Decisions

122 decisions found

Jun 18
2019

Access officials must be allowed to challenge program areas when responding to requests

Institution
National Defence
Section of the Act
10
Decision Type
notable investigation
Summary

Complaint: National Defence told a requester that it had searched for a report but could find no related records. In the same response, the institution also noted that the report in question was still being drafted.

Investigation: The OIC concluded that the response, which was based on recommendations from the Office of the Judge Advocate General, was inappropriate, since a document did exist, as the response itself highlighted. In addition, the fact that the document was in draft form at the time of the request did not exclude it from the Act.

Outcome: The OIC’s investigation and a simultaneous professional misconduct enquiry by the Canadian Armed Forces’ National Investigation Service into the processing of the original request, led to several changes to the structure, staffing, training and oversight of the access to information function at National Defence. The Commissioner recommended that the institution review the access function annually, offer specific training and guidance on the duty to assist and the Act’s offence provisions, raise access to information performance at senior management meetings, and add a requirement to the performance agreements of certain key executives related to complying with the Act, including to provide timely, accurate and complete responses when tasked for records.

Information Commissioner’s position:

  • Program officials are required to provide timely, accurate and complete responses to enquiries from the access office. In turn, access officials must be allowed to challenge program areas when responding to requests.
  • Including compliance requirements in executive performance agreements is an effective way to ensure institutions meet their obligations under the Act.
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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 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

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

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

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

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 8
2017

Confirm information is publicly available before declining to disclose it

Institution
Natural Resources Canada
Section of the Act
68
Decision Type
notable investigation
Summary

Complaint: Natural Resources Canada (NRCan) declined to release a map, claiming it was publicly available and therefore excluded from the coverage of the Act, as per section 68.

Investigation: The OIC learned that NRCan told the requester the map was available from the National Energy Board and did not respond to multiple queries for details about the map so the requester could get it from that institution. At no point in dealing with the requester did NRCan verify that the map was indeed publicly available through the National Energy Board. It was only when the National Energy Board contacted NRCan, as part of attempts to find the map, that NRCan realized only it had a copy of it.

Outcome: NRCan sent the requester a copy of the map.

Information Commissioner’s position:

  • The institution’s response to the requester was a failure to meet the duty to assist, which resulted in unnecessary delays and obstructed the requester’s right of access.
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Jun 8
2017

Open Government commitments stress open formats

Institution
Crown-Indigenous Relations and Northern Affairs / Indigenous Services
Section of the Act
-
Decision Type
notable investigation
Summary

Complaint: Instead of the requested Excel spreadsheet, Indigenous and Northern Affairs Canada (INAC) released a photocopy of a PDF of data found in a specialized database about First Nations water and wastewater systems, with parts of the pages cut off.

Investigation: The OIC learned that INAC was concerned that releasing the data in Excel would require it to alter it in order to protect exempted information, in violation of section 67.1 (altering a record with intent to deny access). Once the OIC assured INAC this would not be the case, the institution then stated that its software would not allow it to export to Excel and that, therefore, converting the data would be unreasonable, as per the Access to Information Regulations.

Outcome: The requester received an Excel spreadsheet six months after making the request.

Information Commissioner’s position:

  • Institutions must be mindful that the government has committed, under the Open Government Partnership, to releasing data in open formats.
  • The OIC emphasizes this to institutional officials during investigations focusing on the format of records.
     
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Jun 8
2017

Minor changes to requests should not stop the clock

Institution
National Capital Commission
Section of the Act
9(1)
Decision Type
notable investigation
Summary

Complaint: The National Capital Commission (NCC) had not responded for 10 months to a request for information about repairs, renovation work and maintenance at 24 Sussex Drive.

Investigation: The OIC learned that the requester reduced the scope of the request two weeks after submitting the request. The NCC considered this modification to be a new request and restarted the clock for responding. Just over a month later, the NCC took a 90-day extension because the search for the records would unreasonably interfere with operations (as per paragraph 9(1)(a)).

Outcome: The NCC responded to the request two years after it was made.

Information Commissioner’s position:

  • Timely access is fundamental to the right of access. Receiving a response in a timely manner ensures information is still relevant and that the government can be held to account for its decisions at appropriate times.
  • The NCC’s decision to consider the revised request as new, and restart the clock, was inappropriate.
  • In addition, despite having had the records in its position for 10 months, the institution had not consulted the Royal Canadian Mounted Police about them. Having to do so further delayed the response.
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