2015-2016 1. Highlights
This annual report sets out the activities of the Information Commissioner of Canada in 2015–2016. This chapter highlights noteworthy examples of the Commissioner’s investigations under the Access to Information Act and important litigation matters.
Signs of the change in culture
A new government was elected in October 2015. Since that time, the Commissioner has noted a positive change, towards a more open culture within government, as illustrated in the following three examples.
Presentation deck and speaking notes
In the first example, a request was made in April 2015 to Treasury Board of Canada Secretariat (TBS) for a specific briefing note prepared by the Chief Information Office Branch of TBS for a meeting of the Clerks and Cabinet Secretaries Committee. 85 pages were identified as responsive to the request and all were exempted, using multiple exemptions, including the exemption for advice and recommendations.
A complaint was received by the Commissioner about this response in September 2015 and she quickly determined that all of the pages should have been disclosed and that the application of the exemptions was excessive. The records at issue were a presentation deck and speaking notes that gave an update on federal-provincial-territorial collaboration in service delivery, and the information that was exempted was innocuous, such as flags of provinces and names of high ranking government officials participating in the presentation. When initially processed, the Commissioner learned that TBS had recommended full disclosure; however, Employment and Social Development Canada had recommended that the entire document be exempted from disclosure through the consultation process.
To assist in resolving this complaint, the Commissioner reached out to the newly appointed President of the Treasury Board and the Secretary to TBS, and used this investigation as an example where a culture change was necessary within the public sector to achieve more openness and transparency. TBS reconsidered its position and disclosed the information to the requester in its entirety.
There are better and bigger things to do in the access business in 1991 than, for example, to argue whether the results of government commissioned public opinion polls should be released. (It is passing bizarre that there should ever be argument over whether the public is entitled to know what its own opinions are, especially opinions collected at public expense.)
–Former Information Commissioner John Grace
Annual Report 1990-1991
Public opinion research
In another instance, several requests were made from August 2012 to July 2014 to the Privy Council Office (PCO) that pertained to public opinion research. In response to these requests, PCO claimed the exemption for advice and recommendations developed by or for an institution or a minister of the Crown (paragraph 21(1)(a)) and/or the exemption for accounts of consultations or deliberations (paragraph 21(1)(b)) on most of the responsive records.
The public opinion research in the responsive records represented Canadians’ views on a variety of issues, such as the environment, the economy, justice, and health and safety. Not only were the views of Canadians withheld by PCO, but information regarding how these opinions were collected, including methodologies, timelines and associated costs, was also withheld under section 21.
Complaints about PCO’s responses were received by the Commissioner from September 2012 to August 2014. During her investigations, the Commissioner challenged the application of these exemptions, since neither exemption applies to factual material.
PCO continued to rely on section 21 until December 2015, when a meeting was held between PCO representatives and senior officials from the Office of the Information Commissioner. As a result of this meeting, PCO agreed to release the public opinion research information. For the future, PCO also indicated that it would no longer use section 21 to protect this type of information.
In the third example, the Commissioner undertook two related strategies in 2015–2016 for fees, one concerning electronic records and the other related to programming fees. The Commissioner has advocated that all fees associated with access requests should be eliminated.
Investigations related to fee complaints take up resources that could be better allocated to other, more substantive issues. To get a sense of the resources dedicated to investigate fee complaints, the Commissioner includes in this report the most noteworthy fee investigations from 2015–2016.
Search and preparation fees for electronic records
At the end of March 2015, the Federal Court released its decision in response to a reference question the Commissioner had brought to the Court regarding whether institutions could charge search and preparation fees for electronic documents that were responsive to requests made under the Access to Information Act. In its decision, the Court accepted the ordinary meaning of “non-computerized records” to find that emails, Word documents and other records in electronic format are computerized records and therefore not subject to search and preparation fees under the Regulations (Information Commissioner of Canada v. Attorney General of Canada, 2015, FC 405 ; background, “Removing a barrier to access: Fees and electronic records”.
The investigation that served as the basis for the reference involved a request to Employment and Social Development Canada (ESDC) for records relating to the social insurance number (SIN) record database. ESDC identified the responsive records and issued a fee notice estimating search fees of $4,180. When a complaint was made to the Commissioner regarding the fee, ESDC opposed the Commissioner’s interpretation that search and preparation fees could not be applied to electronic records.
For the duration of the reference proceedings, the Commissioner put in place a strategy to manage outstanding complaints about search and preparation fees applied to electronic records. Complainants were asked whether they preferred to put their complaints on hold or to pay the fees to institutions in order for processing to continue.
By June 2015, the Commissioner had an inventory of 48 fee complaints related to the reference question. Once the decision was released, these complaints were reactivated.
Many complaints involving only electronic records were resolved swiftly as a result of this decision, with agreement from institutions to process the requests without assessing fees or requiring payment of any fees. In the few instances where fees had been paid, complainants were reimbursed. In instances where requests involved both paper and electronic records, some complainants amended their requests to receive only electronic records, resolving the question of whether any fees should be assessed at all.
Since June 2015, two of the forty-eight complaints put in abeyance have been discontinued and forty-four have been concluded as well-founded. Of the forty-eight complaints, four dealt with other, more complex issues, beyond the simple application of search and preparation fees to electronic records. Two of these complaints have now been concluded and two are ongoing.
The Commissioner issued an advisory notice in December 2015 regarding fees for electronic records. In this notice, the Commissioner specifically reminded institutions that subsection 7(3) of the regulations, related to programming fees, could not be used to justify charging fees for searching and preparing electronic records.
As the Commissioner worked through the investigations that were put in abeyance pending the results of the Fees Reference, one appeared to show an institution using subsection 7(3) of the regulations for searching electronic records.
In 2014, the Social Sciences and Humanities Research Council (SSHRC) received a request where it was specifically asked to search its backup servers for responsive records. SSHRC issued a fee notice of $600, requesting a $300 deposit to proceed, on the basis of a search fee for electronic records. The requester paid the deposit so that the request could be processed, but complained to the Commissioner about the fee. SSHRC later reduced the total fee to $350. After the requester paid the outstanding balance, SSHRC issued a final response.
When this complaint was reactivated in June 2015, SSHRC agreed, given the Court’s decision, that the search fee did not apply, but noted that a programming fee was applicable, per subsection 7(3) of the regulations to the Act. It explained that it had opted to prepare its fee estimate using the cost structure relevant to search fees, as this would be less costly to the complainant. While fees for searching can amount to $10/hour, the fee structure for programming can be much more costly. According to SSHRC, the final fee of $350 was based entirely on 35 hours spent programming to produce records from its backup servers.
However, upon reviewing the instructions to produce the records that SSHRC claimed were “programming”, the Commissioner, in consultation with an internal IT specialist, determined that no programming was necessary to produce the records. The instructions were mostly point and click, with a very minimal amount of manual command entry.
When provided with this preliminary finding, SSHRC agreed to refund the fees paid by the complainant in order to resolve the complaint.
Demonstrating another shift towards more transparency, on May 5, 2016, the government announced that all fees associated with access to information requests, other than the $5 application fee, were to be waived. This result was achieved by an amendment to the Directive on the Administration of the Access to Information Act.
Right to have requests processed without regard to identity
An important function of the Commissioner is ensuring that access to information requests are processed appropriately and that requesters’ rights are protected during this process. In 2015–2016, the Commissioner closed an investigation where she had learned of a situation at Indigenous and Northern Affairs Canada (INAC) (formerly Aboriginal Affairs and Northern Development Canada) where requesters’ right to have their requests processed without regard to their identity, pursuant to subsection 4(2.1) of the Act, was at risk.
The origin of this investigation was a request for records relating to the expenses of the former minister for that institution, Jim Prentice. In response, INAC claimed there were no responsive records and a complaint was made to the Commissioner.
While the Commissioner was investigating this complaint, she learned through media reports that INAC had created and circulated a list containing the names of all requesters seeking records relating to the expenses of Mr. Prentice. This list was subsequently leaked to the media. Learning of the existence of this list, the complainant in the initial complaint made a second complaint to the Commissioner. In this second complaint, the complainant also alleged that one of the employees involved in processing his request had a political affiliation with the Conservative Party.
Due to the serious nature of the allegations, the Commissioner commenced a second investigation and invoked a number of her powers under subsection 36(1) of the Act. These included issuing production orders for records and subpoenas to ensure the appearance of selected individuals to answer questions under oath.
The Commissioner’s investigation revealed that the list consisted of the names of the requesters, the wording of the access requests, the date the responses to the requests were due, the responses given initially, the quantity and location of records that were deemed responsive to the request, as well as the status of the requests. At least seven individuals within INAC saw or were in possession of a copy of the list.
The Commissioner’s investigation concluded that there was no information obtained that would suggest that the identities of the requesters factored into or impacted the processing of the requests. However, by the very fact that INAC created a list that contained the names of requesters, INAC failed to take appropriate measures to safeguard the identities of requesters and thus failed in its duty to assist requesters. The Commissioner concluded that this would have been the case even if the list had not been leaked to the media. That the list was leaked illustrates all the more the need to safeguard the identity of requesters to avoid such instances in the future.
By the time the Commissioner’s investigation began, INAC had addressed the issue internally and removed the names of the requesters from the list. INAC officials confirmed that it was not their usual practice to create such lists and committed to ensuring that such an incident does not occur in the future. With respect to the allegation that one of the employees involved in creating the list was politically affiliated, the investigation revealed that this employee was absent from the office at the time the list was created. The Commissioner also confirmed that INAC’s training and procedures manual outline the requirements to be met regarding the duty to assist and the need to protect the identities of requesters. As a result, the complaint was concluded as well-founded and resolved.
The importance of leadership
In 2015–2016, the Commissioner completed a systemic investigation into Parks Canada’s approach to processing access requests. This investigation illustrates how collaborating with the Commissioner during her investigation can result in positive systemic changes for access rights.
Parks Canada’s approval process
Delays in processing requests have been a longstanding issue for the access to information regime. As a result, the Commissioner pays particular attention to institutions that display ongoing issues with processing requests in a timely manner.
Prior to this systemic investigation, several standalone investigations by the Commissioner into delays at Parks Canada had identified the approval process as a contributing negative factor in responding to access requests on time. Despite undertakings from the former CEO to review Parks Canada’s internal approval processes, subsequent investigations by the Commissioner revealed that the approval process continued to be an issue at Parks Canada (see, for example “Parks Canada”.
Given the ongoing nature of this problem, the Commissioner decided to launch a systemic investigation, focusing on the time period of April 1, 2013 to September 30, 2014. Her systemic investigation focused on both the approval process and the large number of abandoned requests.
The Commissioner’s systemic investigation revealed that Parks Canada routinely ignored statutory time limits and had implemented approval processes that resulted in substantial delays in processing requests. Furthermore, individuals without delegated authority were habitually involved in the processing of requests to the detriment of timeliness in responding. For example, proposed responses to access requests routinely awaited approval within the CEO’s office for an extended period of time. Non-delegated officials within the CEO’s office were designated two weeks each to review release packages, but habitually exceeded this time frame.
With respect to the approval process, the Commissioner recommended that Parks Canada improve its timeliness and abide by the requirements of the Act by reviewing its approval processes to ensure that only those individuals properly delegated under the delegation order can approve the release of records and ensuring that non-delegated individuals not delay the processing of requests.
In addition to reviewing Parks Canada’s approval process during this systemic investigation, the Commissioner also investigated Parks Canada’s rate of abandoned request. Parks Canada’s rate of abandoned requests was, in the Commissioner’s view, generally high, with 2013–2014 marked in particular as an outlier.
During her systemic investigation, the Commissioner found that a number of inappropriate practices led to a high rate of abandoned requests. This aspect of the Commissioner’s investigation focused on a requester who made 135 requests in one day.
Specifically, the Commissioner found that Parks Canada failed to calculate fees in a reasonable manner and neglected to inform the requester of his right to complain to her regarding fees. Initially, the requester was provided a total search fee estimate for all 135 requests of $71,455 (this estimate was later reduced to $49,105 after clarification was sought). The Commissioner concluded that such inflated fee calculations likely contributed to the high rate of abandoned requests experienced by Parks Canada.
In addition, the Commissioner also found that Parks Canada failed to notify the same requester that no records existed for certain of his requests. Eventually, the requester informed Parks Canada that he no longer needed the information and Parks Canada considered the 135 requests to be abandoned.
To address the issues raised in Parks Canada’s treatment of these 135 requests, the Commissioner recommended that Parks Canada only calculate and assess fees in accordance with the Act and its regulations and TBS’s Directive on the Administration of the Access to Information Act.
General recommendations to improve service delivery at Parks Canada
The practices at Parks Canada in processing access requests raised serious questions for the Commissioner. In particular, she was concerned about its ability to meet its duty to assist obligations under the Act. Thus, she made a number of recommendations to improve compliance with the Act, including that Parks Canada:
- include a requirement to comply with the Access to Information Act in the performance agreements of its executives;
- undertake a review of its internal procedures to ensure compliance with the Access to Information Act, its regulations and TBS policy instruments. Parks Canada’s internal procedures should foster a client service culture and reflect Parks Canada’s statutory duty to assist requesters under the Act; and
- develop and implement an access to information training plan for all employees, including in the Access to Information and Privacy Directorate, which focuses on client service centered culture in relation to access to information. Ongoing training should be provided as necessary.
Response from Parks Canada
When providing representations to the Commissioner during her investigation, Parks Canada disagreed with some of the Commissioner’s preliminary findings, asserting, for example, that non-delegated individuals had been removed from the approval process or that fees were properly assessed. In other instances, Parks Canada acknowledged that there was an issue, for example, with timeliness, but indicated that improvements were already in place.
Finding these representations insufficient to address Parks Canada’s access to information shortcomings, the Commissioner reached out to the new CEO of Parks Canada (a new CEO had been appointed since undertaking this systematic investigation). The new CEO recognized that Parks Canada’s performance in meeting the legally mandated timelines under the Act needed to be improved.
In response to her formal investigation findings, Parks Canada accepted each of the Commissioner’s recommendations (see box “Parks Canada’s response to the Commissioner’s recommendations”).
The Commissioner attributes much of the change in tone and collaboration during this systemic investigation to the new CEO. The Commissioner is confident that with new leadership, Parks Canada’s issues with processing requests will decline and respect for the right of access will improve.
Parks Canada’s response to the Commissioner’s recommendations
In its response to the Commissioner’s systemic investigation, Parks Canada confirmed that it would implement, or had already implemented, the following:
- weekly meetings between the CEO and the Vice-President responsible for access to information to conduct detailed reviews of where all requests stand; where necessary, the CEO will intervene to ensure Parks Canada meets its requirements under the Act;
- ensure that all fees are assessed in accordance with the Act, its regulations and related TBS policies and directives;
- review assessed fees by the Vice-President responsible for access to information;
- a 13-month management initiative, during which time Parks Canada will achieve a zero deemed refusal rate, where no timelines are missed, in relation to access to information requests;
- ensure that only those who have properly delegated authority will have the ability to impact the disclosure process;
- provide ongoing monitoring and training to all relevant staff and senior level management to ensure compliance with the Act and the appropriate client service standard;
- include provisions relating to access to information in the performance agreements of executives, senior level management and relevant staff;
- develop mandatory access to information and privacy training to be delivered across the country in field and business units in summer 2016;
- update and expand access to information materials available on Parks Canada intranet site; and
- report back on progress within six months.
Proper exercise of discretion: Federal Court decision on disclosure of number of individuals on Canada’s ‘no-fly list’
In April 2014, the Commissioner applied for judicial review of Transport Canada’s refusal to release the number of individuals named on the Specified Persons List (otherwise known as Canada’s “no-fly list”) each year from 2006 and 2010, and the number of Canadians on the list during the same years. The requester was added as an applicant to the proceeding.
The Federal Court released its decision on April 20, 2016. The Court determined that the Minister of Transport’s delegate had correctly identified the information as falling within the exemption of the Act that allows for refusals where disclosure could reasonably be expected to cause injury to the detection, prevention or suppression of subversive or hostile activities (that is, paragraph 15(1)(c) of the Act). The Court also determined that the Minister’s delegate had not exercised his discretion reasonably in deciding to apply this exemption.
In exercising discretion: “I must reiterate that decision-makers cannot simply state that they have taken all the relevant factors into consideration; they must concretely show how the factors were considered.”
–Information Commissioner of Canada v. Minister of Transport Canada, 2016 FC 448 at para 66 (Translation)
In its decision, the Court also made clear that decision-makers must show that they carefully considered the arguments and suggestions in favour of disclosure, including those made by the Commissioner.
In the Court’s opinion, there were three reasons why discretion had been exercised unreasonably in this case: 1) in relation to the passage of time, the only consideration shown in Transport Canada’s decision to maintain the exemption at the end of the Commissioner’s investigation was that the type of information at issue had always been withheld from disclosure; Transport Canada gave too little consideration to the argument that as time went on, the information at issue was losing its importance; 2) Transport Canada refused to give serious consideration to the Minister’s public declaration about the number of individuals included on the Specified Persons List when the list came into effect; the Court found that Transport Canada’s refusal to clarify the Minister’s statement was unacceptable and lacked transparency; and 3) while Transport Canada invoked negative repercussions in its international relations with the United States as a reason for refusing to disclose the information, there was a lack of evidence to support that argument.
...where the Commissioner is a party to the proceeding, the Court must take into consideration the Commissioner’s arguments and suggestions, as well as assess how the decision-maker considered and addressed those arguments and suggestions. At the decision-making stage, the decision-maker must show that he has a full understanding of the access request, that he understands the arguments in favour of disclosure and carefully considered those arguments, all while taking into account the purposes of the [the Act]”
–Information Commissioner of Canada v. Minister of Transport Canada, 2016 FC 448 at para 105 (Translation)
The Court therefore returned the matter to Transport Canada, for a different decision-maker to exercise the necessary discretion to arrive at an informed decision on whether or not to disclose the information at issue. The Court expressed its desire that the new decision be arrived at within 90 days. The Court awarded costs to the access requester.
The period for appeal of the decision has not yet expired. The appeal period will end on May 20, 2016.