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PCO Made Me Do It!
In August of 2006, Finance Canada announced the launch of national web-based consultations on fiscal balance. The site was intended to provide Canadians with the opportunity to communicate their views on restoring fiscal balance to the department.
A requester made an access request in September 2006 to Finance Canada for information generated by the department as a result of the consultation process. Briefing materials, summary reports, analyses, and statistical reviews were encompassed by the request. The requester was not interested in knowing the names of persons who had sent their views to the website.
In response, Finance Canada refused to disclose the requested records because it intended to publish them, within 90 days of receipt of the access request. Section 26 of the Access to Information Act (the Act), authorizes government institutions to refuse to disclose requested information: "…if the head of the institution believes on reasonable grounds that the material…will be published by a government institution, agent of the Government of Canada or minister of the Crown within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it."
Taking into account the breadth of the access request, the requester doubted that Finance Canada had any serious intention of publishing all the requested records. He complained to the Information Commissioner.
Did the delegated head of Finance Canada believe, on reasonable grounds, that the entirety of the requested records would be published within 90 days of the access request, when the decision to refuse disclosure was made?
In examining this issue, the Commissioner’s investigator determined that some 13 pages of records had been located in response to the request. Those pages contained summaries of views from certain specific consultations groups.
Next, the investigator examined the content of a report on the consultation process that was published by Finance Canada near the end of January 2007 (some 120 days after the receipt of the access request). The final report did not contain the 13 withheld pages or the information contained in those pages. The final report contained more generalized summaries of the consultation process.
Finally, the investigator examined whether, at the time of the request, the delegated decision-maker believed, on reasonable grounds, that the requested records would be included in the published report and that the report would be published within 90 days.
Finance Canada, as it turns out, never had any intention or plan of its own to publish the withheld records; its officials said they invoked section 26 to refuse disclosure, on the advice of the Privy Council Office (PCO). After receiving the access request, Finance Canada asked for PCO’s views, and PCO advised that:
"…the material in the records will be included in its entirety or in part in an integrated communications report on the results of the fiscal balance consultations to be published by the Government of Canada within the time frame allotted by section 26."
This advice from PCO was followed without question or challenge by Finance Canada, despite the use of the "red flag" phrase in the PCO advice: "in its entirety or in part". That should have caused Finance Canada to question whether there was a reasonable basis for believing that all the withheld records would be published.
Consequently, the Commissioner concluded that section 26 had been improperly invoked by Finance Canada to refuse disclosure and asked the department to disclose the records in their entirety. The records were disclosed on February 1, 2007, some four and a half months after the request.
In situations where a government institution has no intention or plan of its own to publish requested records, but relies on assertions by another department that the records will be published, the receiving department bears the burden to do "due diligence" before invoking section 26. That means the receiving institution must determine that there are "reasonable grounds" to believe that the requested records: 1) will be published; 2) in their entirety; and 3) within 90 days of the receipt of the access request (subject to printing and translating).