Decisions

The systemic investigation focused on how the Royal Canadian Mounted Police (RCMP) carried out its duty to provide timely responses to access to information requests between 2016-2017 and 2018-2019.

The RCMP contended that access to information in the Public Safety portfolio is complex and differs from other parts of the public service on the basis that it relates to sensitive investigative information and matters before the courts.

The investigation allowed the Information Commissioner to identify various issues. She shared her findings, and made 15 recommendations in six different areas. The Minister of Public Safety and Emergency Preparedness ignored most of the recommendations and failed to provide any explanation as to why the failings identified within RCMP operations would not be addressed. Furthermore, alternate solutions or measures that could remediate the RCMP’s ability to provide timely responses to access requests were not provided.

The Minister’s response falls short on many fronts in terms of what Canadians expect. Despite a dire situation, it would appear that the Minister has accepted the status quo.

The Information Commissioner tabled a special report to Parliament to highlight the issues raised.

The complainant alleged that the Privy Council Office (PCO) did not respond to an access request within the time limits set out in the Access to Information Act. The access request consisted of minutes of the Joint Intelligence Committee from 1957 to 1958. PCO claimed an extension of time to respond to the access request, in part to conduct consultations with other government institutions. When the consulted institutions did not respond before the deadline, PCO sent a letter informing the complainant that it would not be processing the access request because it had not received recommendations from other government institutions, and closed the file, according to its “no late file” policy.

 The Act does not authorize PCO to fail to respond to an access request on the grounds that it has yet to receive recommendations from consulted institutions. The Office of the Information Commissioner concludes that PCO was in deemed refusal pursuant to subsection 10(3) of the Act.

The Information Commissioner recommended that the Clerk of the Privy Council take the necessary steps to respond to the access request by October 31, 2020 and revoke or revise PCO’s current policy so that the processing of all requests are in accordance with its obligations under the Act. PCO did not respond to the Commissioner’s recommendations.

 The complaint is well founded. At the time that this report was published, PCO had still not responded to the access request.

Privy Council Office (PCO) did not respond to an access request within the time limits set out in the Access to Information Act. PCO is therefore deemed to have refused to give access to records requested.

As a result of a complaint submitted to the Office of the Information Commissioner (OIC) of Canada, the Information Commissioner recommended that PCO provide a final response to the request no later than June 1, 2020. PCO did not provide a final reponse by June 1, 2020. PCO did not indicate when it would be able to respond to the request, citing outstanding consultations with other provincial and federal departments, as well as the impact of the COVID-19 pandemic on operations.

The complaint is well founded.

The complainant alleged that the Department of Justice Canada (Justice) missed the deadline for responding to a request under the Access to Information Act. On October 31, 2019, upon completion an investigation, the Information Commissioner sent Justice a recommendation to respond to the request by December 15, 2019. Justice did not accept the recommendation, but committed to have the records disclosed by April 27, 2020. The Office of the Information Commissioner (OIC) complaint file was therefore closed on the basis of this commitment disclosure date.  When Justice failed to respond to the request by April 27, 2020, the OIC received the current complaint regarding the ongoing refusal of access. Pursuant to subsection 10(3) of the Act, when an institution fails to give access to a record requested, or a part thereof, within the time limits set out in the Act, the head of the institution is “deemed” to have refused to give access. The complaint is well founded. The Information Commissioner ordered Justice to respond to the access request by September 30, 2020.

The investigation focused on the six offices of primary interest (OPIs) most frequently tasked with responding to access to information requests for the Department of National Defence (DND) between January 1, 2017 and December 21, 2018.

Over the course of several months, OIC officials interviewed the six OPIs and DND's Directorate of Access to Information and Privacy (DAIP) to better understand how DND responds to access to information requests. DND shared various internal tasking documents, manuals, processes and procedural guides, training materials, statistics and dashboard information regarding DND Access to Information and Privacy (ATIP) compliance.

Based on this information, the Commissioner identified issues and shared her findings with the Minister of National Defence, who agreed that significant improvements were needed to ensure that the institution was fully meeting its obligations under the Act. In order to remedy existing shortcomings, DND proposed several improvements which were then either accepted or built upon by the Commissioner. In January 2020, the Commissioner issued her recommendations to the Minister of National Defence who agreed to take corrective actions.

The complaint contested the decision by the Department of Justice Canada (Justice) to withhold the entire content of a Memorandum of Understanding (MOU) for the provision of legal services under section 23 (Legal advice and litigation privilege) of the Access to Information Act. Justice could not show that section 23 applied to the entirety of the record at issue – in particular, that the general identifying information such as the title of the MOU and the signature blocks are protected by the solicitor-client privilege. It was also determined that Justice had waived its solicitor-client privilege over some information in the MOU and therefore that particular information was not protected anymore. The complaint is well founded. The Information Commissioner recommended that Justice release part of the record and Justice has communicated its intention to implement this recommendation.

Despite numerous attempts to clarify a request for information, the National Defence (DND) ultimately did not respond to the request, being of the view that it did not meet the requirements of section 6 of the Access to Information Act (Act).  The Office of the Information Commissioner received a complaint that DND had not responded to the request within the time limits set out in the Act.

The complaint is not well-founded.

An institution submitted an application to the Information Commissioner for approval to decline to act on a request for information under subsection 6.1(1) of the Access to Information Act (the Act). The head of the institution was of the opinion that it had met its duty to assist the requester in connection with this request, and that the request is an abuse of the right of access.

The Commissioner found that the application was premature. The institution took issue with the clarity of the access request, in addition to other arguments, yet failed to seek clarification of the access request from the requester. The Commissioner also elaborated upon several important elements to an application: compelling evidence regarding the request at issue and the general overarching obligations of both parties to clarify the request under ss. 4(2.1) – responsibility of government institutions, and 6 – request for access to record.

The Commissioner denied the application.

The Information Commissioner rejected a complaint as it did not meet the requirements of section 31 of the Access to Information Act.

Section 31 specifies, among other things, that: “If the complaint relates to a request by a person for access to a record, it shall be made within sixty days after the day on which the person receives a notice of a refusal under section 7, is given access to all or part of the record or, in any other case, becomes aware that grounds for the complaint exist.”

The institution provided the Office of the Information Commissioner (OIC) with documentation indicating that the complaint was made more than seven (7) weeks after the expiration of the sixty-day time-period set out in section 31. This documentation was forwarded to the complainant, along with a request that they provide representations in support of the validity of their complaint.

In their representations, the complainant pointed out that the covering letter that they had received from the institution in response to their request was undated, while the covering letter provided by the Institution to the OIC was actually dated. The complainant did not, however, contest the institution’s claim that a response to their request was provided on the date in question, nor did they take the position that their complaint was made within sixty days of their receipt of the institution’s response. Instead, they asked that the Information Commissioner exercise her “residual discretion” to extend the time period within which they could complain about the Institution’s response, explaining that they had intended to initiate their complaint within sixty days, but that the Institution’s response to their request was “misplaced” after it was received.

Having considered the complainant’s representations, as well as the documentary evidence that was provided to the OIC, the Information Commissioner concluded that the complaint did not meet the requirements of section 31. The Information Commissioner does not have the authority to receive and accept complaints submitted after the expiration of a statutory timeframe. In Statham v. Canadian Broadcasting Corporation, 2010 FCA 315, the Federal Court of Appeal made clear that no provision within the Act confers power on the Information Commissioner to extend the time frames set out in the Act (paragraph 46).

Accordingly, the Information Commissioner could not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.

The Canadian Human Rights Commission (CHRC) refused to disclose information citing subsection 19(1) – Personal information, section 22 – Testing/auditing procedures, and section 23 – Solicitor-client privilege of the Access to Information Act .

During the course of the Office of the Information Commissioner (OIC)’s investigation, the CHRC agreed to disclose all information previously withheld under section 22 of the Act and portions that were previously withheld under solicitor-client privilege. While the CHRC refused to disclose the remainder of the withheld information, it did not convince the OIC  that such information met all the requirements for severance under subsection 19(1) and section 23 of the Act.

The OIC therefore issued a report recommending that the CHRC disclose portions of the information previously withheld as personal information and portions of the information previously withheld under solicitor-client privilege. The CHRC agreed with the recommendations and released additional information.

The complaint is well-founded.