Decisions

Type

173 decisions found

Jun 16
2011

Handwriting alone is not a reason to consider information to be personal

Institution
Justice Canada
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: The Department of Justice Canada withheld information under section 19 when responding to a request for all records related to surveys responses of beneficiaries of a fund for victims of crime.

Investigation: The OIC learned that most of the information withheld as personal was exempted because it was handwritten.

Outcome: In response to a request from the OIC, the institution severed the records and only withhold information such as names of individuals, dates, details of crimes and family particulars that could lead to the individuals who had completed the survey being identified.

Information Commissioner’s position:

  • For records to qualify as personal information, they have to be linked to an identifiable individual. In this case, the handwriting in itself could not reveal the individuals’ identity.
  • Section 25 states that institutions must sever records to facilitate the release of as much information as possible. Access personnel should keep this obligation in mind when reviewing records.
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Jun 16
2011

Signatures provided in public service capacity not personal information

Institution
Privy Council Office
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: The Privy Council Office (PCO) withheld as personal information the signatures of employees on all call-ups it had processed in the National Capital Region over one month for temporary help.

Investigation: The OIC found that the individuals had signed the call-ups in order to approve them in their professional capacity.

Outcome: PCO disclosed the signatures.

Information Commissioner’s position:

  • While a signature is information about an identifiable person, the signature of a government employee provided in the course of official functions falls within the exception to the definition of personal information found in paragraph 3(j) of the Privacy Act.
  • The presence or absence of signatures or initials is an important piece of information in the context of government accountability.
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Jun 16
2011

Exemptions require clear rationales

Institution
Industry Canada
Section of the Act
20
21
Decision Type
notable investigation
Summary

Complaint: Industry Canada withheld 230 pages in part and about 50 in their entirety from a study on the impact of downloads and file sharing on music purchases, citing several exemptions.

Investigation: The OIC reviewed all the exemptions claimed and agreed in many instances that the institution had applied them properly. However, most of the information withheld was not confidential third-party information (paragraphs 20(1)(b) and (c)) or advice and recommendations (paragraph 21(1)(a)).

Outcome: Industry Canada made two additional releases to the requester, withholding only portions of seven pages.

Information Commissioner’s position:

  • When claiming exemptions, institutions must clearly show how and why the information they wish to withhold qualifies for those exemptions.
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Jun 16
2011

Narrow interpretation of requests can limit right of access

Institution
Canadian Broadcasting Corporation
Section of the Act
2
6
Decision Type
notable investigation
Summary

Complaint: The Canadian Broadcasting Corporation (CBC) withheld portions of records relating to the reimbursement of a senior official for fees for tuition, books and other materials.

Investigation: The OIC learned that the CBC had not retrieved or processed any records specifically related to the reimbursement of the tuition fees because no such records existed; the CBC had paid the fees directly to the university.

Outcome: The complainant obtained the information after making a new request.

Information Commissioner’s position:

  • When the requester asked for information relating to the reimbursement of tuition fees, it should have been obvious that he wanted to know how much the CBC spent for the course. He could not have known that the CBC had paid the university directly.
  • By interpreting the request so narrowly, CBC failed to consider and respect section 2, which sets out that the Act is intended to extend the right of access based on the principle that government information should be available to the public.
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Jun 3
2010

Broadly applying section 15 should not be default response to national security requests

Institution
National Defence
Section of the Act
15
Decision Type
notable investigation
Summary

Complaint: National Defence refused to disclose a list of personal grooming items found in the possession of Afghan detainees, claiming that doing so would threaten national security (section 15). The institution also withheld information under section 19 and, later, section 17 to protect the safety of military personnel.

Investigation: The OIC agreed with National Defence’s decision to withhold the detainees’ names and assigned numbers as personal information, and also to withhold that information and the names of the Canadian Forces members identified on the list to protect their safety and that of their families. Throughout the investigation, National Defence stood firm in its position not to release the list of grooming items.

Outcome: In response to a formal recommendation from the Commissioner, National Defence released not only the list but also information relating to military personnel, since disclosure would no longer constitute a threat to them.

Information Commissioner’s position:

  • Institutions should not apply section 15 broadly as their default response to requests that touch on national security issues (or even those only tangentially related).
  • Institutions have a responsibility to exercise their discretion carefully, and to sever and release information that cannot be legitimately withheld under the Act.
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Jun 3
2010

Time extension of little value when no work is done to respond to request

Institution
Industry Canada
Section of the Act
9(2)
Decision Type
notable investigation
Summary

Complaint: Industry Canada was late in claiming a 150-day time extension to respond to a request for records related to a study on the impact of downloads and file sharing on music purchases.

Investigation: The OIC discovered that Industry Canada access officials had done very little to process the request. For example, they had not, by the time the investigation began, even started the required consultations. With the requester’s permission, the institution had also put the request on hold twice for short periods to accommodate holidays, despite the Act’s not recognizing this as a valid reason to put requests on hold.

Outcome: Industry Canada met the final response deadline the Information Commissioner formally recommended. Information Commissioner’s position: Although the Access to Information Act allows institutions to claim time extensions under specific circumstances, they are of little value when the institution does not do the work required to respond to the request. In addition, extensions must be claimed during the first 30 days after receiving the request.

 Information Commissioner’s position:

  •   Although the Access to Information Act allows institutions to claim time extensions under specific circumstances, they are of little value when the institution does not do the work required to respond to the request.
  •  In addition, extensions must be claimed during the first 30 days after receiving the request.
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Jun 3
2010

Training essential on email use, and records retention and disposal policies

Institution
National Gallery of Canada
Section of the Act
67
Decision Type
notable investigation
Summary

Complaint: Staff at the National Gallery of Canada may have destroyed records and/or counselled others to destroy records that may have been responsive to a request (an offence under section 67.1).

Investigation: The OIC found that responsive records had been destroyed, since employees had the ability (since disabled) to permanently delete emails. In addition, the OIC found that individuals had been counselled to destroy records while processing the request.

Outcome: The Commissioner referred this matter to the Attorney General of Canada as a breach of the Act. The National Gallery amended its policies and procedures on computer and email use, and made them available on its intranet. It also directed managers to familiarize themselves with the policies and to educate employees on them. These policies were also included in new employee orientation training.

Information Commissioner’s position:

  • Institutions are responsible for fully training employees on their access to information and information management policies and practices so they know and understand their legal obligations. The training must be offered consistently to existing employees and feature prominently in new employee orientation. Corporate direction and monitoring are required.
  • In this case, the majority of non-information technology staff had not received computer use and email training, contributing to their being unaware of both the proper use of email, retention and disposal policies, and their obligations under the Act.
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Jun 3
2010

Evidence essential to demonstrating that harm will occur under section 20

Institution
Public Works and Government Services
Section of the Act
20
Decision Type
notable investigation
Summary

Complaint: Public Works and Government Services Canada (PWGSC) refused to release the names and addresses of corporations that had received but not cashed cheques PWGSC had issued over eight years, claiming that this was third-party information that should be protected under section 20.

Investigation: PWGSC maintained that releasing the names and addresses, in combination with the information already disclosed to the requester (such as the amount of the cheques), would facilitate the commission of fraud against the Crown. PWGSC provide real examples of fraud cases but did not show how fraudsters could bypass financial institutions’ security measures. The OIC also learned that at least one provincial government was already releasing the same type of information, including the names of payees and the amounts of the cheques.

Outcome: In response to the Commissioner’s formal recommendation, PWGSC released the names and addresses.

Information Commissioner’s position:

  • To exempt information under section 20, institutions must demonstrate how disclosing it would result in probable harm to a particular interest—in this case, fraud.
  • When institutions cannot demonstrate that this specific harm is likely to occur, they must disclose the information.
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Jun 3
2010

Privilege belongs to the client not the lawyer

Institution
Library and Archives Canada
Section of the Act
23
Decision Type
notable investigation
Summary

Complaint: Library and Archives Canada (LAC) refused to disclose certain records in a file about an individual and the 1917 Halifax Explosion, stating that they were still subject to solicitor-client privilege, as per section 23.

Investigation: The OIC learned during the investigation that LAC withheld the records based on a recommendation from the Department of Justice Canada. The OIC asked LAC to consider disclosing the records in the public interest. In consulting the Department of Justice again, LAC learned that the records were actually under the control of either Transport Canada or Fisheries and Oceans Canada, effectively making one of them the actual client and, as such, responsible for exercising the required discretion to release the records.

Outcome: Transport Canada determined the records held no litigation value and waived the solicitor-client privilege. LAC subsequently released all the records to the requester.

Information Commissioner’s position:

  • Even though information may fall under the solicitor-client privilege, an institution still has the discretion to disclose that information.
  • Since the privilege belongs to the client and not the lawyer, an institution can decide to waive the privilege, as in this case, particularly when there are no consequences expected from disclosure.
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Jun 3
2010

When necessary, institutions must create a record from various sources

Institution
Foreign Affairs, Trade and Development Canada
Section of the Act
4
Decision Type
notable investigation
Summary

Complaint: Foreign Affairs and International Trade Canada (DFAIT) said that the only way it could release a list of the occupants of the Government of Canada Official Guest House over two years would be to create a record from various information sources, but that there was no system that could do so.

Investigation: The OIC pointed out that if various sources contained information that was responsive to the request, and if those sources could produce machine-readable records, then under subsection 4(3), DFAIT was legally obliged to produce the information.

Outcome: DFAIT collected the required records and disclosed the information the requester sought.

Information Commissioner’s position:

  • Information pertaining to a request may not necessarily exist in a single record, yet may still be accessible via other sources under the control of the institution.
  • Institutions are obliged—indeed, it is part of their legislated duty to assist—to take the necessary steps to provide access to that information.
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