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Correctional Service Canada (Re), 2021 OIC 18

Date: 2021-06-16
OIC file number: 3219-00372
Institution file number: A-2017-00167

Summary

The complainant alleged that Correctional Service Canada (CSC) improperly withheld information under subsection 19(1) (personal information) of the Access to Information Act. The complaint centres on a request for an up-to-date copy of an inmate’s carceral file.

The investigation revealed that CSC neither retrieved nor processed the records at issue before applying subsection 19(1) to protect the requested information in its entirety. As a result, CSC could not legitimately maintain that the information meets the criteria for personal information under subsection 19(1). Moreover, without access to the records at issue, delegated officials at CSC could not demonstrate the circumstances that would allow for disclosure of personal information pursuant to subsection 19(2).

The Information Commissioner recommended that the Minister of Public Safety and Emergency Preparedness proceed with the retrieval and processing of the requested information in its entirety and issue a new response to the complainant by June 30, 2021. The Commissioner of CSC gave notice that CSC would implement the Information Commissioner’s recommendations. The complaint is well founded.

Complaint

[1]      The complainant alleged that Correctional Service Canada (CSC) improperly withheld information under subsection 19(1) (personal information) of the Access to Information Act. The complaint centres on a request for an up-to-date copy of an inmate’s carceral file.

Investigation

[2]      The burden of proof is on CSC to demonstrate that it properly claimed subsection 19(1) to withhold the information requested. The investigation revealed, however, that CSC neither retrieved nor processed the records at issue before applying subsection 19(1) to protect the requested information in its entirety. Accordingly, CSC did not properly exercise its jurisdiction under the Act.

[3]      According to initial representations submitted by the institution, CSC’s justifications for the refusal to retrieve and process the records at issue can be summarized as follows:

  • Retrieving the records at issue and then storing them on CSC’s secure servers (in accordance with CSC’s own internal procedures) poses a significant threat to the privacy of both the detainee and victims given the high-profile nature of the records at issue.
  • Carceral files are – by their “very nature” – personal information and in the present instance, this notion therefore allows CSC officials to withhold the entirety of the information at issue pursuant to subsection 19(1).
  • CSC considered the possibility of releasing some information pursuant to subsection 19(2), specifically as it relates to section 8 of the Privacy Act, but ultimately chose against it due to the potential injury to individual(s) privacy.
  • In light of the above, CSC was of the view that it does not have to retrieve and process the records at issue.

Section 19: Personal information

[4]      Subsection 19(1) requires institutions to refuse to release personal information.

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

  • The information is about an individual—that is, a human being, not a corporation.
    • There is a serious possibility that disclosing the information would identify that individual.
    • The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[6]      When these requirements are met, institutions must then consider whether the following circumstances exist:

    • The person to whom the information relates consents to its release.
    • The information is publicly available.
    • Disclosure of the information would be consistent with section 8 of the Privacy Act.

[7]      When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[8]      By pre-emptively applying the exemption without first retrieving/processing the records at issue and conducting a comprehensive review, CSC cannot legitimately maintain that the information meets the criteria for personal information under subsection 19(1).

[9]      In addition, the decision to withhold or disclose information must be made by an individual who has the authority to do so (delegated official under the Act). In the present instance, because the information was not retrieved or processed, CSC’s delegated officials were not able to review all the information contained in the records prior to exempting them in their entirety under subsection 19(1). By extension, CSC also failed to meet its obligations under section 25, which requires reasonable severance of non-exempt information in a record containing exempt information.

[10]    In light of the above, I am unable to conclude that the information meets the requirements of the exemption.

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

[11]    Without access to the records at issue, delegated officials at CSC cannot reasonably argue that they properly considered the circumstances that would allow for the disclosure of personal information pursuant to subsection 19(2). I am not convinced that CSC made reasonable efforts to seek the consent of individuals (see Fontaine v. Canada (Royal Canadian Mounted Police), 2009 FCA 150, para. 26), ascertain whether some information is publicly available, or determine whether disclosure of any of the information would be in accordance with section 8 of the Privacy Act.

[12]    I note that CSC did seek the consent of the inmate, under paragraph 19(2)(a) (which was not obtained), and that CSC did engage in a thorough analysis under paragraph 19(2)(c) of whether the information requested could be disclosed. However, a reasonable exercise of discretion requires a review of the records at issue. A reasonable exercise of discretion would also require, among other things, consideration of the public availability of some of the records at issue under paragraph 19(2)(b), including sentencing-related information. Consequently, I am not satisfied that CSC considered all relevant factors under subsection 19(2), and therefore conclude that CSC did not reasonably exercise its discretion when deciding not to release the information.

CSC’s new position

[13]    As a result of my investigation and recent communications between the Office of the Information Commissioner (OIC) and CSC, CSC informed me on March 19, 2021, that it had reversed its initial position and would retrieve and review the records at issue (the carceral file). CSC also acknowledged that the carceral file would need to be retrieved in order for the head of the institution to reasonably exercise their discretion under subsection 19(2).

[14]    CSC also indicated that although they have limited resources they will endeavour to complete the processing of the responsive records as soon as possible.

Result

[15]    The complaint is well founded.

Recommendations

I recommend that the Minister of Public Safety and Emergency Preparedness:

  • Proceed with the retrieval and processing of the requested information in its entirety;
  • Have a delegated official review the records at issue in their entirety in order to process it under the Access to Information Act;
  • Re-exercise their discretion taking into account all relevant factors pursuant to any exemption that would be claimed;
  • In accordance with the requirement to consider severance found in section 25, disclose any part of the records that does not contain information which may be exempt if it can reasonably be severed from any part that does contain exempt information;
  • Issue a new response to the complainant and provide the OIC with a copy of that response.
  • Complete all of the above by June 30, 2021.

On April 27, 2021, I issued my Initial Report to the Minister of Public Safety and Emergency Preparedness, setting out my recommendations.

On May 20, 2021, the Commissioner of CSC gave me notice that CSC would implement my recommendations, and in doing so have initiated a plan of action to complete the processing of this file by June 30, 2021. The Commissioner of CSC noted that as of May 20, 2021, CSC had retrieved all of the records at issue and had dedicated resources to review them. The Commissioner of CSC confirmed that upon conclusion of this review, the delegated CSC official or officials would render a decision and authorize the disclosure of any part of the records that are not protected by the Privacy Act.

Institutions must abide by the terms of subsection 37(4) when disclosing any records in response to my recommendations.

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.

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