2010-2011 2. Noteworthy investigations
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Efforts to analyze our caseload and identify the most efficient case management strategies yielded good results again this year. We made full use of all the tools and powers at our disposal, including the conduct of formal inquiries and reports to heads of institutions with formal recommendations. Successful strategies included a portfolio approach through which we focused on specific institutions, grouped complaints by source, topic or type of complaint. In most cases in which the complaint was well founded, we were able to negotiate resolution, with requesters gaining access to additional or more complete information.
This section provides examples of noteworthy investigations we completed in 2010-2011. They demonstrate some of the strategies and approaches we used, such as the conduct of formal inquiries, reports to heads of institutions, taking a portfolio approach or negotiating commitment dates. Other case summaries illustrate important principles to respect in processing access to information requests, such as the duty to assist and the proper exercise of discretion in balancing the protection of personal information and disclosure in the public interest. Other summaries describe the outcome of our investigative work to facilitate "settled" solutions to complaints or achieve additional disclosure for the benefit of access requesters.
IMPROVING REPORTING THROUGH MORE ACCURATE DISPOSITION
On April 1, 2010, we began using new disposition categories to describe the outcome of complaint investigations. The four new categories are more accurate and follow the terminology of section 37 of the Access to Information Act:
— resolved without recommendations
— resolved based on recommendations
— not resolved
not well founded
Experience with the new categories suggests that they are beneficial in more ways than one. They reflect more accurately the extent of our involvement, and institutions' readiness and efforts at resolving the issue. As some of the case summaries illustrate, the category "settled" may also encourage settlement of complaints through negotiations without compromising any rights protected by the Act.
Making full use of our powers
This year, the Commissioner found it necessary to issue seven reports of well-founded complaints with recommendations to the institutional head. Three of these cases were ultimately resolved. The four cases that were not resolved were from our oldest inventory and are now before the courts. The Commissioner brought legal proceedings on behalf of the complainant in three of these cases, and the requester took the matter to court in the fourth case.
Reports of well-founded complaints with recommendations to the head of the institution—resolved
Interference with an access request
In the summer of 2009, Public Works and Government Services Canada (PWGSC) received a request for information that Access to Information and Privacy (ATIP) staff identified as being in the Asset Report Card 2007-2008. They decided that the entire report should be disclosed but retrieved the release package from the mailroom following an email sent by a member of the Minister's staff to "unrelease" the report and only release one section of it.
After a delay of 82 days, the journalist who submitted the request received one out of fifteen chapters of the report. Several months later, after making two more requests, he received the entire document. The journalist became concerned that there may have been interference with the processing of his request, so he made an additional request for the processing file relating to his original access request, and he filed a complaint with the Information Commissioner.
As a result of our investigation, the Commissioner concluded that a member of the Minister's office interfered with the release of records by instructing officials to retrieve the original release package and later directing them to release only one chapter of the report. Ministerial staff members have no authority to make any decision under the Act or give any direction to institution officials.
The Commissioner also found that the actions and inaction of some PWGSC officials resulted in an unjustified delay of several months in releasing the requested information. This is contrary to the legal duty of all public officials to help requesters receive information in a timely manner.
In reporting her findings, the Commissioner made five recommendations to the Minister. She recommended that the Minister refer the interference with the processing of the request to the Royal Canadian Mounted Police, since the Information Commissioner does not have this authority under the current law. The remaining recommendations focused on internal training, policies and procedures that PWGSC should develop or enhance to avoid the recurrence of a similar incident. The Minister accepted all of the recommendations, and the institution developed a comprehensive action plan aimed at preventing such interference from occurring in the future.
A number of factors were at play in this investigation, including the roles, responsibilities and authority of the players involved. As this case shows, there are serious consequences for the rights of requesters when political staff members overstep their mandate and compromise a process that was designed to be objective and non-partisan. An equal concern is the impact of public officials not exercising their duty to say "no" to inappropriate requests from those who have no legal authority to make them.
The investigation into this complaint highlighted difficulties caused by a number of provisions in the Act. In the circumstances of this matter, these provisions prevented the Commissioner from disclosing information to the Attorney General of Canada concerning the possible commission of an offence under the Act by a political staff member.
In a special report to Parliament documenting our investigation and findings, the Commissioner made several recommendations to address the impediments set out in the Act. First, she recommended a general review of the confidentiality provisions that would take into account changes that have arisen since the Act came into force nearly 28 years ago. Second, she recommended that the limits that prevent her from disclosing information about the possible commission of an offence under the Act be removed. In particular, she recommended that she be allowed to disclose information to an appropriate law enforcement agency about any person who commits an offence under the Act, and not just directors, officers and employees of a government institution, as the Act currently provides. Finally, the Commissioner recommended that heads of government institutions be required to notify the Commissioner whenever they are informed of the possible commission of an offence under the Act in their institution.
Fisheries and Oceans Canada received an access request for information about the Bay of Fundy scallop licences that the Atlantic Coastal Waters Appeal Board and successive ministers of Fisheries and Oceans approved and returned between 1988 and 1991.
The department withheld the records in their entirety as being personal information about other individuals (section 19). The requester complained to us about the department's refusal.
Resolving the complaint
The requester indicated that he was not seeking personal information in the appeal cases that were approved, but rather the reasoning and the criteria used by the ministers in reaching the conclusion they did to reinstate the fishing licences. As a result of our intervention, the department disclosed several records to the requester, but continued to withhold personal information. The requester subsequently informed us that his primary interest was with four letters from former ministers to specific individuals whose licences were reinstated following an appeal to the Board. He wanted to know about these other cases in which licences were reinstated because his own appeal to reinstate his licence had been denied. On this basis, we continued discussions and negotiations with the department but to no avail.
In finding the complaint to be well founded, the Commissioner recommended to the Minister at the time of the investigation that the four letters in question containing details and other information about the various ministers' decisions in regards to the licence appeals be disclosed to the requester. The department released the content of the four letters, except for some personal information, such as home addresses. The requester was satisfied with this additional disclosure and the file was closed.
In this case, the requester wanted to know the reasoning and criteria used by ministers in making the decisions they did in reinstating the fishing licences to some applicants but that one minister did not follow for him. By erring on the side of caution, the department did not apply severance as the Act requires (section 25) and disclose what the requester was entitled to know. This case underlines the importance of understanding the reasons supporting administrative decisions made by a minister or body.
Commitment to timely disclosure
Thirteen requests were made by the same requester to Indian and Northern Affairs Canada (INAC) for various records relating to the Food Mail Program. Because the department did not respond by the statutory deadlines, the requester complained to our office about the delay in responding to all of his requests.
Resolving the complaints
Three of these deemed refusal complaints were resolved without the need for the Commissioner to make recommendations to the Minister of Indian and Northern Affairs. This is not the case, however, for the remaining 10 complaints, which continued to be in deemed refusal.
It became apparent that delays arose from the failure of the Canada Post Corporation (CPC), the consulted institution, to respond to INAC's requests for consultation in a timely manner. As a result, INAC refused to provide commitment dates to our office for responding to the requests without first knowing the dates by which CPC would respond to the consultations. We also discovered that while INAC had extended the time limit under the Act for most of the requests in order to consult with CPC, it undertook consultations for some of the relevant records only after the extended time period had expired.
We focused on expediting the consultation process. INAC agreed to send the necessary documents to CPC as quickly as possible. This was done over a six-month period, given the large volume of records identified. CPC failed to respect the commitment dates it provided for some of the consultations. We had several exchanges with CPC officials to get them to provide firm dates to respond to the outstanding consultations with INAC.
Duty to assist
Under subsection 4(2.1) of the Act, it is the responsibility of a government institution to assist requesters with their access requests. A key aspect of the duty to assist is to provide timely access to requested records. In our view, by delaying the processing of requests, INAC failed to comply with its duty to assist.
While the Act envisages instances in which institutions may extend the time to process a request, they do not have a right to unduly delay responding to a request in a manner that is contrary to their duty to assist. Moreover, INAC should have started the consultation process on most of these requests as soon as possible and not after our investigation began.
We concluded that INAC was responsible for responding to these requests and that, while section 9 of the Act contemplates instances in which consultations with other institutions will be necessary, extensions taken for the purposes of such consultations must not be unreasonable. This is consistent with the 2008 Treasury Board of Canada policy that advises institutions to establish procedures to ensure that necessary consultations are undertaken while respecting the provisions in place in the Act.
In the 2008-2009 report card exercise, the Commissioner recommended that INAC strive to reduce its deemed refusal rate to zero. INAC responded that it would ensure that access requests were processed in a timely manner and, when required, would take more extensions in order to avoid being in a position of deemed refusal. INAC also informed our office that a workload analysis would be undertaken to streamline the processing of requests and reduce the completion time to process access requests. We will follow up with the institution's progress in our next reporting period.
That said, although extensions were taken for 10 of the access requests, INAC was in a deemed refusal situation. We informed INAC that it should outline measures in the development of its internal procedures for dealing with extensions as well as the consultation process in order to avoid delays in responding to access requests.
After considering the representations we received and other evidence before us, we came to the conclusion that INAC failed to ensure that responses to these requests were provided on a timely basis knowing that it was in deemed refusal (section 10(3)).
In light of the institution's failure to provide the requester with timely access to his
10 requests, and as a result of CPC's refusal to respond to INAC's consultations, the Commissioner reported to the Minister of Indian and Northern Affairs that all
10 complaints were well founded. She recommended commitment dates by which INAC should respond to each of the requests. These dates were based on our discussions with INAC and CPC, and our own assessment of the work remaining to be done at the time. INAC responded to the first of the 10 requests in early March 2011, with the remaining responses to follow in the subsequent two months.
It is the institution that processes the request that is responsible and accountable for meeting the legal deadlines under the Act. When extending requests for consultation with other institutions, institutions should always proceed with the consultations as soon as possible and follow the 2008 Treasury Board of Canada procedures relating to effective consultations. As the deadline for the consultation approaches, access to information officials should remind the consulted institutions of the response date for providing any recommendations. Failing receipt of a response, institutions need to make their decision on disclosure and respond to the request. Institutions should have detailed procedures in place for conducting such consultations.
Reports of well founded complaints with recommendations to the head of the institution—not resolved
Scope of exemptions
The Royal Canadian Mounted Police (RCMP) and the Department of Justice Canada received the same request for a protocol that was in place between the two institutions and entitled Principles to Implement Legal Advice on the Listing and Inspection of RCMP Documents in Civil Litigation.
After consulting one another, the institutions respectively released only some general identifying information and withheld the text of the protocol on the grounds that it contained advice or recommendations (paragraph 21(1)(a)) and was subject to solicitor-client privilege (section 23). The requester complained about the exemptions applied by both institutions.
Resolving the complaint
We did not accept that the protocol constituted advice or recommendations or that it was protected by solicitor-client privilege. In our view, the protocol was an agreement that reflected a policy decision reached by the two institutions on the basis of advice or recommendations, including legal advice, previously provided.
The Commissioner recommended to the Minister of Justice and the Commissioner of the RCMP that the protocol be disclosed. Both institutions refused, and the Commissioner applied to the Federal Court on the applicant's behalf for a review of both decisions (see Chapter 4, "Issue of protocol").
Interpretation of new exemption added by the Federal Accountability Act
This complaint concerned a request made to the Canada Post Corporation (CPC) for information about its access to information coordinator. The requester asked for the coordinator's name, telephone number, assigned duties and functions, salary range, allowances and benefits, as well as his or her employment contract.
The requester complained following CPC's decision to withhold large portions of the records as personal information (section 19), information that could prejudice the competitive position of a government institution (paragraph 18(b)), and trade secrets or financial, commercial, scientific or technical information that belongs to and has consistently been treated as confidential by the CPC (paragraph 18.1(1)(a)).
Resolving the complaint
We agreed that CPC correctly withheld the Coordinator's identification number and home address as personal information. We did not support CPC's argument that release of the salary range and benefits would prejudice its competitive position or interfere with contractual or other negotiations.
The case law makes clear that to establish a "reasonable expectation of probable harm," there must be evidence to support a "confident belief" that disclosure of the withheld information could reasonably be expected to be injurious to any of the activities protected by the exemption. A clear and direct link or causal relationship between disclosure of specific information and the harm alleged must be described. We concluded that CPC failed to establish such a link.
CPC withheld the salary and benefits as confidential financial and commercial information. We believe that the purpose of paragraph 18.1(1)(a) is to protect the Crown corporation's information relating to its business systems, operations, trade and commerce. Salary ranges and benefits of specific individuals of the Corporation should be disclosed as they would for other government employees, since such information is an exception to the definition of personal information under the Access to Information Act and the Privacy Act. We also concluded that the information fit within the scope of "general administration" and should be disclosed under paragraph 18.1(2)(a) of the access legislation.
CPC did not accept the Commissioner's recommendation to disclose the information. With the complainant's consent, the Commissioner applied to the Federal Court for a review of the matter (see Chapter 4, "What is the scope of section 18.1?").
Scope of national security exemption
A request was submitted to National Defence (DND) for photographs of hairdos (excluding facial and bodily features if need be) of each Afghan detainee processed by the Canadian Forces in 2007.
DND refused to release the severed photographs on the grounds that they were personal information (section 19) and could compromise the defence of Canada (subsection 15(1)). The requester complained about DND's response.
Resolving the complaint
In DND's view, release of the photographs severed at the hairline would identify the detainees. Moreover, the department argued that Canada's military presence in Afghanistan, as well as its security and that of its allies, could be endangered.
The term "personal information" is defined in section 3 of the Privacy Act as "information about an identifiable individual." Section 19 applies only when disclosure of information could lead to an individual being identified. We were not convinced by DND's argument that individuals could be identified by severing the faces nor its assertion that disclosing the detainees' hairline would result in a mosaic effect, should further requests be made for various components of the face. We were also of the view that DND did not offer convincing evidence that disclosure of the hairdos would result in a reasonable expectation of harm to Canada's defence capability, since the detainees could not be identified.
Finding the complaint to be well founded, the Commissioner recommended to the Minister that the pictures of hairdos be disclosed. The department refused, and the complainant initiated a review of the matter with the Federal Court. A notice of application was filed with the Federal Court on December 23, 2010 (T-2140-10).
This request tested the scope of the reasonable severability rule under the Act. Claims of a mosaic effect and continuing injury to national security interests need to be properly substantiated when deciding to withhold requested information.
Portfolio approach: Canada Revenue Agency
As explained in Chapter 1, we opted for a portfolio approach to address the large number of complaints we have received in recent years involving the Canada Revenue Agency. The following two cases concern the use of section 24 of the Act, an exemption that refers to other laws that prohibit or restrict the disclosure of certain information and are listed in Schedule II of the Act. The restrictive disclosure provision referenced in the two cases pertains to section 241 of the Income Tax Act.
Interpreting exemptions in a limited and specific way
Case 1: Background
The Canada Revenue Agency (CRA) received a request for a list of tax discounters registered under the Tax Rebate Discounting Act, including their business addresses for the previous two years.
CRA invoked section 24 of the Act, which refers to other laws that prohibit or restrict the disclosure of certain information. In this case, CRA referred to section 241 of the Income Tax Act, which restricts the release of taxpayer information.
Resolving the complaint
The purpose of the Tax Rebate Discounting Act is to allow qualified registrants to prepare income tax returns on behalf of their clients and acquire their income tax refunds, which enables them to offer immediate refunds to their clients.
Section 241 of the Income Tax Act protects the confidentiality of taxpayer information. In this case, the information relevant to the request did not relate to taxpayers but rather to businesses dealing with taxpayers. The requester simply wanted the list of companies in this line of work and their addresses. Release of the information would not reveal any information protected by section 241 of the Income Tax Act. At our request, CRA agreed to release the records. Further to this investigation, CRA advised us that it was prepared to release this type of information when such a request is received. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
Case 2: Background
An individual made a request to CRA for the entire file of her business, which had been seized by CRA, including the audit file, records relating to the current debt, interest and penalties, records of payments against the debt, correspondence with the Sheriff's office and the Lien registered on a property.
CRA withheld the information on the grounds that once a company is dissolved, no one has the right to its income tax information under the Access to Information Act. The requester complained about the response.
Resolving the complaint
In this case, CRA relied on section 24 with reference to section 241 of the Income Tax Act to refuse the disclosure of taxpayer information. Our investigation revealed an exception found in paragraph 241(4)(b) of the Income Tax Act, which states that an institution can "… provide to any person taxpayer information that can reasonably be regarded as necessary for the purposes of determining any tax, interest, penalty or other amount that is or may become payable by the person, or any refund or tax credit to which the person is or may become entitled, under this Act or any other amount that is relevant for the purposes of that determination." We asked CRA to consider this exception in this particular case. CRA agreed and retrieved approximately 700 pages, which were released in part and some exemptions applied. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
In these two cases, CRA took a very broad interpretation of section 241 of the Income Tax Act. While section 241 has wide application, it must be interpreted in a way that is consistent with the fundamental principle of the Access to Information Act. According to this section 2 of the Act, necessary exceptions to the right of access should be limited and specific.
Portfolio approach: Privy Council Office
Another focus of our attention this year was the Privy Council Office's (PCO) processing of access requests in two areas: mandatory consultations with PCO for review of Cabinet confidences, and duty to assist requirements.
Cabinet confidence consultations
Institutions may take an extension under the Act to consult with PCO Cabinet Confidence Counsel (PCO/CCC) for records they identify in a request that may qualify as a Cabinet confidence. This type of consultation is mandatory under government policy. However, Treasury Board of Canada Secretariat guidelines are silent on what is a reasonable time period to conduct such a consultation.
From the extension and deemed refusal complaints we receive and our discussions with access to information offices, consultations are generally lengthy. PCO/CCC now requires up to 180 days to complete consultation requests. Institutions factor in this timeline with their own to finalize the processing of the request, and take what is a lengthy extension under the Act. When PCO/CCC is late responding to the consultation, it is the institution that received the request that is responsible and accountable for the delay. When we receive a complaint about this type of delay, we intervene with PCO to obtain a date by which it will respond to the institution's consultation.
Mandatory consultations should not hold the institution, and ultimately the requester, hostage to the process. In investigating several such complaints this year, we escalated the matter with senior PCO officials and managed to obtain firm dates by which replies to the consultation requests would be provided to the institutions in question. The systemic investigation that we are conducting into the use of extensions, including those for mandatory consultations, should provide us with a better understanding of the root causes of the problems, and allow us to make appropriate recommendations on how to address them for more timely access and compliance with the Act.
Duty to assist
We investigated a number of complaints and found that PCO failed in its duty to assist requesters as mandated under the Act. Of note were several complaints about PCO's use of a statement in its letters that acknowledged receipt of an access request that put the onus on requesters to confirm that they wanted PCO to process Cabinet confidence information. We escalated the matter to the senior official level, and the new practice was discontinued. In one case, PCO asked the requester to do the work that PCO should have done in assisting him. In another case, PCO interpreted the terms used by the requester so narrowly that the requester received nothing, even though PCO had retrieved records. Finally, PCO withheld portions of records in a request that contained non-relevant information, contrary to a long established rule.
Who determines what a Cabinet Confidence is?
PCO received a request for call-ups (Public Works and Government Services Canada form 942 or the departmental equivalent issued under the Task Based Informatics Professional Services Standing Offer). In its acknowledgement letter, PCO informed the requester that given the nature of the department's work, PCO records often include information that is not subject to the Access to Information Act, since it is considered a confidence of Cabinet. PCO added that to expedite the completion of the request, it would not process information expected to be certified as a Cabinet confidence under section 69 of the Act.
The requester complained to us about PCO's statement. He maintained that PCO is required to process all files within the scope of the request until a qualified official makes the determination of an exclusion under section 69. He asserted that this statement conflicted with the process set out in the Act and that it is the Clerk of the Privy Council and not the PCO access director who is the decision maker in this situation.
Resolving the complaint
PCO told us that the wording employed in the letter of acknowledgement was part of a pilot project, started that fiscal year, with the intention of providing faster responses to requesters. PCO also stated that the letter is considered an "acknowledgement" letter and that it provided the requester with an opportunity to disagree with this approach, given the closing paragraph, which read as follows: Should you disagree with this approach or have questions concerning the processing of your request, please contact… [name of analyst, phone number].
PCO maintained that had the requester asked that the records be processed in their entirety, it would have done so. PCO also contended that this approach was consistent with its duty to assist because it was meant to ensure timely responses to access requests by avoiding the time consuming Cabinet confidence review by PCO/CCC.
Our investigation focused on PCO's approach with these "acknowledgement" letters, including the apparent determination of a section 69 exclusion, and whether the approach was consistent with its duty to assist obligations as set out in subsection 4(2.1) of the Act.
We identified certain problems with PCO's approach. In our view, PCO's statement that it will not process information that it expects would be certified as a Cabinet confidence under subsection 69(1) is not consistent with its obligations under the Act. Proper processing requires a government institution to identify and review the requested records until such time as a person with the delegated authority invokes an exclusion. It also requires a written notification to the requester of the decision of the government institution in relation to the request and any exemptions applied or exclusions invoked. PCO's failure to process the requested information also contravenes the April 1, 2010, Treasury Board of Canada Secretariat Directive on the Administration of the Access to Information Act.
The directive lists a number of principles that should be employed to assist requesters, including the following:
- making every reasonable effort to locate records under the control of the government institution that are responsive to the request; and
- applying limited and specific exemptions to the requested records.
While the directive is not applicable to information that is excluded under the Act, it is our view that until a record is determined to be excluded by a delegated authority, all records under the control of a government institution must be processed in the manner set out in the Act and should also be processed in accordance with the directive. We note that the Director of the Access to Information and Privacy office at PCO does not have the delegated authority to invoke section 69.
We are also of the view that the "opt-in" manner of proceeding employed by PCO is not proper processing, does not satisfy the notice requirements (sections 7 and 10) and does not satisfy PCO's duty to assist obligation under the Act.
PCO attempted to justify this manner of proceeding as a way to ensure "timely access" to records by avoiding a time-intensive review of the records by PCO/CCC. While timely access to records is an important component of the duty to assist provision, it is not the only component.
Institutions must also respond accurately and completely and make every reasonable effort to assist the person in connection with the request. In our view, creating an "opt-in-or-you-lose-your right-to-proper-processing" mechanism is the antithesis to the duty to assist.
PCO insisted that the statement in the acknowledgement letter was not a response to the request but an acknowledgement of the request. In the end, PCO informed the requester that a thorough search had been undertaken and that no records relevant to his request were found.
It became clear during the investigation that PCO's approach was an impermissible abdication of its obligations to requesters. Asking requesters to contact PCO when they disagree with the proposed processing their request, imposes an onus on the requesters to take positive action to ensure that their right to access information pursuant to section 4 is safeguarded. In essence, such a mechanism requires that the requesters reiterate a request that they have already made; when they do not, they will in effect be deemed to have withdrawn their request for records which a person without delegated authority "may" constitute Cabinet confidences.
We concluded that PCO did not process the complainant's request in accordance with the requirements of the Act and, in particular, with its duty to assist obligations. The duty to assist should not be relied upon to overcome internal administrative issues, namely, the time it takes PCO/CCC to review records that may be Cabinet confidences. This is particularly true when the proposed measures to increase timeliness come at the expense of the other elements of the duty to assist.
As a result of our intervention, a senior PCO official confirmed to us that it discontinued its new practice of including the statement about section 69 in its acknowledgement letters to requesters. The complaint was recorded as well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
In their attempts to find ways to accelerate the processing of requests, institutions should keep in mind that they cannot disregard their obligations under the Act and should not ignore the procedures set out in the Treasury Board of Canada Secretariat's directive on the administration of the Act.
Institutions should carefully consider the consequences of new procedures they wish to implement. In PCO's case, the pilot project's objective may have been to give rapid service to requesters but the end result was bad service and the antithesis of the duty to assist requirement.
Making the requester do the work
A requester sought from PCO records of expenses submitted by staff from the Prime Minister's Office (PMO) or the Privy Council Office for the Prime Minister's trip to Edmonton, Alberta on June 16, 2006.
Records of expense claims from PCO employees were retrieved and some information was withheld as personal information (subsection 19(1)). The requester complained to us about PCO's response and that more records should exist.
Resolving the complaint
The requester complained that PCO only provided records relating to two PCO employees and did not retrieve records relating to exempt staff in the PMO. Instead of releasing this information, PCO directed the requester to its website when it responded to the request. However, the requester felt that the website did not provide sufficient details.
PCO's Financial Services was unable to identify information relating to PMO staff because the expenses could not be tracked by project code, since the trip was within Canada. Financial Services said it would need the names of the exempt staff travellers to identify the records. In his letter of complaint, the requester provided us the names of the exempt staff he found on PCO's website. We were left to wonder why PCO did not consult its website at the time of the request. With the complainant's consent, we provided the names to PCO, and a new search was conducted. Records were located and additional information was released to him. The complaint was well founded without the need for the Commissioner to make recommendations to the head of the institution.
Section 6 of the Access to Information Act provides that access requests must be made in writing to the institution that has control of the record. It must provide sufficient detail to enable an experienced employee of the institution to, with a reasonable effort, identify the record.
In this case, the requester had given sufficient information to clearly describe the information he wanted, even though he did not provide the names of the employees.
When institutions receive access requests, some work has to be done to determine whether there are records relevant to the request and where they are located. Given that the requester was able to find the names on PCO's website, PCO employees should also have been able to find them without too much effort and offered to do so. This could have saved resources at both PCO and our office, and would have resulted in more timely disclosure to the requester.
Interpreting an access request
A request was made to PCO for all transcripts and minutes of conference calls held in August and September 2008 on the listeriosis outbreak. PCO extended the request for a period of 120 days to consult another institution. In its response, PCO informed the requester that the records retrieved were in fact not relevant to the request and that no records would be disclosed. The requester complained about the response.
Resolving the complaint
The complainant asserted that the records existed and that PCO had failed in its duty to assist, since it did not provide him the opportunity to dispute its decision nor did it give him the option of continuing to process the request. He also expressed concern with PCO's apparent refusal to cooperate with our office to ensure a more timely response.
We learned that the records retrieved by PCO were hand-written notes. PCO's position was that they were not relevant to the request because they did not constitute "transcripts" or "minutes," as these terms are commonly defined. We disagreed and asked PCO to process the notes. In our view, and based on the definition of "transcripts" in the Oxford English Dictionary, we determined that the terms "transcripts" and "minutes" were sufficiently similar and interchangeable, and could invariably be construed as applying to the records retrieved by PCO. As a result, PCO agreed to process the records, which took several more months due to a number of consultations, including one for possible Cabinet confidences, as well as PCO's protracted approval process.
In our view, PCO failed in its duty to assist the requester as provided in subsection 4(2.1) of the Act by not respondingto him in a more timely manner and by narrowly interpreting the terms he used in his request. PCO should have told the requester about the notes and asked him whether he wanted them to be processed. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
The purpose of the Access to Information Act, as set out in section 2, is "to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution with the principle that government information should be available to the public." The Treasury Board Secretariat's Directive on the Administration of the Access to Information Act requires institutions to adopt a broad interpretation of an access request, yet communicate with the applicant to clarify the request when it is unclear or too general in order to understand what information is requested without unnecessarily delaying its processing (section 6.2.5). By interpreting the request so narrowly, PCO failed in its duty to assist and neglected to consider and respect section 2 of the Act.
Disclosing non-relevant information with relevant information
PCO received a request for records relating to the Canadian Broadcasting Corporation (CBC) Board of Directors training sessions from 2005 to 2007, including reports from PCO training staff as well as invoices for the cost charged to the CBC. Records were released with portions withheld as personal information (section 19). The requester complained about the response, indicating that portions of the records had been removed under the heading "Not Relevant."
Resolving the complaint
We discussed the processing of the request with PCO and told officials that portions of records cannot be removed because they are not relevant to the request. PCO agreed to conduct another review of the records. Portions of records were withheld as personal information, and PCO no longer relied on the "Not Relevant" heading to withhold information. Additional information was released to the requester. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
It is a long established rule that institutions cannot withhold information that is considered not relevant to a request when found in the same record as relevant information. The Treasury Board Secretariat's Directive on the Administration of the Access to Information Act makes this clear to institutions and adds that lack of relevance is not a ground for exemption under the Act (section 6.2.25). Records must be processed in their entirety, and the only portions that can be removed are those for which an institution claims an exemption or exclusion.
When investigating a complaint that an institution has not responded to a request within the legal timeframe, our office attempts to negotiate a commitment date by which the institution will respond to the request. Institutions must take this commitment seriously and respond by the agreed upon date, since they are already in a situation of deemed refusal. The Commissioner's report of a well-founded complaint with recommendations for release dates in the 10 Indian and Northern Affairs Canada access requests relating to the food mail program (see discussion above) was one approach to secure more timely disclosure to the requester.
We have taken other approaches as well, and recent court decisions have confirmed that the Commissioner has various options available to her when investigating deemed refusal complaints. She may keep the complaint open until the response is provided or close it depending on the length of the commitment date provided.
As the following case illustrates, the Commissioner may initiate a complaint for refusal to provide access (and not a second delay complaint) when a commitment date has been missed in order to secure more timely disclosure.
Backing a commitment with a Commissioner-initiated complaint
This complaint relates to a request made in 2009 to the Canada Revenue Agency (CRA) for records under its control pertaining to the income tax audit of a company for the years 2002 and 2003.
Because the requester had not received a response from CRA, he complained to us about the delay. We negotiated a commitment date with CRA by which it would respond to the request (end of January 2010). We then closed the file. The following spring, the complainant informed us that CRA had still not responded to the request. Several informal exchanges with CRA proved to be unsuccessful in obtaining an early release date. CRA indicated that it needed several more months to process the request, which meant that the requester would have waited at least another year from the date CRA originally committed to respond to the request. In light of this continuing and lengthy delay, the Commissioner decided in August 2010 to initiate a complaint into CRA's refusal to provide access to the requested information.
Resolving the complaint
We knew going into this investigation that the request involved a large number of records. However, we soon discovered that the number had almost doubled to approximately 10,000 pages. To expedite the process, the investigator reviewed the records and analyzed the exemptions and exclusions as CRA's access to information staff were reviewing them. As a result, CRA did a partial release three months later and provided its final response to the requester the following month.
Although the complainant did not have an issue with the exemptions and exclusions that the institution claimed, we reviewed their application, since this was a refusal complaint. We concluded that CRA withheld information qualified for exemption as personal information (section 19) and taxpayer information (section 24 with reference to section 241 of the Income Tax Act). Information was also excluded from the Act as being published information or material available for purchase by the public (paragraph 68(a)). To assist the requester in obtaining the information, CRA provided the record titles, their authors and the page and volume numbers in which it could be found.
The Commissioner's decision to initiate and investigate a complaint as a full refusal complaint, given the institution's failure to meet its commitment date, cannot be replicated in every case, due to our limited resources. It is one option available to the Commissioner in extraordinary cases of delay. Although this approach mobilized one investigator full time, we considered the investigation necessary to ensure that the institution completed processing the request on a priority basis, since it was already long overdue.
Duty to assist
How not to handle an access request
In March 2010, a requester complained about a delay in the processing of his request to the Canadian International Development Agency (CIDA). He had requested records of
e-mail and Blackberry communications between the Prime Minister's Chief of Staff and CIDA officials in 2006. The requester also expressed concerns that the Privy Council Office (PCO) might have stalled the access request for political reasons.
Resolving the complaint
Our investigation determined that the extraordinary delay in this case resulted from a combination of circumstances, foot-dragging and human error. CIDA initially took a
60-day extension in order to consult with PCO. This extension, however, was not valid, because it was taken after the 30-day deadline. The request entered into deemed refusal status in November 2006. Then, CIDA set aside this request for several months. Much of this inaction may be attributed to the workload of CIDA's access to information office, which nearly doubled that year. It took CIDA 22 months to determine which records were relevant to the request. It then sent some 150 pages to PCO for consultation in November 2008.
PCO displayed no more sense of urgency about this request than did CIDA. Although there was an exchange of correspondence with CIDA in the first two months of the consultation, PCO gave no attention to the file for 14 months, and no one from CIDA followed up, despite its policy to do so when consultations are late. In March 2010, a CIDA analyst newly assigned to the request contacted PCO to enquire about the status of the consultation. As a result, PCO began to work on the file and responded to CIDA two months later.
Because of the complainant's concerns regarding PCO, we examined the consultation that took place with PCO's access to information office. We found that although PCO failed to treat the request with diligence, there was no evidence of obstruction on its part. The file was continually set aside in favour of other requests deemed more urgent. As for CIDA, we were told that its workload had almost doubled at that time, and it was not until 2008 that more analysts were hired.
The provision regarding the duty to assist (subsection 4(2.1)) came into effect during the processing of this request. Because of its inaction, CIDA failed in its duty to assist by allowing the request to lag, instead of ensuring a timely response. The institution that receives an access request is ultimately responsible for meeting the statutory deadline, even when it needs to consult with another institution. Best practices include negotiating or requesting a deadline with the institution being consulted before sending the records for consultation, monitoring and following up when necessary so that the response to the consultation is on time, and making a decision on the consulted records when the consultation response will be late.
Published or in the public domain
Information made public by another statute
The complainant's company has conducted business with the Canada-Nova Scotia Offshore Petroleum Board, a government institution subject to the Access to Information Act. The Board implements a statutory scheme under which persons seeking licences related to petroleum exploration provide the Board with technical information in support of their applications. Under the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, this information is kept confidential for various periods of time depending on the nature of the information, after which the Board makes the information available to the public. Applicants are aware that this publication can occur.
The complainant had written to our office a number of times in the past alleging that the Board was disclosing information that belongs to his company and should be protected under section 20 of the Act. We advised the individual that his complaints were of a general nature and did not relate to any specific request. As a result we did not accept his allegations as a complaint. The individual then decided to make a request to the Board for information provided to the Board by another company. The requester believed that the information should be withheld under section 20. The Board excluded the information as publicly available (paragraph 68(a)). This response led to a complaint.
Resolving the complaint
The complainant's argument was essentially that the information was not appropriately excluded under paragraph 68(a) because it should not have been considered information "publicly available." The basis for this assertion was that the Board could not legally make public information that was the property of applicants who had submitted that information to the Board under its legislation. Such information is, according to the complainant, proprietary third-party information that should be released only after consideration under section 20 of the Access to Information Act. With respect to subsection 2(2) of the Act, the complainant maintained that the rules of statutory interpretation require that this provision be read in conjunction with the rest of the Act, which includes provisions, such as section 20, intended to protect third parties against inappropriate disclosure of their information. In his view, the Board should have considered refusing to disclose the requested records under section 20, instead of informing him that the information is publicly available in accordance with section 122 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act.
The complainant's argument, albeit novel, was not accepted by our office. The essence of the complaint was that the Board's statutory scheme breached property rights by disclosing information to the public and that we should police such invalid disclosure.
We concluded that it was not within our mandate to determine whether the information requested was appropriately made available to the general public under the law and policies governing the Board and its procedures. We advised the complainant that given the provisions of subsection 2(2) of the Act, we were not prepared to interfere with another procedure for providing access to government information, and that this provision dictates that our role is to complement, rather than replace, such an access procedure. Accordingly, we would not use the exemption provisions of our own Act to limit access to information under a different legislative scheme.
Accordingly, we found that, within the framework of the Access to Information Act, the Board properly identified the requested records as publicly available and discharged its duty to assist in an exemplary manner. The complaint was not well founded.
The complainant's arguments are tantamount to asserting that the Access to Information Act is intended to limit access to information that is normally available to the general public. Such arguments are contrary to the purpose and to section 2 of the Act.
An important goal of our office is to promote transparency in government and to facilitate public access under all government procedures for providing access to information. In our view, subsection 2(2) of the Act clarifies that our function is not to police other mechanisms that provide access under their governing legislation.
Newspaper articles obtained through a subscription service
A request was made to the Canadian Human Rights Commission (CHRC) for a file that was mentioned by the Chief Commissioner of the CHRC in a June 22, 2009, National Post article. The CHRC released some information but withheld records claiming that this disclosure could threaten the safety of individuals (section 17) and that the records included personal information (section 19). Information was also excluded as being published information or material available for purchase (section 68).
Resolving the complaint
We obtained the CHRC's representations regarding its decision to withhold individuals' names to protect their safety (section 17). In some cases, we agreed with their decision. In other cases, we did not agree because the names of certain individuals were made public either through newspaper articles or their involvement with the Canadian Human Rights Tribunal. The CHRC acquiesced and released some names. We were satisfied that CHRC properly exempted personal information about other individuals (section 19).
The CHRC also excluded some newspaper articles as published material or material available for purchase (paragraph 68(a)). Such information falls outside the scope of the Act because it can be obtained by other means without the need for an access request. The newspaper articles that were responsive to the request were protected by the Copyright Act and published by their respective copyright holders. Most of the articles were obtained through a subscription service agreement that restricts disclosure. In an effort to assist the requester, the CHRC consulted with the newspaper companies to obtain their permission to disclose the articles. Only one company responded and agreed to the release of its articles (the Hill Times). All other articles were excluded, so the CHRC provided the requester with a list containing the title, date published, newspaper and author for each article that was excluded under the Act.
The CHRC released additional information, and the complaint was recorded as well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
Personal information versus public interest in disclosure
Exercise of discretion and the Commissioner's role
This complaint is the result of a request to Citizenship and Immigration Canada (CIC) for any record that discloses the Canadian citizenship status of a named individual. CIC responded that it could not comply with the request because the requester had not provided documentation showing that he represented the individual or provided signed consent from the individual, as required under its consent policy. CIC also informed the requester it could not confirm or deny the existence of the record but, should the record exist, it would be exempted as personal information (section 19). CIC relied on a provision of the Act that provides that institutions are not required to indicate whether a record exists (section 10(2)).
The requester asked CIC to use its discretionary authority and disclose the requested information in the public interest. CIC informed the requester that he had not demonstrated or provided compelling reasons that release of the information was in the public interest and outweighed any invasion of privacy that would result.
Resolving the complaint
Our office convinced CIC that subsection 10(2) should not be applied in this case because certain information about the individual was publicly known, and records were retrieved.
There were several shortcomings with respect to CIC's process in responding to the access request, and CIC failed to properly assist the requester during this process. The institution has since addressed these shortcomings. First, CIC considered the request incomplete and did not retrieve the records because the requester did not provide proof that he either represented or had the consent of the named individual, as required under its consent policy. We told the department that its consent policy did not apply in this case, since a requester can make an access request for personal information about another individual whom he does not know or represent. We consi-dered the request complete because the requester fulfilled all the requirements under the Act to submit an access request. CIC then agreed to retrieve the records.
Second, CIC did not contact the requester before issuing its response. When it did, the requester was informed that he had not demonstrated that the public interest in disclosing the personal information outweighed any invasion of privacy resulting from disclosure. As established in Dagg v. Canada (Minister of Finance) 1997 2 S.C.R. 403, para.16, the onus is on the institution, not on the requester, to consider the public interest.
Third, we discovered that CIC refused to disclose the information in the public interest without the approval of the CIC official who had the delegated authority under the Act to make such a decision. As a result of our intervention, the Deputy Minister, as the delegated authority in CIC, considered the applicant's request for a public interest disclosure and determined that disclosure was not in the public interest.
The purpose of the section 19 exemption is to protect personal information. However, an institution may disclose personal information in a number of circumstances when certain conditions are met. One of these is referenced in subparagraph 8(2)(m)(i) of the Privacy Act. It allows the disclosure of personal information when the public interest clearly outweighs any invasion of privacy that could result from the disclosure.
When determining whether personal information should be disclosed in the public interest, the head of the institution is required to balance the public interest in disclosure against the threat to an individual's privacy. This is based on an invasion-of-privacy test, which requires weighing the expectations of the individual, the nature and sensitivity of the personal information involved and the probability of injury that could be caused to the individual by disclosure. Treasury Board of Canada Secretariat's Use and Disclosure of Personal Information provides specific guidance on the application of the invasion-of-privacy test and, in so doing, emphasizes "that public curiosity does not equate with public interest." It further notes that "(t)he public interest to be balanced against the possible invasion of privacy can be evaluated on the basis of whether it is specific, current and probable (similar to the injury test described in 2.1.1 of Chapter 2-9)." Some examples of situations in which public interest outweighs the potential invasion of privacy disclosure are emergencies, accidents, natural disasters, hostile or terrorist acts, and the enforcement of a court order.
The public interest override found in the Privacy Act does not imply any right of access to personal information, but rather permits disclosure at the discretion of the head (or delegated head) of the institution, when the appropriate conditions are met. In this regard, the role of our office is to determine whether the appropriate delegated authority weighed the competing interests behind the public interest override. However, the manner in which the weighing of interests is conducted is within the discretion of the delegated authority. Our office cannot determine whether the decision made was right or wrong. We can only determine whether the decision made was reasonable in the circumstances and that all relevant factors were considered.
The Commissioner is continuously dealing with the matter of whether a power clearly granted by the statute to disclose or to refuse to disclose information was properly exercised. The question arises time and again: is it information that the government should protect or disclose, taking into account the competing interests in disclosure and retaining confidentiality? If it can be shown from the evidence or the circumstances that the power to refuse disclosure was exercised for purposes outside those contemplated by the statutory provision at issue, that exercise of discretion may be challenged before the Federal Court as an unauthorized exercise of executive power. The Act mandates the Information Commissioner to undertake a probing examination of all relevant circumstances.
In this case, we were satisfied that the delegated authority considered the relevant factors and weighed the competing interests in arriving at a reasonable decision not to disclose the personal information. CIC applied the invasion-of-privacy test and demonstrated to us that it properly exercised its discretion in arriving at its decision. The complaint was recorded as not well founded.
The fact that the requester did not have consent from the individual about whom he was seeking information was no reason not to properly process the request. Once the requester has met all the requirements to submit a request under the Access to Information Act, records must be retrieved and reviewed. This must be done before exemptions are claimed. In addition, decisions must always be taken by the officials with the delegated authority.
The head of the institution or his delegated authority is empowered to decide access to information matters under the Access to Information Act. Reasonableness depends on the context and its assessment will vary with the relevant circumstances. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, accep-table outcomes that are defensible in respect of the facts and law. The role of the Commissioner is not to exercise discretion on behalf of the head of the institution or his delegated authority. Rather her role is to enquire into the reasonableness of the institution's decision, taking into account all the relevant factors.
"Settled": Experience with a new disposition category
This is the first year that we began using our new disposition categories for complaints, one of which is "settled." This means that our office helped negotiate a solution that did not require us to make a formal finding under the Act. Experience will assist us in defining the applicability of this category, which we intend to use selectively. A minor administrative issue, such as the requester complaining about having received an unclear copy of a record, qualifies. As can be seen from the examples below, "settled" can be used for various types of complaint. The main criterion is that all parties come away satisfied with an informal resolution to the complaint.
Creating a record to answer the request
Three requests were made to the Canadian Broadcasting Corporation (CBC) for employment, personnel service or consulting contracts in favour of CBC annuitants for the years 2005, 2006 and 2007, with each year being listed as a separate request. The CBC informed the requester of its decision to withhold the information as personal information (section 19). The requester complained to our office about CBC's response.
Resolving the complaint
In the course of the investigation, the CBC provided us with representations and agreed that they be shared with the complainant. Because the CBC does not register the number of contracts, but rather the number of individuals with a contract or short-term employment, the complainant agreed to be given information that would indicate the number of individuals, the number with more than one short-term employment or contract within the year and the number that only had one short-term employment contract within the year. The complainant also confirmed that he did not require copies of the contracts.
The complainant really wanted to know how many annuitants had returned to the CBC on short-term employment or consulting contracts. The CBC created a record containing the agreed upon information and released it in its entirety. As a result, the question of withholding personal information for the three requests was no longer at issue. The complaint was settled to the satisfaction of all concerned without the need for us to make a formal finding under the Act.
Requested information on website
A request was made to the Bank of Canada for notes that discuss the results of any economic model of the Canadian dollar. The Bank of Canada withheld information under various sections of the Act. The requester complained about the exemptions.
Resolving the complaint
Our investigation revealed that the information was already available on the Bank's website and we directed the complainant to the site. After he confirmed finding the information requested on the website, we closed the complaint as settled.
Agreement on a fee structure as a way ahead
This case relates to 77 complaints lodged by a requester against the Canada Revenue Agency (CRA). The requester had made a number of requests for departmental emails in two separate phases. Phase 1 consisted of requests for email subject lines of a given individual. Once the requester received the records, he selected the subject lines of interest and, in Phase 2, asked for the body of the email. The requester complained to us that CRA demanded he pay application fees for all Phase 2 requests. In his view, although the requests were split in two, they were still part of one overall request, and CRA should only require one application fee.
Resolving the complaint
Our goal was not only to resolve these complaints but to find a long-term solution, since the requester regularly asks CRA for copies of emails. We obtained representations from the complainant and CRA. After several meetings and telephone exchanges, the investigator succeeded in reaching an agreement that satisfied both the complainant and the institution. CRA agreed to give the requester a $680 credit, which covered the application fees for 136 requests. The credit will be applied to his future requests. The institution also agreed to waive the $5 application fee for future Phase 2 requests. Once the requester's credit is used, CRA will only charge for Phase 1 of the requests. These complaints were recorded as settled.
The resolution of this matter is to the benefit of both parties and our office. Instead of asking for full copies of all emails of a given individual, the requester only selects those he deems of interest. By proceeding this way, CRA does not have to process all the emails, including those the requester does not want. Now that CRA will no longer charge for Phase 2, the requests will not be as costly. This may also prevent future complaints to our office on this same issue.
Facilitating a way to get access
An individual made a request to the Canadian Security Intelligence Service (CSIS) for all CSIS files concerning him. The institution responded that it could not confirm or deny the existence of relevant records (subsection 10(2)) and, if such records did exist, they would be withheld under several exemptions that CSIS cited. The requester complained about the response.
Resolving the complaint
Subsection 10(2) of the Act allows an institution to not confirm or deny the existence of records in situations in which the knowledge of the existence or non-existence of a record may cause the injury contemplated in a specific exemption provision. When an institution decides to claim this provision, it must always cite under which exemptions the information would be withheld, should it exist.
We learned that CSIS had contacted the requester and suggested he make a request under the Privacy Act. Under this Act, CSIS would list the searched personal information banks and in most cases (with the exception of the exempt banks) would confirm whether or not it has the information. We contacted the requester and reiterated the institution's offer. The requester agreed that it might resolve the matter, and CSIS issued another response as though he had made a request under the Privacy Act. All concerned were satisfied with this approach, and we recorded the complaint as settled.
More information disclosed
The following cases illustrate instances in which, in the course of the investigation, we convinced institutions to disclose more information.
Section 23: Is time spent by government lawyers on litigation protected by solicitor-client privilege?
The Department of Justice Canada received a request for an accounting of all time spent by its lawyers to represent its client, the Canada Revenue Agency (CRA), in the preparation and litigation of a court case.
The Department withheld records under section 23 of the Act, which protects solicitor-client privilege information. The requester complained to our office that solicitor-client privilege could not be invoked to withhold the amount of time spent by departmental lawyers and officials to litigate this case.
Resolving the complaint
The records denied to the requester consisted of nine pages of the Department's electronic activity screens (iCase), providing the amount of time and tasks performed by each lawyer and their names. Except for the title and headings on page 1, the information was withheld under section 23. Early on in the investigation, the Department agreed to release the headings on pages 2 to 9 but still refused to release the total number of hours. Following further discussions and a request for written representations, we convinced the Department to release the total hours to the requester. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
When applying the solicitor-client privilege exemption, institutions should keep in mind that the client is a government institution and that fees are paid out of public funds. Consequently, there is a public interest in accountability. It is important to ensure that the scope of the privilege is not claimed broadly and to verify that the discretion to release information has been properly exercised to maximize public accountability.
Section 25: Applying severance to handwritten information
The Department of Justice Canada received a request for all records related to the brief survey of beneficiaries of the Victim's Fund. This fund provides financial assistance to victims of crime to attend National Parole Board hearings. The request pertained to copies of all completed surveys sent to date. The Department exempted records as personal information (section 19), advice or recommendations (paragraph 21(1)(a)) and accounts of discussions and deliberations (paragraph 21(1)(b)). The requester complained about the exemptions applied under section 19.
Resolving the complaint
Most of the information withheld as personal information was exempted because it was in handwritten form. For records to qualify as personal information, they have to be linked to an identifiable individual. The handwriting in itself could not reveal the individuals' identity. Therefore, we asked the Department to sever the records and only withhold information such as names of individuals, dates, details of crimes and family details that could lead to the identification of individ-uals who completed the survey. The institution agreed and released substantially more information. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
Section 25 of the Act states that institutions must sever records to facilitate the release of as much information as possible. Access personnel should keep this obligation in mind when reviewing records.
Section 19: Employee signatures not personal information
A person made a request to the Privy Council Office (PCO) for all call-ups (requests for delivery in accordance with a purchase order or contract in place) processed by this institution in the National Capital Region under the terms of supply arrangement for Temporary Help Services during September 2008. PCO withheld as personal information (section 19) the signatures of federal employees on the requested documents. The requester complained about these exemptions.
Resolving the complaint
We reviewed the information withheld by PCO and concluded it is not personal information. We asked PCO to reconsider its position, and it disclosed the signatures. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
Not third party information (section 20) and not advice (section 21)
An access request was submitted to Industry Canada for all records relating to a report entitled The Impact of Music Downloads and P2P File Sharing on the Purchase of Music: A Study for Industry Canada.
The institution disclosed more than 1,150 pages to the requester but exempted another 230 pages in part and about 50 in their entirety, citing several sections of the Act. The requester complained about the exemptions claimed.
Resolving the complaint
We reviewed the exemptions claimed by the institution and agreed that personal information (section 19), information that could prejudice the competitive position of a government institution (paragraph 18(b)) and accounts of consultations or deliberations (paragraph 21(1)(b)) were properly withheld. However, we did not agree that most of the information it withheld qualified for exemption as confidential third-party information (paragraphs 20(1)(b) and (c)) as well as advice and recommendations (paragraph 21(1)(a)). As a result of our intervention, Industry Canada made two additional releases to the requester, and only portions of seven pages remained withheld. The complaint was well founded and resolved without the need for the Commissioner to make recommendations to the head of the institution.
Section 2: Request should not be interpreted narrowly
A request was made to the Canadian Broadcasting Corporation (CBC) for records relating to the reimbursement of tuition fees, books and other such materials claimed by a senior official for attending a two-month course at Harvard University. Portions of the records that CBC disclosed were withheld on the basis that they could facilitate the commission of an offence (subsection 16(2)) and because of personal information (section 19).
Resolving the complaint
The CBC withheld information on one page, which it believed could facilitate the commission of an offence. We determined that the information should have been disclosed and asked CBC to release the page, which it did. As for the information withheld as personal information, the complainant told us there was no need to investigate this exemption.
The last issue was that no records relating to the reimbursement of tuition fees were retrieved and processed. The CBC told us it had no such records because it had paid the fees directly to the university. We felt that the CBC's interpretation of the request was extremely narrow and asked it to release the information. The CBC agreed that, if the complainant were to make a new request, CBC would waive the $5 application fee in return. The complainant agreed and obtained a separate response from the CBC. The complaint was recorded as well founded without the need for the Commissioner to make recommendations to the head of the institution.
When the requester asked for information relating to the reimbursement of fees, it should have been obvious that he wanted to know how much was spent for the course. He could not know that the fees were paid directly to the university. The purpose of the Act as outlined in section 2 is "to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution with the principle that government information should be available to the public." By interpreting the request so narrowly, CBC failed to consider and respect section 2 of the Act.
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