2016-2017 3. Investigations

In June 2016, Treasury Board approved temporary funding for one year to reduce the OIC’s inventory of complaints. In November 2016, the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) confirmed this additional funding through Supplementary Estimates B.

The funding was used to increase the OIC’s investigative capacity. The main areas of focus were the implementation of a simplified investigative process for delay complaints, with supporting advisory notices, and the roll-out of interest-based negotiations for investigations.

The increased resources and efficiencies put in place greatly improved the results attained by the OIC. The Office was able to close the largest number of complaints during the Commissioner’s mandate – 2,245 complaints – a 75 percent increase over 2015–2016.

 

Comparison of complaints closed per month: 2011–2012 to 2016–2017

Text Version

The figure is a vertical bar chart showing the complaints closed per month from 2011–2012 to 2016–2017. The results are as follows:

	Apr	May	Jun	Jul	Aug	Sep	Oct	Nov	Dec	Jan	Feb	Mar
2011–2012	31	96	63	59	93	90	141	146	162	218	174	222
2012–2013	112	108	118	97	120	100	151	142	117	134	147	275
2013–2014	118	116	125	131	119	96	129	219	90	199	146	300
2014–2015	101	142	96	101	136	110	263	109	110	111	172	145
2015–2016	67	75	95	103	103	94	84	94	109	117	139	201
2016–2017	117	162	175	163	198	188	167	266	125	187	171	326

Comparison of administrative complaints closed per institution: 2015–2016 to 2016–2017

Institution	2015–2016	2016–2017
Canada Border Services Agency	56	85
Canada Revenue Agency	106	227
Correctional Service Canada	17	27
Department of Justice Canada	16	11
Global Affairs Canada	24	19
Health Canada	31	35
Immigration, Refugees and Citizenship Canada	59	53
National Defence	27	33
Privy Council Office	10	15
Public Services and Procurement Canada	6	11
Royal Canadian Mounted Police	66	88
Transport Canada	10	17
Treasury Board of Canada Secretariat	6	11
Others	171	168
Total	605	800

Comparison of refusal complaints closed per institution: 2015–2016 to 2016–2017

Institution	2015–2016	2016–2017
Canada Border Services Agency	11	102
Canada Revenue Agency	72	153
Correctional Service Canada	15	46
Department of Justice Canada	17	34
Global Affairs Canada	21	47
Health Canada	15	20
Immigration, Refugees and Citizenship Canada	57	147
National Defence	56	84
Privy Council Office	30	40
Public Services and Procurement Canada	10	48
Royal Canadian Mounted Police	73	144
Transport Canada	38	45
Treasury Board of Canada Secretariat	1	16
Others	260	519
Total	676	1,445

The median turnaround time for closing complaints, as measured from the date they are assigned to investigators to the date they are completed, was also significantly reduced. For administrative complaints, the turnaround time went from 48 days in 2015–2016 to 36 days, a decrease of 25 percent. For refusal complaints, there was a 58 percent decrease in the turnaround time, from 166 days in 2015–2016 to 70 days.

Appendix B contains detailed statistical information related to the complaints the Commissioner received and closed in 2016–2017.

Deletion of records

In May 2016, Shared Services Canada (SSC) received a request for all emails that were sent, received or deleted by one of its employees and that mentioned the Liberal Party, federally or provincially, since November 1, 2015.

In August 2016, the Commissioner was notified by the President of SSC that the employee named in the request may have obstructed the right of access (per section 67.1 of the Act) in responding to this request. The Commissioner initiated an investigation.

The investigation revealed that:

• On May 17, the employee was tasked to respond to the request and advised of their obligations under the Act, including that all of their emails needed to be provided, and none were to be deleted as of the date of the request;
• On May 26, the employee provided 12 pages of records to the ATIP office for processing;
• On June 13, the employee was informed the release package would be sent to the requester that day;
• On June 13-14, the SSC President’s Office initiated a backdoor security search, including a search of backup tapes, in relation to this request;
• On July 26, SSC retrieved deleted email records through its backdoor search;
• SSC determined 398 pages of deleted email records were responsive to the request, and provided these to the requester in September 2016.
• In its investigation, the OIC agreed the 398 pages of deleted email records were responsive to the request.
• SSC determined these email records were deleted between June 22 and July 11, after the response had been sent to the requester.

In May 2017, the Commissioner referred this matter to the Attorney General of Canada (per subsection 63(2)).

Ministers’ offices: a black hole for access

In 2015, Fisheries and Oceans Canada (DFO) received a request for emails over a specific period of fifteen individuals, nine of whom were exempt staff of the Minister of Fisheries and Oceans.

DFO did not ask the Minister’s office to retrieve responsive records. Instead, DFO asked the requester to exclude the exempt staff from the request. When DFO did not receive a response, it put the request on hold, claiming it was unable to proceed with the request as worded. The requester complained.

While ministers’ offices are not covered by the Act, some records located in ministers’ offices are subject to the Act. The Supreme Court of Canada developed a two-part test for determining whether records physically located in ministers’ offices are “under the control” of an institution and therefore accessible under the Act. (See box “The two-part control test”.)

DFO originally claimed that, because the exempt staffers were known not to be employees of DFO, the request couldn’t be processed as worded. This is exactly what the Supreme Court stated should not occur: “While physical control over a document will obviously play a leading role in any case, it is not determinative of the issue of control. Thus, if the record requested is located in a Minister’s office, this does not end the inquiry.  The Minister’s office does not become a “black hole” as contended.  Rather, this is the point at which the two-step inquiry commences” (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at para. 54).

During the investigation, DFO agreed to task the Minister’s office and approximately 1,100 pages of records were identified as responsive to the request. The requester received a response a year later.

No records = no accountability

In 2013, the Royal Canadian Mounted Police (RCMP) received a request for all communications of its decision to not proceed with a code of conduct investigation for perjury against one of the four officers who testified before the Braidwood Commission on the Death of Robert Dziekanski (commonly known as the Braidwood Inquiry).

While the RCMP disclosed some information regarding the decision-making process, there was no documentation of the RCMP’s decision to not proceed with a code of conduct investigation. The requester complained.

When asked why no documentation existed, the RCMP explained a superintendent did evaluate the testimony of all of the officers involved in the Braidwood Inquiry, but his findings were presented to RCMP senior management verbally. After his findings were presented, senior management decided to engage external legal counsel to conduct a formal review of whether to move forward with a code of conduct investigation.

The RCMP could not locate the formal review mandate letter that they had sent to external counsel. During the investigation, external counsel was asked for records in his possession. The lawyer produced the mandate letter and the RCMP disclosed it to the requester.

The external counsel’s resulting legal opinion was the only document the RCMP could reference that set out why a code of conduct investigation was not pursued. The RCMP refused to disclose the legal opinion to the requester on the basis that it was obtained in the course of a lawful investigation pertaining to the detection, prevention or suppression of crime. The OIC disagreed with this position. The RCMP eventually disclosed the entire legal opinion.

Regarding its decision to not pursue a code of conduct investigation, the RCMP could not point to a single document written by its own officials that set out its ultimate decision. This is a serious gap in the historical record of a tragic case that has a high level of public interest; a gap that raises accountability issues within the RCMP. This lack of documentation is especially problematic in light of the fact that the four officers at the centre of the inquiry were criminally charged with perjury by provincial authorities on the recommendation of a special provincial prosecutor.^{Footnote 5} Without documentation, it is difficult to ascertain what factors led the RCMP to come to such a different conclusion with respect to its code of conduct investigation.

SNC-Lavalin repays $15 million

In September 2013, a request was made to Public Services and Procurement Canada (PSPC) for all amounts reimbursed by SNC-Lavalin for overbilling of work performed in federal government buildings. SNC-Lavalin’s overbilling practices had received significant media attention by this time, but the precise amount it had agreed to repay under a settlement agreement was not publicly known.

PSPC disclosed some records, but withheld the total reimbursement amounts, claiming disclosure of this amount could interfere with the contractual or other negotiations of both PSPC and SNC-Lavalin (subsection 18(b) and paragraph 20(1)(d)). The requester complained.

PSPC claimed a confidentiality clause in the settlement agreement prohibited disclosure of the total amounts received. However, the Act takes precedence over contractual terms reached between the government and third parties.

Since PSPC could not demonstrate that the disclosure of the withheld information could reasonably be expected to interfere with contractual or other negotiations of either party, it disclosed the total amount SNC-Lavalin had repaid – nearly $15 million.

SNC-Lavalin’s conditions under government Integrity Regime

In early 2015, following charges of fraud laid against the company by the RCMP, SNC-Lavalin signed an administrative agreement under the federal government’s Integrity Regime that set out the conditions with which SNC-Lavalin must comply in order to be able to continue to contract with the government. Both PSPC and SNC-Lavalin made brief public announcements about the agreement.

In December 2015, PSPC received a request for a copy of the agreement. PSPC refused to disclose the majority of the agreement, claiming parts of it were protected as confidential third party commercial information and disclosing these parts could reasonably be expected to interfere with its contractual or other negotiations (subsection 18(b) and paragraph 20(1)(b)).

PSPC applied the exemption for third party commercial information far too broadly in this case. A few clauses and part of one schedule of the agreement did contain commercial information of SNC-Lavalin and met the test for confidentiality. However, the rest of the information in the agreement did not warrant protection under this exemption. Some of the terms had even been made public by SNC-Lavalin itself.

PSPC also claimed that disclosure of some of the information could interfere with the government’s ability to negotiate similar agreements. Other companies that are or could be subject to such agreements in the future could strategize whether operating under the agreement could still be profitable to them if they knew the extent of each clause of the Integrity Regime and PSPC’s flexibility. While the OIC accepted this position on a few clauses, PSPC eventually released the majority of the agreement.

Canada Post – Interpretation of section 18.1 of the Act

Canada Post Corporation (Canada Post) became subject to the Access to Information Act in 2007. At that time, an exemption was added to the Act to balance the need to protect Canada Post’s commercial interests against the public interest in the transparency of its operations (see box on section 18.1).

Since 2007, the OIC has received 315 complaints against Canada Post. Sixty-five complaints remain outstanding in relation to section 18.1. These investigations are challenging because there has been no judicial interpretation of section 18.1 or of the exception for “general administration”, and Canada Post operates in a complex, competitive environment.

The following are two examples of Canada Post’s application of section 18.1.

Why am I not getting my mail?

An individual received a notice from Canada Post advising them they would have to move their mailbox to the front of their car shelter or clear a path around it to their mailbox. When the individual contacted Canada Post for further details, they were informed it was unsafe for the mail carrier to travel under a car shelter to deliver mail. The individual complied with the notice and, once mail delivery resumed, filed an access request with Canada Post for any rules or directives related to mail delivery to residences with car shelters.

Canada Post had a mail delivery manual, but stated it could not be disclosed because it consisted of confidential commercial information protected by section 18.1.

The requester complained to the OIC. The OIC disagreed with the application of section 18.1 to the manual, a document that was available to all mail carriers and at sorting facilities. Canada Post released the section of the manual dealing specifically with car shelters and the complaint was settled.

Excerpt from Canada Post Manual:
If…	Then…
If an employee finds a car shelter in a private driveway that poses a danger	try to make the delivery; if the employee needs to pass through the shelter to deliver the mail, but the shelter’s door is closed, return the items to the delivery facility and give them to the supervisor; verbally inform the supervisor of the obstacle preventing delivery. [translation]

Why is mail carrier data confidential?

Canada Post received requests for data on the number of male and female mail carriers, and the number of rural and suburban mail carriers. Canada Post withheld the data table because, in their view, it consisted of confidential commercial information protected by section 18.1. The requester complained.

The OIC disagreed with Canada Post’s position. Canada Post provided no evidence this information was commercial, or that it was kept confidential. In fact, similar information was publicly available on Service Canada’s website.

As a result of the OIC’s intervention, Canada Post reviewed its position and disclosed the tables in their entirety.

Valuable records from Canada’s World War I history

The question of whether valuable historical records from Canada’s past should be protected under the solicitor-client privilege exemption (section 23) arose during an investigation with Library and Archives Canada (LAC) in 2016–2017. In November 2012, LAC received a request for records from 1918 relating to Norman Earl Lewis’s petition of habeas corpus against the Borden Government (see box “Who was Norman Earl Lewis?”).

After consulting with the Department of Justice Canada (JUS), LAC refused access to historical memoranda and telegrams between counsel and the Deputy Minister of Justice because they claimed the information consisted of legal advice. The requester complained.

The OIC disagreed that most of this information qualified for legal advice privilege. Even if some of the information had consisted of legal advice at one time, LAC could not establish continuing confidentiality of the records. Finally, for any information that did qualify for protection, LAC did not provide evidence that it considered the age of the records or their historical value when exercising discretion to refuse disclosure.

After the OIC formally requested evidence from LAC on the above issues, LAC released all of the records.

 

Are training manuals and guidelines legal advice?

This year, three similar investigations were resolved where requesters wanted access to training manuals and guidelines from administrative decision-making bodies. In all three investigations, significant additional information was released.

Two of these investigations involved the Canadian Human Rights Commission (CHRC), where similar requests were made for policies and guidelines directing human rights complaint investigations. In response to one request, the CHRC refused to release training materials given by CHRC lawyers because the materials contained, in their view, legal advice. In response to the other, a complaint investigation guideline and a litigation manual were withheld, again, because CHRC maintained these were protected as legal advice. Complaints were made about both of these responses.

Not everything drafted by a lawyer qualifies for legal advice privilege. While some of the information in the records was legal advice, the majority of the information was not. For those records that did qualify for legal advice privilege, the CHRC’s public education mandate weighs in favour of waiving privilege, as there is a clear benefit in helping the public understand how CHRC’s investigations are conducted. The CHRC agreed during the investigations to disclose the majority of these documents.

The Immigration and Refugee Board of Canada (IRB) also received a request for training material and guidelines, specifically those provided to members of the Refugee Appeal Division. It protected some of the requested information under the exemption for legal advice. The requester complained.

While many of the records were created by IRB’s legal services, it was questionable whether the records actually contained legal advice. While the IRB maintained that legal advice privilege applied, it waived the privilege in order to release some of the records. After reviewing the supplemental release, the requester discontinued the complaint.

Seeking consent results in disclosure

Under the Access to Information Act, an institution can release information if the individual or party to whom the information relates or belongs to consents to its disclosure. (See, for example, paragraph 19(2)(a) for personal information or subsection 20(5) for third party information.) However, investigations have uncovered that information is often withheld because institutions do not seek consent or seek consent unnecessarily. Complaints are resolved by simply directing institutions to seek consent to disclose the information from the appropriate parties.

Just ask

In July 2015, Privy Council Office (PCO) received a request for correspondence between Prime Minister Stephen Harper and the mayors of Montréal and Québec City during a set time period.

PCO found 12 pages of records, but refused to disclose them, claiming they were personal information (section 19). The requester complained.

PCO had not consulted with the mayors in question prior to its decision to withhold the requested records. During the investigation, PCO initiated consultations with the municipalities, who replied five months later with consent to disclose the information. As a result, the majority of the correspondence was disclosed on subjects such as Québec City’s request to have the Québec Bridge named a UNESCO heritage site and Montreal’s bid to host the secretariat of a new UN agency.

Just ask the right people

In September 2013, Indigenous and Northern Affairs Canada (INAC) received a request for a forensic audit of the Nisichawayasihk Cree Nation. INAC refused to release the report, claiming it was confidential third party information (paragraph 20(1)(b)). The requester complained.

The report had been prepared by a consulting group for INAC. During the processing of the request, INAC had consulted with this group as a third party regarding disclosure. However, the report did not belong to the consulting group. It belonged to INAC. Instead, the Nisichawayasihk Cree Nation who was the subject of the report should have been consulted.

When INAC consulted the Nisichawayasihk Cree Nation, they did not object to disclosure. INAC released the majority of the report, but applied section 19 to some information. The requester was satisfied with the disclosure.

Access delayed access denied

Timely access is a fundamental part of the right of access.^{Footnote 9} Receiving a response in a timely manner ensures information is still relevant and that government can be held to account for their decisions at appropriate times.

Access requests require a response within 30 days, unless a reasonable extension is taken for one of three reasons set out in the Act.^{Footnote 10} Failure to respond on time is deemed to be a refusal of access.

Despite the importance of timely access, some institutions take lengthy and unreasonable extensions, ask requesters to resubmit requests for trivial matters, or don’t respond at all.

St. Anne’s Residential School – A Veil of Secrecy

In March and September 2014, the Department of Justice Canada (JUS) received two requests for information about St. Anne’s Residential School and the Indian Residential School Settlement Agreement’s Independent Assessment Process (IAP), including media lines, backgrounders, monitoring and analysis. JUS took extensions of 601 and 815 days, claiming there was a large volume of records and it needed to conduct consultations (paragraphs 9(1)(a) and (b)). The requester complained.

The Ontario Superior Court had issued an order limiting access to IAP records (the Fontaine order). JUS claimed the main cause of delay in both requests was due to a lengthy review to determine which records may be subject to the court order. JUS’s position was that it was unable to process records that were subject to the court order without risking being in contempt. It was also waiting for a decision from the Ontario Court of Appeal on this order.

JUS did not process the records. During the investigation, JUS eventually agreed that at least some of the responsive records were clearly beyond the scope of the order. Approximately 73,000 pages – about half of the total volume of responsive records – were identified by JUS as not subject to the order.

The extensions taken by JUS were unreasonable. JUS’ decision to not process the records pending the outcome of the appeal unnecessarily delayed the processing of the requests.

The OIC negotiated quarterly interim releases: March 31 (which was met), June 16, September 29, and December 29, 2017, with final releases by February 14, 2018 and April 12, 2018. The Commissioner formally recommended to the Minister of Justice that these dates be respected.

In her reply, the Minister stated, “The Department is committed to processing these records as expeditiously as possible, and regrets that the complex circumstances related to these two requests have resulted in a delayed response to the requester… Please note that, since our last communication, an in-depth review by our Access to Information and Privacy analyst was conducted and an additional 6,799 pages were determined to be subject to the Fontaine order… The Department confirms that it will preserve the records and the rights of the requester in the event that the Supreme Court of Canada strikes down the Fontaine Order or otherwise clarifies the application of the ATIA to records within the scope of the Order.”

CSC negligent in unlocking access

In May 2012, Correctional Services Canada (CSC) received three requests related to the closure of the Kingston Penitentiary and two other facilities. Three years later, after making no progress on the requests, CSC asked the requester if they still wanted the information. The requester immediately confirmed their interest and complained.

Four months later, CSC still had not processed the requests, but contacted the requester again to suggest they should abandon the requests as so much time had passed, and submit new requests. The requester resubmitted the requests.

CSC then took extensions of 100 and 120 days for two of the resubmitted requests and did not provide any reply for the third.

CSC failed to process the requests for three years. CSC officials were negligent in their legislated duty to provide timely access and showed a flagrant disregard for the requester’s rights under the Act.

In addition, it took numerous attempts by the OIC to get CSC to commit to a date for disclosure. When CSC did finally provide a date, the OIC did not find it to be reasonable. CSC eventually disclosed the documents in April and May 2016, nearly four years after the requests. Much of the information was by this time publicly available or outdated.

Nearly 24 months for information on 24 Sussex

In August 2014, the National Capital Commission (NCC) was asked for information about the repairs, renovation work and maintenance at 24 Sussex Drive.

Two weeks after submitting the request, the requester removed the request for internal documents, instead focusing on just documents sent and received. Although the subject matter of the request remained the same, the NCC considered this minor change to be a “new” request and restarted the clock for responding. Just over a month later, it advised the requester it was taking a 90-day extension because the search for records would unreasonably interfere with its operations (paragraph 9(1)(a)).

In July 2015, roughly ten months after making their request, the requester still had not received a response. The requester complained.

NCC’s decision to consider the revised request as a new request was inappropriate. Furthermore, despite having the records in their possession for ten months, the NCC had not consulted with the RCMP in that time.

The request was finally responded to in May 2016, nearly two years after the initial request.

Open government?

Format matters

In November 2015, Indigenous and Northern Affairs Canada (INAC) received a request for data found in a specialized database about First Nations water and wastewater systems. The requester wanted the information in Excel spreadsheet format. INAC released a photocopy of a PDF, with parts of the photocopy cut off. The data was not provided in the format requested and was impossible to read. The requester complained.

INAC was concerned that releasing the data in the format requested would require it to alter the original record in order to protect exempted information in violation of section 67.1 of the Act (this section prohibits altering a record with intent to deny access). Once INAC was assured it would not be obstructing the right of access if it provided the data to the requester in the format requested with some information exempted, the OIC thought the complaint could be resolved.

However, INAC then stated that converting the requested data from the specialized database to an Excel file would be unreasonable pursuant to the Act’s regulations and INAC’s access to information processing software would not allow it to export to an Excel spreadsheet.

Once the government’s own commitment to release data in open formats was re-emphasized to senior officials at INAC, it agreed to release the data in the format requested and the requester received an Excel spreadsheet six months after the request was made.

Sent on a goose chase for a map

In September 2012, a member of the public informally asked Natural Resources Canada (NRCan) for a map. NRCan explained the map was publicly available through the National Energy Board (NEB). The requester made multiple attempts to get more information from NRCan about the map (e.g., the full file name, the date it was created, the form in which it existed, etc.) so that they could get it at the NEB, with no response. They also followed up with the NEB, who was unable to find the map.

The requester made a formal access to information request to NRCan for the map. NRCan responded that since the map was publicly available, it was excluded from the Act (per section 68). The requester complained.

NRCan was the only institution that had the map. However, it only realized this when the NEB contacted it for more information. NRCan did send the requester a copy of the map when it realized NEB never had the map in its possession. By this time, the requester had been trying to get a copy of the map for a year.

At no point in dealing with the requester did NRCan verify the map was indeed publicly available at the NEB, causing the requester to call the referral to the NEB a “goose chase”. NRCan’s response to the requester was a failure of the duty to assist, which resulted in unnecessary delays and obstructed the requester’s right of access.