Decisions

127 decisions found

Jun 18
2019

Access officials must be allowed to challenge program areas when responding to requests

Institution
National Defence
Section of the Act
10
Decision Type
notable investigation
Summary

Complaint: National Defence told a requester that it had searched for a report but could find no related records. In the same response, the institution also noted that the report in question was still being drafted.

Investigation: The OIC concluded that the response, which was based on recommendations from the Office of the Judge Advocate General, was inappropriate, since a document did exist, as the response itself highlighted. In addition, the fact that the document was in draft form at the time of the request did not exclude it from the Act.

Outcome: The OIC’s investigation and a simultaneous professional misconduct enquiry by the Canadian Armed Forces’ National Investigation Service into the processing of the original request, led to several changes to the structure, staffing, training and oversight of the access to information function at National Defence. The Commissioner recommended that the institution review the access function annually, offer specific training and guidance on the duty to assist and the Act’s offence provisions, raise access to information performance at senior management meetings, and add a requirement to the performance agreements of certain key executives related to complying with the Act, including to provide timely, accurate and complete responses when tasked for records.

Information Commissioner’s position:

  • Program officials are required to provide timely, accurate and complete responses to enquiries from the access office. In turn, access officials must be allowed to challenge program areas when responding to requests.
  • Including compliance requirements in executive performance agreements is an effective way to ensure institutions meet their obligations under the Act.
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Jun 18
2019

Publicly available information on exempt staff travel should be disclosed

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

Complaint: Eight complaints focused on the Privy Council Office’s (PCO) decision to refuse to disclose as personal information (section 19) travel expenses for members of the Prime Minister’s staff who are not part of the regular public service (known as “exempt staff”).

Investigation: The OIC learned that when any requested records related to exempt staff contain personal information PCO treats all the records as personal information. However, in doing so in this case PCO had improperly withheld information that was not personal information and some that was already publicly available. In addition, PCO did not provide sufficient details to show that it had sought the consent of the individuals to whom the personal information related to disclose it or had considered disclosing some or all of the information in the public interest.

Outcome: In finding the eight complaints to be well founded, the Commissioner formally recommended that PCO disclose the information she considered not to be personal information and reconsider whether it could disclose any publicly available personal information. While disagreeing with the Commissioner’s findings and recommendations, PCO released additional personal information, including some with the consent of the individuals to whom it related.

Information Commissioner’s position:

  • Taking a blanket approach to treating certain records fails to take into account the purposes of the Act, including that exceptions to the right of access should be limited and specific.
  • To validly exempt information under section 19, institutions must show that the information meets the definition of personal information in section 3 of the Privacy Act, and that none of the exceptions found at section 19(2) applies.
  • Institutions must disclose any information they could reasonably sever from the exempted information under section 25 of the Act. In this case, for example, PCO did not do so, withholding parts of records that contained no personal information.
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Jun 18
2019

Firearms serial numbers are not personal information

Institution
Royal Canadian Mounted Police
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: The Royal Canadian Mounted Police (RCMP) refused in two instances to disclose the serial numbers on firearms. The RCMP stated that the numbers were personal information that had to be protected under section 19, because they made it possible to identify the owners of the firearms.

Investigation: During the investigations, the RCMP also argued that the serial numbers should be protected because they could be cross-referenced with law enforcement databases to identify the firearms’ owners.

Outcome: The Commissioner recommended that the RCMP disclose the serial numbers. The RCMP did not accept this recommendation in either case, so the Commissioner applied to the Federal Court for review.

Information Commissioner’s position:

  • To meet the definition of personal information in section 3 of the Privacy Act, institutions must show that the information in question is about an identifiable person. However, serial number are information about firearms, not the individuals who own them.
  • A member of the public could not possibly identify the owner of a firearm from just the serial number because the law enforcement databases that would make this possible are not public.
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Jun 18
2019

Supreme Court decision allows institutions to withhold information under section 35

Institution
Canada Revenue Agency
Section of the Act
35
Decision Type
notable investigation
Summary

Complaint: Citing section 35, the Canada Revenue Agency (CRA) withheld in their entirety the records related to the processing of two access requests.

Investigation: The OIC reviewed the matter in light of the Supreme Court of Canada decision in Rubin v. Canada (Clerk of the Privy Council), [1996] 1 SCR 6. The Supreme Court found that, while section 35 is not considered an exemption under the Act, institutions may rely on it when declining to disclose information they provided to the OIC during investigations (called “representations” in the Act).

Outcome: In light of the OIC’s investigation, CRA released more information. However, the Commissioner was satisfied that CRA had properly invoked section 35 to protect the rest under the terms the Supreme Court had established.

Information Commissioner’s position:

  • According to the Supreme Court, while section 35 is not considered an exemption under the Act, institutions may rely on it when declining to disclose information they provided to the OIC during investigations.
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Jun 18
2019

Meeting the duty to assist requires intelligible response

Institution
Transport Canada
Section of the Act
15
Decision Type
notable investigation
Summary

Complaint: After being instructed by the Federal Court to reasonably exercise its discretion to release information under subsection 15(1), Transport Canada again decided to withhold the information.

Investigation: Over the course of the investigation, Transport Canada provided convincing evidence that it had exercised its discretion reasonably at the time of its second decision to protect the information.

Outcome: Nevertheless, the Commissioner closed the complaint as well founded, given that the new decision was written in such a way that it was impossible for the requester to have understood that Transport Canada had exercised its discretion properly. The Commissioner also concluded that, in providing such a response, the institution had contravened its obligation to make every reasonable effort to assist the requester.

Information Commissioner’s position:

  • The duty to assist requires institutions’ responses to requesters to be intelligible. Given the direction of the Federal Court in this case, Transport Canada’s response should have included the specific factors it considered in exercising its discretion anew.
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Jun 18
2019

Evidence essential to justify lengthy time extensions

Institution
Treasury Board of Canada Secretariat
Section of the Act
9(2)
Decision Type
notable investigation
Summary

Complaint: A requester alleged that the 2,400 days in time extensions the Treasury Board of Canada Secretariat (TBS) claimed to process multiple overlapping requests for information about the federal public service pension plan were unreasonable.

Investigation: The OIC learned that not all of the records were electronic and that they were stored in multiple locations. In addition, TBS had to consult six institutions about the records, and only a few in-house staff had the expertise to identify and review the records. TBS allocated as many resources within its pensions unit as it could to these requests without unduly disrupting operations, and heavily involved executives in reviewing records. The access office developed a plan to respond to the requests, dedicating a significant amount of resources to processing the records.

Outcome: In the end, the Commissioner was satisfied that TBS had provided sufficient information to justify the length of the extensions, taken all necessary steps to ensure it would be able to respond to the requests by the extended deadline and demonstrated its commitment to processing them. TBS issued interim responses as information became ready for release.

Information Commissioner’s position:

  • The Access to Information Act sets out the response time for requests of 30 days, but acknowledges that processing some requests within that timeframe may be impossible.
  • Institutions may extend the deadline for their response for a reasonable time in these situations but must provide detailed information about their plans to issue the final response to the request by the extended deadline.
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Jun 7
2018

Access to scientists

Institution
Canadian Food Inspection Agency
Environment Canada
Fisheries and Oceans
National Research Council
Natural Resources Canada
Section of the Act
30(1)(f)
Decision Type
systemic investigation
Summary

On March 27, 2013, former Information Commissioner Suzanne Legault commenced a systemic investigation into a complaint submitted by the Environmental Law Clinic at the University of Victoria and Democracy Watch. This investigation concluded on February 28, 2018.

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Jun 7
2018

Confirming or denying records exist can jeopardize investigations

Institution
Canadian Security Intelligence Service
Section of the Act
10(2)
Decision Type
notable investigation
Summary

Complaint: The Canadian Security Intelligence Service (CSIS) refused to confirm or deny that it had records related to specific individuals, citing subsection 10(2).

Investigation: The OIC considered whether CSIS’s either confirming or denying that it had records related to specific individuals could reasonably be expected to harm its investigative work related to threats to Canada’s national security.

Outcome: The OIC agreed that CSIS’s reliance on subsection 10(2) was reasonable in these circumstances.

Information Commissioner’s position:

  • Unless their existence or non-existence has already been made known elsewhere, such as before a court, confirmation from CSIS as to whether it has records related to specific individuals could potentially be injurious to CSIS’s investigative work. It is reasonable in these circumstances for CSIS to rely on subsection 10(2).
  • The Federal Court confirmed CSIS’s approach in VB v. Canada (Attorney General), 2018 FC 394.
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Jun 7
2018

Inappropriate to refuse to confirm or deny existence of known information

Institution
Public Works and Government Services
Section of the Act
10(2)
Decision Type
notable investigation
Summary

Complaint: Public Services and Procurement Canada (PSPC) refused to confirm or deny the existence of records related to a bid for an integrated analytics solution, citing subsection 10(2).

Investigation: The OIC learned that PSPC had used this exemption despite having posted information about the bid, including the bid number and the product or service being sought, on the Internet.

Outcome: The OIC did not agree that PSPC could apply subsection 10(2) in these circumstances. PSPC subsequently released a significant amount of information to the requester.

Information Commissioner’s position:

  • Generally, it is not reasonable for institutions to apply subsection 10(2) when the existence or non-existence of records is already known.
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Jun 7
2018

Information too vague to cause competitive harm

Institution
VIA Rail Canada
Section of the Act
18
Decision Type
notable investigation
Summary

Complaint: VIA Rail declined to release information about where passengers got on and off trains, claiming that doing so could jeopardize the company’s competitive position.

Investigation: The OIC analyzed this claim with reference to subsection 18.1, which allows VIA Rail, among other institutions, to withhold information to protect its economic interests.

Outcome: The OIC was not convinced that the information VIA Rail had withheld was detailed enough to cause any competitive harm if it had been disclosed. Therefore, the institution could not rely on this claim as a factor weighing in favour of protecting the information. VIA Rail accepted the OIC’s analysis and now releases this type of information in its entirety.

Information Commissioner’s position:

  • Institutions withholding information under a claim of competitive harm must assess whether competitors’ having access to the information in question could genuinely harm the institution’s competitive position.
  • Based on the information at issue in this case, competitors could not have, for example, done the following:
    • determined VIA Rail’s profitability;
    • offered alternative transportation services for better prices on VIA Rail’s busiest routes or on routes that had seen an increase in customers over the years;
    • offered options or promotions to targeted customers at the right place or right time to gain a higher market share; or
    • obtained favourable leases or tariffs at the conclusion of existing Railway Service Agreements.
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