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2009-2010 Investigations

Table of contents

Broadly applying section 15 should not be default response to national security requests

Complaint: National Defence refused to disclose a list of personal grooming items found in the possession of Afghan detainees, claiming that doing so would threaten national security (section 15). The institution also withheld information under section 19 and, later, section 17 to protect the safety of military personnel.

Investigation: The OIC agreed with National Defence’s decision to withhold the detainees’ names and assigned numbers as personal information, and also to withhold that information and the names of the Canadian Forces members identified on the list to protect their safety and that of their families. Throughout the investigation, National Defence stood firm in its position not to release the list of grooming items.

Outcome: In response to a formal recommendation from the Commissioner, National Defence released not only the list but also information relating to military personnel, since disclosure would no longer constitute a threat to them.

Information Commissioner’s position

  • Institutions should not apply section 15 broadly as their default response to requests that touch on national security issues (or even those only tangentially related).
  • Institutions have a responsibility to exercise their discretion carefully, and to sever and release information that cannot be legitimately withheld under the Act.

Published: 2009–2010 annual report

Time extension of little value when no work is done to respond to request

Complaint: Industry Canada was late in claiming a 150-day time extension to respond to a request for records related to a study on the impact of downloads and file sharing on music purchases.

Investigation: The OIC discovered that Industry Canada access officials had done very little to process the request. For example, they had not, by the time the investigation began, even started the required consultations. With the requester’s permission, the institution had also put the request on hold twice for short periods to accommodate holidays, despite the Act’s not recognizing this as a valid reason to put requests on hold.

Outcome: Industry Canada met the final response deadline the Information Commissioner formally recommended.

Information Commissioner’s position

  • Although the Access to Information Act allows institutions to claim time extensions under specific circumstances, they are of little value when the institution does not do the work required to respond to the request.
  • In addition, extensions must be claimed during the first 30 days after receiving the request.

Published: 2009–2010 annual report

Training essential on email use, and records retention and disposal policies

Complaint: Staff at the National Gallery of Canada may have destroyed records and/or counselled others to destroy records that may have been responsive to a request (an offence under section 67.1).

Investigation: The OIC found that responsive records had been destroyed, since employees had the ability (since disabled) to permanently delete emails. In addition, the OIC found that individuals had been counselled to destroy records while processing the request.

Outcome: The Commissioner referred this matter to the Attorney General of Canada as a breach of the Act. The National Gallery amended its policies and procedures on computer and email use, and made them available on its intranet. It also directed managers to familiarize themselves with the policies and to educate employees on them. These policies were also included in new employee orientation training.

Information Commissioner’s position

  • Institutions are responsible for fully training employees on their access to information and information management policies and practices so they know and understand their legal obligations. The training must be offered consistently to existing employees and feature prominently in new employee orientation. Corporate direction and monitoring are required.
  • In this case, the majority of non-information technology staff had not received computer use and email training, contributing to their being unaware of both the proper use of email, retention and disposal policies, and their obligations under the Act.

Published: 2009–2010 annual report

Evidence essential to demonstrating that harm will occur under section 20

Complaint: Public Works and Government Services Canada (PWGSC) refused to release the names and addresses of corporations that had received but not cashed cheques PWGSC had issued over eight years, claiming that this was third-party information that should be protected under section 20.

Investigation: PWGSC maintained that releasing the names and addresses, in combination with the information already disclosed to the requester (such as the amount of the cheques), would facilitate the commission of fraud against the Crown. PWGSC provide real examples of fraud cases but did not show how fraudsters could bypass financial institutions’ security measures. The OIC also learned that at least one provincial government was already releasing the same type of information, including the names of payees and the amounts of the cheques.

Outcome: In response to the Commissioner’s formal recommendation, PWGSC released the names and addresses.

Information Commissioner’s position

  • To exempt information under section 20, institutions must demonstrate how disclosing it would result in probable harm to a particular interest—in this case, fraud.
  • When institutions cannot demonstrate that this specific harm is likely to occur, they must disclose the information.

Published: 2009–2010 annual report

Privilege belongs to the client not the lawyer

Complaint: Library and Archives Canada (LAC) refused to disclose certain records in a file about an individual and the 1917 Halifax Explosion, stating that they were still subject to solicitor-client privilege, as per section 23.

Investigation: The OIC learned during the investigation that LAC withheld the records based on a recommendation from the Department of Justice Canada. The OIC asked LAC to consider disclosing the records in the public interest. In consulting the Department of Justice again, LAC learned that the records were actually under the control of either Transport Canada or Fisheries and Oceans Canada, effectively making one of them the actual client and, as such, responsible for exercising the required discretion to release the records.

Outcome: Transport Canada determined the records held no litigation value and waived the solicitor-client privilege. LAC subsequently released all the records to the requester.

Information Commissioner’s position

  • Even though information may fall under the solicitor-client privilege, an institution still has the discretion to disclose that information.
  • Since the privilege belongs to the client and not the lawyer, an institution can decide to waive the privilege, as in this case, particularly when there are no consequences expected from disclosure.

Published: 2009–2010 annual report

When necessary, institutions must create a record from various sources

Complaint: Foreign Affairs and International Trade Canada (DFAIT) said that the only way it could release a list of the occupants of the Government of Canada Official Guest House over two years would be to create a record from various information sources, but that there was no system that could do so.

Investigation: The OIC pointed out that if various sources contained information that was responsive to the request, and if those sources could produce machine-readable records, then under subsection 4(3), DFAIT was legally obliged to produce the information.

Outcome: DFAIT collected the required records and disclosed the information the requester sought.

Information Commissioner’s position

  • Information pertaining to a request may not necessarily exist in a single record, yet may still be accessible via other sources under the control of the institution.
  • Institutions are obliged—indeed, it is part of their legislated duty to assist—to take the necessary steps to provide access to that information.

Published: 2009–2010 annual report

Databases must be truly accessible and the information retrievable

Complaint: Citing paragraph 68(a), Industry Canada told a requester that it did not have to release an electronic copy of the most recent version of an online database, since its contents were available to anyone with Internet access.

Investigation: The OIC learned that the database’s search function limited the requester’s ability to obtain information in a useful format. During the investigation, the institution offered to train the requester on using the database but never followed up on this offer. Industry Canada also modernized the database, but the information the requester sought was still difficult to retrieve.

Outcome: After a meeting with the requester and the Office of the Commissioner of Lobbying of Canada, which had become the custodian of the database, Industry Canada agreed to extract the specific raw data the requester sought and provided it at significant cost.

Information Commissioner’s position

  • When institutions make databases available to the public, the data must be truly accessible and the information the databases contain retrievable, based on the public’s needs.
  • Institutions should not impose a method or format for accessing the data that may not be conducive to either regular or more computer-savvy users.
  • Open government principles include proactive disclosure and the practice of providing data to the public in reusable form based on open standards and formats.

Published: 2009–2010 annual report

Section 16: Withholding information requires evidence of probable harm

Complaint: The CBC exempted all records containing certain internal accounting codes and certain credit card numbers, claiming the exemption that protects any information that might facilitate the commission of an offence (subsection 16(2)).

Investigation: The OIC learned CBC access officials had begun automatically exempting such records in an attempt to keep up with a flood of requests it had received upon becoming subject to the Act. However, when pressed during the investigation to prove that the exemption actually applied to the information, access officials conceded that, in order to commit an offence using the internal codes, a breakdown of CBC accounting controls would have to happen at several levels.

Outcome: The CBC released the accounting codes. The OIC agreed, though, that releasing the credit card numbers could facilitate the commission of an offence. As such, this information remained protected.

Information Commissioner’s position

  • When deciding to withhold information under section 16, institutions must assess and then demonstrate how its disclosure would result in probable harm to the particular interest it has identified—financial harm, in this case.
  • When institutions cannot demonstrate the harm, they must disclose the information.

Published: 2009–2010 annual report

Commissioner will exercise full powers in cases of extreme delay

Complaint: The CBC failed, in 32 instances, to meet a deadline previously negotiated with the OIC to respond to more than 260 outstanding requests.

Investigation: To investigate the 32 complaints the Commissioner initiated, the OIC asked the CBC for the processing file for each request. The OIC also informed the CBC that the Commissioner would exercise her formal powers to compel it to produce the responsive records, if required. In response, the CBC forwarded the processing files but not the responsive records.

Outcome: The CBC responded to all of the outstanding requests before it became necessary to issue the order for production of records. These and other requests also became the subject of court proceedings by the complainant.

Information Commissioner’s position

  • The Commissioner will use her formal powers—including compelling institutions to produce records—to ensure requesters’ rights are respected.
  • In this case, doing so expedited the eventual response to more than 30 requests.

Published: 2009–2010 annual report
Related: Statham v. Canadian Broadcasting Corporation

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