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While in a Canadian jail, awaiting deportation, an individual made an access request to the RCMP for copies of agreements between U.S. agencies and the RCMP regarding the sharing of information. Some four months after receiving the request, the RCMP still had not given out the records; it had missed the response deadline by some three months. Yet, at that point, the requester had been deported. The RCMP decided that the requester had lost his right of access because he was no longer present in Canada. The RCMP informed the requester that his "requests are no longer deemed to be valid and are considered by this office to be abandoned." The requester complained to the Information Commissioner.
If an individual is entitled to make access requests by virtue of being present in Canada, is the entitlement lost if the person ceases to be present in Canada before the response is given?
In this case, the issue was made more complex by the fact that, but for the RCMP’s foot-dragging, the response might have been issued before the requester’s deportation.
The requester argued that, by virtue of Extension Order No. 1, he was properly qualified to make his access request, that his entitlement did not cease upon his deportation and that, if the RCMP had answered in a timely manner, he would have received his records while present in Canada. Section 2 of the Access to Information Act Extension Order No. 1 states:
"2. This right to be given access under subsection 4(1) of the Access to Information Act to records under the control of a government institution is hereby extended to include all individuals who are present in Canada but who are not Canadian citizens or permanent residents within the meaning of the Immigration Act and all corporations that are present in Canada."
The RCMP also invoked Extension Order No. 1 as authority for its view. It pointed to the opening words: "This right to be given access …"; in the RCMP’s view, these words make it clear that the requester must be in Canada both at the time of the request and at the time access is given. In support of its position, the RCMP pointed to the Treasury Board Guidelines, Chapter 2-2, page 1, which states that the requester (unless otherwise qualified) must be physically in Canada "both at the time that the request is filed and at the time that access is given".
The Information Commissioner concluded that the RCMP, and the Treasury Board Guidelines, had misinterpreted the intent of Extension Order No. 1. In particular, the Information Commissioner concluded that the RCMP’s interpretation was too open to abuse to be appropriate. In the Information Commissioner’s view, the critical moment is the date of the access request; if the requester is "qualified" at that date, then he or she has a continuing right to receive access even if the qualification is subsequently lost.
The RCMP, without giving up its legal position, but recognizing that its own delay was a cause of the problem, agreed to continue processing the request.
Cases such as this one will be rare. The better practice in such cases is for government institutions to respect the right of access if the process was triggered by a qualified requester, even if the requester thereafter ceases to be qualified.