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2016-2017 Investigations

Table of Contents

Institutions must apply two-part test for records in ministers’ offices

Complaint: Fisheries and Oceans Canada (DFO) did not ask the Minister’s office for records in response to a request for the emails of a number of individuals, including some exempt staff. Instead, it asked the requester to exclude the exempt staff from the request. It then put the request on hold when it did not hear back from the requester about this.

Investigation: DFO told the OIC that, because the exempt staff were known not to be employees, the request could not be processed as worded, since coverage of the Act does not extend to ministers’ offices.

Outcome: The institution agreed to ask the Minister’s office to look for records, and approximately 1,100 pages were identified as falling within the scope of the request.

Information Commissioner’s position

  • The correct test is not whether a minister’s office or its staff are covered under the Act. The Supreme Court of Canada set out a two-part test in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 for instances in which records responsive to a request may be located in a minister’s office.
  • Institutions must ask two questions when processing requests for such records: Does the record relate to a departmental matter? If so, and based on all relevant factors, could a senior official of the institution reasonably expect to be able to obtain a copy of the record upon request? (Relevant factors include the substantive content of the record, the circumstances in which the record was created, and the legal relationship between the institution and the record holder.)

Published: 2016–2017 annual report

To ensure accountability, institutions should document decisions

Complaint: The Royal Canadian Mounted Police (RCMP) said that no documentation existed about its decision not to proceed with a code of conduct investigation for perjury against one of the four officers who testified at the inquiry into the death of Robert Dziekanski during an arrest at the Vancouver airport.

Investigation: The OIC learned that an RCMP superintendent had presented his evaluation of the officers’ testimony to RCMP senior management verbally. In addition, the RCMP could not point to a single document its officials had written that set out its decision not to pursue the code of conduct investigation. In addition, the RCMP could not find a copy of the letter it had sent to external counsel asking it to conduct a formal review of whether to carry out an investigation.

Outcome: The external counsel produced the mandate letter, and the RCMP disclosed it to the requester.

Information Commissioner’s position

  • To ensure accountability, institutions should document decisions.
  • The lack of documentation in this instance is especially problematic, given that provincial authorities had charged the officers with perjury. Without documentation, it is difficult to ascertain what factors led the RCMP to not conduct an investigation.

Published: 2016–2017 annual report

Contractual confidentiality clauses do not trump the Act

Complaint: Public Services and Procurement Canada (PSPC) withheld the total amount it had been reimbursed by SNC-Lavalin for instances of overbilling. PSPC claimed that disclosing this amount could interfere with the contractual or other negotiations of both PSPC and SNC-Lavalin (as per subsection 18(b) and paragraph 20(1)(d)).

Investigation: PSPC claimed to the OIC that a confidentiality clause in its agreement with SNC-Lavalin to settle the overbilling matter prohibited disclosure of the total amount it had received. However, PSPC could not demonstrate that the disclosure of that information could reasonably be expected to interfere with contractual or other negotiations of either itself or SNC-Lavalin.

Outcome: PSPC disclosed the total amount SNC-Lavalin had repaid.

Information Commissioner’s position

  • The requirements of the Access to Information Act take precedence over contractual terms reached between the government and third parties.

Published: 2016–2017 annual report

Exemptions must be applied in a limited and specific manner

Complaint: Public Service and Procurement Canada (PSPC) refused to disclose the majority of an agreement it had signed with SNC-Lavalin, citing paragraph 20(1)(b) and subsection 18(b). The agreement set out conditions the company had to meet to continue to receive government contracts.

Investigation: The OIC determined that only a few clauses and part of one schedule met the requirements of paragraph 20(1)(b) and subsection 18(b)—that is, that they were SNC-Lavalin’s confidential commercial information and that disclosing them could interfere with PSPC’s contractual or other negotiations.

Outcome: PSPC released the majority of the agreement.

Information Commissioner’s position

  • PSPC applied the exemption for third-party commercial information far too broadly, protecting, for example, information that SNC-Lavalin itself had made public.
  • The OIC only accepted in a few instances PSPC’s claim that other companies could strategize whether operating under such agreements could still be profitable if they were to know the extent of each clause of the agreement and PSPC’s flexibility.

Published: 2016–2017 annual report

Wide distribution of information undermines claim of confidentiality

Complaint: Canada Post refused to disclose its manual on mail delivery because it considered the information in it to be its confidential commercial information protected by section 18.1.

Investigation: The OIC disagreed with Canada Post’s application of section 18.1, since the institution had not treated the manual as confidential. It was available to all mail carriers and at sorting facilities across the country.

Outcome: Canada Post released the section of the manual dealing specifically with car shelters (the information the requester had sought), and the complaint was settled.

Information Commissioner’s position

  • Canada Post must have consistently treated information as confidential in order to properly exempt it under section 18.1. The wide distribution of the manual to mail carriers and sorting facilities undermined Canada Post’s claim of confidentiality.

Published: 2016–2017 annual report

Institutions must provide evidence that information is commercial

Complaint: Canada Post withheld data tables showing the number of male and female mail carriers, and the number of rural and suburban mail carriers. It did so claiming that the tables were its confidential commercial information protected by section 18.1.

Investigation: Canada Post provided no evidence this information was commercial, or that it had been kept confidential. In fact, similar information was publicly available on Service Canada’s website.

Outcome: Canada Post disclosed the tables in their entirety.

Information Commissioner’s position

  • Canada Post must demonstrate that the information is commercial and must have consistently treated it as confidential in order to properly exempt it under section 18.1.
  • Public availability of similar information can undermine a claim of confidentiality.

Published: 2016–2017 annual report

Information must be consistently held in confidence to qualify for section 23

Complaint: Library and Archives Canada (LAC) refused access to historical memoranda and telegrams between counsel and the Deputy Minister of Justice related to an individual’s 1918 legal action against the federal government, claiming legal advice privilege under section 23.

Investigation: The OIC disagreed that most of the information qualified as legal advice and found that the institution had not shown it had held the information consistently in confidence, as section 23 requires. In addition, the OIC found that LAC had not shown it had properly exercised its discretion when applying the exemption, because it had not considered certain relevant factors that favoured release.

Outcome: In response to the OIC’s formal request for evidence on these points, LAC released all of the records.

Information Commissioner’s position

  • Institutions must show that they have consistently held legal advice in confidence over time.
  • In addition, institutions must demonstrate that they considered factors such as the age of the records and their historical value when exercising their discretion to refuse disclosure.

Published: 2016–2017 annual report

Not everything a lawyer drafts is legal advice

Complaint: The Canadian Human Rights Commission and the Immigration and Refugee Board refused access to training manuals and guidelines, exempting them as legal advice under section 23.

Investigation: The OIC found that while some of the information was legal advice, the majority was not.

Outcome: Both institutions released most of the information. The Immigration and Refugee Board also waived its privilege over some records that did contain legal advice and released them.

Information Commissioner’s position

  • Not everything drafted by a lawyer is legal advice.
  • When records do qualify for exemption under section 23, institutions must also consider whether there would be benefits to the public in waiving privilege and releasing the information.
  • For example, the Canadian Human Rights Commission has a public education mandate, and the public would benefit from understanding how it conducts investigations, which was the subject of the records in question.

Published: 2016–2017 annual report

Institutions must seek consent whenever reasonable to do so

Complaint: The Privy Council Office (PCO) refused to disclose correspondence between the Prime Minister and the mayors of Montréal and Quebec City, claiming that 12 pages of records were personal information (as per section 19).

Investigation: The OIC learned that PCO had not consulted with the mayors prior to deciding to withhold the records. During the investigation, PCO consulted with the municipalities, which later provided consent to disclose the information.

Outcome: The majority of the correspondence was disclosed.

Information Commissioner’s position

  • Under the Access to Information Act, an institution may release information when the individual or party to whom the information relates or belongs consents to its disclosure. (See, for example, paragraph 19(2)(a) for personal information or subsection 20(5) for third-party information.)
  • Institutions must seek this consent when it is reasonable to do so, and should then disclose the information whenever the individual consents, barring exceptional circumstances.

Published: 2016–2017 annual report

Related: Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.)

Institutions must ask the right parties for consent to release information

Complaint: Indigenous and Northern Affairs Canada (INAC) refused to release the report of a forensic audit of the Nisichawayasihk Cree Nation, claiming the document was confidential third-party information (as per paragraph 20(1)(b)).

Investigation: The OIC learned that INAC had sought the consent of the firm that had prepared the report, not the subject of the report, the Nisichawayasihk Cree Nation.

Outcome: The Nisichawayasihk Cree Nation did not object to the report’s being disclosed. INAC released the majority of the report.

Information Commissioner’s position

  • Under the Access to Information Act, an institution may release information when the individual or party to whom the information relates or belongs consents to its disclosure. (See, for example, paragraph 19(2)(a) for personal information or subsection 20(5) for third-party information.)
  • Institutions must take care to consult the proper parties, however. In this case, INAC should have sought the consent of the subject of the report not the firm that authored it.

Published: 2016–2017 annual report

Waiting to process records unnecessarily delays responding to requests

Complaint: The Department of Justice Canada took time extensions of 601 and 815 days under paragraphs 9(1)(a) and (b) to respond to two requests for information about St. Anne’s Residential School and the Indian Residential School Settlement Agreement’s Independent Assessment Process.

Investigation: The institution told the OIC that the main reason for the long extensions was the lengthy review required to determine which of the records would be subject to a court order that limited access to the records. However, the institution did not actually process the records, claiming it was unable to do so without risking being in contempt of the order. It was also waiting for a decision from the Ontario Court of Appeal on the order.

Outcome: The Department of Justice Canada agreed that about half of the records (73,000 pages) were beyond the scope of the court order, and released them. The OIC negotiated quarterly interim release dates for the remaining records, supported by a formal recommendation that these dates be respected.

Information Commissioner’s position

  • The institution’s decision to not process the records pending the outcome of the appeal unnecessarily delayed the responses to the requests.
  • The extensions taken in this case were unreasonable.
  • 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: 2016–2017 annual report

Timely access requires institutions to begin work on requests promptly

Complaint: Three years after receiving them, the Correctional Service of Canada (CSC) had not responded to three requests for records related to the closure of Kingston Penitentiary and two other facilities. At that point, the institution asked the requester whether they still wanted the information.

Investigation: The OIC learned that instead of then working on the requests, CSC suggested four months later that the requester abandon them and submit new ones. CSC then took extensions of 100 and 120 days for two of the resubmitted requests and did not reply to the third.

Outcome: CSC committed to a date for disclosure, after several requests from the OIC to do so; however, the date was not reasonable. The requester received the information nearly four years after making the original requests.

Information Commissioner’s position

  • 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.
  • In this case, much of the requested information was publicly available or outdated by the time it was released.
  • CSC officials were negligent in their legislated duty to provide timely access and showed a flagrant disregard for the requester’s rights.

Published: 2016–2017 annual report

Minor changes to requests should not stop the clock

Complaint: The National Capital Commission (NCC) had not responded for 10 months to a request for information about repairs, renovation work and maintenance at 24 Sussex Drive.

Investigation: The OIC learned that the requester reduced the scope of the request two weeks after submitting the request. The NCC considered this modification to be a new request and restarted the clock for responding. Just over a month later, the NCC took a 90-day extension because the search for the records would unreasonably interfere with operations (as per paragraph 9(1)(a)).

Outcome: The NCC responded to the request two years after it was made.

Information Commissioner’s position

  • Timely access 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.
  • The NCC’s decision to consider the revised request as new, and restart the clock, was inappropriate.
  • In addition, despite having had the records in its position for 10 months, the institution had not consulted the Royal Canadian Mounted Police about them. Having to do so further delayed the response.

Published: 2016–2017 annual report

Open Government commitments stress open formats

Complaint: Instead of the requested Excel spreadsheet, Indigenous and Northern Affairs Canada (INAC) released a photocopy of a PDF of data found in a specialized database about First Nations water and wastewater systems, with parts of the pages cut off.

Investigation: The OIC learned that INAC was concerned that releasing the data in Excel would require it to alter it in order to protect exempted information, in violation of section 67.1 (altering a record with intent to deny access). Once the OIC assured INAC this would not be the case, the institution then stated that its software would not allow it to export to Excel and that, therefore, converting the data would be unreasonable, as per the Access to Information Regulations.

Outcome: The requester received an Excel spreadsheet six months after making the request.

Information Commissioner’s position

  • Institutions must be mindful that the government has committed, under the Open Government Partnership, to releasing data in open formats.
  • The OIC emphasizes this to institutional officials during investigations focusing on the format of records.

Published: 2016–2017 annual report

Confirm information is publicly available before declining to disclose it

Complaint: Natural Resources Canada (NRCan) declined to release a map, claiming it was publicly available and therefore excluded from the coverage of the Act, as per section 68.

Investigation: The OIC learned that NRCan told the requester the map was available from the National Energy Board and did not respond to multiple queries for details about the map so the requester could get it from that institution. At no point in dealing with the requester did NRCan verify that the map was indeed publicly available through the National Energy Board. It was only when the National Energy Board contacted NRCan, as part of attempts to find the map, that NRCan realized only it had a copy of it.

Outcome: NRCan sent the requester a copy of the map.

Information Commissioner’s position

  • The institution’s response to the requester was a failure to meet the duty to assist, which resulted in unnecessary delays and obstructed the requester’s right of access.

Published: 2016–2017 annual report

 
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