Decisions

120 decisions found

Sep 17
2012

Not retrieving records compromises requesters’ rights

Institution
Canadian Broadcasting Corporation
Section of the Act
68
Decision Type
notable investigation
Summary

Complaint: The Canadian Broadcasting Corporation (CBC) said it did not have any records about financial support it had given to various films and documentaries and that, even if the records did exist, they would most likely be excluded from disclosure under section 68.1.

Investigation: The OIC learned that the CBC had published guidelines indicating it would refuse access to records that would be excluded under section 68.1 without retrieving the records and confirming whether the exclusion would apply.

Outcome: The CBC modified its guidelines.

Information Commissioner’s position:

  • Institutions must retrieve and process all responsive records even when they are of the initial view that they will be exempted or excluded. The CBC did not do so in this case.
  • Under section 25, institutions must disclose portions of exempted records that may be reasonably severed. Not doing so is contrary to the duty to assist.
  • The Federal Court of Appeal (paragraph 53) concluded that institutions must retrieve all responsive records so they can determine whether any exemptions or exclusions apply and whether severance is possible.
  • Not retrieving records risks their being disposed of by program areas, thereby compromising requesters’ rights.
Read more
Sep 17
2012

Timely access requires adequate resources

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

Complaint: Transport Canada did not respond for 18 months to a request for information about the investigation of an accident that had occurred the previous year.

Investigation: The OIC found that Transport Canada had neglected the request for extended periods because it did not have enough staff to handle the volume of requests it had received. The analyst assigned to this request had more than 60 other requests to process.

Outcome: Transport Canada agreed to respond to the request by a specific date, and met that deadline.

Information Commissioner’s position:

  • Institutions must devote adequate resources to fulfilling their duties under the Act.
  • When an access to information office is understaffed, the rights of requesters to a timely response are likely to be violated—in this case, severely.
Read more
Sep 17
2012

Institutions must provide evidence that releasing costs would cause harm

Institution
Canadian Air Transport Security Authority
Royal Canadian Mounted Police
Section of the Act
16
Decision Type
notable investigation
Summary

Complaint: The Royal Canadian Mounted Police and Canadian Air Transport Security Authority withheld information under subsection 16(2) about the costs of certain security operations.

Investigation: Both institutions claimed that releasing the aggregate costs could make it possible to determine resource levels and deployment strategies, thus revealing gaps in security. However, neither institution was able to provide a cogent and evidence-based explanation that this was a probable outcome.

Outcome: Further information was released.

Information Commissioner’s position:

  • To validly withhold information under subsection 16(2), institutions must provide evidence of a reasonable expectation of harm that would result from disclosing information—aggregate costs, in this case.
  • Speculating about possible harm that may occur due to information’s being derived from released records is insufficient.
Read more
Sep 17
2012

Fees shown to be “neutral information” not subject to solicitor-client privilege

Institution
Canadian Wheat Board
Section of the Act
23
Decision Type
notable investigation
Summary

Complaint: The Canadian Wheat Board refused to release the legal fees associated with the termination of an employee, on the grounds that they were protected by solicitor-client privilege.

Investigation: The OIC determined that section 23 did not apply to all the withheld information. Legal fees are “neutral information,” no longer protected by solicitor-client privilege, when it can be shown that privileged information could not be deduced from disclosing them.

Outcome: The institution released the aggregate fees.

Information Commissioner’s position:

  • Disclosure of the aggregate fees would not reveal privileged communications in this case.
  • When aggregate fees constitute “neutral information” they are not privileged.
Read more
Sep 17
2012

Audio recording: disclosure unlikely to harm investigation; not personal information

Institution
Commission for Public Complaints Against the RCMP
Section of the Act
16
19
Decision Type
notable investigation
Summary

Complaint: The Commission for Public Complaints Against the RCMP refused under sections 16 and 19 to release an audio recording of an RCMP dispatcher instructing a constable to respond to the scene of reported gunshots.

Investigation: The OIC found that the recording did not fall within the scope of section 16 because, among other reasons, releasing it would not harm the investigation, since the RCMP had already given a written transcript of it to the requester. In addition, all disciplinary investigations had been concluded. Section 19 did not apply because the recording was made in the course of the two RCMP members’ professional duties and therefore did not constitute personal information, as defined in the Privacy Act.

Outcome: The institution released the recording in response to the Information Commissioner’s recommendation.

Information Commissioner’s position:

  • Institutions must demonstrate a reasonable expectation of harm to an ongoing investigation when relying on section 16.
  • An audio recording made in the course of professional activities did not, in this instance, constitute personal information.
Read more
Sep 17
2012

Records created during negotiations not “supplied” by third parties

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

Complaint: Telefilm Canada refused to release large sections of the service agreement between it and the Canadian Television Fund because they contained third-party information.

Investigation: The OIC found that Telefilm Canada could not show it had properly withheld the third-party information under subsection 20(1). The information was neither financial, commercial, scientific nor technical. Likewise, the institution could not show that the third party supplied the information, as the provision requires.

Outcome: Telefilm Canada released the third-party information in response to a recommendation from the Information Commissioner.

Information Commissioner’s position:

  • Records that result from contract negotiations and that are included in a contract cannot be considered to have been supplied by a third party.
Read more
Sep 17
2012

Institutions, not consulted parties, must make final disclosure decisions

Institution
Canadian International Development Agency
Section of the Act
15
Decision Type
notable investigation
Summary

Complaint: The Canadian International Development Agency (CIDA) withheld under subsection 15(1) one paragraph containing Canadian officials’ assessment of the operations of a Honduran partner in records about the Canada Fund for Local Initiatives in Honduras.

Investigation: The OIC asked the institution to revisit its use of the exemption, which it had originally claimed on the advice of the Department of Foreign Affairs and International Trade.

Outcome: CIDA agreed that, with the passage of time, disclosing the information would no longer harm the conduct of international affairs.

Information Commissioner’s position:

  • Institutions must not rely solely on the views of consulted institutions but, rather, must decide on disclosure based on their own assessment of the records and the proper exercise of discretion.
Read more
Sep 17
2012

Act complements other means of access, so formal request not always required

Institution
Canada Revenue Agency
Section of the Act
4
Decision Type
notable investigation
Summary

Complaint: The Canada Revenue Agency (CRA) told a representative of a taxpayer who was going to be audited that requests for information about that taxpayer could not be made informally but rather had to be made under the Act at the end of the audit.

Investigation: The OIC found CRA’s position to be contrary to subsection 241(5) of the Income Tax Act, which allows CRA to provide taxpayers, or their representative, with their own tax information.

Outcome: CRA agreed to waive the fees associated with the formal request the representative ended up making and provided training on this issue to employees.

Information Commissioner’s position:

  • In line with the duty to assist and the principle that the Access to Information Act complements other means of accessing government information, officials should make every reasonable effort to provide information informally.
  • Access officials should include this point in employee training.
Read more
Sep 17
2012

Access officials must keep current on information management systems

Institution
National Defence
Section of the Act
6
Decision Type
notable investigation
Summary

Complaint: National Defence told a requester it had no copies of specific reports about democracy and human rights in Afghanistan that later turned out to exist.

Investigation: The OIC learned that some access officials had a limited understanding of National Defence’s information delivery and holding systems, and that this had affected their ability to search for the reports. It also became clear that if access officials had simply asked the Department of Foreign Affairs and International Trade—with whom the reports had originated—they would have been able to identify responsive records.

Outcome: The Information Commissioner issued formal recommendations that training be provided to employees about the duty to assist and that access officials become and remain familiar with the institution’s various information systems. Given the passage of time, no responsive records were still in existence; however, the requester did receive the names and contact information for National Defence officials responsible for Afghanistan policy.

Information Commissioner’s position:

  • Access officials must ensure they are familiar with their institution’s information distribution and holding systems.
  • They must also ask the proper questions when seeking records from program areas.
Read more
Sep 17
2012

Additional and expanded efforts required for thorough search

Institution
Library and Archives Canada
Section of the Act
6
Decision Type
notable investigation
Summary

Complaint: Library and Archives Canada (LAC) did not locate all the records it held related to a man’s 1939 attempt to sabotage a B.C. smelting operation, and withheld information under three exemptions.

Investigation: Since LAC’s initial response only included 165 pages, the OIC questioned the completeness of the institution’s search through its holdings.

Outcome: LAC carried out additional searches of more record groups, such that the requester received seven supplementary releases. LAC also decided to no longer rely on two exemptions to withhold records, and released almost all of the information it had withheld under a third.

Information Commissioner’s position:

  • The institution had, in the end, conducted a reasonable search when it reviewed seven additional record groups and explained to the requester why records might not have been preserved.
Read more
Date modified:
Submit a complaint