When information is known to exist, subsection 10(2) does not apply

Complaint: The Department of Justice Canada declined to confirm or deny the existence of both a letter from the Costa Rican foreign minister and the institution’s response, as per subsection 10(2).

Investigation: The OIC learned that Costa Rican authorities had publicly acknowledged that the foreign minister had requested the information.

Outcome: The institution ceased to rely on subsection 10(2) and released the records to the requester, albeit with many exemptions applied.

Information Commissioner’s position

  • Generally, it is not reasonable for institutions to apply subsection 10(2) when the existence or non-existence of records is already known, as in this case.
  • Similarly, the Department of Foreign Affairs, Trade and Development disclosed information it had previously declined to confirm or deny existed about the visit of a Canadian consular official to an internment camp in Afghanistan when the OIC found that the institution’s own public affairs group had released information about the visit.
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