Decisions

127 decisions found

Jun 7
2018

Third-party information must meet section 20 tests to qualify for exemption

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

Complaint: Health Canada refused to disclose the dates on which various pharmaceutical companies’ generic drugs had been examined and approved.

Investigation: The OIC determined that these dates did not qualify as commercial information, nor were they supplied by a third party, as is required under paragraph 20(1)(b). In addition, the OIC found Health Canada’s claims that releasing the dates would cause competitive harm to be speculative and not supported by detailed evidence, as paragraph 20(1)(c) requires.

Outcome: Health Canada released the information and now does so without requiring a formal access request, after it issues third parties’ notices of compliance following the satisfactory review of a submission for a new drug.

Information Commissioner’s position:

  • To validly apply section 20, institutions must demonstrate that the information meets all the criteria required by the subsection(s) being claimed.
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Jun 7
2018

Institutions must consider public interest in third-party information

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

Complaint: Transport Canada applied section 20, which protects third-party information, to withhold reports on inspections of the Ste-Anne tunnel in St-Hyacinthe, Quebec.

Investigation: The OIC learned that the tunnel—which is situated near two large residences for long-term care and the elderly—had various structural problems that were of concern to local residents. The OIC considered these factors to be relevant to the public’s health and safety, as per subsection 20(6), outweighing any third-party interests in protecting the information.

Outcome: The institution and the third party agreed that there was a compelling public interest in releasing the information, and disclosed it in its entirety.

Information Commissioner’s position:

  • When applying section 20 to withhold third-party information, institutions must consider whether there is a public interest in disclosing the records related to public health, safety or protection of the environment that outweighs third-party interests in protecting the information, as per subsection 20(6). ·
  • In some circumstances, there may be competing public health, safety or environmental interests. For example, an institution argued that releasing specific technical details about the design of an oil refinery’s containment system could make the refinery vulnerable to anyone with harmful intentions. The OIC agreed that the public’s interest in the information did not outweigh the risk to public safety that could result from disclosure of the information.
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Jun 8
2017

Institutions must apply two-part test for records in ministers’ offices

Institution
Fisheries and Oceans
Section of the Act
4
Decision Type
notable investigation
Summary

Complaint: Fisheries and Oceans Canada (DFO) did not ask the Minister’s office for records in response to a request for the emails of a number of individuals, including some exempt staff. Instead, it asked the requester to exclude the exempt staff from the request. It then put the request on hold when it did not hear back from the requester about this.

Investigation: DFO told the OIC that, because the exempt staff were known not to be employees, the request could not be processed as worded, since coverage of the Act does not extend to ministers’ offices.

Outcome: The institution agreed to ask the Minister’s office to look for records, and approximately 1,100 pages were identified as falling within the scope of the request.

Information Commissioner’s position:

  • The correct test is not whether a minister’s office or its staff are covered under the Act. The Supreme Court of Canada set out a two-part test in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 for instances in which records responsive to a request may be located in a minister’s office.
  • Institutions must ask two questions when processing requests for such records: Does the record relate to a departmental matter? If so, and based on all relevant factors, could a senior official of the institution reasonably expect to be able to obtain a copy of the record upon request? (Relevant factors include the substantive content of the record, the circumstances in which the record was created, and the legal relationship between the institution and the record holder.)
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Jun 8
2017

To ensure accountability, institutions should document decisions

Institution
Royal Canadian Mounted Police
Section of the Act
2
Decision Type
notable investigation
Summary

Complaint: The Royal Canadian Mounted Police (RCMP) said that no documentation existed about its decision not to proceed with a code of conduct investigation for perjury against one of the four officers who testified at the inquiry into the death of Robert Dziekanski during an arrest at the Vancouver airport.

Investigation: The OIC learned that an RCMP superintendent had presented his evaluation of the officers’ testimony to RCMP senior management verbally. In addition, the RCMP could not point to a single document its officials had written that set out its decision not to pursue the code of conduct investigation. In addition, the RCMP could not find a copy of the letter it had sent to external counsel asking it to conduct a formal review of whether to carry out an investigation.

Outcome: The external counsel produced the mandate letter, and the RCMP disclosed it to the requester.

Information Commissioner’s position:

  • To ensure accountability, institutions should document decisions.
  • The lack of documentation in this instance is especially problematic, given that provincial authorities had charged the officers with perjury. Without documentation, it is difficult to ascertain what factors led the RCMP to not conduct an investigation.
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Jun 8
2017

Contractual confidentiality clauses do not trump the Act

Institution
Public Works and Government Services
Section of the Act
18
20
Decision Type
notable investigation
Summary

Complaint: Public Services and Procurement Canada (PSPC) withheld the total amount it had been reimbursed by SNC-Lavalin for instances of overbilling. PSPC claimed that disclosing this amount could interfere with the contractual or other negotiations of both PSPC and SNC-Lavalin (as per subsection 18(b) and paragraph 20(1)(d)).

Investigation: PSPC claimed to the OIC that a confidentiality clause in its agreement with SNC-Lavalin to settle the overbilling matter prohibited disclosure of the total amount it had received. However, PSPC could not demonstrate that the disclosure of that information could reasonably be expected to interfere with contractual or other negotiations of either itself or SNC-Lavalin.

Outcome: PSPC disclosed the total amount SNC-Lavalin had repaid.

Information Commissioner’s position :

  • The requirements of the Access to Information Act take precedence over contractual terms reached between the government and third parties.
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Jun 8
2017

Exemptions must be applied in a limited and specific manner

Institution
Public Works and Government Services
Section of the Act
18
20
Decision Type
notable investigation
Summary

Complaint: Public Service and Procurement Canada (PSPC) refused to disclose the majority of an agreement it had signed with SNC-Lavalin, citing paragraph 20(1)(b) and subsection 18(b). The agreement set out conditions the company had to meet to continue to receive government contracts.

Investigation: The OIC determined that only a few clauses and part of one schedule met the requirements of paragraph 20(1)(b) and subsection 18(b)—that is, that they were SNC-Lavalin’s confidential commercial information and that disclosing them could interfere with PSPC’s contractual or other negotiations.

Outcome: PSPC released the majority of the agreement.

Information Commissioner’s position:

  • PSPC applied the exemption for third-party commercial information far too broadly, protecting, for example, information that SNC-Lavalin itself had made public.
  • The OIC only accepted in a few instances PSPC’s claim that other companies could strategize whether operating under such agreements could still be profitable if they were to know the extent of each clause of the agreement and PSPC’s flexibility.
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Jun 8
2017

Wide distribution of information undermines claim of confidentiality

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

Complaint: Canada Post refused to disclose its manual on mail delivery because it considered the information in it to be its confidential commercial information protected by section 18.1.

Investigation: The OIC disagreed with Canada Post’s application of section 18.1, since the institution had not treated the manual as confidential. It was available to all mail carriers and at sorting facilities across the country.

Outcome: Canada Post released the section of the manual dealing specifically with car shelters (the information the requester had sought), and the complaint was settled.

Information Commissioner’s position:

  • Canada Post must have consistently treated information as confidential in order to properly exempt it under section 18.1. The wide distribution of the manual to mail carriers and sorting facilities undermined Canada Post’s claim of confidentiality.
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Jun 8
2017

Institutions must provide evidence that information is commercial

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

Complaint: Canada Post withheld data tables showing the number of male and female mail carriers, and the number of rural and suburban mail carriers. It did so claiming that the tables were its confidential commercial information protected by section 18.1.

Investigation: Canada Post provided no evidence this information was commercial, or that it had been kept confidential. In fact, similar information was publicly available on Service Canada’s website.

Outcome: Canada Post disclosed the tables in their entirety.

Information Commissioner’s position:

  • Canada Post must demonstrate that the information is commercial and must have consistently treated it as confidential in order to properly exempt it under section 18.1.
  • Public availability of similar information can undermine a claim of confidentiality.
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Jun 8
2017

Information must be consistently held in confidence to qualify for section 23

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

Complaint: Library and Archives Canada (LAC) refused access to historical memoranda and telegrams between counsel and the Deputy Minister of Justice related to an individual’s 1918 legal action against the federal government, claiming legal advice privilege under section 23 .

Investigation: The OIC disagreed that most of the information qualified as legal advice and found that the institution had not shown it had held the information consistently in confidence, as section 23 requires. In addition, the OIC found that LAC had not shown it had properly exercised its discretion when applying the exemption, because it had not considered certain relevant factors that favoured release.

Outcome: In response to the OIC’s formal request for evidence on these points, LAC released all of the records.

Information Commissioner’s position:

  • Institutions must show that they have consistently held legal advice in confidence over time.
  • In addition, institutions must demonstrate that they considered factors such as the age of the records and their historical value when exercising their discretion to refuse disclosure.
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Jun 8
2017

Not everything a lawyer drafts is legal advice

Institution
Canadian Human Rights Commission
Immigration and Refugee Board
Section of the Act
23
Decision Type
notable investigation
Summary

Complaint: The Canadian Human Rights Commission and the Immigration and Refugee Board refused access to training manuals and guidelines, exempting them as legal advice under section 23.

Investigation: The OIC found that while some of the information was legal advice, the majority was not.

Outcome: Both institutions released most of the information. The Immigration and Refugee Board also waived its privilege over some records that did contain legal advice and released them.

Information Commissioner’s position:

  • Not everything drafted by a lawyer is legal advice.
  • When records do qualify for exemption under section 23, institutions must also consider whether there would be benefits to the public in waiving privilege and releasing the information.
  • For example, the Canadian Human Rights Commission has a public education mandate, and the public would benefit from understanding how it conducts investigations, which was the subject of the records in question.
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