2017-2018 Investigation Highlights
The following examples of investigations closed in 2017–2018 provide insight into the OIC’s interpretations of sections of the Access to Information Act that can sometimes be confusing to the public and challenging for institutions to administer.
By highlighting these investigations, it is hoped that the application of the Act will be improved in these areas and future complaints will be reduced.
Subsection 10(2) – Refusal to Confirm or Deny Existence of Records
Subsection 10(2) of the Act allows an institution to neither confirm nor deny the existence of a record in response to an access request. This provision of the Act was designed to address situations in which the mere confirmation of a record’s existence or non-existence would reveal information that should be protected under the Act.
Appropriate Denial of a Record’s Existence
One of the circumstances where subsection 10(2) can be reasonably used is when confirming whether a record exists could interfere with an investigation.
In 2017–2018, the OIC received several complaints from individuals who wanted to know whether the Canadian Security Intelligence Service (CSIS) had files on them. CSIS’ mandate is to investigate the activities of individuals who threaten the national security of Canada. Confirmation from CSIS as to whether it has records related to an individual would indicate whether an investigation is currently taking place. Either response could be potentially injurious to CSIS’ investigative work, so CSIS therefore applied subsection 10(2) in response to these requests.
In these circumstances, the OIC agreed that CSIS’ response to neither confirm nor deny the existence of this kind of information was a reasonable use of subsection 10(2). This approach has recently been confirmed by the Federal Court.Footnote 1
Inappropriate Denial of a Record’s Existence
In contrast, subsection 10(2) generally should not be applied when the existence or non-existence of records is already known.
For instance, Public Services and Procurement Canada (PSPC) refused to confirm or deny the existence of records related to a bid for an Integrated Analytics Solution, despite the fact that the information regarding the bid, including the bid number and the product or service being sought, had been posted on the Internet by PSPC.
Given these circumstances, the OIC did not agree that PSPC could refuse to confirm that it had responsive records.
PSPC accepted the OIC’s interpretation of subsection 10(2) and released a significant amount of information to the requester. This resulted in the closure of another 103 related complaints against various institutions, an extremely positive result.
Section 18.1 – Economic Interests of Certain Government Institutions
Section 18.1 states that a government institution may refuse to disclose a record requested under the Act in order to protect the economic interests of certain government institutions (the Canada Post Corporation, Export Development Canada, the Public Sector Investment Board, and VIA Rail Canada Inc.).
The OIC recently had the opportunity to review section 18.1 when it was asked to investigate VIA Rail’s response to a request for passenger traffic, particularly regarding when and where passengers got on and off trains, over various years.
VIA Rail had not disclosed the information to the requester because it claimed doing so could jeopardize its competitive position.
The OIC was not convinced that the information at issue was detailed enough to cause this outcome. Factors that caused the OIC to reach this conclusion included the fact that VIA Rail’s competitors could not, from the information at issue:
- determine VIA’s profitability;
- offer alternative transportation services for better prices on VIA’s busiest routes or on routes which had seen an increase in customers over the years;
- offer options or promotions to targeted customers at the right place or right time to gain a higher market share; or
- obtain favourable leases or tariffs at the conclusion of existing Railway Service Agreements.
VIA Rail accepted the OIC’s analysis and has now changed its policy on disclosure of on-off traffic information so that this type of information will be released in its entirety in the future.
Section 20 – Third Party Information
The Government of Canada collects a wide range of information from third parties. This information may be submitted voluntarily, such as in a bid for a government contract, or submitted as required by law, such as for proof of regulatory compliance. There is a compelling need to protect information that is provided to the government by third parties if the information meets one of the tests outlined in the exemption under section 20.
Qualifying Third Party Information
In 2017–2018, the OIC closed several investigations related to Health Canada’s refusal to disclose the dates upon which various pharmaceutical companies’ generic drugs had been examined and approved, also known as patent hold dates.
The OIC recommended that the patent hold dates should be disclosed. They did not qualify as commercial information, nor were they supplied by the third party, and therefore did not meet the tests under paragraph 20(1)(b). In addition, the claims of competitive harm were speculative and were not supported by detailed evidence, and therefore the test under paragraph 20(1)(c) could not be met.
Health Canada agreed with this recommendation and released the information. In keeping with its commitment to openness and transparency, Health Canada now discloses patent hold dates, following the issuance of a third party's Notice of Compliance, without requiring a formal access request.
Exceptions to the Exemption for Third Party Information
Although the Act generally protects third party information, it allows this information to be disclosed in certain limited circumstances. One such circumstance is subsection 20(5), which allows third party information to be disclosed if the third party consents.
The Federal Court Appeal recently determined that institutions should consider whether or not to disclose third party information under this subsection if there is a disclosure clause relating to the information in contractual instruments between a government institution and a third party.Footnote 2
Another circumstance where third party information can be disclosed can be found in subsection 20(6) of the Act, which allows records that would otherwise qualify for protection under the third party exemption to be disclosed if there is a public interest in their disclosure related to public health, safety, or protection of the environment. Disclosure in the public interest must clearly outweigh the interest protected in the exemption.
If a complaint is made about the application of the third party exemption, the OIC will consider whether there is a public interest in disclosing the records, according to the criteria set out in subsection 20(6), and will recommend disclosure if this criteria is met.
Information Relevant to the Public’s Health and Safety
A good example of the criteria in subsection 20(6) being appropriately met occurred when a requester asked for inspection reports of the Ste-Anne tunnel at St-Hyacinthe, Quebec.
The Ste-Anne tunnel faced various structural issues that were of concern to the residents of the area, such as the effects of water seepage and erosion. In addition, the tunnel is situated in close proximity to two large residences for long-term care and care for the elderly.
When the OIC was asked to review Transport Canada’s response to this request, these factors were considered relevant to the public’s health and safety, outweighing any third party interests, and therefore met the criteria for disclosure under subsection 20(6).
Transport Canada and the third party agreed with the OIC and the information was disclosed in its entirety.
Information that Poses a Potential Risk to Public Safety and to the Third Party
In other circumstances, the OIC will agree with an institution that the criteria for disclosing information in the public interest has not been met, and disclosure could even constitute a potential risk to public safety and to the third party.
For instance, a requester sought access to a document describing possible spill scenarios that were used to assess the risk of marine pollution and the design of a containment system at a third party oil refinery. While there was some public interest in disclosing this kind of information, releasing the specific technical details of the containment system could make the third party’s facility vulnerable to anyone with potentially harmful intentions. The OIC therefore agreed that the potential risk to public safety was greater than the public’s interest in obtaining the information.
Instead of releasing the specific information the requester wanted, the institution gave general information, as well as the third party's public statements about the containment measures. The OIC agreed this provided sufficient detail to satisfy the public interest in public health, safety and protection of the environment.
Collaborating with Institutions
The OIC investigates two types of complaints.
Administrative complaints generally relate to institutions extending or delaying timelines for responses to requesters.
Refusal complaints relate to institutions applying exemptions under the Act to refuse disclosure of information.
The OIC strives to collaborate with institutions to improve Canadians’ access to information. 2017–2018 produced a number of examples where institutions and the OIC were able to work together to achieve better results for Canadians.
A Successful Strategy with the RCMP to Address Administrative Complaints
Personnel and financial resources can greatly affect an institution’s ability to respond to requests in a timely manner. For example, the RCMP’s Access to Information and Privacy (ATIP) branch received 4,826 requests in 2016–2017, but did not have sufficient resources to respond efficiently to these incoming requests. This has resulted in an increase of access complaints against the RCMP.
The RCMP has consistently been amongst the top five institutions with the greatest number of complaints filed against them to the past five years. In 2017–2018, the OIC registered 435 complaints against the RCMP. Seventy-four percent of these were either time extension or delay complaints.
The increase in the number of administrative complaints was directly proportional to the increase in requests received by the RCMP and the number of requests that the RCMP did not respond to within the legislated timeframe of 30 days. The numbers of requests was overwhelming to the RCMP, and it did not have the resources to address the workload. The OIC has also experienced a growing backlog of RCMP administrative complaints as the Office struggled to assign complaints as they were received.
In January 2018, the OIC and the RCMP worked together to implement a strategy that would allow the RCMP to address its backlog of complaints in order to respond to requests in the timeliest manner possible. Investigators worked collaboratively with the RCMP to find the most efficient means to respond to the backlog and to the OIC’s investigative requirements.
The results were extremely positive. Before the implementation of the strategy, between April and December 2017, the OIC concluded an average of five RCMP administrative complaints per month. After the implementation of the strategy, between January and the end of March 2018, the RCMP concluded and closed 142 requests and the OIC concluded and closed 136 administrative complaints.
The OIC continues to work with the RCMP to ensure timely and efficient access to information.
INAC Assists with Difficult Search for a Document
Subject matter experts within institutions can be an excellent source for tracking information related to access requests.
For example, an individual sought a copy of his birth certificate through an access request to Indigenous and Northern Affairs Canada (INAC) so that he could apply for his Old Age Security pension.
The individual was born in the United States, and the birth registration had been scanned and microfiched directly in the provincial archives, rather than the provincial vital statistics office. In addition, the registration had been filed under a district code rather than either a band or an agency, which is where the searches had been directed originally.
“I would like to thank you ever so much for your help with this. When I read your email, it did bring tears to my eyes, happiness… you are totally my hero.”
– Email from the requester to an OIC investigator after the birth registration was found
A subject matter expert at INAC, with the help of an investigator at the OIC, undertook a complex and difficult search and ultimately located the document, which was released to the requester. The requester was very grateful for the efforts of both INAC and the OIC.
Going the Extra Mile to Provide Information
Institutions can frequently provide requesters with more information than originally requested in order to assist the requester’s understanding.
For instance, a requester sought technical data relating to a civil aviation safety complaint from Transport Canada. This information was not held by Transport Canada; however, during the OIC’s investigation, Transport Canada agreed to provide additional information to the requester that, while not responsive to the text of the request, could help the requester understand the context of the program. This additional information included a briefing note prepared for the Minister, which discussed the approval of the flight paths at issue in the safety complaint. The briefing note also included a customized letter that better explained Transport Canada’s mandate, as well as those of other stakeholders in Canadian civil aviation safety.
Access to Scientists
During her mandate, a systemic investigation was undertaken by former Information Commissioner Suzanne Legault into a complaint submitted by the Environmental Law Clinic at the University of Victoria and Democracy Watch.
The complainants alleged that the Communications Policy of the Government of Canada, in combination with institution-specific media relations policies and practices, restricted government scientists from publicly communicating about their research. The complainants also alleged the right of access to information under the Access to Information Act was also impeded by the application of these policies.
Commissioner Legault’s investigation concluded on February 28, 2018. Her investigation found that while the language of the Communications Policy and the various institutional media relations policies were consistent with access to information values and principles, they were not being applied as such in practice. In fact, as applied, the Communications Policy and various institutional media relations policies were impacting the federal access to information regime as a whole.
More details on this investigation and its findings can be found in the annex under Detailed Summary: Access to Scientists.