Addressing the inventory
The Access to Information Act gives Canadians the right to file complaints with the Information Commissioner about how institutions have handled their access to information requests.
BUILDING THE FOUNDATION
In the early months of her mandate, the Commissioner made it her first priority to take action to reduce the inventory of complaints, which stood at nearly 3,500 files on April 1, 2018.
The Commissioner sought to understand the make-up of the inventory and reviewed with staff and institutions what aspects of our investigative process could be improved. We then structured our investigations group to respond effectively to the various types of complaints in the inventory, considering their age, subject matter and complexity. We also streamlined the investigation process.
We created smaller investigations
teams—each with integrated members of
our legal staff. Legal counsel are now
involved with files from their earliest
stages to identify any legal concerns or
avenues for resolution. We are in the
process of assigning portfolios of
institutions to the teams to allow us to
develop specialized expertise on the
organizations and their programs. This
approach will also limit the number of
our staff with whom institutions
interact at any one time.
We have begun to manage files more diligently from the day we receive complaints to the day we conclude investigations to ensure they advance more efficiently and meet a high standard for quality. A new team is now quickly validating complaints upon arrival, staying on top of the progress of files, ensuring better consistency in investigation-related correspondence and reports, and closing files promptly.
With $2.9 million in temporary funding secured through Budget 2018, we hired and trained new investigators and re-hired experienced consultants to concentrate on reducing the inventory. We also created a development program to give mid-level investigators the training, mentoring and experience they need to move up to working on more complex files.
We have been innovating for efficiency. For example, over the years, we worked on improving the online complaint form, including developing the capability for complainants to upload electronic copies of documents when they submit their complaints online. When this is rolled out in 2019–20, it will not only remove much of the time and effort associated with the first steps of the complaint process but will also move us in the much-desired direction of paperless investigations. We are also improving the way we receive notices from institutions when they take certain time extensions under the Act. This will result in much less work for institutions.
By the end of the year, we had completed our investigations into 2,608 complaints—76 percent more than in 2017–18—and decreased the median turnaround time for all types of complaints. Of the investigations we concluded, two thirds resulted in complainants receiving more information from the institution or receiving a faster response to their request.
In addition, we improved the quality of investigations through improved processes, increased involvement of legal staff in files from the earliest stages and vigilant quality assurance checks as the investigation progressed.
Inventory as of April 1, 2019
as of April 1, 2018
recieved 15% from previous year
closed 76% from previous year
as if March 31, 2019
- Well founded
- Not well founded
- Settled or solved
Turnaround time for investigation completed
Despite these notable efforts, the incoming complaint volume (2,467) was such that we were only able to reduce the inventory of open complaints, including those received during the year, by four percent.
(investigations completed within target)
(investigations completed within target)
|Administrative complaints||90 days||
(727 complaints; 69.6%)
(876 complaints; 66.7%)
|Refusal complaints||270 days||
(545 complaints; 59.1%)
(779 complaints; 60.2%)
OUTCOMES OF COMPLETED INVESTIGATIONS
|Not well founded||183||9%||400||15%|
|Resolved or settled||653||33%||983||38%|
Using the Commissioner's
Powers to resolve complaints
The Access to Information Act gives the Commissioner strong investigative powers, including the following:
- obtaining and reviewing records required for an investigation
- summoning witnesses to appear before the Commissioner and to produce documents
- compelling witnesses to give evidence under oath
- entering institutions’ premises
- issuing recommendations to institutions to take particular steps to resolve complaints
- self-initiating complaints, including launching systemic investigations.
The Commissioner may also take the following actions in the context of her investigations:
- She may disclose information to the Attorney General of Canada when she has evidence that an offence under the Act may have taken place (e.g. records were destroyed, falsified or concealed with the intent to deny access). The Attorney General then decides how to proceed. The Commissioner has no mandate to conduct criminal investigations and may not refer the case to a law enforcement agency directly. Commissioners have referred matters to the Attorney General seven times over the years. None has resulted in prosecution.
- She may apply to the Federal Court for review of institutions’ refusal to disclose information.
While we use mediation and negotiation to bring most investigations to a satisfactory conclusion, there are occasions when the Commissioner chooses to issue written recommendations to the head of an institution or their delegate to take specific steps to resolve a complaint. For example, she might recommend that an institution release information it had previously decided to withhold or propose a plan to respond to the original request earlier than it had said it would.
She may also issue recommendations in order to improve practices across an institution or the government (e.g. enhancing records management systems to make finding records easier or encouraging employees to submit emails electronically to the access office rather than hard copies that access officials then have to scan).
The Commissioner issued written
recommendations at the conclusion of 29
investigations in 2018–19, including the
ACCESS OFFICIALS MUST BE ALLOWED TO CHALLENGE PROGRAM AREAS WHEN RESPONDING TO REQUESTS
National Defence told a requester that it had searched for a requested report but could find no related records. In the same response, it also noted that the report in question was still being drafted.
We investigated the complaint about this response, while the Canadian Armed Forces’ National Investigation Service conducted a professional misconduct investigation into the processing of the original request.
We concluded that the response, which was based on recommendations from the Office of the Judge Advocate General, was inappropriate, since, as the response itself highlighted, a document did exist. In addition, the fact that the document was in draft form at the time of the request did not exclude it from the Act.
Our investigation and the Canadian Armed Forces’ internal inquiry led to several changes to the structure, staffing, training and oversight of the access to information function at National Defence.
While these steps signalled the institution’s intention to meet its obligations under the Act, the Commissioner recommended that National Defence undertake additional measures. These included carrying out an annual review of the access function, offering specific training and guidance on the duty to assist and the Act’s offence provisions, and raising access to information performance at senior management meetings.
The Commissioner also recommended that the performance agreements of certain key executives feature a requirement to comply with the Act, including to provide timely, accurate and complete responses when tasked for records. In the Commissioner’s view, this would encompass ensuring that program areas are responsive to enquiries from the access office and that, in turn, access officials are allowed to challenge decisions and recommendations made by program areas about how to respond to requests.
In her response to this recommendation, the Deputy Minister of Defence said that the institution would implement the Commissioner’s recommendations in full. In addition, the Deputy Minister indicated that she had consulted the Chief of the Defence Staff and the Judge Advocate General about how to improve compliance with the Act across the institution, even though not all senior officials report directly to her.
The Commissioner asked National Defence to
report back in August 2019 on its progress
implementing the recommendations. We will also
monitor the situation through future
investigations, especially those involving the
Office of the Judge Advocate General. Should we
find indications of non-compliance, the
Commissioner would not hesitate to use her
powers to ensure the institution meets its
obligations under the Act.
PUBLICLY AVAILABLE INFORMATION ON EXEMPT STAFF TRAVEL SHOULD BE DISCLOSED
We investigated eight complaints about the decision by the Privy Council Office (PCO) to refuse to disclose travel expenses for members of the Prime Minister’s staff who are not part of the regular public service (known as “exempt staff”). PCO claimed that the records constituted personal information.
During the investigation, we learned from PCO that, when any records that fall within the scope of a request related to exempt staff contain personal information, it treats all the records as personal information.
The Commissioner was not satisfied with this approach for several reasons:
- Parts of some of the withheld records in one of the complaints contained no personal information.
- PCO did not consider disclosing any information it could reasonably sever from the exempted information under section 25 of the Act, a mandatory requirement.
- PCO had already released some information in response to each of the requests, which conflicted with its stated approach of treating the records as a single whole when the request concerns the personal information of exempt staff.
PCO’s approach failed to take into account
the purposes of the Act, including that
exceptions to the right of public access to
information should be limited and specific.
The Commissioner was also not satisfied with PCO’s refusal to disclose the requested information. Some of the information in one of the complaints did not meet the definition of “personal information” in the Privacy Act (based on which institutions may withhold information). As for the information that did qualify as personal, much of it was publicly available and should have been disclosed.
Moreover, PCO did not provide sufficient details to show that it had sought the consent of the individuals to whom the personal information belongs to disclose that information or had considered disclosing some or all of it in the public interest.
The Commissioner determined that these eight complaints were well founded. She formally recommended that PCO disclose the information that she considered not to be personal information. She also recommended that PCO reconsider whether it could disclose any publicly available personal information.
Despite having been granted an extension, the Commissioner did not receive a response to her recommendations. Consequently, we concluded all eight complaints were well founded, but not resolved, and closed them without the benefit of a response. As a result, the complainant did not receive the information the Commissioner recommended PCO release Footnote 1.
Subsection 30(3) of the Act gives the Commissioner the discretion to investigate any matter related to requesting or obtaining access to records. This includes initiating investigations into access-related concerns that may be the result of systemic issues at one or more institutions.
By integrating key information, observations and conclusions drawn from our own experience and that of our stakeholders, investigations of this type can result in greater compliance across institutions and reduce the number of complaints we receive.
In December 2018, the Commissioner began a systemic investigation into National Defence’s processing of access requests further to allegations that the institution had inappropriately withheld information.
The Commissioner also launched a systemic investigation into how the RCMP is meeting its obligation to provide timely access in light of information gathered during various investigations
The Commissioner will report on the results of both these investigations through reports to Parliament.
PURSUING MATTERS BEFORE
Under the Act, the Commissioner may appear in court in three circumstances:
- as the applicant for a review of an institution’s refusal to disclose a record at the conclusion of an investigation, with the consent of the complainant
- on behalf of a person who has already applied for a review of an institution’s refusal to disclose a record
- as a party to any review a complainant or third party applies for, with the permission of the court.
The Commissioner bases her decision to go to court on a variety of factors, including the public interest in the matter and whether the case presents an opportunity to advance or clarify access law and practice.
The Commissioner was involved in 13 legal proceedings in 2018–19.
FIREARMS SERIAL NUMBERS ARE NOT PERSONAL INFORMATION
At the conclusion of two separate investigations in 2018–19, the RCMP refused to disclose the serial numbers on firearms. The institution stated that the numbers were personal information that had to be protected under section 19 of the Act, because they made it possible to identify the owners of the firearms.
During the investigations, the RCMP also argued that the serial numbers should be protected because they could be cross-referenced with law enforcement databases to identify the firearms’ owner. The Commissioner did not agree with this argument because the databases in question are not available to the public.
The Commissioner recommended that the RCMP disclose the serial numbers, having determined that a serial number is information about the firearm itself, not the person who owns it, and could not possibly identify the owner.
The RCMP did not accept this recommendation in either case, so the Commissioner applied to the Federal Court for review, with the consent of the complainants.
Both cases are currently before the Federal Court.
BOMBARDIER INC. V. CANADA
GENERAL), 2019 FC 207
The Federal Court released its decision in this case in February 2019.
Bombardier Inc. sought to prevent Innovation, Science and Economic Development Canada from disclosing information related to government funding it had received and was repaying. Bombardier—the only one of more than 10 firms that refused to consent to this information being released—argued that disclosing the information could damage its competitive position.
The Commissioner had recommended the disclosure in the wake of a complaint investigation, and participated in the court proceeding as an added party supporting disclosure.
In dismissing Bombardier’s application, the Federal Court clarified a number points about the application of the exemption in the Act dealing with third-party information. In particular, it provided the following guidance on demonstrating the harm that could result from disclosing information that otherwise could be protected:
- When an argument for harm depends on calculations, evidence on how to do those calculations is necessary.
- When harm to upcoming bids is alleged, evidence about those upcoming bids must be provided.
- When harm from disclosure is alleged, real consequences must be demonstrated in light of publicly available information.
- When the court is evaluating the risk of harm in disclosure, it will look at the harm in disclosing the information at the time of its decision—in this case, 2019—and consider that the commercial value of financial information diminishes over time.
As the government seeks, with proposed amendments to the Access to Information Act, to increase the amount of information being proactively disclosed, institutions should be mindful to disclose records Canadians have shown they are interested in through their access requests.
WITHHOLDING INFORMATION UNDER SECTION 35
In its decision in Rubin v. Canada (Clerk of the Privy Council),  1 SCR 6, the Supreme Court of Canada found that the Access to Information Act contains protections for information that institutions provide to the Office of the Information Commissioner during investigations (called “representations” in the Act).
The Supreme Court found that, while section 35 is not considered an exemption under the Act, institutions may rely on it when declining to disclose representations.
This year, we investigated a complaint that the Canada Revenue Agency (CRA) had withheld in their entirety the records related to the processing of two access requests and had relied on section 35 to do so.
Our investigation led to the institution releasing more information, but we were satisfied that CRA had properly invoked section 35 to protect the rest—which comprised representations access officials had provided to us during a complaint investigation—under the terms the Supreme Court had established.
THE DUTY TO ASSIST AND USE OF DISCRETION
In Canada (Information Commissioner) v. Canada (Transport),  4 FCR 281, 2016 FC 448 (CanLII), Transport Canada had decided to withhold information relying on subsection 15(1). This exemption gives institutions the discretion to protect information that could, if released, harm international affairs, the defence of Canada or efforts to counter possible subversive or hostile activities.
The Federal Court, while agreeing that section 15 did apply to the information in question, found that the institution had not reasonably exercised its discretion to withhold it. The Court returned the matter to Transport Canada and ordered the institution to exercise its discretion again taking into consideration specific factors. Transport Canada did exercise its discretion a second time and decided once more to withhold the information.
We received a complaint about Transport Canada’s second decision, in which the institution relied on its original decision to withhold the information and failed to show that it had considered the factors set out by the Federal Court. Over the course of the investigation, we obtained convincing evidence that Transport Canada had, in fact, exercised its discretion reasonably at the time of its second decision. Nevertheless, we closed the complaint as well founded, given that the new decision was written in such a way that it was impossible for the requester to have understood that Transport Canada had exercised its discretion properly. The Commissioner also concluded that, in providing such a response, the institution had contravened its obligation to make every reasonable effort to assist the requester.
The Access to Information Act contains “discretionary exemptions.” These allow institutions to disclose information when the factors in favour of doing so outweigh those in favour of withholding it, even when it could otherwise be protected using an exemption.
Institutions must exercise their discretion reasonably—that is, someone with delegated authority under the Act must have carefully considered all the relevant factors. Among these are the following:
- the general purpose of the Act;
- the facts and circumstances of the case; and
- the nature of the records and whether they are particularly sensitive or significant.
Interpretation: Exercise of discretion
EVIDENCE ESSENTIAL TO JUSTIFY
lengthy TIME EXTENSIONS
The Access to Information Act sets out the response time for requests of 30 days, but acknowledges that processing some requests that quickly may be impossible. Institutions may extend the deadline for their response for a reasonable time in these situations.
Multiple overlapping requests for information about the federal public service pension plan led to Treasury Board of Canada Secretariat (TBS) staff having to locate, retrieve and review more than 500,000 pages. To do so within 30 days would not only have been unreasonable but also implausible. As a result, TBS claimed a total of 2,400 days in time extensions.
In investigating the requester’s complaint that these extensions were not reasonable, we examined the circumstances of the requests and the measures TBS had put in place to respond.
For example, we learned that not all of the records were electronic and that they were stored in multiple locations. In addition, TBS had to consult six other institutions about the records. Meanwhile, only a few in-house staff had the expertise to identify records that fell within the scope of the request and to review them to provide recommendations about disclosure.
TBS allocated as many resources within its pensions unit as it could to these requests without unduly disrupting operations. By the time we concluded our investigation, 10 program officials had spent more than 1,600 hours, on a rotating basis, searching for and retrieving records. In addition, executives (including an assistant deputy minister) have been heavily involved in reviewing the records and making recommendations for disclosure.
For its part, the access office developed a plan to respond to the requests, dedicated a significant amount of resources to processing the records, and has been regularly issuing interim responses as information becomes ready for release. TBS has assured us that these releases will continue until the request is completely processed.
In the end, we were satisfied that TBS had provided us with sufficient information to justify the length of the extensions, taken all necessary steps to ensure it would be able to respond to the request by the extended deadline and demonstrated its commitment to processing these large requests despite the challenge they represent. In light of these circumstances, the Commissioner found the unusually long extensions to be reasonable.
COMPLAINTS ACTIVITY FOR 24 INSTITUTIONS REPRESENTING 91 PERCENT OF THE INCOMING COMPLAINT VOLUME IN 2018–19
|Inventory||Investigations completed in 2018-19||Outcome|
|Institution||Complaints registered before April 1, 2018||Complaints registered April 1, 2018 to March 31, 2019||Total||Complaints registered before April 1, 2018||Complaints registered April 1, 2018 to March 31, 2019||Total||Well-founded||Not well-founded||Settled, or re-solved||Discontinued|
|Royal Canadian Mounted Police||407||369||776||232||138||361||72||30||189||70|
|Immigration, Refugees and Citizenship Canada||128||557||685||90||477||567||35||34||446||52|
|Canada Revenue Agency||485||183||668||131||55||186||78||40||38||30|
|Canada Border Services Agency||142||256||298||96||69||165||54||16||65||30|
|Privy Council Office||188||82||270||60||21||81||36||11||16||18|
|Global Affairs Canada||192||59||251||47||16||63||17||6||13||27|
|Library and Archives Canada||39||142||181||15||23||38||19||2||11||6|
|Department of Justice Canada||123||41||164||41||11||52||16||17||8||11|
|Canadian Broadcasting Corporation||146||4||150||83||1||84||10||29||3||42|
|Public Services and Procurement Canada||69||59||128||44||23||67||18||14||27||8|
|Correctional Service Canada||58||56||128||44||28||60||33||11||14||2|
|Canadian Security Intelligence Service||86||25||111||54||8||62||14||30||6||12|
|Indigenous and Northern Affairs Canada||85||23||108||39||7||46||15||9||5||17|
|Department of Finance Canada||61||41||102||25||6||31||12||5||8||6|
|Canada Post Corporation||92||7||99||18||2||20||9||8||0||7|
|Innovation, Science and Economic Development Canada||46||38||84||23||10||33||10||7||9||7|
|Natural Resources Canada||73||10||83||31||3||34||11||12||1||10|
|Employment and Social Development Canada||43||38||81||30||11||41||21||6||4||10|
|National Energy Board||67||5||72||29||2||31||5||9||1||16|
|Public Safety Canada||28||27||55||6||6||12||2||4||2||4|
|Others institutions (71)||478||227||705||212||69||218||124||63||36||62|
Date modified: 2019-06-21