Decisions

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.

The complainant alleged that Transport Canada had improperly withheld information under subsection 19(1) (personal information) and paragraphs 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act. This was in response to an access request for specific types of records related to a Boeing 737 MAX aircraft system (Maneuvering Characteristics Augmentation System (MCAS)). The complaint falls within paragraph 30(1)(a) of the Act.

Personal information withheld under subsection 19(1) was removed from the scope of the complaint.

Transport Canada withheld the responsive records in full under paragraphs 20(1)(a), (b) and (c) concurrently.

The institution and third party did not demonstrate that the requirements of paragraph 20(1)(a) were met, that all of the information is confidential financial, commercial, scientific or technical information meeting the requirements of paragraph 20(1)(b) or that general and innocuous information met the requirements of paragraph 20(1)(c).

The Information Commissioner ordered that Transport Canada disclose specific information at issue and re-exercise discretion under subsection 20(6).

Transport Canada gave notice that it would disclose specific pages in accordance with the order.

The complaint is well founded.

An institution submitted two applications to the Information Commissioner for approval to decline to act on two (2) requests for information under subsection 6.1(1) of the Access to Information Act. It also asked that the Office of the Information Commissioner (OIC) review any future requests that fall within the “same pattern”.The head of the institution was of the opinion that it had met its duty to assist, and that the requests were made in bad faith and also an abuse of the right to make a request.

The Commissioner found that the institution not only did not fulfill its duty to assist obligations under subsection 4(2.1) of the Act, but it also failed to establish that the requests were made in bad faith or were otherwise an abuse of the right to make a request. As the institution did not establish that these applications had merit, the Commissioner did not consider its further request to review future similar requests.

The Commissioner denied the applications.

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.

The complainant alleged that Natural Resources Canada (NRCan) had improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on 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 records relating to, but not limited to, the role and activities of NRCan and/or Canadian Forest Service representatives on the Board of Governors of the Maritime College of Forest Technology (MCFT). The complaint falls within paragraph 30(1)(a) of the Act.

A portion of the records had also been withheld pursuant to subsection 19(1) and section 23, but these exemptions were not at issue.

During the investigation, MCFT decided to no longer oppose disclosure of two pieces of information that were publicly available.

For the remaining information, NRCan and the third party could not show that all of the requirements of these exemptions were met, in particular, that the information met the criteria for confidentiality, and that there was a reasonable expectation of harm in releasing it.

The Information Commissioner ordered that NRCan disclose any information that was not withheld under subsection 19(1) or section 23.

NRCan gave notice that it would implement the order.

The complaint is well founded.

The complainant alleged that the Atlantic Canada Opportunities Agency (ACOA) had improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 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 a grant made to the Organisation for Economic Co-operation and Development (OECD) in March 2020. This complaint falls within paragraph 30(1)(a) of the Act.

No representations were provided by either the OECD or ACOA in support of the application of either exemption to the information at issue.

The Information Commissioner ordered ACOA to disclose the records in their entirety. ACOA gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

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.

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.

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.

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.