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

110 decisions found

Mar 3
2022

Treasury Board of Canada Secretariat (Re), 2022 OIC 15

Institution
Treasury Board of Canada Secretariat
Section of the Act
18
19
21
Decision Type
Recommendation
Final report
Summary

The complainant alleged that the Treasury Board Secretariat of Canada (TBS) had improperly withheld information under subsection 19(1)(personal information) and paragraphs 18(b) (negotiations by government institutions)21(1)(a) (advice or recommendations)21(1)(c) (positions or plans developed for negotiations) and 21(1)(d) (plans related to personnel management or administration) of the Access to Information Act in response to an access request for records pertaining to increased use of sick leave prior to retirement.

Over the course of the investigation, the complainant decided it was no longer necessary for the Office of Information Commissioner to investigate subsection 19(1) and reduced the scope of the complaint to pages 2, 3, 4 and 12 of TBS’s response.

TBS could not show that it met all the requirements for the remainder of these exemptions since the information on the pages at issue was of a statistical and dated nature. TBS failed to demonstrate how the information at hand could reasonably lead to interference with negotiations or represent a “take away” to bargaining agents regarding future plans for personnel management or administration.

The Information Commissioner recommended that TBS disclose in full, all pages at issue. TBS gave notice that it would not be implementing the recommendations.

Even if sick leave has been proven to be a sensitive issue, the Information Commissioner urged TBS’s President to reconsider its position, and to right the historical wrong that occurred during the processing of this access request; if not on the basis of the law, in the name of transparency.

The complaint is well founded.

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Feb 22
2022

Department of Justice Canada (Re), 2022 OIC 13

Institution
Justice Canada
Section of the Act
23
Decision Type
Recommendation
Final report
Summary

The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information in response to a request for the name, file number and pleadings of cases filed with the Tax Court of Canada for a specific period, which had section 245 of the Income Tax Act (ITA) as a basis for a reassessment by the Canada Revenue Agency. The information at issue has been protected under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act.

When responding to the request, Justice created a two‐page printout, generated from information stored in its iCase database, through a search for cases involving section 245 of the ITA within an “issues” field. During the OIC’s investigation, Justice further retrieved the requested pleadings and entirely exempted them under section 23 of the Act.

The investigation showed that although Justice opted to generate a list of relevant cases through information inputted by legal counsel into its iCase database, it did not establish that the identification of information responsive to the request hinged on information subject to either legal advice privilege or litigation privilege. Therefore, Justice could not justify the application of section 23. The Information Commissioner recommended that Justice disclose the responsive records in their entirety.
Justice gave notice to the Information Commissioner that it would not be implementing the recommendation and remains of the view that disclosure of the information would lead to indirect access to privileged information.

The complaint is well founded.

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Feb 14
2022

Treasury Board of Canada Secretariat (Re), 2022 OIC 12

Institution
Treasury Board of Canada Secretariat
Section of the Act
30(1)(f)
Decision Type
Final report
Summary

The Office of the Information Commissioner (OIC) received a complaint under paragraph 30(1)(f) of the Access to Information Act alleging that the Treasury Board of Canada Secretariat (TBS), in its role as administrator of the federal access to information system, failed to provide adequate support to government institutions during the COVID-19 pandemic. The complainant alleged that this, in turn, impeded, and continues to impede, the right of access to government information the Act affords.

The complainant also alleged that TBS’s failure to adequately support government institutions in managing their access to information and privacy (ATIP) offices and processing access requests during the pandemic was contrary to the principles of openness and transparency.

The investigation showed that TBS was engaged in reminding institutions of their obligations under the Act, made efforts to clarify institutions’ responsibilities under the Act and policy, and addressed matters of misinterpretation on the part of at least some institutions.

The Information Commissioner was, therefore, unable to conclude that the guidance provided by TBS during the period covered by the investigation was inappropriate. Given the scope of TBS’ limited authority to exert any direct control over institutions’ day-to-day access to information operations, the Commissioner concluded that the support provided to institutions, in the early months of the pandemic, was adequate.

The complaint is therefore not well founded.

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Feb 10
2022

Immigration, Refugees and Citizenship Canada (Re), 2022 OIC 09

Institution
Immigration and Refugee Board
Section of the Act
21
23
Decision Type
Final report
Summary

The complainant alleged that Immigration, Refugees and Citizenship Canada (IRCC) improperly withheld information under paragraph 21(1)(a) (advice or recommendations) of the Access to Information Act in response to an access request for records consisting of Fee Analysis Reports and fee monitoring dashboards that include cost recovery information for various immigration application programs from 2013-2019.

During the investigation, IRCC invoked section 23 (legal advice and litigation privilege) in addition to paragraph 21(1)(a) to the entire records.

IRCC could not show that it met all the requirements of these exemptions, in particular the information being withheld does not provide any advice or recommendations to IRCC’s senior management on decisions to be made. Overall, these reports appear to be purely factual and devoid of any specific advice.

The Commissioner sent an initial report to the Minister of IRCC, setting out the intended order to release the records in their entirety. The Minister informed the Commissioner that the information was released; therefore, the intended order became pointless and was not issued.

The complaint is well founded.

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Feb 9
2022

Decision under section 31, 2022 OIC 10

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

The Information Commissioner rejected a complaint as it did not meet the requirements of section 31 of the Access to Information Act.

Section 31 specifies, among other things, that: “If the complaint relates to a request by a person for access to a record, it shall be made within sixty days after the day on which the person receives a notice of a refusal under section 7, is given access to all or part of the record or, in any other case, becomes aware that grounds for the complaint exist.”

The word “shall” in various provisions throughout the Act has consistently been interpreted as imposing a mandatory obligation. (see for example: Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), [1997] 1 FC 164; Canada (Information Commissioner) v. Canada (Minister of Industry), 2007 FCA 212).

This interpretation is also consistent with section 11 of the Interpretation Act, R.S.C., 1985, c. I-21, which specifies that: “The expression “shall” is to be construed as imperative and the expression “may” as permissive.” 

In the present instance, the complainant confirmed that they received the response from the institution to their request in October 2021. The institution’s response included a notice that the complainant was entitled to complain to the Information Commissioner concerning the processing of their request within sixty days of the receipt of the response. The complaint was submitted in January 2022 and was therefore made after the expiration of the legislative timeframe to file a complaint.

The Information Commissioner does not have the authority to receive and accept complaints submitted after the expiration of a statutory timeframe. In Statham v. Canadian Broadcasting Corporation, 2010 FCA 315, the Federal Court of Appeal made clear that no provision within the Act confers power on the Information Commissioner to extend the time frames set out in the Act (paragraph 46).

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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Feb 3
2022

Transport Canada (Re), 2022 OIC 08

Institution
Transport Canada
Section of the Act
9(1)
Decision Type
Final report
Summary

The complainant alleged that the time extension taken by Transport Canada to respond to a request under the Access to Information Act is unreasonable.

Transport Canada notified the complainant that, pursuant to paragraphs 9(1)(a), 9(1)(b) and 9(1)(c), it would require an additional 510 days to complete the processing of the request.

Transport Canada demonstrated that the time extensions were necessary and for a reasonable period, given the circumstances.

The complaint is not well founded.

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Feb 1
2022

Decision pursuant to 6.1, 2022 OIC 07

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

An institution submitted 20 applications to the Information Commissioner, under subsection 6.1(1) of the Access to Information Act, for approval to decline to act on 20 separate access to information requests submitted by the same requester. The institution relied on the same representations in support of each application. In each application, the institution submitted that the request is vexatious, made in bad faith, and constitutes an abuse of the right of access. The institution further submitted in each application that it had met its duty to assist the requester in connection with the request.

The Commissioner found in each instance that the institution had not met its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act. The Commissioner also found that the institution did not meet its burden of establishing that any of the 20 access to information requests is vexatious, made in bad faith, or is an abuse of the right of access.

The applications are denied and the institution is required to act on the access requests

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Feb 1
2022

Decision pursuant to 6.1, 2022 OIC 14

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 and 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 Commissioner found that the institution had not met its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act. The Commissioner also found that the institution did not meet its burden of establishing that the information request is vexatious, or is an abuse of the right of access.

The application is denied and the institution is required to act on the access request.

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Jan 31
2022

Library and Archives Canada (Re), 2022 OIC 06

Institution
Library and Archives Canada
Section of the Act
15(1)
19(1)
Decision Type
Recommendation
Final report
Summary

The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 15(1) (national security) and subsection 19(1) (personal information) of the Access to Information Act in response to an access request for information relating to “Active Measures ‐ The Soviet Bloc Practice of Deception, Disruption and Defamation”.

The extent to which information pertaining to the subject matter of the request is already within the public domain undermines claims that disclosure of the redacted information could reasonably be expected to result in a harm described in subsection 15(1).

In light of the above, and in the absence of any justification from LAC, the Information Commissioner found that LAC failed to demonstrate that any of the withheld information meets the requirements of the exemption.

The Information Commissioner recommended that LAC disclose all remaining withheld information. LAC gave notice to the Commissioner that it would not implement her recommendation.

The complaint is well founded.

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Jan 28
2022

National Defence (Re), 2022 OIC 04

Institution
National Defence
Section of the Act
10(1)(a)
Decision Type
Final report
Summary

The complainant alleged that National Defence (DND) performed an incomplete search for records in response to a request under the Access to Information Act for the Official Radio Log Book of the HMCS Shawinigan from August 1, 2016 to October 31, 2016.

During the investigation, the Office of the Information Commissioner (OIC) learned that DND tasked the appropriate program area, the Royal Canadian Navy (RCN), with the retrieval of the requested records. However, the RCN responded that the requested records had been “lost”.

Despite DND’s Summary Investigation, DND failed to reach any definitive conclusions as to how or when the HMCS Shawinigan Tactical Communication log came to be lost.

The investigation highlights the implications of deficiencies in records management and the impact this may have on the right of access. However, there is no basis upon which the OIC can conclude that DND failed to conduct a reasonable search for the records sought or that responsive records could reasonably be found.

A copy of this report will be sent to the Minister of National Defence as a reminder of the importance of good records management practices.

The complaint is not well founded.

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