Transport Canada (Re), 2021 OIC 1

Date: 2021-01-07
OIC file number: 5820-01363
Institution file number: A-2020-00146

Summary

The complainant alleged that Transport Canada had improperly relied on section 26 of the Access to Information Act to refuse access to annual statistics related to processing access to information and privacy requests. The Office of the Information Commissioner (OIC) was satisfied that Transport Canada met the criteria needed to establish the applicability of section 26 – Refusal of access if information to be published – and that Transport Canada had considered all relevant factors for and against disclosure in its exercise of discretion. The complaint is not well founded.

Complaint

[1]      The complainant alleged that Transport Canada had improperly withheld information under section 26 (Information to be published) of the Access to Information Act in response to a request for statistical reports from Transport Canada’s Access Pro Case Management (APCM) system for specific data, by fiscal year, regarding its processing of requests under the Act.

[2]      The Office of the Information Commissioner (OIC) is separately investigating the complainant’s allegation that Transport Canada failed to give access to records in the format requested (5820-01364).

Investigation

Section 26: information to be published

[3]      Section 26 allows institutions to refuse to release information the Government of Canada will publish in the near future.

[4]      To claim the exemption, institutions must show the following:

• There are reasonable grounds to believe that the information will be published by a government institution, agent of the Government of Canada or Minister, other than material proactively disclosed under Part 2 of the Access to Information Act.
• The publication will occur within 90 days after the access request is made or within the time that may be necessary for printing or translation to take place.

[5]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[6]      Based on the information gathered during the investigation, at the time of Transport Canada’s receipt of the access request on July 12, 2020, Transport Canada was in the process of finalizing its 2019-2020 Annual Report to Parliament. This Annual Report was to include all of the specific APCM data that the complainant had requested regarding Transport Canada’s processing of access to information requests for the 2019-2020 fiscal year.

[7]      Transport Canada, when responding to the request on August 12, 2020, disclosed all information encompassed by the access request, with the exception of the 2019-2020 APCM data. With respect to that information, Transport Canada informed the complainant that this information would be released upon Transport Canada’s tabling of its Annual Report to Parliament. Transport Canada subsequently clarified that the basis for its refusal to disclose the 2019-2020 APCM data in response to the request is section 26 (“information to be published”).

[8]      On October 30, 2020, some 110 days after Transport Canada’s receipt of the access request, Transport Canada tabled its 2019-2020 Annual Report before Parliament. This Annual Report, in turn, was published by Transport Canada and an electronic link was provided to the complainant from which the published Annual Report could be accessed online.

[9]      Based on the information gathered during its investigation, the OIC is satisfied that:

• at the time of the request, Transport Canada had a legal requirement to table its 2019-2020 Annual Report in Parliament, as well as a plan in place for this Annual Report’s publication; and
• within 90 days of the request’s receipt, Transport Canada had prepared a final version of the Annual Report in at least one official language.

[10]    Based on the foregoing, the OIC accepts that Transport Canada, when receiving the request, had reasonable grounds to believe that the publication of its Annual Report would take place “within 90 days after the request is made or within any further period of time that may be necessary for printing or translating the material for the purpose of printing it.”

[11]    This finding is consistent with the Treasury Board Secretariat’s Access to Information Manual, which provides, among other things, that reasonable grounds under section 26:

“….would normally be a legal requirement to publish the record or a publication plan with target dates prepared prior to the receipt of the relevant request (…)”

          And:

“….the final version of the record must be prepared in at least one official language within 90 days of receipt of the request; in other words, only translation and printing of the record remain to be done. (…)”

[12]    The OIC, upon reviewing Transport Canada’s published 2019-2020 Annual Report, notes that this report in fact includes the APCM data that Transport Canada withheld under section 26.

[13]    The OIC accepts that the criteria needed to establish the applicability of section 26 are met.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[14]    The OIC is satisfied that Transport Canada, when determining to withhold the requested 2019-2020 APCM data under section 26, considered all relevant factors for and against disclosure, including the amount of additional work that would have been involved in providing the APCM data prior to the issuance of its ATIP Annual Report. Transport Canada’s exercise of discretion to refuse disclosure under section 26 was therefore reasonable.

Results

[15]    The complaint is not well founded.

Section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.