Decisions

125 decisions found

Jun 16
2016

Records collected but not created for a study not covered by litigation privilege

Institution
National Research Council
Section of the Act
23
Decision Type
notable investigation
Summary

Complaint: The National Research Council (NRC) refused to disclose records and 11 video files Marine Atlantic Inc. had sent to the NRC as part of a study of a marine accident. The NRC cited section 23 (litigation privilege), noting that there was to be a labour relations board hearing related to the collision.

Investigation: The OIC learned that some of the records and videos, such as the ship’s scheme, tidal charts, weather reports and CCTV videos, had been created before there was a reasonable prospect of litigation. Moreover, these documents would have been produced regardless of the collision.

Outcome: The NRC stated that it disagreed with the OIC’s analysis; however, it released the paper records that were collected but not created for the study. Five videos were also released (with the identities of some individuals obscured). Other exemptions were applied to the remaining videos to justify their being withheld.

Information Commissioner’s position:

  • When determining whether litigation privilege applies, institutions must determine the dominant purpose for which the documents were produced.
  • In this case, the documents produced during or as a result of the study were privileged information. The records collected but not created for the study were not.
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Jun 16
2016

Consider carefully whether releasing aggregated information will cause harm

Institution
Communications Security Establishment Canada
Section of the Act
15
Decision Type
notable investigation
Summary

Complaint: The Communications Security Establishment Canada (CSEC) withheld specific information within four pages of graphs showing the technical and operational assistance it had provided to federal law enforcement and security agencies. CSEC claimed, in part, that releasing the information could result in injury to the defence of Canada and its allies (section 15).

Investigation: CSEC gave a detailed rationale for applying the exemption, and the factors it considered when exercising its discretion. This included clear examples of how releasing information about specific requests for technical and operational assistance could reasonably be expected to result in injury. However, CSEC was not able to justify how injury could result from disclosing the aggregate information and categories found in the graphs.

Outcome: CSEC released more information, such as sub-totals and totals.

Information Commissioner’s position:

  • In deciding that releasing aggregated figures about requests for assistance would jeopardize ongoing investigations, CSEC applied section 15 too broadly.
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Jun 16
2016

Information must meet requirements of exemptions to be withheld

Institution
Canadian Radio-television and Telecommunications Commission
Section of the Act
16
23
Decision Type
notable investigation
Summary

Complaint: The Canadian Radio-television and Telecommunications Commission (CRTC) cited both section 16 and section 23 to withhold almost all of a four-page agreement between itself and a company involved in the 2011 robocalls scandal that set out the terms for resolving various concerns.

Investigation: The CRTC told the OIC that releasing the agreement in full could jeopardize outstanding investigations related to the robocalls scandal (section 16). The CRTC also alleged that, since the process that led to the agreement was subject to the legal advice privilege (section 23), the agreement itself should be, too.

Outcome: The CRTC agreed to review the exemptions and released almost all the information it had previously withheld.

Information Commissioner’s position:

  • Most of the information in the agreement was already in the public domain and, thus, disclosing it would not harm any outstanding investigations.
  • The agreement did not contain any legal advice between a solicitor and client; therefore, it could not be exempted under section 23.
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Dec 8
2015

Timely responses require prompt processing by all parties

Institution
Parks Canada
Section of the Act
10(3)
Decision Type
notable investigation
Summary

Complaint: Parks Canada missed the deadline to respond to a request for information about its purchase of an Ontario property.

Investigation: The OIC learned that the delay had been caused in part by the subject-matter expert, who had sent the requested records to the access office for processing one month after the response was due. The file had also lain dormant in the access office at various times. Several dates Parks Canada proposed for responding to the request were each too far in the future, with too much time set aside for various tasks, including 11 weeks for internal approvals.

Outcome: The Information Commissioner issued a formal recommendation to respond to the request, which Parks Canada did, 10 months after the original deadline.

Information Commissioner’s position:

  • Timeliness is fundamental to the right of access. Receiving a response in a timely manner ensures information is still relevant and that the government can be held to account for its decisions at appropriate times.
  • In this case, both the subject-matter expert and access officials consistently took too long to complete steps in the response process.
  • In light of this complaint and others like it, the Information Commissioner launched a systemic investigation to examine Parks Canada’s approach to processing access requests.
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Dec 8
2015

Common problems jeopardize timeliness

Institution
Environment Canada
Fisheries and Oceans
Royal Canadian Mounted Police
Section of the Act
10(3)
Decision Type
notable investigation
Summary

Complaint: Several institutions, including Fisheries and Oceans Canada, the Royal Canadian Mounted Police and Environment Canada, did not meet their deadlines for responding to requests from the Parliamentary Budget Officer about the possible impact Budget measures might have on service levels.

Investigation: The OIC learned that the institutions’ treatment of the requests featured several common problems that result in delays: files not advancing in the access office, unnecessarily long time extensions being taken for consultations on a small number of pages, and multiple consultations being carried out consecutively rather than concurrently.

Outcome: The Information Commissioner asked the three institutions for work plans and commitment dates for responding to the requester in order to avoid further unreasonable delays.

Information Commissioner’s position:

  • Timeliness is fundamental to the right of access. Receiving a response in a timely manner ensures information is still relevant and that the government can be held to account for its decisions at appropriate times.
  • In this case, delays in processing files at each institution, and stretching out the response time by taking long extensions and improperly carrying out consultations resulted in an 18-month delay in the response.
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Dec 8
2015

Releasing vague information not likely to identify individuals

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

Complaint: Citing section 19, the Royal Canadian Mounted Police (RCMP) withheld as personal information the locations from which officers had seized improperly stored firearms in individual residences affected by a flood.

Investigation: The descriptions of the locations ranged from vague (“in residence”) to more specific (“closet of master bedroom” and “under the bed in the bedroom”). The RCMP argued that releasing such information could make it possible to identify the homeowners. The OIC did not agree.

Outcome: The RCMP released the information.

Information Commissioner’s position:

  • Descriptions of the locations of improperly stored firearms do not qualify as information about an identifiable individual, and therefore may not be protected under section 19.
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Dec 8
2015

Seeking consent part of reasonable application of section 19

Institution
Finance Canada
National Defence
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: Citing section 19, National Defence and the Department of Finance Canada withheld information in response to requests: the names and scores of candidates in a job competition in the former case and the personal information of people involved in meetings about possible changes to the Income Tax Act in the latter.

Investigation: The OIC learned that the institutions had not sought the consent to release the information from the individuals to whom the information related, as the Act requires in these circumstances.

Outcome: National Defence asked the eight people in the job competition for consent to release their personal information; however, they declined. The 10 people involved in the tax law meetings did consent, and additional information was disclosed to the requester.

Information Commissioner’s position:

  • An institution may release information when the individual or party to whom the information relates or belongs consents to its disclosure. (See, for example, paragraph 19(2)(a) for personal information or subsection 20(5) for third-party information.)
  • Institutions must seek this consent when it is reasonable to do so, and should then disclose the information whenever the individual consents, barring exceptional circumstances.
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Dec 8
2015

Consider releasing information on compassionate grounds

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

Complaint: The RCMP refused, under section 19, to release information related to a workplace accident that resulted in a death.

Investigation: After investigating the matter, the Information Commissioner recommended that the RCMP release the information on compassionate grounds.

Outcome: In response to this recommendation, the RCMP consulted the Office of the Privacy Commissioner on the matter. The requester, a relative of the deceased, subsequently received additional records from the RCMP.

Information Commissioner’s position:

  • The exception to section 19 contained in paragraph 8(2)(m) of the Privacy Act allows institutions to disclose information, when doing so would be in the public interest and would clearly outweigh the invasion of privacy of the deceased.
  • The Information Commissioner recommends that institutions consider releasing information about a deceased individual to family members on compassionate grounds whenever appropriate.
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Dec 8
2015

Factual information does not qualify for exemption under section 21

Institution
Foreign Affairs, Trade and Development Canada
Section of the Act
21
Decision Type
notable investigation
Summary

Complaint: Foreign Affairs, Trade and Development Canada cited section 21 when withholding large portions of communications and briefing materials about the posting of partisan letters on the website of the former Canadian International Development Agency.

Investigation: The OIC found that some of the withheld information, including factual details, did not qualify for section 21. In addition, the institution had treated the information inconsistently, redacting it in certain places and disclosing it in others. Outcome: In response to the Information Commissioner’s recommendations, the institution provided more information to the requester.

Information Commissioner’s position:

  • There is a public interest in protecting information related to policy- and decision-making to ensure officials can provide full, free and frank advice to the government.
  • However, the exemption for “advice, etc.” in subsection 21(1) does not extend to objective, factual information.
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Dec 8
2015

Background information does not qualify for exemption under section 21

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

Complaint: Citing section 21, Environment Canada exempted large portions of a briefing note to the Minister of the Environment about whether to continue funding the Canadian Environmental Network.

Investigation: The institution argued that most of the information was advice and recommendations to the Minister. However, the OIC found that not all the information qualified for the exemption and recommended the institution complete a detailed review of the records.

Outcome: Environment Canada reconsidered its use of section 21 and released additional information, including background information and contextual material.

Information Commissioner’s position:

  • The exemption for “advice, etc.” in subsection 21(1) does not extend to objective, factual information such as background explanations.
  • There is a public interest in protecting information related to policy- and decision-making to ensure officials can provide full, free and frank advice to the government.
  • When exercising their discretion, officials must also consider the public interest in releasing this kind of information so citizens can hold the government to account.
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