Decisions

In February 2023, the Information Commissioner initiated a systemic investigation to better understand and address the root cause of the growing number of access requests made to the Canada Border Services Agency (CBSA).

The complaint is well founded. CBSA should expect to continue to receive a high number of access requests for immigration information because Immigration, Refugees and Citizenship Canada (IRCC) has not implemented an effective system that would allow client immigration information to be retrieved directly. CBSA must find ways to meets its obligations under the Act.

In February 2024, the Minister of Pubic Safety and Emergency Preparedness was informed of the Commissioner’s findings. A total of four (4) recommendations were made to the Minister and a response to the Commissioner’s recommendations was received in April 2024.

In May 2024, the Commissioner tabled a special report in Parliament pursuant to paragraph 39(1) of the Act. The special report sheds light on how the Access to Information and Privacy (ATIP) units of both institutions are being negatively impacted by IRCC’s lack of progress in introducing an alternative to access to information requests that provides clients with information they are seeking.  

The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under paragraph 18(b) (negotiations by government institutions), subsection 19(1) (personal information) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for records related to the use of Indigenous languages in the proceedings of the House of Commons. The complaint falls within paragraph 30(1)(a) of the Act.

PSPC showed that the per diem rates met all of the requirements of paragraph 18(b) but could not show that any of the other withheld information met the requirements of paragraphs 18(b) or 20(1)(d).

PSPC did not demonstrate that it considered all relevant factors and reasonably exercised its discretion to decide to withhold the per diem rates.

The Information Commissioner ordered that PSPC disclose the information it withheld under paragraphs 18(b) and 20(1)(d) other than the per diem rates and re-exercise its discretion to decide whether to withhold the per diem rates under paragraph 18(b).

PSPC gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

The complainant alleged that the length of the extension of time the Public Health Agency of Canada (PHAC) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for all records related to providing guidance to the provinces on social distancing from January 1, 2020 to April 26, 2022. The allegation falls under paragraph 30(1)(c) of the Act.

PHAC claimed a 1,380-day extension of time under paragraphs 9(1)(a) and 9(1)(b) to complete the processing of the request. If the extension were valid, the time limit for the response would be February 11, 2027.

During the investigation, PHAC showed that it met all the requirements of paragraphs 9(1)(a) and (b), in particular that the calculation of the time extension was sufficiently logical and supportable, and that providing access to the records within any materially lesser period of time than the one asserted would unreasonably interfere with its operations and that the consultations could not reasonably be completed within 30 days.

The OIC concluded that PHAC showed that it met all the requirements of paragraphs 9(1)(a) and (b). Therefore, the extension is reasonable and the due date to respond to the access request remains February 11, 2027. This being said, I invite the complainant and PHAC to collaborate to reduce the scope of the request so that fewer records will need to be processed and a response to the request could be released sooner.

The complaint is not well founded.

The complainant alleged that National Defence (DND) did not respond to an access request submitted under the Access to Information Act within the 30-day or extended period, as required by section 7. The request was for the total number of requests received for accommodation and exemption from CAF COVID-19 vaccination mandate. The allegation falls under paragraph 30(1)(a) of the Act.

The investigation determined DND had missed the extended due date made under paragraph 9(1)(a) of the Act. DND did not respond by the required date and is deemed to have refused access to the requested records under subsection 10(3). The delay was caused by a lack of responsiveness from one office of primary interest.

The Information Commissioner ordered that DND complete the retrieval of all records responsive to the request, which would include tasking specified individuals and provide a response to the access request no later than the 36th business day following the date of the final report.

DND gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

The complainant alleged that National Defence (DND), when responding to a request under the Access to Information Act, had improperly withheld information under subsections 15(1) [international affairs and national security] and 19(1) [personal information].  The request was for historical information regarding the Intelligence Advisory Committee.

The investigation determined that the withheld information did not meet the requirements of both subsections 15(1) and 19(1). As a result, the institution undertook a re-review of the exemptions and undertook two (2) separate supplementary responses in which additional information, previously withheld, was disclosed to the complainant.

Following the institution’s second supplementary response, the complainant narrowed the scope of their complaint to only the institution’s reliance on subsection 15(1) on several specific pages of responsive records.

The institution has subsequently proposed a third supplementary response to the complainant in which they have agreed to disclose additional information previously withheld, however, portions would still remain exempt pursuant to subsection 15(1).

The Information Commissioner concluded that the remaining withheld information does not meet the requirements of subsection 15(1), particularly with regard to the issue of harm since the injury that may result in disclosing the information is not apparent.

The Commissioner recommended that DND disclose all of the information that remains withheld under subsection 15(1).

The institution gave notice to the Commissioner that it would not be implementing her recommendation.

The complaint is well-founded.

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) did not conduct a reasonable search in response to an access request under the Access to Information Act for copies of all of Canada's School Narratives, including supporting documents and document lists, as disclosed as part of the Independent Assessment Process. The allegation falls within paragraph 30(1)(a) of the Act.

The investigation determined that CIRNAC access officials identified that records existed but refused to process them, stating that the records are confidential and that processing them would require a minimum of 12 months to complete, given existing priorities.

The Information Commissioner ordered that CIRNAC complete the retrieval of all records responsive to the request, and provide a new response to the access request no later than the 60th business day following the date of the final report.

CIRNAC gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

The complainant alleged that National Defence did not conduct a reasonable search in response to an access request under the Access to Information Act for all documents related to a selection process of Steward/Command Master Sailor to the Commander of the Royal Canadian Navy. The complaint falls within paragraph 30(1)(a) of the Act.

The investigation determined that not all relevant Offices of Primary Interest were tasked with retrieval of responsive records. In addition, the taskings were not clear and did not include all pertinent keywords. National Defence was unable to show that it conducted a reasonable search for records that fell within the scope of the access request.

The Information Commissioner ordered that National Defence complete the retrieval of all records responsive to the request, which would include tasking specified individuals and provide a new response to the access request no later than the 36th business day following the date of the final report.

National Defence gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

The complainant alleged that Indigenous Services Canada (ISC) did not conduct a reasonable search in response to an access request under the Access to Information Act for records related to the Non-Insured Health Benefits Mental Health Counselling benefit, including the “detailed review” of how services are delivered and associated expenditure decisions; proposals to fund community mental wellness projects outside of Benefits Program authorities, and the "risk-based review to improve financial controls and management practices across all regions".

During the investigation, ISC indicated that the “detailed review” was conducted verbally. However, given that the term “detailed review” came from a Briefing Note prepared by ISC, it was reasonable to conclude that the term “detailed review” was significant, and that some responsive documentation would exist. The OIC also questioned why no records were found relating to parts 2 and 3 of the request.

ISC advised the OIC that the subject matter experts and records holders originally tasked with the search, “searched their records with a broader lens in terms of scope and timeframe”. ISC confirmed that these additional efforts generated at least 170 pages of documents that were not found initially and that those records are now being triaged and reviewed.

The Information Commissioner ordered that ISC complete the retrieval of the records identified by ISC as responsive to the request and provide a new response to the complainant no later than the 36^th business day after the effective date of the order. ISC gave notice that it would implement the order.

The complaint is well founded.