Decisions

125 decisions found

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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Jun 3
2010

Databases must be truly accessible and the information retrievable

Institution
Industry Canada
Section of the Act
68
Decision Type
notable investigation
Summary

Complaint: Citing paragraph 68(a), Industry Canada told a requester that it did not have to release an electronic copy of the most recent version of an online database, since its contents were available to anyone with Internet access.

Investigation: The OIC learned that the database’s search function limited the requester’s ability to obtain information in a useful format. During the investigation, the institution offered to train the requester on using the database but never followed up on this offer. Industry Canada also modernized the database, but the information the requester sought was still difficult to retrieve.

Outcome: After a meeting with the requester and the Office of the Commissioner of Lobbying of Canada, which had become the custodian of the database, Industry Canada agreed to extract the specific raw data the requester sought and provided it at significant cost.

Information Commissioner’s position:

  • When institutions make databases available to the public, the data must be truly accessible and the information the databases contain retrievable, based on the public’s needs.
  • Institutions should not impose a method or format for accessing the data that may not be conducive to either regular or more computer-savvy users.
  • Open government principles include proactive disclosure and the practice of providing data to the public in reusable form based on open standards and formats.
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Jun 3
2010

Section 16: Withholding information requires evidence of probable harm

Institution
Canadian Broadcasting Corporation
Section of the Act
16
Decision Type
notable investigation
Summary

Complaint: The CBC exempted all records containing certain internal accounting codes and certain credit card numbers, claiming the exemption that protects any information that might facilitate the commission of an offence (subsection 16(2)).

Investigation: The OIC learned CBC access officials had begun automatically exempting such records in an attempt to keep up with a flood of requests it had received upon becoming subject to the Act. However, when pressed during the investigation to prove that the exemption actually applied to the information, access officials conceded that, in order to commit an offence using the internal codes, a breakdown of CBC accounting controls would have to happen at several levels.

Outcome: The CBC released the accounting codes. The OIC agreed, though, that releasing the credit card numbers could facilitate the commission of an offence. As such, this information remained protected.

Information Commissioner’s position:

  • When deciding to withhold information under section 16, institutions must assess and then demonstrate how its disclosure would result in probable harm to the particular interest it has identified—financial harm, in this case.
  • When institutions cannot demonstrate the harm, they must disclose the information.
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Jun 3
2010

Commissioner will exercise full powers in cases of extreme delay

Institution
Canadian Broadcasting Corporation
Section of the Act
10(3)
Decision Type
notable investigation
Summary

Complaint: The CBC failed, in 32 instances, to meet a deadline previously negotiated with the OIC to respond to more than 260 outstanding requests.

Investigation: To investigate the 32 complaints the Commissioner initiated, the OIC asked the CBC for the processing file for each request. The OIC also informed the CBC that the Commissioner would exercise her formal powers to compel it to produce the responsive records, if required. In response, the CBC forwarded the processing files but not the responsive records.

Outcome: The CBC responded to all of the outstanding requests before it became necessary to issue the order for production of records. These and other requests also became the subject of court proceedings by the complainant.

Information Commissioner’s position:

  • The Commissioner will use her formal powers—including compelling institutions to produce records—to ensure requesters’ rights are respected.
  • In this case, doing so expedited the eventual response to more than 30 requests.
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