2015-2016 Investigations
Table of contents
- Duty to assist requires complete, accurate and timely responses
- Co-location means looking beyond one institution to find records
- A thorough search means looking for and examining all known records
- Plans are “put into operation” when implementation begins
- Records collected but not created for a study not covered by litigation privilege
- Consider carefully whether releasing aggregated information will cause harm
- Information must meet requirements of exemptions to be withheld
Duty to assist requires complete, accurate and timely responses
Complaint: After committing, as a result of a complaint investigation, to release a report into the 2011 crash of a Chinook helicopter in southern Afghanistan by a certain date, the Department of National Defence (DND) did not do so.
Investigation: As part of a second investigation, which the Commissioner initiated in light of the publication delay, the OIC came to the view that DND could not have reasonably expected to complete the report by the initial deadline, since important stages of the investigation had not yet begun. DND did not mention this fact to the OIC during the first investigation.
Outcome: DND ultimately released the report 18 months after the original access request had been made and 10 months after the promised publication date.
Information Commissioner’s position
- The delay in releasing the report, and the second investigation in its entirety, could have been avoided if DND had met its basic obligations under the duty to assist to provide an accurate, complete and timely response at the outset.
- When the information requesters are seeking is to be published, institutions should monitor the situation and follow up with requesters when publication occurs or is to be delayed.
Published: 2015–2016 annual report
Co-location means looking beyond one institution to find records
Complaint: The Department of National Defence (DND) said it had no records that responded to a request for information about the process to submit an application to the Spectrum Management Office.
Investigation: The OIC learned that this office was part of Innovation, Science and Economic Development Canada (ISED), but that DND had co-located employees there. DND access officials had made no effort to reach out to ISED when searching for records, despite that institution’s having been named in the request.
Outcome: A co-located DND employee found 54 responsive pages, which were released in their entirety.
Information Commissioner’s position
- To qualify as thorough, a search must extend to all individuals and offices belonging to the institution that may have records responsive to a request.
Published: 2015–2016 annual report
A thorough search means looking for and examining all known records
Complaint: The Royal Canadian Mounted Police (RCMP) said it had no records that had been generated in response to an incident, including pages from the notebooks of four named officers.
Investigation: The OIC learned that access officials had not asked the four officers to provide their notebooks. It is standard RCMP practice for officers to keep these at home and to retain them both when they are full and upon retirement. This is despite an internal operations manual statement that the notebooks are the property of the RCMP and subject to the Act.
The RCMP subsequently found one of the officers, who had no responsive records. It later consulted a second officer, who was located at the RCMP, but under another name. When the RCMP refused to track down the two remaining officers, who had retired, the OIC did so.
Outcome: As a result of this thorough search, additional records from the officers’ notebooks were released.
Information Commissioner’s position
- To qualify as thorough, a search must extend to all individuals and offices belonging to the institution that may have records responsive to a request.
- In addition, institutions may not claim that no records exist without retrieving and reviewing all records they are aware of that may fall within the scope of a request.
Published: 2015–2016 annual report
Plans are “put into operation” when implementation begins
Complaint: DND withheld the majority of a briefing note relating to workforce adjustment plans, citing paragraph 21(1)(d) and noting that the plans would not be fully implemented for another two years.
Investigation: DND alleged that releasing the information could cause unnecessary stress within the DND workforce, since it could give an inaccurate account of the final number of employees who could be subject to workforce adjustment.
Outcome: DND eventually agreed to disclose the information, given the passage of time.
Information Commissioner’s position
- Paragraph 21(1)(d) allows institutions to withhold records that contain plans relating to the management of personnel or the administration of an institution that have not yet been put into operation.
- There is nothing in the Act to support DND’s view that the plan must have been fully implemented in order for it to be considered to have been “put into operation.”
- Instead, based on a plain reading of paragraph 21(1)(d), DND should have considered the plan to have been put into operation once it had been formally approved, notice had been given by a final authority of the plan’s existence and implementation had begun.
Published: 2015–2016 annual report
Records collected but not created for a study not covered by litigation privilege
Complaint: The National Research Council (NRC) refused to disclose records and 11 video files Marine Atlantic Inc. had sent to the NRC as part of a study of a marine accident. The NRC cited section 23 (litigation privilege), noting that there was to be a labour relations board hearing related to the collision.
Investigation: The OIC learned that some of the records and videos, such as the ship’s scheme, tidal charts, weather reports and CCTV videos, had been created before there was a reasonable prospect of litigation. Moreover, these documents would have been produced regardless of the collision.
Outcome: The NRC stated that it disagreed with the OIC’s analysis; however, it released the paper records that were collected but not created for the study. Five videos were also released (with the identities of some individuals obscured). Other exemptions were applied to the remaining videos to justify their being withheld.
Information Commissioner’s position
- When determining whether litigation privilege applies, institutions must determine the dominant purpose for which the documents were produced.
- In this case, the documents produced during or as a result of the study were privileged information. The records collected but not created for the study were not.
Published: 2015–2016 annual report
Consider carefully whether releasing aggregated information will cause harm
Complaint: The Communications Security Establishment Canada (CSEC) withheld specific information within four pages of graphs showing the technical and operational assistance it had provided to federal law enforcement and security agencies. CSEC claimed, in part, that releasing the information could result in injury to the defence of Canada and its allies (section 15).
Investigation: CSEC gave a detailed rationale for applying the exemption, and the factors it considered when exercising its discretion. This included clear examples of how releasing information about specific requests for technical and operational assistance could reasonably be expected to result in injury. However, CSEC was not able to justify how injury could result from disclosing the aggregate information and categories found in the graphs.
Outcome: CSEC released more information, such as sub-totals and totals.
Information Commissioner’s position
- In deciding that releasing aggregated figures about requests for assistance would jeopardize ongoing investigations, CSEC applied section 15 too broadly.
Published: 2015–2016 annual report
Information must meet requirements of exemptions to be withheld
Complaint: The Canadian Radio-television and Telecommunications Commission (CRTC) cited both section 16 and section 23 to withhold almost all of a four-page agreement between itself and a company involved in the 2011 robocalls scandal that set out the terms for resolving various concerns.
Investigation: The CRTC told the OIC that releasing the agreement in full could jeopardize outstanding investigations related to the robocalls scandal (section 16). The CRTC also alleged that, since the process that led to the agreement was subject to the legal advice privilege (section 23), the agreement itself should be, too.
Outcome: The CRTC agreed to review the exemptions and released almost all the information it had previously withheld.
Information Commissioner’s position
- Most of the information in the agreement was already in the public domain and, thus, disclosing it would not harm any outstanding investigations.
- The agreement did not contain any legal advice between a solicitor and client; therefore, it could not be exempted under section 23.
Published: 2015–2016 annual report