2017-2018 Court Proceedings

The Information Commissioner was involved in 23 legal proceedings in 2017–2018, eight of which resulted in decisions. Summarized below are cases of significance from the year.

Transferring Requests and the Duty to Assist

In ongoing litigation currently before the Federal Court of Appeal,^{Footnote 1} the Commissioner is arguing that an institution does not need to have control over a record to have a duty to assist a requester in response to the request or to have an obligation to transfer a request to an institution that does have control of the record. This litigation is the first ever to interpret section 8, transfer of request, of the Access to Information Act.

Indian Residential School Settlement Agreement Records

The Supreme Court of Canada (SCC) determined that records created for the purposes of independently adjudicating claims related to the Indian Residential School Settlement Agreement must be destroyed after a 15-year retention period.^{Footnote 2}

Arguments had been made before the SCC that these records should be preserved and accessible in accordance with federal legislation such as the Access to Information Act, Privacy Act, and Library and Archives Canada Act.

The SCC was satisfied that the survivors of residential schools and other contracting parties entered into the Settlement Agreement with the intent that information would be treated as highly confidential and that any archiving of the related documents required survivor consent. Therefore, these records can be destroyed.

Late Application of Exemptions Must be Justified

The Federal Court of Appeal (FCA) has determined that the late application of exemptions to prevent the disclosure of information in response to an access request requires justification by an institution.^{Footnote 3} The FCA, however, declined to make a general ruling regarding whether exemptions that mandatorily require information to be withheld can be applied well after a response has been given to a requester and a complaint has been made to the Information Commissioner.

This decision was a result of a request made to an institution where a mandatory exemption was applied to the records at issue after the Information Commissioner’s investigation had concluded and court proceedings had commenced.

The FCA rejected the Federal Court’s conclusion that the institution could not rely on the late-raised mandatory exemption to prevent disclosure. The FCA ordered that the matter be referred back to the Federal Court to receive evidence as to why the exemption was asserted late, and to re-determine the matter. The matter has subsequently been discontinued. 

Test for the Information Commissioner to be an Added Party

The FCA has confirmed the test to add the Information Commissioner as a party during Court review of an access refusal under the Access to Information Act.^{Footnote 4} The test is: whether the Information Commissioner would be of assistance to the Court, with the criterion of assistance to be determined on a case-by-case basis. 

The FCA rejected the argument that the test for adding the Information Commissioner as a party was whether the Commissioner is necessary to the litigation.^{Footnote 5}

Personal Identifying Information on Social Media can be Considered Publicly Available

The FCA has confirmed, in two similar cases, that personal identifying information that has been posted to social media, such as the details that can be found on a business card, can be considered publicly available. This information should therefore be disclosed to requesters under the exception to the exemption for personal information (paragraph 19(2)(b)).^{Footnote 6}

Facts and Decisions do not Qualify for the Advice and Recommendations Exemption

The Federal Court has confirmed that factual information appearing alongside advice and recommendations does not amount to advice or recommendations. In addition, decisions based on advice or recommendations do not constitute advice or recommendations. Neither facts nor decisions, therefore, qualify for the exemption for advice or recommendations (section 21).^{Footnote 7}

In this same decision, the Federal Court also had the opportunity to interpret the definition of “any discretionary benefit of a financial nature”, which is an exception to the definition of personal information (subsection 3(1) of the Privacy Act). The Court determined that the relevant criteria was whether 1) the information was related to a financial benefit; and 2) the granting of the benefit was discretionary. In this instance, the Court found the information met the criteria and therefore could not be exempted as personal information.