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2013-2014 Investigations

Table of contents

Length of extensions must reflect number of pages being sent for consultation

Complaint: Natural Resources Canada (NRCan) took a 300-day time extension to consult with the Department of Foreign Affairs, Trade and Development (DFATD) about requested briefing notes.

Investigation: NRCan sent just seven pages to DFATD for review. In addition, NRCan set the extension at 300 days even though it had not yet contacted DFATD to get an approximate return date. NRCan said it did so because, in its experience, DFATD did not always meet its promised deadlines.

Outcome: The consultations were ultimately completed in 51 days. NRCan responded to the request several months before the extended due date.

Information Commissioner’s position

  • Institutions must take into account the number of pages of records responsive to requests and the number being sent for consultation when determining the length of time extensions under paragraph 9(1)(b).
  • In this case, the extension of 300 days was well beyond what was needed to consult DFATD on seven pages of records and to complete the processing of the request.
  • The extension was contrary to the Treasury Board of Canada Secretariat requirement that extensions be as short as possible. The extension likewise went against institutions’ duty to provide timely access to information, as set out in subsection 4(2.1).

Published: 2013–2014 annual report

Institutions may not close files pending consultations

Complaint: The Treasury Board of Canada Secretariat (TBS) claimed a 180-day time extension to consult another institution about requested records. On the extended due date, TBS informed the requester that it had not received a response to its consultation request and that it was closing the file.

Investigation: TBS advised the requester that it would provide any releasable records at the conclusion of the consultation, whenever that might occur. However, TBS had no procedure in place to monitor the progress of the consultation and ensure its eventual completion after the file was closed.

Outcome: In light of the Information Commissioner’s investigation, TBS followed up with the institution it had consulted. Once the consultation was complete, TBS issued the final response to the requester.

Information Commissioner’s position

  • There is no basis in the Act for institutions to close requests before receiving consultation responses.
  • Closing a request pending outstanding consultations does not constitute a response to a request under either section 7 or section 10. These provisions define the appropriate timelines for and information to be included in a response.
  • As the institution to which the request was made in this case, TBS was responsible for responding accurately and in a timely manner, making any necessary decisions to ensure it met its statutory obligations.

Published: 2013–2014 annual report
Related: 2008–2009 report cards

Institutions must review records before exempting them

Complaint: The Department of Foreign Affairs, Trade and Development (DFATD) cited various exemptions to withhold information contained in documents sent or received by the Canadian embassy in Mexico about a businessman killed in Acapulco.

Investigation: The investigation revealed that DFATD routinely advises embassies not to provide consular files in response to access requests. In its view, these files are exempt under subsection 19(1) in their entirety.

Outcome: DFATD processed the records at the Information Commissioner’s request and subsequently released an additional 195 pages.

Information Commissioner’s position

  • The complaint was well founded, since DFATD had not initially retrieved or processed all the records.
  • The Federal Court of Appeal confirmed that records must be reviewed to ensure proper processing (Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2011 FCA 326).
  • A failure to retrieve records jeopardizes the rights the Act confers, since there is a risk the program area could dispose of records not properly identified.

Published: 2013–2014 annual report
Related: Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2011 FCA 326

Paragraph 9(1)(c) covers only consultations with third parties on commercial information

Complaint: The Treasury Board of Canada Secretariat (TBS) took a 60-day time extension under paragraph 9(1)(c) to consult the House of Commons about requested briefing materials for the appearance of TBS officials before a parliamentary committee.

Investigation: TBS noted that it is not clear what the proper procedure is for responding to requests for records that may be covered by parliamentary privilege. The institution also stated that, in taking the time extension, it was following common practice.

Outcome: Since parliamentary privilege did not cover any of the records at issue, the extension was invalid.

Information Commissioner’s position

  • Paragraph 9(1)(c) was not intended to be used to consult the House of Commons.
  • Rather, it was designed to accommodate consultations with third parties about records that could be considered confidential commercial information, as described in section 20.

Published: 2013–2014 annual report

Records about attendance at mandatory training are not personal information

Complaint: The Royal Canadian Mounted Police (RCMP) withheld in their entirety under subsection 19(1) records about the attendance of a newly commissioned inspector at the RCMP’s Officer Orientation and Developmental Course.

Investigation: The RCMP stated that the information sought (the dates of the inspector’s attendance, the complete list of courses, and the names of all the facilitators and any others in attendance), in conjunction with the name, rank and employee identification number of regular members of the RCMP, constituted personal information, as described in section 3 of the Privacy Act. However, the course was mandatory for newly commissioned officers.

Outcome: After a formal request from the Information Commissioner to justify its position, the RCMP agreed to release the information.

Information Commissioner’s position

  • The fact that a member had attended this course is not personal information, since the training was mandatory and therefore related to the position or functions of an individual who is an employee of a government institution. This constitutes an exception to subsection 19(1), as per paragraph (3)(j) of the Privacy Act.

Published: 2013–2014 annual report

Claiming the “mosaic effect” requires showing that specific personal information would be disclosed

Complaint: Transport Canada refused to release aircraft registration numbers, claiming they were personal information under subsection 19(1).

Investigation: Transport Canada maintained that by cross-referencing these numbers with information on the publicly available Canadian Civil Aviation Register website, it would be possible to discern the names and addresses of the owners of registered aircraft involved in air occurrences.

Outcome: As a result of the investigation, Transport Canada released the records in full, claiming it was doing so using its discretion to release personal information in the public interest under subparagraph 8(2)(m)(i) of the Privacy Act. However, the Information Commissioner found that the information did not qualify as personal information and should not have been withheld under subsection 19(1) in the first place.

Information Commissioner’s position

  • To withhold records under subsection 19(1) in this instance, Transport Canada would have had to demonstrate that releasing various types of seemingly unrelated information would paint a larger picture that would disclose specific personal information (known as the “mosaic effect”).
  • Transport Canada could not do so in this case. At most, someone might have been able discern the identity of the owners of aircraft involved in air occurrences, but not whether these owners were personally involved.
  • In its decision in FCA+157">Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157, the Federal Court of Appeal said that the possibility that information might be cross-referenced with other sources does not render otherwise “non-personal” information “personal.”

Published: 2013–2014 annual report
Related: FCA+157">Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157; OIC summary of decision

Need for consent does not preclude processing requests

Complaint: The Royal Canadian Mounted Police (RCMP) did not provide proper grounds for refusing access to requested documents.

Investigation: The OIC learned that the RCMP had required the requester to provide the written consent of any individuals whose personal information could appear in the records. When the requester failed to do so, the RCMP refused to process the request.

Outcome: Although the complaint was resolved on other grounds, the RCMP did not appropriately respond to this request.

Information Commissioner’s position

  • Institutions are required to retrieve and review records responsive to requests.
  • Then, if personal information of individuals other than the requester is found in the records, institutions must, when it is reasonable to do so, seek those individuals’ consent to disclose their personal information.
  • Accordingly, the RCMP’s refusal in this case to process the request in the absence of consents was inappropriate.

Published: 2013–2014 annual report

Section 20 requires proof of commercial not personal harm

Complaint: Canada Post withheld under paragraph 20(1)(b) various details in contracts given to a consultant.

Investigation: During the investigation, Canada Post also applied paragraph 20(1)(c) to the information, claiming that releasing it could result in material financial loss for the consultant or prejudice his firm’s competitive position. For his part, the consultant was more concerned with possible damage to him in his personal capacity rather than possible damage to his business, which, as it turned out, had been dissolved.

Outcome: In response to a formal recommendation from the Information Commissioner, Canada Post disclosed the information in its entirety.

Information Commissioner’s position

  • When claiming paragraph 20(1)(c), institutions must demonstrate that disclosure would result in financial loss to a third party or would harm its competitive position.
  • In addition, the information contained in the contract in this case was not “supplied” by a third party, as paragraph 20(1)(b) requires. Rather, the terms of the contract had been arrived at through negotiations.

Published: 2013–2014 annual report

Confidential information must be treated consistently as such

Complaint: Citing paragraph 20(1)(b), Aboriginal Affairs and Northern Development Canada (AANDC) exempted from a list the locations of storage tanks on Indigenous land in Alberta that contain petroleum products and allied petroleum products.

Investigation: AANDC maintained that the tank locations met the criteria of paragraph 20(1)(b), including the confidentiality requirements. However, the OIC learned that the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations stipulate that “the owner or operator must display the identification number in a readily visible location on or near the storage tank system for which the number was issued.” This requirement is echoed on the Environment Canada website.

Outcome: Since the locations of the tanks could be discerned through observation of the visible identification numbers, the location could not be characterized as “confidential.” AANDC agreed to disclose the information in response to a formal recommendation from the Information Commissioner.

Information Commissioner’s position

  • In order for paragraph 20(1)(b) to apply, institutions must demonstrate that all the criteria set out in the provision are met.
  • In this instance, AANDC could not show that the storage tank identification numbers, and therefore the locations of the tanks, were confidential and had been consistently treated as such.

Published: 2013–2014 annual report

Merely speculating that harm would result from disclosure insufficient

Complaint: Aboriginal Affairs and Northern Development Canada (AANDC) withheld in their entirety under section 23 settlement agreements between it and seven companies related to a building project.

Investigation: During the investigation, AANDC acknowledged that the exemption did not apply to such documents and decided to rely instead on subsection 18(b) and paragraph 20(1)(d) to withhold them. The institution argued that settlement agreements are intended to be confidential and that disclosure could result in financial loss to the federal government or in financial benefit to parties not involved in the settlement, based on the information the agreements contain.

Outcome: AANDC failed to provide sufficient evidence that these harms would occur and disclosed all of the records to the requester.

Information Commissioner’s position

  • To be properly exempted under paragraph 20(1)(d), information must be such that its disclosure could reasonably be expected to interfere with contractual or other negotiations of a third party. This test is similar to that set out in subsection 18(b).
  • It is not enough to merely speculate that some harm may occur. When invoking this provision, institutions must refer to an obstruction to negotiations and not simply the heightening of competition that may follow from disclosure.

Published: 2013–2014 annual report

Similar details previously posted on the Web negate claim of confidentiality

Complaint: VIA Rail Canada exempted information under section 18.1 in response to a request for the number, by station, of passengers who had gotten on and off trains in 2011 and 2012.

Investigation: The OIC learned that VIA Rail Canada had publicly released the information in question from 2007 to 2010.

Outcome: VIA Rail Canada disclosed the information to the requester.

Information Commissioner’s position

  • Section 18.1 allows four government institutions, including VIA Rail Canada, to refuse to disclose records that contain trade secrets or financial, commercial, scientific or technical information that belongs to them, and that they have consistently treated as confidential.
  • Institutions must meet all of the criteria of the exemption in order to properly claim it.
  • In this case, VIA Rail Canada did not consistently treat the requested information as confidential, as paragraph 18.1(1)(d) requires.

Published: 2013–2014 annual report

Section 26 requires publication before 90-day deadline

Complaint: The Canada Mortgage and Housing Corporation (CMHC) withheld in its entirety a study, Assessing the Outcomes for Habitat for Humanity, Home Buyers in Canada, under paragraph 21(1)(b).

Investigation: The OIC determined that the report did not comprise accounts of deliberations or consultations, as paragraph 21(1)(b) requires, and asked CMHC to review the records again. Instead of doing so, CMHC said it would withhold the information under section 26, since the study was soon to be published.

Outcome: During the investigation, CMHC published the report on its website and provided the link to the requester.

Information Commissioner’s position

  • Under section 26, institutions may refuse to disclose records when they are likely to be published within 90 days after the request is made.
  • Even when they intend to publish a record, institutions must demonstrate that it was reasonable to believe publication would occur within 90 days after receiving the request.
  • In this case, the proposed publication date was more than 90 days after CMHC had received the request. Consequently, the Information Commissioner found that that CMHC could not invoke section 26 to withhold the study.

Published: 2013–2014 annual report

Almost identical records do not constitute new versions

Complaint: The Canada Revenue Agency (CRA) withheld Internal Technical Interpretations produced for a particular period. CRA cited subsection 68(a) in refusing to release the records, since it had licensed the Interpretations to publishers to sell, with some modifications.

Investigation: The OIC compared the original and published versions of the Interpretations, which showed that what was published was almost identical to the original. In some cases, the publishers had added footnotes for clarity and value to subscribers.

Outcome: The Information Commissioner agreed with CRA that the information at issue had been published and was available for purchase, which excluded it from the Act.

Information Commissioner’s position

  • Subsection 68(a) excludes from the Act published material or material available for purchase.
  • In this case, the requester had argued that the publishers’ changes were substantial enough to make the published versions a “new” or “derivative work” under copyright law.
  • If this had been so, subsection 68(a) would not have applied, since the original versions would have been neither published nor available for purchase.

Published: 2013–2014 annual report

 
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