2013-2014 2. Investigations
The Information Commissioner is the first level of independent review of government decisions relating to requests for access to public sector information. The Access to Information Act requires the Commissioner to investigate all the complaints she receives.
In 2013–2014, the Commissioner’s investigative work was shaped by a 30-percent increase in new complaints over 2012–2013 (see, “Summary of caseload,” below). New complaints about administrative matters, such as delays and fees, grew by 54 percent. This came on top of a 42-percent jump in this type of file in 2012–2013. Footnote 1
|Complaints carried over from previous year||1,853||1,823||1,797|
|New complaints received||1,460||1,579||2,069|
|New Commissioner-initiated complaints*||5||17||12|
|Total new complaints||1,465||1,596||2,081|
|Complaints discontinued during the year||641||400||551|
|Complaints settled during the year||34||171||193|
|Complaints completed during the year with finding||820||1,051||1,045|
|Total complaints closed during the year||1,495||1,622||1,789|
|Total inventory at year-end||1,823||1,797||2,089**|
*The Commissioner may launch a complaint under subsection 30(3) of the Access to Information Act.
**Includes 97 complaints on hold, 96 for administrative purposes and 1 due to ongoing litigation.
As of March 31, 2014, there were 2,089 complaints in the inventory, the Commissioner having closed 1,789 files during the year. This closure rate is 10 percent higher than the previous year’s; however, due to the increase in new complaints, the size of the inventory grew by 16 percent, the first increase in five years.
The Commissioner completed more complaints within nine months in 2013–2014 (63 percent) than she had in 2012–2013 (57 percent). This continues the trend of increasingly timely investigations since 2011–2012. However, a gap of 173 days (nearly six months) remains between when the Commissioner registers refusal complaints (her most complex files) and when she can assign them to investigators. (Appendix A contains more statistical information related to the complaints the Commissioner received and closed in 2013–2014.)
The pages that follow report on four items:
- specific targeted investigative strategies
- individual investigations in which the Commissioner encountered novel or complex issues
- the completion of a systemic investigation into the impact of instant messaging on access
- the resolution of a number of investigations into allegations of interference.
|Number of complaints
(% of total)
|National security, international affairs and defence||357 (17%)|
|Canada Revenue Agency||269 (13%)|
|Canadian Broadcasting Corporation||175 (8%)|
|Overall inventory||2,089 (100%)|
Three targeted investigative strategies
In her 2012–2013 annual report, the Commissioner identified three targeted strategies designed to better manage her increasing caseload. In particular, she focused on complaints relating to national security, international affairs and defence matters, complaints against the Canada Revenue Agency and complaints against the Canadian Broadcasting Corporation. At the end of 2013–2014, these files made up 38 percent of the Commissioner’s inventory of complaints. This is down eight percentage points from the previous year, which demonstrates that the Commissioner has made progress addressing her inventory through these targeted strategies. Below are details of some specific results.
Complaints involving national security, international affairs and defence matters
The Commissioner has a substantial inventory of complaints about matters of national security, international affairs and defence. Due to their number and the public interest in accountability in this area, the Commissioner has made investigating these complaints a priority. She launched a pilot project in 2011 to target these files, which are often complex and can be time-consuming to investigate, particularly when time has passed since the original request was made. The pilot project involved grouping complaints and ensuring clear communications with and expectations of institutions (see, “Complaints related to national security, international affairs and defence”).
Using this approach, the Commissioner has closed an increasing number of these files each year. However, she received new complaints at a faster rate. In 2013–2014, she received 203 of these complaints, which was considerably more than the typical volume of 130–140 complaints per year. Together, these circumstances have caused the inventory to grow, despite the increased efficiency of investigations.
As part of her commitment to reducing this caseload in as timely a manner as possible, the Commissioner asked the President of the Treasury Board, in July 2013, to increase the number of investigators allowed to investigate these complaints from 8 to 12. (The Access to Information Act stipulates that these complaints may only be investigated by a specified number of employees.) In September 2013, the President agreed to this request. Footnote 2 The Commissioner now has a full complement of 12 “specially delegated” investigators to investigate these complaints.
When investigating this type of complaint, the Commissioner seeks to ensure that requesters are provided with the maximum disclosure permitted by the Act. In some instances, this means that the Commissioner can secure for requesters a large volume of additional information.
For example, an historian complained about the heavily redacted records the Department of Justice Canada released relating to a law Canada had passed in the late 1930s preventing Canadians from fighting in foreign wars, and the intersection of that law with the life and legacy of pioneering Canadian medic Norman Bethune. Through her investigation, the Commissioner found that the institution had applied exemptions to the records far more broadly than was necessary, particularly since much of the information was publicly available or, given its age, unlikely to harm Canada’s international relations or defence, or efforts to prevent or detect subversive activities. (The input of the very knowledgeable requester during the investigation was key to identifying information that was public and should therefore be released.) The institution eventually released significantly more information to the requester.
Similarly, a requester received more information as the result of a complaint to the Commissioner about the refusal by Library and Archives Canada (LAC) to release records related to security at the 1976 Montréal and 1988 Calgary Olympics. After reviewing the records, and in light of the Federal Court decision in Bronskill v. Minister of Canadian Heritage, 2011 FC 983 (see, “Exercise of discretion”), the Commissioner recommended to LAC that it ask the Canadian Security Intelligence Service, with whom LAC had consulted about the request, to re-visit the use of exemptions it had recommended. In the end, LAC released a total of 711 of the original 743 pages of records, either in whole or in part (compared to the 436 pages originally released). In response to the Commissioner’s investigation of a second complaint from the same requester on the same topic, LAC released an additional 250 pages of records.
Other complaints the Commissioner resolved in 2013–2014 involved archival records about important historical events, such as the demise of the constitutional amendment proposed in the Meech Lake Accord in 1990. As a result of the Commissioner’s intervention in that file, the Privy Council Office released numerous additional pages to the requester in early 2014.
In contrast, sometimes the Commissioner confirms an institution’s decision to withhold all or large portions of records. For example, the Commissioner reviewed all the exemptions Foreign Affairs, Trade and Development Canada (DFATD) had applied to records about the construction of the Canadian embassy and related facilities in Kabul, Afghanistan. Upon doing so, the Commissioner agreed with DFATD that the information pertained to the vulnerability of particular buildings or other structures or systems and, consequently, should be withheld.
By the end of 2013–2014, the Commissioner had closed 181 files related to national security, international affairs and defence matters—an 11-percent increase over 2012–2013 and 66 percent more than in 2011–2012. Among these files were some of the oldest in the Commissioner’s inventory. In addition, the Commissioner’s investigations of this type of complaint resulted in more records being released in 54 percent of cases resolved with a finding or settled in 2013–2014.
Complaints against the Canada Revenue Agency
Given the number of requests and volume of pages the Canada Revenue Agency (CRA) processes annually (3,083 requests and 1,203,253 pages in 2012–2013), it is usually among the top three institutions about which the Commissioner receives complaints each year. (There were 283 new complaints about CRA in 2013–2014; see, “Overall new complaints by institution, 2011–2012 to 2013–2014,” in Appendix A.)
CRA activities have a significant impact on individuals and corporations. The Commissioner typically receives a number of complaints in any given year from taxpayers trying to obtain information relating to audits or assessments. In complex matters, these requests can involve thousands, if not tens of thousands, of records.
CRA is often the recipient of bulk requests and the subject of related complaints. Of the 269 CRA files the Commissioner had open as of March 31, 2014, 158 (59 percent) were from three requesters.
In these situations, many of the requests, and therefore the complaints, deal with common subject matters or similar types or groups of records. To increase the efficiency of investigations, similar complaints are grouped into categories and combined so that there is as little repetition as possible. The Commissioner has also assigned a small group of investigators to deal with these files to ensure that they are familiar with the context of the requests and responses. This has minimized, whenever possible, the impact of these complaints on the Office of the Information Commissioner and CRA, while still allowing the Commissioner to effectively investigate all aspects of the complaints.
For example, in 2013–2014, the Commissioner closed a complaint that involved more than 20 separate requests that all dealt with the topic of manuals, including training and procedural guides. For each item, CRA conducted, as a result of the Commissioner’s intervention, further searches for records that would match these requests or reviewed records that it had previously decided to withhold to determine whether more information could be released. In many instances, CRA subsequently provided additional records to the requester.
Since many of this requester’s subsequent complaints dealt with similar types of records to those found in the groupings, the Commissioner informed the complainant that all new refusal complaints would be placed on administrative hold pending the completion of the existing groupings. To date, the Commissioner has placed 93 complaints on hold. To protect the requester’s rights, the Commissioner continues to investigate administrative complaints and notifies CRA of any new refusal complaints.
In a separate series of complaints—about documentation relating to CRA’s Scientific Research and Experimental Development (SR&ED) tax incentive program—the Commissioner’s investigations resulted in further disclosure of information that supports program administration, including a claim review manual. Although CRA had posted a redacted version of the manual online, the Commissioner concluded that the entire document should be released. In response, and in the spirit of open government and transparency, CRA posted the complete manual and committed to posting more information that is released to requesters as a result of complaints investigations related to SR&ED. (The Commissioner closed 37 files on this topic in 2013–2014; 45 remained open as of March 31, 2014.) When an investigation is complete and additional records are released, CRA will update any of the documents that it had previously posted only in part to include all the released information. The SR&ED program is the largest single source of federal support for industrial research and development, so the additional disclosure of manuals, policy documents and other records will give interested parties insight into the workings of the program and the decisions program staff have made. It will also help reduce the need for individuals to make formal access requests for this information, which is consistent with open information principles and the fact that the Access to Information Act was intended to supplement existing means by which Canadians could receive government information.
Overall, the Commissioner closed 284 CRA files in 2013–2014. The cooperation of CRA officials, and their willingness to work with the Commissioner, led to this positive result.
Complaints against the Canadian Broadcasting Corporation
The Canadian Broadcasting Corporation (CBC) became subject to the Access to Information Act in 2007, and immediately received a large number of requests, mostly from one source. In response to these requests, the CBC often refused to release records without even retrieving or reviewing them (see, “Failure to respond accurately to requests by not retrieving records”). To withhold the information, the CBC cited its exclusion under the Act (section 68.1), which protects information related to the CBC’s journalistic, creative and programming activities that is not related to its general administration. This resulted in hundreds of complaints to the Commissioner—on matters ranging from requests for the salaries and expenses of television personalities and senior administrators, to costs associated with the CBC’s use of satellite broadcasting trucks.
The Commissioner put many of these complaints on hold while the courts considered whether she was allowed to review the records the CBC had claimed were not subject to the Act. By the fall of 2011, when the matter, with one exception, was determined in the Commissioner’s favour (Canada Broadcasting Corporation v. Canada (Information Commissioner) 2011 FCA 326), the Commissioner had placed approximately 120 complaints on hold, some dating back to 2007.
In assessing how to approach this accumulation of files, officials at the Office of the Information Commissioner communicated with the primary requester and established an agreed-to priority list. This list was communicated to the CBC and resulted in a sustained effort over 2013–2014 to resolve a maximum number of complaints. In the end, the Commissioner closed 100 complaints against the CBC, including some of the oldest in her inventory. The decision by all parties to take a pragmatic approach to the resolution of these complaints led to this result.
Among the 100 files closed, there were only three in which the Commissioner agreed with the CBC’s use of section 68.1 to withhold information. In each case, the information at issue related to the CBC’s programming activities, including a report from an historian about Prairie Giant: The Tommy Douglas Story and segments of an already broadcast episode of the Radio-Canada program “Enquête.” None of the complaints closed this year related, in the Commissioner’s view, to the CBC’s journalistic activities (see, “Protecting information related to the CBC’s journalistic activities,” below).
In most instances, when the information at issue related, in the Commissioner’s view, to the general administration of the CBC—costs, or information about human resources or physical assets, for example—the CBC applied other exemptions to withhold portions of the requested records while maintaining the applicability of section 68.1. Since the Commissioner was satisfied that the information was properly withheld under other sections of the Act, the complaints were resolved.
In the years since the 2011 court decision on section 68.1, the Commissioner has received fewer and fewer complaints about the CBC’s use of the exclusion, with just seven such files being registered in 2013–2014.
(See Chapter 4, for information about the Commissioner’s appearance in 2013 before a parliamentary committee studying a private member’s bill to repeal section 68.1.)
Protecting information related to the CBC’s journalistic activities
At the time the CBC became subject to the Access to Information Act, corporation officials expressed considerable concern that the Act would be used to force the disclosure of information related to the CBC’s journalistic activities, despite the specific exclusion that was introduced into the Act for such records.
However, this has not proven to be the case. In the subsequent seven years, the Commissioner has investigated only four complaints that focused on the CBC’s use of section 68.1 to protect information related to its journalistic activities. In three cases, the Commissioner agreed with the CBC’s use of the exclusion to protect the information in question. In the fourth, no records were found that fell within the scope of the request.
The Commissioner closed 1,789 files in 2013–2014. What follows are summaries of investigations that presented novel or complex issues related to the application of the Act.
Administrative complaints made up 38 percent of the new complaints the Commissioner received in 2013–2014, a 54 percent increase from the year before. This caseload included 411 complaints about delays in responding to requests, 347 complaints about the time extensions institutions take under the Act when circumstances are such that they will be unable to respond to requests within 30 days, as required by the Act, and 43 complaints about the fees institutions may charge to search for and prepare records for release. Below are five examples of investigations that focused on administrative matters.
Unreasonable time extension
A requester complained to the Commissioner about a 300-day time extension Natural Resources Canada (NRCan) had taken to consult with DFATD about briefing notes.
Paragraph 9(1)(b) of the Act allows institutions to extend the due date for a request for a reasonable period of time when consultations with other institutions are necessary but cannot be completed within the original 30-day time limit. During the investigation, NRCan successfully demonstrated that the consultation with DFATD was necessary and had been initiated within the first 30 days after receiving the request, as is required by the Act.
NRCan advised the requester that timelines for receiving responses to consultations are difficult to assess in advance and that, as a result, it had taken the 300-day extension as a precautionary measure to avoid having to respond to the request after its extended due date.
NRCan sent a total of seven pages to DFATD for review. Shortly afterwards, NRCan contacted DFATD to get an approximate turnaround time for a response. DFATD estimated that NRCan would receive its response within 60 days. The consultation process was ultimately completed in 51 days, and NRCan responded to the request 218 days before the extended due date.
During the investigation, NRCan explained that, in its experience, DFATD did not always meet its anticipated turnaround times. This was why NRCan decided to take a 300-day time extension. NRCan also referred to a recent matter decided by the Federal Court (Information Commissioner of Canada v. Minister of National Defence, 2014 FC 205) as supporting its decision to take the lengthy extension.
The Commissioner concluded that the extension of 300 days was well beyond what was needed to consult DFATD and complete the processing of the records. The extension was also contrary to Treasury Board of Canada Secretariat (TBS) policy instruments, which require that extensions be as short as possible, and contrary to an institution’s duty to provide timely access to information, as set out in section 4(2.1) of the Act.
Institutions must take into consideration the number of pages of records responsive to a request and the number of pages being sent for consultation when determining the appropriate length for a time extension.
This is the first time the Commissioner has seen a complaint in which an institution took a lengthy extension and made reference to the Federal Court decision as support for its decision. This is of concern, and the Commissioner will be closely monitoring all incoming time extension complaints for signs that this practice is spreading to other institutions.
The Commissioner is appealing the Federal Court decision. For more information about this legal proceeding, see, “Extensions of time (under appeal).”
Unreasonable fee estimate
A requester complained to the Commissioner about a decision by the Privy Council Office (PCO) to charge high search and preparation fees in response to a request for travel and hospitality expense reports, as well as supporting documents and receipts, for all PCO ministers and their exempt staff within a period of roughly three years. PCO also told the requester that it had estimated that the fees to process the request totalled $4,250 and that it would require a deposit of $2,125 before beginning to process the request.
Under paragraph 11(2) of the Act and in accordance with the Access to Information Regulations, institutions are allowed to charge $10 for each hour in excess of five hours that is reasonably required to search for records or prepare any portion of them for disclosure. In this case, the program area, which held the records in question, estimated that it would take three weeks to conduct the search, for a total cost of $4,300. PCO then subtracted $50, for the five free hours allowed under the Act.
However, the Commissioner’s investigation revealed that the program area had not based its estimate on the volume of records to be searched through or the hourly rate in the Regulations. Instead, PCO took the position that the $10 per hour rate would be equivalent to an annual salary of $19,566, which was “inaccurate to reality.” In light of this, the program area based the fee estimate on the search being done by an employee earning $73,000 per year, including 20 percent for employee benefits.
Since the Act and Regulations do not authorize the assessment of fees on this basis, the Commissioner could not agree that PCO’s estimate conformed to the requirements of the Act.
In the end, PCO provided an acceptable calculation of additional fees, based on the volume of records and a total search time of 16.98 hours. At $10 per hour, the fee was, therefore, $169.80, reduced to $119.80 once the five free hours were taken into account (a reduction of more than $4,100 from the original estimated fee). Based on the nature of the records requested, the Commissioner was of view that the new fee amount was reasonable.
While the Commissioner acknowledges that the Act is in need of modernization and that the fee structure has been overtaken by technological changes, institutions must assess fees based on the current authority set out in the Act and its accompanying Regulations (see, “Fees and electronic records”). The Commissioner is of the view that Parliament did not intend fees to be a means by which institutions recover costs associated with administering the Act nor did it intend that fees be assessed to discourage requesters from making requests.
Closing a file pending consultations
In April 2012, TBS received a request for records about the approval of the Allowance Policy for regular members of the Royal Canadian Mounted Police (RCMP). TBS claimed a 180-day time extension in order to conduct consultations about the records with the Privy Council Office–Cabinet Confidences Counsel (PCO-CCC), among other institutions. This placed the extended date for responding to the request in October 2012.
On the extended due date, TBS informed the requester by letter that PCO-CCC had yet to respond to its consultation request. Nonetheless, TBS advised that it was closing the file and would provide any releasable records at the conclusion of the consultation. The requester complained to the Commissioner about this response.
The Commissioner concluded that there is no basis in the Act for institutions to close requests prior to having received consultation responses. Nor did the letter TBS sent to the requester constitute a response in keeping with sections 7 and 10 of the Act, which define the appropriate timelines for and information to be included in a response.
TBS had no procedure in place to monitor the progress of the ongoing consultation and ensure its eventual completion after the file was closed. During the investigation, TBS officials explained that they had not followed up with PCO-CCC about the consultation after October 2012, due to their own workload and because previous similar attempts had not yielded positive results. Thus, TBS simply stopped asking PCO-CCC to provide status updates on the consultation. However, in light of the Commissioner’s investigation, TBS followed up with PCO-CCC, which completed the consultation in August 2013. TBS issued a final response to the requester in September 2013.
While the bulk of the delay in responding to this request was the result of the consultation with PCO-CCC, the Commissioner found that TBS had delayed the processing of the request, failed to adequately manage the consultation process and, as a result, did not provide records in a timely manner.
The Commissioner highlighted the practice of closing requests while consultations are outstanding in her 2008–2009 report cards, noting that institutions were taking this approach in order to manage the risk of delays. This practice is in conflict with institutions’ duty to assist requesters under subsection 4(2.1) of the Act. This provision requires institutions to make every reasonable effort to respond to requests accurately and in a timely fashion. As the institution to which the request was made in this case, TBS was responsible for responding to the request and making any necessary decisions to ensure that it met its statutory obligations.
Retrieving the records
A requester complained to the Commissioner about a decision by DFATD to withhold information contained in documents sent or received by the Canadian embassy in Mexico concerning a businessman who was killed in Acapulco in October 2010. The institution withheld the information under various exemptions, including subsection 19(1) (personal information). In addition to complaining about the application of these exemptions, the requester was of the view that additional records should exist.
The investigation revealed that DFATD routinely advises embassies not to provide consular files when responding to access requests. In its view, all information in these files would be exempt under subsection 19(1).
To advance the investigation, DFATD was asked to process the records in order to determine whether any of the three exceptions to the exemption for personal information applied. Personal information may be released when it is publicly available and with the consent of the identifiable individual. It may also be released under subsection 8(2) of the Privacy Act, including when the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure. In the end, and after significant delay, DFATD released an additional 195 pages of records. In doing so, DFATD withheld information under subsection 13(1) (information from a government or foreign state, obtained in confidence), subsection 15(1) (defence and international affairs) and paragraph 21(1)(b) (consultation or deliberations involving government employees or officers). It also continued to claim subsection 19(1) for some information.
A review of the records confirmed that DFATD had applied these exemptions properly. However, this review was complicated by DFATD’s delay in providing the consular records.
Nonetheless, the Commissioner concluded that the complaint was well founded, since DFATD had not initially retrieved or processed all the records. When responding to requests, institutions must consider whether information that may be released can be severed from information to be withheld, as per the requirement in section 25 of the Act. The Federal Court of Appeal has 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 also jeopardizes the rights conferred by the Act, since there is a risk that records that are not properly identified could be disposed of by the program area. (For an instance of this, see, “Failure to respond accurately to requests by not retrieving records,” in the Commissioner’s 2012–2013 annual report.)
Intersection of access and parliamentary privilege
As noted in her 2012–2013 annual report, the Commissioner commented during a parliamentary committee appearance in 2012 that the Access to Information Act does not contain an exemption for information that is subject to parliamentary privilege.
At the hearing, the Commissioner also predicted that the absence of such an exemption would result in complaints about institutions’ taking time extensions to consult Parliament about the possible application of parliamentary privilege to records that had been requested under the Act.
This is, in fact, what occurred. In April 2013, a requester complained to the Commissioner about TBS’s response to a request for briefing materials related to the appearance of TBS officials before a parliamentary committee.
TBS took two time extensions to respond to this request, one of which was for 60 days, to consult with the House of Commons. However, the provision of the Act TBS used to justify this consultation (paragraph 9(1)(c)) was not intended to be used for this purpose. Rather, it was designed to accommodate consultations with third parties about records that could be considered confidential commercial information, as described in the Act. Since none of the records at issue in this complaint contained such information, the Commissioner concluded that the extension was invalid.
During the investigation, TBS noted that there is lack of clarity around the proper procedure to follow when responding to requests for records that may be covered by parliamentary privilege. The institution also stated that, when taking the time extension, it was following the common practice of other institutions in this situation.
During her 2012 parliamentary appearance, the Commissioner recommended that an exemption for parliamentary privilege be added to the Act, and that a time-limited consultation process with a clearly identified authority be implemented. The committee did not adopt the Commissioner’s recommendations in its report.
Complaints about institutions’ refusals to grant access to records made up 59 percent of the new complaints the Commissioner received in 2013–2014. This caseload included 493 complaints about institutions’ use of the various exemptions and exclusions under the Act, 469 complaints about incomplete responses or there being no records, 203 complaints related to national security, international affairs and defence matters, and 54 miscellaneous complaints.
Among the most commonly cited exemptions in complaints were section 19 (personal information), section 20 (third-party information) and section 23 (solicitor-client privilege). The pages that follow contain summaries of notable investigations the Commissioner closed in 2013–2014 that dealt with these and other exemptions.
1. Section 19
Section 19 requires institutions to withhold personal information, subject to three exceptions: when an individual consents to the disclosure of the information, when the information is publicly available or when section 8 of the Privacy Act permits disclosure. Section 19 is the most often cited exemption in the Commissioner’s complaints. In 2013–2014, 45 percent of the new complaints the Commissioner received involved issues relating to section 19. The following are summaries of three cases that dealt with various aspects of applying this provision.
Mandatory training is not personal information
A requester complained to the Commissioner about a decision by the RCMP to withhold in their entirety under subsection 19(1) records concerning the attendance of a newly commissioned inspector at the organization’s Officer Orientation and Developmental Course. The requester had specifically asked for the dates of the inspector’s attendance, the complete list of courses, and the names of all the facilitators and any others in attendance.
During the investigation, the RCMP indicated that, in its view, the information sought, in conjunction with the name, rank and employee identification number of regular members of the RCMP, constitutes personal information, as described in section 3 of the Privacy Act. The RCMP relied on Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police) 2003 SCC 8 to support its position.
The investigation revealed that the Officer Orientation and Developmental Course was mandatory for newly commissioned officers. Consequently, the Commissioner concluded that the fact that a member had attended this course was not personal information, since it was related to the position or functions of an individual who was an employee of a government institution. This meant that the information fell within the exception to subsection 19(1) found in paragraph 3(j) of the Privacy Act. The RCMP did not agree with this analysis. In the end, however, after a formal request from the Commissioner for further information to justify its position, the RCMP agreed to release the information.
When invoking subsection 19(1), institutions must consider all of the exceptions detailed in subsection 19(2) as well as those exceptions to what constitutes personal information as defined in the Privacy Act. Mandatory developmental training clearly falls within the exception for information relating to the position and function of an individual during the course of his or her work.
Limits of personal information
On September 24, 2007, Transport Canada received a request for an electronic copy of the entire Civil Aviation Daily Occurrence Reporting System (CADORS) database.
Transport Canada responded to the request on October 5, 2007, providing a CD-ROM containing CADORS data entries from January 1, 1993, to September 26, 2007. In its response, Transport Canada did not tell the requester that it had applied any exemptions to the information or that it had not included some details, such as aircraft registration numbers.
The requester subsequently complained to the Commissioner, alleging that information in the database was missing.
In an identical request in 2006, Transport Canada had refused to release the aircraft registration numbers, claiming they were personal information under subsection 19(1). The Commissioner challenged this decision, and Transport Canada agreed to disclose the database in its entirety and to provide access to all CADORS database fields to the requester.
The current investigation established that the CADORS database is available on Transport Canada’s website; however, not all fields are available and the data cannot be downloaded.
The Commissioner’s attempts to resolve the complaint informally were unsuccessful. Consequently, she formally asked Transport Canada to provide its rationale for refusing to disclose the aircraft registration numbers. In its response, Transport Canada maintained that by cross-referencing the aircraft registration numbers in the CADORS database with information on the publicly available Canadian Civil Aviation Register (CCAR) website, it is possible to discern the names and addresses of the owners of registered aircraft involved in air occurrences. As understood, Transport Canada claimed that this would result in the disclosure of “personal information” through a “mosaic effect”—that is, releasing various types of seemingly unrelated information would allow a person to put together a larger picture that would disclose specific personal information. As a result, the registration numbers had to be withheld under subsection 19(1).
The Commissioner remained of the view that Transport Canada could not establish that the disclosure of aircraft registration numbers would enable anyone to discern the identity of any individuals involved in an air occurrence. At most, the numbers, when linked with the information in the CCAR database, might enable someone to discern the identity of the owner of an aircraft, including commercial and state entities, that happened to be involved in an air occurrence. However, someone could not determine whether these owners were personally involved in the incident.
In support of the Commissioner’s view was the Federal Court of Appeal’s decision in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157. The Court rejected arguments that information in tapes and transcripts of air traffic control communications between air traffic controllers and aircraft personnel obtained by the Canadian Transportation Accident Investigation and Safety Board in the course of its investigation of air occurrences could become “personal information,” even if it were possible to use this information to identify an individual. According to the Court, the possibility that the information might be cross-referenced with other sources did not render otherwise “non-personal” information “personal.” Instead, it was the nature of the information, and the fact that the subject matter contained therein did not engage the privacy rights of individuals, that was key to determining whether the information was “about” a person so as to qualify for exemption under subsection 19(1).
The Commissioner also noted that even if the information had been properly exempted as personal information, of which she was not convinced, Transport Canada was obliged to consider releasing the information in the public interest under paragraph 8(2)(m) of the Privacy Act. With regard to the information at the centre of this investigation, there was no expectation of privacy. In addition, there is a strong public interest in ensuring air travel safety.
As a result of the Commissioner’s intervention, Transport Canada released the records to the requester in full on October 18, 2013, under sub-paragraph 8(2)(m)(i) of the Privacy Act. This provision allows institutions to release information when they determine that the public interest in the disclosure clearly outweighs any resulting invasion of privacy. This resolved the complaint, although the Commissioner maintains that the information released to the requester is not personal information.
Issue of consent
A requester complained to the Commissioner that the RCMP had not provided proper grounds for refusing access to documents obtained during an investigation. On three occasions, the RCMP had advised the requester that it required written consent from individuals whose personal information could appear on the records that fell within the scope of the request before it would process the request.
The Commissioner concluded that it was premature for the RCMP to require consents before even reviewing the records in question to determine whether subsection 19(1) applied. Moreover, the Commissioner is of the view that institutions have an obligation to seek consent when it is reasonable to do so. Accordingly, the RCMP’s refusal to process the request in the absence of consents was inappropriate.
During the investigation, the RCMP also expressed concerns to the Commissioner about the scope of the request, in addition to the potential need to seek consent from a large number of people. It is the Commissioner’s view that the RCMP should have discussed these concerns with the requester, in accordance with its duty to assist.
By refusing to process the request without the relevant consents, and not communicating appropriately with the requester, the RCMP missed an opportunity to resolve these issues. This, in turn, unnecessarily delayed the processing of the file. Indeed, during the investigation, it became evident that the requester was willing to significantly reduce the scope of the request. Doing so eliminated the need to seek any consents. The complaint was resolved on this basis.
2. Section 20
Section 20 provides for the exemption of certain types of information of a commercial nature relating to third parties not subject to the Act. In 2013–2014, 25 percent of the new complaints the Commissioner received involved issues about how institutions applied this section.
Who is a proper third party?
In 2008, Canada Post disclosed to a requester portions of “contracts given to Wallding International” dating from 1997 to 2000. It withheld the signatures on the contracts as personal information (subsection 19(1)) and other details as commercial information supplied in confidence by a third party to Canada Post (paragraph 20(1)(b)).
In investigating the subsequent complaint about this response, the Commissioner disagreed that the three signatures in question could be withheld as personal information, since they were all publicly available. Indeed, one of the signatories was the Receiver General of Canada, whose signature appears on all cheques issued by the Government of Canada. In the end, Canada Post released the signatures.
The Commissioner also disagreed that the information contained in the contract was “supplied” by a third party, as is required by paragraph 20(1)(b). The terms of a contract that is negotiated between a government institution and a third party are not, in the Commissioner’s opinion, “supplied” to a government institution, since they are arrived at as the result of a process of negotiation and are mutable.
In August 2012, in the course of the investigation—and more than four years after its initial response to the requester—Canada Post applied a new exemption to the records at issue: paragraph 20(1)(c). This exemption requires institutions to withhold information the disclosure of which could reasonably be expected to result in material financial loss or could reasonably be expected to prejudice the competitive position of a third party. In doing so, Canada Post asserted that the release of the content of the contracts would result in financial loss or would harm the competitive position of the former president of Wallding, the third-party corporation.
Since the records at issue related to the business of Wallding, a corporation that was dissolved in September 2008, the Commissioner was not convinced that Canada Post had properly applied paragraph 20(1)(c) to withhold the information.
As required by the Act, the Commissioner sought representations from the former president of Wallding. However, the Commissioner was not persuaded by his representations, which focused entirely on the potential damage to him in his personal capacity. The Commissioner therefore recommended to the head of Canada Post that he disclose the information. The information was finally disclosed in its entirety in 2013.
When is commercial information not confidential?
Aboriginal Affairs and Northern Development Canada (AANDC) received a request in 2012 for a list of all known storage tanks on aboriginal land in Alberta that contain petroleum products and allied petroleum products. The requester sought the capacity, location, and owner/operator of each tank.
In responding to the request, AANDC exempted the tank location under paragraph 20(1)(b) (information supplied by a third party in confidence). The requester complained to the Commissioner about this response.
In order for paragraph 20(1)(b) to be properly invoked to withhold information, all criteria set out in the provision must be met. That is, the information must be financial, commercial, scientific or technical information. It must have been supplied to a government institution by a third party, it must be confidential in nature by some objective standard and it must be consistently treated in a confidential manner by the third party.
Throughout the investigation, AANDC maintained that the information at issue met the criteria of paragraph 20(1)(b), including the confidentiality criteria.
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.”
Similarly, Environment Canada’s website sets out that the identification number must be visible on or near the storage tank system. For aboveground tanks, the number may be painted on the side of a tank or posted in a visible location. For underground systems, a durable tag may be attached to the fill pipe. The only requirement is that the number be visible throughout the year and not obscured by, for example, snow.
In light of these requirements, the Commissioner concluded that the location of such tanks is capable of being discerned through observation, and could not be characterized as “confidential.”
The Commissioner advised AANDC of her position, but the institution maintained that the application of paragraph 20(1)(b) was proper. Since the Commissioner had concluded that AANDC had not established that the information at issue met the criteria set out in paragraph 20(1)(b), the Commissioner formally recommended that the Minister of Aboriginal Affairs and Northern Development disclose the information. In response, AANDC agreed to release the information.
3. Section 23
Another exemption frequently relied on by government institutions to withhold records is section 23, which exempts information for which solicitor-client privilege has been claimed. In 2013–2014, 21 percent of the new complaints the Commissioner received raised issues relating to section 23.
Settlement agreements not privileged
A requester complained to the Commissioner about AANDC’s decision to withhold in its entirety under section 23 settlement agreements drawn up between AANDC and seven private companies in 2008 regarding a building project for a school in Kanesatake.
The Commissioner did not agree that such documents could be withheld under this exemption. During the investigation, the institution acknowledged this to be the case and subsequently decided that it would rely on subsection 18(b) (contractual or other negotiations of a government institution) and paragraph 20(1)(d) (contractual or other negotiations with a third party) to withhold the requested records.
In justifying its use of these exemptions, AANDC argued that settlement agreements are intended to be confidential and that disclosure could result in financial loss to the federal government or that parties not involved in the settlement would financially benefit from the information the agreements contain. To be properly exempted under paragraph 20(1)(d), the information must be such that its disclosure could reasonably be expected to interfere with contractual or other negotiations of a third party. This test is similar to that set out in subsection 18(b). It is not enough to merely speculate that some harm may occur. The courts have been clear that in invoking this provision, institutions must refer to an obstruction to negotiations and not simply the heightening of competition that may flow from disclosure. The courts have also noted that the party seeking to prevent disclosure must establish the probability of harmful consequences.
In the Commissioner’s view, AANDC failed to provide sufficient evidence that the harm identified in paragraph 20(1)(d) or subsection 18(b) would materialize should the records at issue be disclosed. In the end, AANDC, since it had ceased to rely on section 23 to withhold the information, disclosed all of the records to the requester.
Other exemptions and exclusions
Section 18.1 of the Act allows four government institutions, including VIA Rail Canada, to refuse to disclose records that contain trade secrets or financial, commercial, scientific or technical information that belongs to them, and that the institutions have consistently treated as confidential. This provision, which has been the source of some complaints, was added to the Access to Information Act in 2007 as a result of the Federal Accountability Act, when VIA also became subject to Canada’s access to information legislation.
For example, a requester complained to the Commissioner about a decision by VIA to exempt information in response to a request for “Passenger on/off numbers by station for 2011 and 2012.”
In his complaint, the requester noted that VIA had provided him with national figures for the number of passengers who had gotten on and off VIA trains, as opposed to giving the figures broken down by station. VIA had withheld the latter under paragraph 18.1(1)(d) (commercial/economic information). However, the requester alleged that VIA had in the past publicly released full station-by-station data on its website. He also questioned how releasing the information would compromise any commercial or economic activity at VIA.
The Commissioner’s investigation revealed that VIA had, in fact, publicly released the information in question from 2007 to 2010, indicating that VIA had not consistently treated the requested information as confidential. Since VIA did not meet all of the criteria set out in paragraph 18.1(1)(d) the Commissioner concluded that the information was not properly withheld. As a result of the Commissioner`s intervention, VIA disclosed the information to the requester.
Under this section, institutions may refuse to disclose records when they have reasonable grounds to believe that the material will be published within 90 days after the request is made.
A requester complained to the Commissioner in 2013 about the decision of the Canada Mortgage and Housing Corporation (CMHC) to withhold in its entirety a study, Assessing the Outcomes for Habitat for Humanity, Home Buyers in Canada, under paragraph 21(1)(b) (accounts of deliberations or consultations).
The Commissioner disagreed with CMHC’s application of paragraph 21(1)(b) and asked the institution to review the records again. Instead of doing so, CMHC took the position that it would withhold the information under section 26, since the study was to be published in May or June 2013. However, section 26 requires that there be reasonable grounds to believe that the information will be published “within ninety days after the request is made.” In this case, the proposed publication date was more than 90 days after CMHC received the request in December 2012. Consequently, the Commissioner found that that CMHC could not invoke section 26 to withhold the study.
During the investigation, CMHC informed the Commissioner that the report had been published on its website and provided the link to the requester.
Section 26 is unlike other exemptions in that its application is based on an event taking place within a specific time frame. As a result, even when an institution intends to publish a record, it must demonstrate that it was reasonable to believe publication would occur within 90 days after the date the institution received the request.
Subsection 68(a) excludes from the Act published material or material available for purchase. An investigation focused on the use of this exclusion raised interesting issues about the intersection of copyright law and the Access to Information Act.
A requester complained to the Commissioner when CRA withheld Internal Technical Interpretations produced for a particular period under subsection 68(a). CRA provided the Interpretations to publishers under a licensing agreement. The publishers, in turn, made them available for purchase with some modifications.
The requester argued that the publishers’ changes were substantial enough to make the published versions of the Interpretations a “new” or “derivative work” under copyright law. If this were so, subsection 68(a) would not have applied, since the original versions would have been neither published nor available for purchase.
During the investigation, the Commissioner compared the original and published versions of the Interpretations, which showed that what was published was almost identical to the original version. In some cases, the publishers had added footnotes for clarity and value to subscribers. Consequently, the Commissioner agreed with CRA that the information at issue was published and available for purchase, which excluded it from the Act.
The Access to Information Act does not apply to information that is considered to be Cabinet confidences. This exclusion (section 69) distinguishes the federal access law from those of all the provinces and territories.
Because Cabinet confidences are excluded from the Act, the Commissioner is unable, when investigating complaints about records that contain Cabinet confidences, to view the information institutions have refused to disclose. Instead, she receives a document that sets out basic data about the records withheld, such as the type of document, who wrote it, who received it and on what date.
The courts have determined that, in accordance with the exceptions set out in subsection 69(3), portions of documents intended to present background explanations, analyses of problems or policy options for Cabinet’s consideration when making decisions are not Cabinet confidences after the decisions are made public or after four years have passed since the decisions were made. However, it is difficult for the Commissioner to determine whether portions of documents could meet this test when she is not allowed to see their contents.
Nonetheless, the Commissioner has, by seeking formal representations from institutions, managed in a number of cases to have further information released. For example, in 2013–2014, the Commissioner’s intervention resulted in additional information being disclosed related to proposed changes to skydiving regulations and about Environment Canada activities associated with the Red River floodway in Manitoba.
In July 2013, the responsibility for determining whether information is excluded as a Cabinet confidence under the Act was transferred from the Privy Council Office to Department of Justice Canada lawyers embedded in institutions (see section 13.4 of the TBS Access to Information Manual). The impact of this change is unclear. It may be that the new process will increase the timeliness of responses, since institutions generally identified consulting PCO as a bottleneck in the processing of requests. However, there is a real possibility that the application of section 69 will vary from institution to institution and that the Commissioner’s investigative process will be complicated by a lack of standardization. The Commissioner communicated these concerns to TBS, the Department of Justice Canada and PCO.
TBS has begun to collect more detailed statistics about requests that involve Cabinet confidences, to provide a clearer picture of their volume and the time required to process them. The first of these figures will be published in 2014–2015.
In the meantime, the Commissioner notes with concern that complaints about the use of the Cabinet confidence exclusion increased by 65 percent in 2013–2014 over 2012–2013. The Commissioner will be monitoring this situation closely and will report on further developments in 2014–2015.
Systemic investigation into the impact of instant messaging on access
In November 2013, the Commissioner published a special report to Parliament on the impact of instant messaging on access to information.
In this investigation, the Commissioner reviewed the practices of 11 institutions and various ministerial offices with regard to the use of instant text-based messages on wireless devices, including communications to and from BlackBerrys using their unique personal identification numbers (PINs).
The Commissioner found that the use of instant messaging on government-issued wireless devices to conduct government business is putting the right of access to information at an unacceptable risk. In addition, she found that access to instant messages sent and received by ministers’ office staff is at particular risk.
In the report, the Commissioner recommended that Parliament amend the Access to Information Act to add a comprehensive legal duty to document decisions made by federal government institutions, with appropriate sanctions for non-compliance. The Commissioner also made three specific recommendations to the President of the Treasury Board, who declined to implement them.
Interference with access to information
The access to information process as set out in the Access to Information Act was designed to be objective and non-partisan. Consequently, any real or perceived interference in the process is inconsistent with the Act.
Interference at Public Works and Government Services Canada
In early April 2014, the Commissioner released a special report to Parliament that concluded that there had been improper involvement by three ministerial staff members with five access to information requests at Public Works and Government Services Canada (PWGSC). The investigation that formed the basis of the report covered the period from July 2008 to January 2010.
Direct communications between ministerial staff members and access officials contributed to the interference. In turn, this resulted in delays in responding to requesters. In four cases, access officials did not release information when it was ready to be disclosed. Instead, they delayed responding to requesters between 6 and 30 working days, in order to obtain the approval of ministerial staff members to release the records.
The Commissioner made eight recommendations to PWGSC, on matters ranging from implementing new or improving existing policies, to providing clear and consistent training to both ministerial staff and access officials on their roles and responsibilities under the Act. The Minister agreed to implement all the recommendations but one; she declined to refer the matter of the interference to an investigative body for further examination.
The report followed an earlier finding of interference against one of the three staff members involved in this investigation, which the Commissioner reported on in March 2011.
Two interference complaints related to requests for information about Afghan detainees
During 2012–2013, the Commissioner closed investigations into two other complaints alleging interference. The first was against DFATD and the second against National Defence. After extensive investigations, the Commissioner found both of these complaints to be not well founded.
The first investigation was into an allegation of interference at DFATD.
On March 11, 2008, DFATD received a request for “all documentation concerning Canada’s decision to stop detainee transfers in early November 2007 because of evidence of torture. Please provide any materials prepared in relation to detainee transfers for court proceedings. Timeframe is November 1, 2007 to February 29, 2008.”
On March 19, 2008, DFATD informed the requester that it was taking a 290-day time extension to respond to the request, due to the anticipated extent of the search and the consultations that would be required with other government institutions. This placed the extended due date for responding to the request in late 2008.
In the end, DFATD responded to the request on December 10, 2009, exempting all records in their entirety under section 23 (solicitor-client privilege). On February 9, 2010, the requester complained to the Commissioner about DFATD’s response. Among other matters, the requester complained that there had been undue interference with the handling and processing of the request, due to the time it took for DFATD to provide a response.
The Commissioner received full and prompt cooperation from all institutional officials during the course of her investigation of this complaint, reviewed all records created as a result of the request, and conducted individual interviews with all DFATD and Department of Justice Canada officials who had been involved in processing the request.
The investigation revealed that DFATD, at the time of this request, had been processing an exceptionally high volume of requests, while attempting to manage competing priorities relating to the detainee transfer issue. These priorities included litigation involving the Military Police Complaints Commission, other litigation before the Federal Court and the study being done by the House of Commons Special Committee on the Canadian Mission in Afghanistan. DFATD officials described the high volume and competing priorities during this period as creating an overwhelming workload that had a significant impact on institutional resources.
The Commissioner’s investigation established that DFATD officials in the program areas had made a conscious decision to address these other priorities before the access requests, including the request at the centre of this complaint. Consequently, there were significant delays in identifying records that might fall within the scope of the request, in conducting and completing internal consultations, and in undertaking consultations with the Department of Justice Canada about the applicability of section 23 to the records. For their part, Department of Justice Canada officials responded promptly to DFATD’s consultation request once they received it.
In addition, the Commissioner examined DFATD’s ministerial communications alert process to determine whether this procedure resulted in any interference in or additional delay to the request. The Commissioner’s review found no evidence that this had been the case.
Ultimately, however, DFATD responded to the request 11 months after the extended due date had passed. In so doing, the institution failed in its duty to provide a timely response to the requester, as set out in subsection 4(2.1) of the Act. Workload is not a justification for entering a state of deemed refusal.
Despite the significant delay in responding to this request, the Commissioner found no evidence of interference with the handling and processing of the request. Accordingly, the Commissioner determined the complaint was not well founded.
The Commissioner also investigated allegations of interference at National Defence.
On May 8, 2007, National Defence received a request for “copies of all e-mails sent or received by the Assistant Deputy Minister (Policy) from 29 April 2007 to 7 May 2007.” This was revised a week later to “copies of all e-mails sent or received by the Assistant Deputy Minister (Policy) from 29 April 2007 to 7 May 2007 that include or mention the word ‘detainee’.”
On June 12, 2007, National Defence informed the requester that it was taking a time extension of 180 days to respond to the request, due to the volume of records involved and the consultations with other institutions that would be required. This made the new deadline for responding to the request December 11, 2007.
On January 29, 2010, 25 months after the extension had expired, National Defence provided 160 pages of records to the requester but withheld some records in whole or in part under one or more of several exemptions. The requester complained to the Commissioner about this response, alleging that, due to the length of time involved, there might have been undue interference with the handling and processing of his request.
National Defence cooperated fully with the Commissioner’s investigation. In investigating the complaint, the Commissioner reviewed all the records created as a result of the processing of the request and conducted individual interviews with all National Defence and other government institution officials who had been involved in the processing of this request.
The investigation revealed that there was a significant delay in National Defence’s response to the request because of the following factors. First, National Defence had been processing a large volume of access requests while dealing with this one. Second, in addition to carrying out internal consultations with subject-matter experts, National Defence had to conduct a number of consultations with other government institutions.
Most institutions National Defence consulted responded in a timely manner. However, two consultations were required with DFATD, which had significant workload issues at that time. As noted above, DFATD was managing its access and consultation requests alongside other competing priorities relating to the Afghan detainee transfer issue.
Compounding these conditions was the fact that the access offices at both National Defence and DFATD had experienced significant staffing issues during the processing of the request, resulting in responsibility for the file changing hands several times. In addition, the request was processed during a period of exceptionally heavy workload as a result of requests related to Afghanistan and Afghan detainees. Consequently, access officials experienced considerable administrative delays in conducting their respective internal consultations in order to obtain the advice necessary to complete the processing of this request.
The Commissioner also examined National Defence’s ministerial communications alert process. Although this procedure is conducted under strict protocols, she nonetheless investigated whether this procedure resulted in any interference or additional delay with the request. The review found no evidence that this had been the case.
Ultimately, National Defence responded to the request 25 months after the extended deadline had passed. In so doing, the institution failed in its duty to provide a timely response to the request, as set out in subsection 4(2.1) of the Act. However, the information and evidence obtained during this investigation led the Commissioner to conclude that there had been no interference with the handling and processing of the request.
Ongoing systemic interference investigation
Finally, the Commissioner’s ongoing systemic investigations into delay and interference in eight institutions will be concluded in 2014–2015.
- Footnote 1
As per the Commissioner’s 2012–2013 annual report. This percentage included miscellaneous complaints, which were classified as administrative complaints at the time. As of April 1, 2013, the Commissioner counts all miscellaneous complaints as refusal complaints. Taking this into account, the jump in administrative complaints in 2012–2013 was 33 percent.
- Footnote 2
The change, however, had no impact on the Commissioner’s total number of investigators, since it did not increase the funding of the Office of the Information Commissioner in any regard.