Decisions

127 decisions found

May 14
2015

Investigation into an access to information request for the Long-gun Registry

Institution
Royal Canadian Mounted Police
Section of the Act
30(1)(f)
Decision Type
systemic investigation
Summary

The request at the basis of the complaint was made to the RCMP on March 27, 2012, before the coming into force of the Ending the Long-gun Registry Act. It requested access to the Firearms Registry database.

The requester filed a complaint with the Office of the Information Commissioner after receiving a response from the RCMP alleging that:

  1. That the information provided was incomplete (missing both columns and registrations);
  2. That the RCMP did not justify the incomplete response;
  3. That by destroying the responsive records, the RCMP obstructed his right of access, pursuant to section 67.1 of the Act.
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Jun 5
2014

Length of extensions must reflect number of pages being sent for consultation

Institution
Natural Resources Canada
Section of the Act
9(1)
Decision Type
notable investigation
Summary

Complaint: Natural Resources Canada (NRCan) took a 300-day time extension to consult with the Department of Foreign Affairs, Trade and Development (DFATD) about requested briefing notes.

Investigation: NRCan sent just seven pages to DFATD for review. In addition, NRCan set the extension at 300 days even though it had not yet contacted DFATD to get an approximate return date. NRCan said it did so because, in its experience, DFATD did not always meet its promised deadlines.

Outcome: The consultations were ultimately completed in 51 days. NRCan responded to the request several months before the extended due date.

Information Commissioner’s position:

  • Institutions must take into account the number of pages of records responsive to requests and the number being sent for consultation when determining the length of time extensions under paragraph 9(1)(b).
  • In this case, the extension of 300 days was well beyond what was needed to consult DFATD on seven pages of records and to complete the processing of the request.
  • The extension was contrary to the Treasury Board of Canada Secretariat requirement that extensions be as short as possible. The extension likewise went against institutions’ duty to provide timely access to information, as set out in subsection 4(2.1).
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Jun 5
2014

Institutions may not close files pending consultations

Institution
Treasury Board of Canada Secretariat
Section of the Act
7
10(3)
Decision Type
notable investigation
Summary

Complaint: The Treasury Board of Canada Secretariat (TBS) claimed a 180-day time extension to consult another institution about requested records. On the extended due date, TBS informed the requester that it had not received a response to its consultation request and that it was closing the file.

Investigation: TBS advised the requester that it would provide any releasable records at the conclusion of the consultation, whenever that might occur. However, TBS had no procedure in place to monitor the progress of the consultation and ensure its eventual completion after the file was closed.

Outcome: In light of the Information Commissioner’s investigation, TBSfollowed up with the institution it had consulted. Once the consultation was complete, TBS issued the final response to the requester.

Information Commissioner’s position:

  • There is no basis in the Act for institutions to close requests before receiving consultation responses.
  • Closing a request pending outstanding consultations does not constitute a response to a request under either section 7 or section 10. These provisions define the appropriate timelines for and information to be included in a response.
  • As the institution to which the request was made in this case, TBS was responsible for responding accurately and in a timely manner, making any necessary decisions to ensure it met its statutory obligations.
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Jun 5
2014

Institutions must review records before exempting them

Institution
Foreign Affairs, Trade and Development Canada
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: The Department of Foreign Affairs, Trade and Development (DFATD) cited various exemptions to withhold information contained in documents sent or received by the Canadian embassy in Mexico about a businessman killed in Acapulco.

Investigation: The investigation revealed that DFATD routinely advises embassies not to provide consular files in response to access requests. In its view, these files are exempt under subsection 19(1) in their entirety.

Outcome: DFATD processed the records at the Information Commissioner’s request and subsequently released an additional 195 pages.

Information Commissioner’s position:

  • The complaint was well founded, since DFATD had not initially retrieved or processed all the records.
  • The Federal Court of Appeal confirmed that records must be reviewed to ensure proper processing (Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2011 FCA 326).
  • A failure to retrieve records jeopardizes the rights the Act confers, since there is a risk the program area could dispose of records not properly identified.
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Jun 5
2014

Paragraph 9(1)(c) covers only consultations with third parties on commercial information

Institution
Treasury Board of Canada Secretariat
Section of the Act
9(1)
Decision Type
notable investigation
Summary

Complaint: The Treasury Board of Canada Secretariat (TBS) took a 60-day time extension under paragraph 9(1)(c) to consult the House of Commons about requested briefing materials for the appearance of TBS officials before a parliamentary committee.

Investigation: TBS noted that it is not clear what the proper procedure is for responding to requests for records that may be covered by parliamentary privilege. The institution also stated that, in taking the time extension, it was following common practice.

Outcome: Since parliamentary privilege did not cover any of the records at issue, the extension was invalid.

Information Commissioner’s position:

  • Paragraph 9(1)(c) was not intended to be used to consult the House of Commons.
  • Rather, it was designed to accommodate consultations with third parties about records that could be considered confidential commercial information, as described in section 20.
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Jun 5
2014

Records about attendance at mandatory training 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) withheld in their entirety under subsection 19(1) records about the attendance of a newly commissioned inspector at the RCMP’s Officer Orientation and Developmental Course.

Investigation: The RCMP stated that the information sought (the dates of the inspector’s attendance, the complete list of courses, and the names of all the facilitators and any others in attendance), in conjunction with the name, rank and employee identification number of regular members of the RCMP, constituted personal information, as described in section 3 of the Privacy Act. However, the course was mandatory for newly commissioned officers.

Outcome: After a formal request from the Information Commissioner to justify its position, the RCMP agreed to release the information.

Information Commissioner’s position:

  • The fact that a member had attended this course is not personal information, since the training was mandatory and therefore related to the position or functions of an individual who is an employee of a government institution. This constitutes an exception to subsection 19(1), as per paragraph (3)(j) of the Privacy Act.
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Jun 5
2014

Claiming the “mosaic effect” requires showing that specific personal information would be disclosed

Institution
Transport Canada
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: Transport Canada refused to release aircraft registration numbers, claiming they were personal information under subsection 19(1).

Investigation: Transport Canada maintained that by cross-referencing these numbers with information on the publicly available Canadian Civil Aviation Register website, it would be possible to discern the names and addresses of the owners of registered aircraft involved in air occurrences.

Outcome: As a result of the investigation, Transport Canada released the records in full, claiming it was doing so using its discretion to release personal information in the public interest under subparagraph 8(2)(m)(i) of the Privacy Act. However, the Information Commissioner found that the information did not qualify as personal information and should not have been withheld under subsection 19(1) in the first place.

Information Commissioner’s position:

  • To withhold records under subsection 19(1) in this instance, Transport Canada would have had to demonstrate that releasing various types of seemingly unrelated information would paint a larger picture that would disclose specific personal information (known as the “mosaic effect”).
  • Transport Canada could not do so in this case. At most, someone might have been able discern the identity of the owners of aircraft involved in air occurrences, but not whether these owners were personally involved.
  • In its decision in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157, the Federal Court of Appeal said that the possibility that information might be cross-referenced with other sources does not render otherwise “non-personal” information “personal.”
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Jun 5
2014

Need for consent does not preclude processing requests

Institution
Royal Canadian Mounted Police
Section of the Act
6
7
Decision Type
notable investigation
Summary

Complaint: The Royal Canadian Mounted Police (RCMP) did not provide proper grounds for refusing access to requested documents.

Investigation: The OIC learned that the RCMP had required the requester to provide the written consent of any individuals whose personal information could appear in the records. When the requester failed to do so, the RCMP refused to process the request.

Outcome: Although the complaint was resolved on other grounds, the RCMP did not appropriately respond to this request.

Information Commissioner’s position:

  • Institutions are required to retrieve and review records responsive to requests.
  • Then, if personal information of individuals other than the requester is found in the records, institutions must, when it is reasonable to do so, seek those individuals’ consent to disclose their personal information.
  • Accordingly, the RCMP’s refusal in this case to process the request in the absence of consents was inappropriate.
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Jun 5
2014

Section 20 requires proof of commercial not personal harm

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

Complaint: Canada Post withheld under paragraph 20(1)(b) various details in contracts given to a consultant.

Investigation: During the investigation, Canada Post also applied paragraph 20(1)(c) to the information, claiming that releasing it could result in material financial loss for the consultant or prejudice his firm’s competitive position. For his part, the consultant was more concerned with possible damage to him in his personal capacity rather than possible damage to his business, which, as it turned out, had been dissolved.

Outcome: In response to a formal recommendation from the Information Commissioner, Canada Post disclosed the information in its entirety.

Information Commissioner’s position:

  • When claiming paragraph 20(1)(c), institutions must demonstrate that disclosure would result in financial loss to a third party or would harm its competitive position.
  • In addition, the information contained in the contract in this case was not “supplied” by a third party, as paragraph 20(1)(b) requires. Rather, the terms of the contract had been arrived at through negotiations.
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Jun 5
2014

Confidential information must be treated consistently as such

Institution
Crown-Indigenous Relations and Northern Affairs / Indigenous Services
Section of the Act
20
Decision Type
notable investigation
Summary

Complaint: Citing paragraph 20(1)(b), Aboriginal Affairs and Northern Development Canada (AANDC) exempted from a list the locations of storage tanks on Indigenous land in Alberta that contain petroleum products and allied petroleum products.

Investigation: AANDC maintained that the tank locations met the criteria of paragraph 20(1)(b), including the confidentiality requirements. However, the OIC learned that the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations stipulate that “the owner or operator must display the identification number in a readily visible location on or near the storage tank system for which the number was issued.” This requirement is echoed on the Environment Canada website.

Outcome: Since the locations of the tanks could be discerned through observation of the visible identification numbers, the location could not be characterized as “confidential.” AANDC agreed to disclose the information in response to a formal recommendation from the Information Commissioner.

Information Commissioner’s position:

  • In order for paragraph 20(1)(b) to apply, institutions must demonstrate that all the criteria set out in the provision are met.
  • In this instance, AANDC could not show that the storage tank identification numbers, and therefore the locations of the tanks, were confidential and had been consistently treated as such.
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