Decisions

The Information Commissioner publishes the final reports on her investigations on this Web site when she deems them to be of value in providing guidance to both institutions and complainants.

The Office of the Information Commissioner has established the Decisions Database to enable users to search final reports and other decisions, which outline the reasons and principles behind the Commissioner’s decisions and filter them using a number of criteria.

This database is updated regularly and will continue to grow as more final reports and decisions are added.

Other Corporate publications are available on the website.

Filters
Decision Type

115 decisions found

Jan 12
2023

Transportation Safety Board of Canada (Re), 2022 OIC 46

Institution
Transportation Safety Board of Canada
Section of the Act
19(1)
20(1)(a)
20(1)(b)
20(1)(c)
20(1)(d)
30(1)(a)
Decision Type
Order
Final report
Summary

The complainant alleged that Transportation Safety Board of Canada (TSB) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for an Aviation Occurrence Reporting Form and photographs related to an incident involving an Air Inuit aircraft.  The complaint falls within paragraph 30(1)(a) of the Act.

The application of subsection 19(1) was removed from the scope of the complaint.

TSB could not show that it met all the requirements of these exemptions.  Concerning paragraphs 20(1)(b), neither TSB nor the third party to whom the information relates, provided evidence or representation demonstrating that the information was confidential commercial information. No representations were provided to support the application of paragraphs 20(1)(c) and 20(1)(d).

The Information Commissioner ordered TSB to disclose all information at issue. TSB gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

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Dec 16
2022

Decision under section 31, 2022 OIC 53

Institution
-
Section of the Act
31
Decision Type
Section 31
Summary

On August 31, 2022, the Office of the Information Commissioner (OIC) received a complaint alleging that the institution did not respond within an extension of time taken to respond to an access request. The complaint also expressed concerns about the institution’s conduct when communicating with them about the request.

The OIC has accepted the complaint about the delay in responding to the access request. However, the complaint about the institution’s alleged inappropriate conduct when communicating with the complainant about the request is inadmissible because it was submitted after the 60-day time limit for doing so.

Under section 31 of the Act, requesters “shall” submit their complaint within a prescribed time limit. “Shall” means “must”—that is, it is mandatory for requesters to submit their complaints on or before the 60-day time limit.

The prescribed time limit to submit complaints is 60 days after one of the following:

  • the day requesters receive a notice under section 7 that the institution refuses to grant access to part or all of the requested records
  • the day requesters obtain access to part or all of the requested records
  • in any other case, the day requesters become aware that grounds for complaint exist

The Act does not allow the Information Commissioner to investigate complaints submitted to her after the 60-day time limit. Nor does the Act give the Commissioner the power to extend this time limit.

On May 2, 2022, the complainant received an email from the institution advising them that they would not receive any information of value in response to their access request because the institution would have to withhold all the information from disclosure under the Act. The institution asked if the complainant would agree to abandon their request and provided other options to consider regarding other records they might wish to receive. On May 22, 2022, the complainant advised the institution that they did not wish to abandon their access request. On the same day, the institution informed the complainant that it would process the request.

It was the complainant’s view that the 60-day period for submitting their complaint started on August 25, 2022, the date on which the extended timeframe to respond expired, because this was when they had the required degree of knowledge needed to discover the ground of complaint and trigger the limitation period. The complainant also stated, “Until August 25, 2022, the grounds for the complaint did not manifest as I continued to rely upon the institution to act in good faith to remedy its inappropriate conduct.”

The alleged inappropriate conduct, however, occurred on May 2, 2022, when the institution informed the complainant by email of the manner in which it proposed to address the access request. After that date, the institution did not further ask the complainant to abandon their request or discuss other options to obtain records. The communications with the institution between May 22 and August 25, 2022, were mainly follow-ups on the response to the access request and on whether the institution would withhold information from disclosure.

Whether or not the institution responded to the request within its extension of time had no bearing on the date the complainant became aware of the institution’s alleged inappropriate conduct when communicating with them. The 60-day time limit to file a complaint about the institution’s communications was not suspended until the complainant found out if the institution would respond to their request within its extension of time.

The May 2, 2022, email triggered the 60-day time limit to complain about the alleged inappropriate communications. The complaint was submitted outside that period. Accordingly, the complaint regarding the institution’s alleged inappropriate communications is inadmissible.

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Dec 9
2022

Decision under section 31, 2022 OIC 48

Institution
-
Section of the Act
31
Decision Type
Section 31
Summary

The Information Commissioner determined that a complaint was inadmissible as it did not meet the requirements of section 31 of the Access to Information Act.

Under section 31, requesters “shall” submit their complaint within a prescribed time limit. “Shall” means “must”—that is, it is mandatory for requesters to submit their complaints on or before the 60-day time limit.

The prescribed time limit to submit complaints is 60 days after one of the following:

  • the day requesters receive a notice under section 7 that the institution refuses to grant access to part or all of the requested records
  • the day requesters obtain access to part or all of the requested records
  • in any other case, the day requesters become aware that grounds for complaint exist.

The Act does not allow the Information Commissioner to investigate complaints submitted to her after the 60-day time limit. Nor does the Act give the Commissioner the power to extend this time limit.

In the present instance, the complainant received the response from the institution by email but indicated that they had inadvertently deleted this email from their inbox before they had had the opportunity to review it.

It is the complainant’s view that they became aware of the grounds of complaint when they found the email and reviewed the content of the institution’s response and that the period for calculating the 60-day time limit to submit the complaint should start from that date.

However, it is clear from section 31 that Parliament wanted the period in which to submit a complaint to run from the day after the day the requester receives the response to their access request (a notice under section 7 or obtaining access to part or all of the requested records).

The words “in any other case” in section 31 refer to any situation other than receiving a response. Therefore, “in any other case” does not apply to the period Parliament prescribed as starting from when the requester receives the response. In addition, these words do not indicate that the prescribed period for submitting a complaint after a response is received can be extended.

If “in any other case” were interpreted as applying to the period that begins when requesters receive a response to their access and to the period that begins when they become aware that grounds for complaint exist, Parliament’s express references elsewhere in section 31 to the day requesters receive a notice under section 7 or receive records would not make sense.

The period for submitting the complaint began on the day after the response from the institution was received, not from the day the complainant found the deleted email.

Accordingly, the Information Commissioner did not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.

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Nov 8
2022

Public Services and Procurement Canada (Re), 2022 OIC 45

Institution
Public Services and Procurement Canada
Section of the Act
30(1)(a)
Decision Type
Order
Final report
Summary

The complainant alleged that Public Services and Procurement Canada (PSPC) has failed to provide records in response to an access request made under the Access to Information Act, for the Health Protection Building Whole Building (Tunney’s Pasture) Designated Substances Report. The complaint falls within paragraph 30(1)(a) of the Act.

In response to the access request, PSPC provided some of the contract documents listed in the access request. However, it did not provide the records which it stated are not under its control. The investigation found that although the records at issue were not in PSPC’s physical possession, they were under its control for the purposes of the Act.

The Information Commissioner ordered that the records be retrieved and that a response be provided to the complainant.

PSPC gave notice to the Commissioner that it would not implement the orders.

The complaint is well founded.

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Sep 13
2022

Canada School of Public Service (Re), 2022 OIC 44

Institution
Canada School of Public Service
Section of the Act
30(1)(a)
30(1)(f)
Decision Type
Recommendation
Final report
Summary

The complainant alleged that the Canada School of Public Service (CSPS) did not conduct a reasonable search in response to an access request made under the Access to Information Act for all emails sent and received by a specified senior executive from January 1, 2019 to July 8, 2019. The complaint falls within paragraph 30(1)(a) of the Act. In addition, the complainant questioned whether the request was processed without regard to the identity of the person making the request.  This aspect of the complaint falls within paragraph 30(1)(f) of the Act. Finally, the complainant further alleged that the CSPS intentionally deleted records despite knowing that there was an existing access request for those records.

This investigation revealed several issues with the processing of this request including, but not limited to: keeping the request on hold for months without lawful authority; failing to retain records responsive to an active access request; and an inadequate search for records as evidenced by the additional records that were ultimately found and sent to the complainant. The Information Commissioner concluded that the CSPS did not initially conduct a reasonable search in response to the access request. Also, while it is clear that the CSPS mishandled the processing of this request, the Commissioner did not find evidence related to the commission of an offense under the Act in the context of the investigation. Lastly, with regard to the allegation that the complainant’s identity was taken into consideration during the processing of the request, the Commissioner did not find evidence of this during the course of the investigation. The complaint is well founded.

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Aug 22
2022

Immigration and Refugee Board of Canada (Re), 2022 OIC 42

Institution
Immigration and Refugee Board
Section of the Act
9(1)
Decision Type
Order
Final report
Summary

The complainant alleged that the length of the extension of time Immigration and Refugee Board of Canada (IRB) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for records produced on or after December 31, 2019, related to the updated version of the Weighing Evidence document available on the IRB’s website. The complaint falls under paragraph 30(1)(c) of the Act. IRB claimed a 1,295-day extension of time pursuant to paragraph 9(1)(a). If the extension were valid, the time limit for the response would be March 31, 2025. IRB could not show that it met all the requirements of paragraph 9(1)(a), in particular that the calculation of the time extension was sufficiently logical and supportable, or that providing access to the records within any materially lesser period of time than the one asserted would unreasonably interfere with its operations. Given that IRB did not establish that the requested extension of time was reasonable, the extension is invalid, and IRB is deemed to have refused access pursuant to subsection 10(3). The Information Commissioner ordered the Chairman of IRB to process all records within the scope of the request as soon as possible but no later than April 18, 2023. The Chairman of IRB gave notice to the Commissioner that it would be implementing her order.

The complaint is well founded.

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Aug 19
2022

Library and Archives Canada (Re), OIC 2022 43

Institution
Library and Archives Canada
Section of the Act
15(1)
Decision Type
Recommendation
Final report
Summary

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsection 15(1) (national security, defence) of the Access to Information Act in response to an access request for historical documents regarding the defence of the Arctic region.

The complaint falls within paragraph 30(1)(a) of the Act. LAC could not show that it met all of the requirements of this exemption—in particular, how the release of the subject information would harm national security and/or the defence of Canada.

The Information Commissioner recommended that LAC disclose the records in their entirety. LAC gave notice to the Information Commissioner that it would be implementing the recommendation.

The complaint is well founded.

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Aug 12
2022

Office of the Auditor General of Canada (Re), 2022 OIC 40

Institution
Office of the Auditor General of Canada
Section of the Act
30(1)(a)
Decision Type
Final report
Summary

The complainant alleged that the Office of the Auditor General of Canada (OAG) had incorrectly decided that witness statements and documentation employed to support a harassment investigation final report were not under its control and that it could not, therefore, give access to these records in response to an access request under the Access to Information Act. The complaint falls within paragraph 30(1)(a) of the Act.

Although the records were not in the physical possession of the OAG, the Office of the Information Commissioner found that several relevant factors pointed to the records being under the control of the OAG. During the investigation, the OAG retrieved and processed the responsive records.

The complaint is well founded.

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Aug 1
2022

Decision pursuant to 6.1, 2022 OIC 38

Institution
-
Section of the Act
6.1
Decision Type
6.1 decision
Summary

An institution submitted an application to the Information Commissioner, under subsection 6.1(1) of the Access to Information Act, for approval to decline to act on an access to information request. The institution submitted that the request is vexatious, made in bad faith, or constitutes an abuse of the right of access. The institution further submitted that it had met its duty to assist the requester in connection with the request.

The Information Commissioner found that the application was premature, as the institution did not establish that it fulfilled its duty to assist obligations under subsection 4(2.1) of the Act.

The Commissioner denied the application.

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Jul 28
2022

Canadian Security Intelligence Service (Re), 2022 OIC 37

Institution
Canadian Security Intelligence Service
Section of the Act
30(1)(a)
Decision Type
Recommendation
Final report
Summary

The complainant alleged that the Canadian Security Intelligence Service (CSIS) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking records related to pay equity for unionized CSIS employees. The complaint falls within paragraph 30(1)(a) of the Act.

Despite the involvement of its Departmental Legal Services Unit (DLSU) in the pay equity issue, CSIS refused to task this area, stating that DLSU records form part of the Department of Justice’s information holdings and are therefore not under CSIS’ control.

The Office of the Information Commissioner found that records responsive to the request might be under the control of CSIS and/or both CSIS and Justice. CSIS, in refusing to task, retrieve and review requested records from its DLSU to determine the issue of control, failed to conduct a reasonable search.

The Information Commissioner recommended that CSIS retrieve and review responsive records from its DLSU, and issue a new response.

CSIS gave notice to the Commissioner it would not implement the recommendations.

The complaint is well founded.

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