Decisions

Type

171 decisions found

Jun 18
2019

Evidence essential to justify lengthy time extensions

Institution
Treasury Board of Canada Secretariat
Section of the Act
9(2)
Decision Type
notable investigation
Summary

Complaint: A requester alleged that the 2,400 days in time extensions the Treasury Board of Canada Secretariat (TBS) claimed to process multiple overlapping requests for information about the federal public service pension plan were unreasonable.

Investigation: The OIC learned that not all of the records were electronic and that they were stored in multiple locations. In addition, TBS had to consult six institutions about the records, and only a few in-house staff had the expertise to identify and review the records. TBS allocated as many resources within its pensions unit as it could to these requests without unduly disrupting operations, and heavily involved executives in reviewing records. The access office developed a plan to respond to the requests, dedicating a significant amount of resources to processing the records.

Outcome: In the end, the Commissioner was satisfied that TBS had provided sufficient information to justify the length of the extensions, taken all necessary steps to ensure it would be able to respond to the requests by the extended deadline and demonstrated its commitment to processing them. TBS issued interim responses as information became ready for release.

Information Commissioner’s position:

  • The Access to Information Act sets out the response time for requests of 30 days, but acknowledges that processing some requests within that timeframe may be impossible.
  • Institutions may extend the deadline for their response for a reasonable time in these situations but must provide detailed information about their plans to issue the final response to the request by the extended deadline.
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Jun 7
2018

Access to scientists

Institution
Canadian Food Inspection Agency
Environment Canada
Fisheries and Oceans
National Research Council
Natural Resources Canada
Section of the Act
30(1)(f)
Decision Type
systemic investigation
Summary

On March 27, 2013, former Information Commissioner Suzanne Legault commenced a systemic investigation into a complaint submitted by the Environmental Law Clinic at the University of Victoria and Democracy Watch. This investigation concluded on February 28, 2018.

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Jun 7
2018

Confirming or denying records exist can jeopardize investigations

Institution
Canadian Security Intelligence Service
Section of the Act
10(2)
Decision Type
notable investigation
Summary

Complaint: The Canadian Security Intelligence Service (CSIS) refused to confirm or deny that it had records related to specific individuals, citing subsection 10(2).

Investigation: The OIC considered whether CSIS’s either confirming or denying that it had records related to specific individuals could reasonably be expected to harm its investigative work related to threats to Canada’s national security.

Outcome: The OIC agreed that CSIS’s reliance on subsection 10(2) was reasonable in these circumstances.

Information Commissioner’s position:

  • Unless their existence or non-existence has already been made known elsewhere, such as before a court, confirmation from CSIS as to whether it has records related to specific individuals could potentially be injurious to CSIS’s investigative work. It is reasonable in these circumstances for CSIS to rely on subsection 10(2).
  • The Federal Court confirmed CSIS’s approach in VB v. Canada (Attorney General), 2018 FC 394.
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Jun 7
2018

Inappropriate to refuse to confirm or deny existence of known information

Institution
Public Works and Government Services
Section of the Act
10(2)
Decision Type
notable investigation
Summary

Complaint: Public Services and Procurement Canada (PSPC) refused to confirm or deny the existence of records related to a bid for an integrated analytics solution, citing subsection 10(2).

Investigation: The OIC learned that PSPC had used this exemption despite having posted information about the bid, including the bid number and the product or service being sought, on the Internet.

Outcome: The OIC did not agree that PSPC could apply subsection 10(2) in these circumstances. PSPC subsequently released a significant amount of information to the requester.

Information Commissioner’s position:

  • Generally, it is not reasonable for institutions to apply subsection 10(2) when the existence or non-existence of records is already known.
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Jun 7
2018

Information too vague to cause competitive harm

Institution
VIA Rail Canada
Section of the Act
18
Decision Type
notable investigation
Summary

Complaint: VIA Rail declined to release information about where passengers got on and off trains, claiming that doing so could jeopardize the company’s competitive position.

Investigation: The OIC analyzed this claim with reference to subsection 18.1, which allows VIA Rail, among other institutions, to withhold information to protect its economic interests.

Outcome: The OIC was not convinced that the information VIA Rail had withheld was detailed enough to cause any competitive harm if it had been disclosed. Therefore, the institution could not rely on this claim as a factor weighing in favour of protecting the information. VIA Rail accepted the OIC’s analysis and now releases this type of information in its entirety.

Information Commissioner’s position:

  • Institutions withholding information under a claim of competitive harm must assess whether competitors’ having access to the information in question could genuinely harm the institution’s competitive position.
  • Based on the information at issue in this case, competitors could not have, for example, done the following:
    • determined VIA Rail’s profitability;
    • offered alternative transportation services for better prices on VIA Rail’s busiest routes or on routes that had seen an increase in customers over the years;
    • offered options or promotions to targeted customers at the right place or right time to gain a higher market share; or
    • obtained favourable leases or tariffs at the conclusion of existing Railway Service Agreements.
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Jun 7
2018

Third-party information must meet section 20 tests to qualify for exemption

Institution
Health Canada
Section of the Act
20
Decision Type
notable investigation
Summary

Complaint: Health Canada refused to disclose the dates on which various pharmaceutical companies’ generic drugs had been examined and approved.

Investigation: The OIC determined that these dates did not qualify as commercial information, nor were they supplied by a third party, as is required under paragraph 20(1)(b). In addition, the OIC found Health Canada’s claims that releasing the dates would cause competitive harm to be speculative and not supported by detailed evidence, as paragraph 20(1)(c) requires.

Outcome: Health Canada released the information and now does so without requiring a formal access request, after it issues third parties’ notices of compliance following the satisfactory review of a submission for a new drug.

Information Commissioner’s position:

  • To validly apply section 20, institutions must demonstrate that the information meets all the criteria required by the subsection(s) being claimed.
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Jun 7
2018

Institutions must consider public interest in third-party information

Institution
Transport Canada
Section of the Act
20
Decision Type
notable investigation
Summary

Complaint: Transport Canada applied section 20, which protects third-party information, to withhold reports on inspections of the Ste-Anne tunnel in St-Hyacinthe, Quebec.

Investigation: The OIC learned that the tunnel—which is situated near two large residences for long-term care and the elderly—had various structural problems that were of concern to local residents. The OIC considered these factors to be relevant to the public’s health and safety, as per subsection 20(6), outweighing any third-party interests in protecting the information.

Outcome: The institution and the third party agreed that there was a compelling public interest in releasing the information, and disclosed it in its entirety.

Information Commissioner’s position:

  • When applying section 20 to withhold third-party information, institutions must consider whether there is a public interest in disclosing the records related to public health, safety or protection of the environment that outweighs third-party interests in protecting the information, as per subsection 20(6). ·
  • In some circumstances, there may be competing public health, safety or environmental interests. For example, an institution argued that releasing specific technical details about the design of an oil refinery’s containment system could make the refinery vulnerable to anyone with harmful intentions. The OIC agreed that the public’s interest in the information did not outweigh the risk to public safety that could result from disclosure of the information.
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Jun 8
2017

Institutions must apply two-part test for records in ministers’ offices

Institution
Fisheries and Oceans
Section of the Act
4
Decision Type
notable investigation
Summary

Complaint: Fisheries and Oceans Canada (DFO) did not ask the Minister’s office for records in response to a request for the emails of a number of individuals, including some exempt staff. Instead, it asked the requester to exclude the exempt staff from the request. It then put the request on hold when it did not hear back from the requester about this.

Investigation: DFO told the OIC that, because the exempt staff were known not to be employees, the request could not be processed as worded, since coverage of the Act does not extend to ministers’ offices.

Outcome: The institution agreed to ask the Minister’s office to look for records, and approximately 1,100 pages were identified as falling within the scope of the request.

Information Commissioner’s position:

  • The correct test is not whether a minister’s office or its staff are covered under the Act. The Supreme Court of Canada set out a two-part test in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 for instances in which records responsive to a request may be located in a minister’s office.
  • Institutions must ask two questions when processing requests for such records: Does the record relate to a departmental matter? If so, and based on all relevant factors, could a senior official of the institution reasonably expect to be able to obtain a copy of the record upon request? (Relevant factors include the substantive content of the record, the circumstances in which the record was created, and the legal relationship between the institution and the record holder.)
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Jun 8
2017

To ensure accountability, institutions should document decisions

Institution
Royal Canadian Mounted Police
Section of the Act
2
Decision Type
notable investigation
Summary

Complaint: The Royal Canadian Mounted Police (RCMP) said that no documentation existed about its decision not to proceed with a code of conduct investigation for perjury against one of the four officers who testified at the inquiry into the death of Robert Dziekanski during an arrest at the Vancouver airport.

Investigation: The OIC learned that an RCMP superintendent had presented his evaluation of the officers’ testimony to RCMP senior management verbally. In addition, the RCMP could not point to a single document its officials had written that set out its decision not to pursue the code of conduct investigation. In addition, the RCMP could not find a copy of the letter it had sent to external counsel asking it to conduct a formal review of whether to carry out an investigation.

Outcome: The external counsel produced the mandate letter, and the RCMP disclosed it to the requester.

Information Commissioner’s position:

  • To ensure accountability, institutions should document decisions.
  • The lack of documentation in this instance is especially problematic, given that provincial authorities had charged the officers with perjury. Without documentation, it is difficult to ascertain what factors led the RCMP to not conduct an investigation.
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Jun 8
2017

Contractual confidentiality clauses do not trump the Act

Institution
Public Works and Government Services
Section of the Act
18
20
Decision Type
notable investigation
Summary

Complaint: Public Services and Procurement Canada (PSPC) withheld the total amount it had been reimbursed by SNC-Lavalin for instances of overbilling. PSPC claimed that disclosing this amount could interfere with the contractual or other negotiations of both PSPC and SNC-Lavalin (as per subsection 18(b) and paragraph 20(1)(d)).

Investigation: PSPC claimed to the OIC that a confidentiality clause in its agreement with SNC-Lavalin to settle the overbilling matter prohibited disclosure of the total amount it had received. However, PSPC could not demonstrate that the disclosure of that information could reasonably be expected to interfere with contractual or other negotiations of either itself or SNC-Lavalin.

Outcome: PSPC disclosed the total amount SNC-Lavalin had repaid.

Information Commissioner’s position :

  • The requirements of the Access to Information Act take precedence over contractual terms reached between the government and third parties.
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