent of the individuals in question.

Information Commissioner’s position

  • While a signature is information about an identifiable person, the signature of a government employee provided in the course of official functions falls within the exception to the definition of personal information found in paragraph 3(j) of the Privacy Act.
  • The presence or absence of signatures or initials is an important piece of information in the context of government accountability.

Published: 2012–2013 annual report

It is unreasonable to withhold individuals’ own personal information

Complaint: The Privy Council Office (PCO) refused to release information relating to the assessment of the requester’s application for a Governor-in-Council position, citing section 21.

Investigation: The OIC was not persuaded that the information constituted advice or recommendations to government, as section 21 requires. The OIC also questioned whether PCO had reasonably exercised its discretion in deciding not to release the information, since it was the requester’s own.

Outcome: PCO released the information.

Information Commissioner’s position

  • Even had PCO properly applied section 21, it should have considered that the requester had a right of access to this information under the Privacy Act. This is a relevant factor favouring disclosure.

Published: 2012–2013 annual report

Open government requires data to be published in useful formats

Complaint: Industry Canada refused to release a copy of Corporations Canada’s main database, citing subsection 68(a).

Investigation: The OIC determined that the database’s search engine was limited to a maximum of 200 results, not enough to render the information publicly available, as subsection 68(a) requires. Industry Canada subsequently increased the number of search results from 200 to 500, while maintaining that the information was publicly available.

Outcome: The OIC stressed to the institution the importance of providing data in a format useful to requesters. Industry Canada subsequently released the complete database in electronic format.

Information Commissioner’s position

  • Open government principles require governments to publish data in formats useful to the public.
  • The duty to assist requires institutions to provide information in the format in which requesters wish to receive it.
  • To effectively move towards a more open government, institutions must consider how they make information available to the public, and address issues of access and data re-use.

Published: 2012–2013 annual report

 
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