2010-2011 Investigations
Table of contents
- Ministerial staff have no authority to make decisions under the Act
- Institutions must disclose information that can be reasonably severed
- Institution receiving request responsible for responding on time
- Operational procedures based on advice cannot be protected as advice
- Information withheld to protect “economic interests” must be within scope
- Institutions must substantiate claims that disclosure will harm national security
- Section 24: Information must qualify to be withheld under referenced law
- Giving requesters option to have records processed does not meet duty to assist
- Institutions, not requesters, must make efforts to locate records
- Institutions should not automatically withhold irrelevant information
- Commissioner may self-initiate complaint in cases of extreme delay
- Institutions must be vigilant in ensuring responses to requests are on time
- Role of Act is not to overrule disclosure allowed by other laws or policies
- Section 68: Institutions must show excluded records can be obtained another way
- Institutions, not requesters, must consider public interest in disclosure
- Clarifying requests can lead to satisfactory responses
- Confirm whether information is already available before applying exemptions
- When an alternative means of access is available, institutions should suggest it
- Maximizing public accountability must figure in decisions about discretion
- Handwriting alone is not a reason to consider information to be personal
- Signatures provided in public service capacity not personal information
- Exemptions require clear rationales
- Narrow interpretation of requests can limit right of access
Ministerial staff have no authority to make decisions under the Act
Complaint: Public Works and Government Services Canada (PWGSC) may have interfered with the processing of a journalist’s request for information.
Investigation: The OIC learned that access officials had decided to disclose an entire report but retrieved it from the mailroom following instructions from a member of the Minister’s staff to “unrelease” it and only disclose one section.
Outcome: The journalist received the entire report several months later, after making two more requests. The Information Commissioner issued a special report to Parliament on the matter.
Information Commissioner’s position
- Ministerial staff members have no authority to make any decision under the Access to Information Act or give any direction to institutional officials.
- There are serious consequences for the rights of requesters when political staff members overstep their mandate and compromise a process that was designed to be objective and non-partisan.
- Public officials must exercise their duty to say “no” to requests from those who have no legal authority to make them.
Published: 2010–2011 annual report
Related: Interference with access to information: Part 1
Institutions must disclose information that can be reasonably severed
Complaint: Citing section 19, Fisheries and Oceans Canada withheld all requested information about Bay of Fundy scallop licences that had been reinstated.
Investigation: The OIC learned that the requester was not seeking personal information, but rather the reasoning and the criteria for reinstating the licences. In particular, he sought four letters from former ministers of Fisheries to specific individuals whose licences had been reinstated when his was not.
Outcome: The institution released some information in the course of the investigation. It then disclosed the four letters, with the exception of some personal information, such as home addresses, in response to a recommendation from the Information Commissioner.
Information Commissioner’s position
- Under section 25, institutions must disclose portions of exempted records that may be reasonably severed. Not doing so is contrary to the duty to assist.
- In this case, by erring on the side of caution and exempting the records in their entirely, Fisheries and Oceans Canada denied the requester information to which he was entitled.
Published: 2010–2011 annual report
Institution receiving request responsible for responding on time
Complaint: Indian and Northern Affairs Canada (INAC) responded late to a number of requests from the same requester for records relating to the Food Mail Program.
Investigation: It became apparent that the delays arose from Canada Post’s failure to respond to INAC's consultation requests on time. In addition, while INAC had taken time extensions to accommodate the consultations, it only began some of the consultations after the extension had expired.
Outcome: INAC responded to the requester on commitment dates recommended by the Information Commissioner.
Information Commissioner’s position
- Institutions that receive requests are responsible for responding to them by the deadline. Not doing so is contrary to the duty to assist.
- While institutions should communicate with institutions they need to consult about a reasonable deadline and follow up as that date approaches, they should also make it clear that, in the absence of a timely response, they will decide whether to disclose the records.
- When extending the response time for requests to allow for consultations, institutions should always proceed with those consultations as soon as possible.
Published: 2010–2011 annual report
Related: 2008–2009 report cards
Operational procedures based on advice cannot be protected as advice
Complaint: In response to the same request, the Royal Canadian Mounted Police (RCMP) and the Department of Justice Canada, after consulting each other, released only parts of a joint protocol, withholding the rest under two exemptions.
Investigation: The institutions could not show that the protocol constituted either advice or recommendations that could be exempted under paragraph 21(1)(a)) or that it was protected by solicitor-client privilege (section 23).
Outcome: The Information Commissioner applied to the Federal Court to have the matter reviewed after both institutions refused, in response to her recommendation, to disclose the text of the protocol.
Information Commissioner’s position
- To claim paragraph 21(1)(a) and section 23, institutions must show that these exemptions apply to the records themselves, not to the information or discussions on which they were based.
- In this case, the protocol was not advice. Rather it was an agreement resulting from a policy decision based on advice or recommendations, including legal advice, previously provided.
Published: 2010–2011 annual report
Related: Federal Court application; Federal Court and Federal Court of Appeal decisions
Information withheld to protect “economic interests” must be within scope
Complaint: Canada Post withheld under several exemptions large portions of records about its access to information coordinator.
Investigation: The OIC agreed that the institution correctly withheld the coordinator’s identification number and home address as personal information (section 19). However, Canada Post could not show that the coordinator’s salary range and benefits fell within the scope of either paragraph 18(b) or paragraph 18.1(1)(a).
Outcome: The Information Commissioner applied to the Federal Court to have matter reviewed after Canada Post refused to release the withheld information in response to her recommendation.
Information Commissioner’s position
- Canada Post should have disclosed the coordinator’s salary range and benefits, because they fell under an exception to the definition of personal information in the Privacy Act.
- To meet the requirements of paragraph 18(b), institutions must make a direct link between disclosing information and the harm that doing so would cause to their competitive position or contractual negotiations. Canada Post did not do so in this case.
- The information Canada Post withheld under paragraph 18.1(1)(a) was not related to Canada Post’s business systems, operations, trade and commerce. Rather, it fit within the scope of “general administration” and should have been released under paragraph 18.1(2)(a).
Published: 2010–2011 annual report
Institutions must substantiate claims that disclosure will harm national security
Complaint: National Defence refused under section 19 and subsection 15(1) to release photographs of the hairstyles of each Afghan detainee the Canadian Forces had processed in 2007.
Investigation: In the institution’s view, releasing the photographs, even with facial and bodily features cropped out, would identify the detainees and endanger Canada’s military presence in Afghanistan, as well as Canada’s security and that of its allies.
Outcome: The Information Commissioner applied to the Federal Court to have matter reviewed after National Defence refused to release the photographs in response to her recommendation.
Information Commissioner’s position
- Section 19 applies only when disclosure of information could lead to an individual being identified. In this case, National Defence could not demonstrate that this would happen nor that disclosing the detainees’ hairlines would result their being identifiable should further requests be made for images of various parts of their faces.
- Institutions need to properly substantiate claims that disclosure will harm national security. National Defence was unable to do this in this case, since the detainees could not be identified.
Published: 2010–2011 annual report
Related: Federal Court application (under “National defence”); Federal Court decision (under “Personal information”)
Section 24: Information must qualify to be withheld under referenced law
Complaint: The Canada Revenue Agency (CRA) withheld a list of tax discounters under section 24.
Investigation: The OIC learned that companies on the list prepare income tax returns, acquire any refunds and pay them out immediately to clients. The requester simply wanted a list of firms in this line of work and their business addresses.
Outcome: CRA released the records and agreed to do so in response to similar requests in the future.
Information Commissioner’s position
- Section 24 refers to other laws that prohibit or restrict the disclosure of information. Among these are section 241 of the Income Tax Act, which protects the confidentiality of taxpayer information.
- In this case, the information did not relate to taxpayers but rather to businesses dealing with them. Releasing the list would not reveal any information the provision was designed to protect.
- In another case, CRA similarly applied section 241 broadly, withholding its entire file on a taxpayer’s business. CRA argued that, since the company had been dissolved, no one had the right to its income tax information. However, an exception in paragraph 241(4)(b) allows information to be released that is necessary to determine any amount a taxpayer may owe CRA or vice-versa. CRA retrieved and released 700 pages, with some exemptions applied.
Published: 2010–2011 annual report
Giving requesters option to have records processed does not meet duty to assist
Complaint: The Privy Council Office (PCO) did not process requested records it expected would later be certified as containing Cabinet confidences under section 69.
Investigation: The OIC learned that PCO had included, as part of a pilot project, a statement in its acknowledgement letter to requesters that it had taken this approach in order to expedite requests. PCO said it worded the statement such that requesters could disagree and ask that the records be processed.
Outcome: PCO removed the wording from its acknowledgement letter.
Information Commissioner’s position
- When considering ways to accelerate the processing of requests, institutions should remember that they cannot disregard their obligations under the Act. Proper processing requires institutions to identify and review the requested records.
- While timely access to records is an important component of meeting the duty to assist, it is not the only one. Institutions must also respond accurately and completely, and make every reasonable effort to assist requesters.
Published: 2010–2011 annual report
Institutions, not requesters, must make efforts to locate records
Complaint: The Privy Council Office (PCO) exempted some information under section 19 in records of travel-related expenses of Prime Minister’s Office (PMO) and PCO staff. The requester said that records related to exempt PMO staff should also exist.
Investigation: The OIC learned that PCO’s finance group could not find records related to these individuals, since it did not have their names; however, their names were listed on the PCO website.
Outcome: The OIC provided the names to PCO, which conducted a new search, and found and released additional information.
Information Commissioner’s position
- When institutions receive access requests, they must make efforts to determine whether there are responsive records and where they are located.
- Given that the requester was able to find the names of the exempt staff on PCO’s website, PCO employees should also have been able to find them, and should have offered to do so.
Published: 2010–2011 annual report
Institutions should not automatically withhold irrelevant information
Complaint: The Privy Council Office (PCO) told a requester that the records it had retrieved in response to a request were, in fact, not relevant and that no records would be disclosed.
Investigation: The OIC learned that the records were handwritten notes. However, it did not agree with PCO that these were not relevant because they were not “transcripts” or “minutes,” which is what the requester had asked for.
Outcome: PCO agreed to process the records.
Information Commissioner’s position
- By narrowly interpreting the wording of the request, PCO failed in its duty to assist. PCO should have told the requester about the notes and asked him whether he wanted them to be processed.
- In another instance, PCO removed portions of records relating to training of members of the Canadian Broadcasting Corporation’s board of directors. Institutions should not withhold information that is considered not relevant to a request when found in the same record as relevant information. PCO reviewed the records again and released additional information.
Published: 2010–2011 annual report
Commissioner may self-initiate complaint in cases of extreme delay
Complaint: The Canada Revenue Agency (CRA) missed the date it had negotiated with the OIC as part of a complaint investigation to respond to a request for records related to a company’s income tax audit.
Investigation: The Information Commissioner initiated a new complaint when CRA asked for more time to process the records, considering it a full refusal of access on the institution’s part. The OIC soon discovered that the number of pages involved had almost doubled to roughly 10,000. To expedite the process, the investigator reviewed the records and analyzed the exemptions and exclusions at the same time as CRA staff.
Outcome: CRA did a partial release three months later and provided its final response to the requester the subsequent month.
Information Commissioner’s position
- The decision to investigate this matter as a full refusal complaint, given CRA’s failure to meet its commitment date, cannot be replicated in every case. However, it is one option available to the Information Commissioner in cases of extraordinary delay.
- In this case, investigating a second complaint ensured that CRA finished processing the request as a priority, since the response was already long overdue.
Published: 2010–2011 annual report
Institutions must be vigilant in ensuring responses to requests are on time
Complaint: The Canadian International Development Agency (CIDA) delayed in responding to a request for records of electronic communications between the Prime Minister’s Chief of Staff and CIDA officials.
Investigation: The OIC learned that the delay resulted from a lack of attention on the part of both CIDA and officials in the Privy Council Office (PCO), who had been consulted about the records. For example, CIDA took 22 months to determine which records were relevant to the request. In turn, PCO gave no attention to the consultation request for 14 months. No one from CIDA followed up, despite its policy to do so when consultations are late.
Outcome: A new CIDA analyst contacted PCO to enquire about the status of the consultation. As a result, PCO began to work on the file and responded to CIDA two months later.
Information Commissioner’s position
- The institution that receives an access request is ultimately responsible for responding to it on time, even when it needs to consult with another institution. CIDA failed to do so in this case.
- Best practices for consultations include negotiating with or requesting a deadline from the institution being consulted; monitoring the response time and following up when necessary; and making a decision about disclosure when the consultation response will be late.
Published: 2010–2011 annual report
Role of Act is not to overrule disclosure allowed by other laws or policies
Complaint: The Canada-Nova Scotia Offshore Petroleum Board excluded from its response to a request information provided by a company, stating that it was publicly available (as per paragraph 68(a)). The complainant, whose firm it was, was of the view the information should be protected under section 20.
Investigation: The OIC learned that parties seeking licences related to petroleum exploration provide the Board with technical information, with the understanding that the Board may make it public. The OIC did not accept the complainant’s argument that the Board should not release the information as a matter of course but should, instead, consider it proprietary third-party information to be released only after consideration under section 20.
Outcome: It is not within the Information Commissioner’s mandate to determine whether the Board appropriately made the information public under its enabling legislation and policies. However, the OIC determined that the Board had properly identified the requested records as publicly available and had discharged its duty to assist in an exemplary manner.
Information Commissioner’s position
- The complainant’s arguments were tantamount to asserting that the Access to Information Act is intended to limit access to information that is normally available to the public.
- Such arguments are contrary to the purpose of the Act and to subsection 2(2), which clarifies that the Information Commissioner’s function is not to police other bodies that may legally provide access to information under their governing legislation.
Published: 2010–2011 annual report
Section 68: Institutions must show excluded records can be obtained another way
Complaint: The Canadian Human Rights Commission (CHRC) excluded under section 68 newspaper articles from a response to a request as published information or material available for purchase.
Investigation: The OIC learned that the articles were protected by the Copyright Act and had been published by the respective copyright holders. The CHRC has obtained most of the articles through a subscription service agreement that restricts disclosure. In an effort to assist the requester, the CHRC sought the permission of the newspapers to disclose the articles.
Outcome: The CHRC released the articles published by the one company that responded to its request. Since all the other articles remained excluded, the CHRC provided the requester with a list containing the title, date published, newspaper and author of each article.
Information Commissioner’s position
- When institutions exclude information under section 68 as being publicly available, they must show that the records can be obtained by other means, without the need for an access request.
Published: 2010–2011 annual report
Institutions, not requesters, must consider public interest in disclosure
Complaint: Citizenship and Immigration Canada (CIC) refused to use its discretion to release in the public interest any record that listed a particular individual’s Canadian citizenship status.
Investigation: The OIC learned that CIC had informed the requester that he had not shown that the public interest in disclosing the personal information outweighed any resulting invasion of privacy. CIC also refused to act without the approval of the deputy minister, who had the delegated authority to decide to release information in the public interest.
Outcome: The OIC agreed that the deputy minister, upon reviewing the matter in response to the OIC’s intervention, correctly considered the relevant factors and weighed the competing interests when declining to make a public interest disclosure.
Information Commissioner’s position
- As established in Dagg v. Canada (Minister of Finance) 1997 2 S.C.R. 403, para.16, the onus is on institutions not requesters to consider the public interest.
- The Commissioner’s role is not to exercise discretion on behalf of institutions, but to enquire into the reasonableness of institutions’ decisions, taking into account all relevant factors. In this case, CIC applied the invasion-of-privacy test and demonstrated that it had properly exercised its discretion.
Published: 2010–2011 annual report
Related: Dagg v. Canada (Minister of Finance) 1997 2 S.C.R. 403, para.16
Clarifying requests can lead to satisfactory responses
Complaint: The Canadian Broadcasting Corporation (CBC) withheld various contracts awarded to CBC annuitants as personal information under section 19.
Investigation: The OIC learned that the complainant wanted to know how many annuitants had returned to the CBC on short-term employment or consulting contracts. Since the CBC does not register the number of contracts, it instead proposed releasing the number of individuals with contracts, the number with more than one short-term contract within each year and the number with only one short-term employment contract within each year.
Outcome: The CBC created a record containing the information and released it in its entirety.
Information Commissioner’s position
- By asking requesters exactly what they are looking for, institutions can respond satisfactorily. In this case, the requester did not want the actual contracts but rather information about them.
- When it is reasonable to create a record to give requesters the information they seek, institutions should do so.
Published: 2010–2011 annual report
Confirm whether information is already available before applying exemptions
Complaint: The Bank of Canada applied various exemptions to notes that discussed the results of any economic model of the Canadian dollar.
Investigation: The investigation revealed that the information was already available on the Bank’s website. The investigator directed the complainant to find it there.
Outcome: The requester confirmed that he found the information on the website.
Information Commissioner’s position
- Before refusing to release information or applying exemptions, institutions must confirm whether information is already available—in this case, on the institution’s website. Doing so may mean requesters get the information they seek more quickly than otherwise.
Published: 2010–2011 annual report
When an alternative means of access is available, institutions should suggest it
Complaint: The Canadian Security Intelligence Service (CSIS) refused to confirm or deny the existence of any files concerning the requester under subsection 10(2), noting that if they did exist, they would be withheld under several exemptions.
Investigation: The OIC learned that CSIS had contacted the requester and suggested he make a request under the Privacy Act for the information. In response, CSIS would list the searched personal information banks and in most cases confirm whether it had the information.
Outcome: The OIC reiterated the institution’s offer to the requester, and the requester agreed that it might resolve the matter. CSIS issued another response as though the requester had made the request under the Privacy Act.
Information Commissioner’s position
- Requesters might not always understand the difference between making a request under the Access to Information Act and making one under the Privacy Act.
- In these circumstances, institutions can often provide requesters with the information they seek—and meet their duty to assist—by suggesting that their request be processed under the other Act, as was true in this case.
Published: 2010–2011 annual report
Maximizing public accountability must figure in decisions about discretion
Complaint: The Department of Justice Canada withheld under section 23 the total number of hours its lawyers had spent preparing and litigating a court case on behalf of the Canada Revenue Agency.
Investigation: The records included the amount of time spent and the tasks performed by each lawyer, and their names. At the OIC’s urging, the institution agreed to release various document headings but still refused to release the total number of hours.
Outcome: Following a formal request from the OIC for written reasons why it was continuing to withhold the information, the institution disclosed the total hours.
Information Commissioner’s position
- When applying the solicitor-client privilege exemption, institutions should keep in mind that when the client is a government institution the fees are paid out of public funds.
- In these circumstances, institutions must not claim exemptions too broadly and must properly exercise their discretion to release the information in order to maximize public accountability.
Published: 2010–2011 annual report
Handwriting alone is not a reason to consider information to be personal
Complaint: The Department of Justice Canada withheld information under section 19 when responding to a request for all records related to surveys responses of beneficiaries of a fund for victims of crime.
Investigation: The OIC learned that most of the information withheld as personal was exempted because it was handwritten.
Outcome: In response to a request from the OIC, the institution severed the records and only withhold information such as names of individuals, dates, details of crimes and family particulars that could lead to the individuals who had completed the survey being identified.
Information Commissioner’s position
- For records to qualify as personal information, they have to be linked to an identifiable individual. In this case, the handwriting in itself could not reveal the individuals’ identity.
- Section 25 states that institutions must sever records to facilitate the release of as much information as possible. Access personnel should keep this obligation in mind when reviewing records.
Published: 2010–2011 annual report
Signatures provided in public service capacity not personal information
Complaint: The Privy Council Office (PCO) withheld as personal information the signatures of employees on all call-ups it had processed in the National Capital Region over one month for temporary help.
Investigation: The OIC found that the individuals had signed the call-ups in order to approve them in their professional capacity.
Outcome: PCO disclosed the signatures.
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: 2010–2011 annual report
Exemptions require clear rationales
Complaint: Industry Canada withheld 230 pages in part and about 50 in their entirety from a study on the impact of downloads and file sharing on music purchases, citing several exemptions.
Investigation: The OIC reviewed all the exemptions claimed and agreed in many instances that the institution had applied them properly. However, most of the information withheld was not confidential third-party information (paragraphs 20(1)(b) and (c)) or advice and recommendations (paragraph 21(1)(a)).
Outcome: Industry Canada made two additional releases to the requester, withholding only portions of seven pages.
Information Commissioner’s position
- When claiming exemptions, institutions must clearly show how and why the information they wish to withhold qualifies for those exemptions.
Published: 2010–2011 annual report
Narrow interpretation of requests can limit right of access
Complaint: The Canadian Broadcasting Corporation (CBC) withheld portions of records relating to the reimbursement of a senior official for fees for tuition, books and other materials.
Investigation: The OIC learned that the CBC had not retrieved or processed any records specifically related to the reimbursement of the tuition fees because no such records existed; the CBC had paid the fees directly to the university.
Outcome: The complainant obtained the information after making a new request.
Information Commissioner’s position
- When the requester asked for information relating to the reimbursement of tuition fees, it should have been obvious that he wanted to know how much the CBC spent for the course. He could not have known that the CBC had paid the university directly.
- By interpreting the request so narrowly, CBC failed to consider and respect section 2, which sets out that the Act is intended to extend the right of access based on the principle that government information should be available to the public.
Published: 2010–2011 annual report