Not retrieving records compromises requesters’ rights

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.
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