Decisions

125 decisions found

Jun 8
2017

Waiting to process records unnecessarily delays responding to requests

Institution
Justice Canada
Section of the Act
9(1)
Decision Type
notable investigation
Summary

Complaint: The Department of Justice Canada took time extensions of 601 and 815 days under paragraphs 9(1)(a) and (b) to respond to two requests for information about St. Anne’s Residential School and the Indian Residential School Settlement Agreement’s Independent Assessment Process.

Investigation: The institution told the OIC that the main reason for the long extensions was the lengthy review required to determine which of the records would be subject to a court order that limited access to the records. However, the institution did not actually process the records, claiming it was unable to do so without risking being in contempt of the order. It was also waiting for a decision from the Ontario Court of Appeal on the order.

Outcome: The Department of Justice Canada agreed that about half of the records (73,000 pages) were beyond the scope of the court order, and released them. The OIC negotiated quarterly interim release dates for the remaining records, supported by a formal recommendation that these dates be respected.

Information Commissioner’s position:

  • The institution’s decision to not process the records pending the outcome of the appeal unnecessarily delayed the responses to the requests.
  • The extensions taken in this case were unreasonable.
  • Timeliness 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.
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Jun 8
2017

Timely access requires institutions to begin work on requests promptly

Institution
Correctional Service of Canada
Section of the Act
10(3)
Decision Type
notable investigation
Summary

Complaint: Three years after receiving them, the Correctional Service of Canada (CSC) had not responded to three requests for records related to the closure of Kingston Penitentiary and two other facilities. At that point, the institution asked the requester whether they still wanted the information.

Investigation: The OIC learned that instead of then working on the requests, CSC suggested four months later that the requester abandon them and submit new ones. CSC then took extensions of 100 and 120 days for two of the resubmitted requests and did not reply to the third.

Outcome: CSC committed to a date for disclosure, after several requests from the OIC to do so; however, the date was not reasonable. The requester received the information nearly four years after making the original requests.

Information Commissioner’s position:

  • Timeliness 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.
  • In this case, much of the requested information was publicly available or outdated by the time it was released.
  • CSC officials were negligent in their legislated duty to provide timely access and showed a flagrant disregard for the requester’s rights.
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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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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

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 16
2016

The importance of leadership

Institution
Parks Canada
Section of the Act
30(1)(f)
Decision Type
systemic investigation
Summary

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.

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Jun 16
2016

Duty to assist requires complete, accurate and timely responses

Institution
National Defence
Section of the Act
10(3)
Decision Type
notable investigation
Summary

Complaint: After committing, as a result of a complaint investigation, to release a report into the 2011 crash of a Chinook helicopter in southern Afghanistan by a certain date, the Department of National Defence (DND) did not do so.

Investigation: As part of a second investigation, which the Commissioner initiated in light of the publication delay, the OIC came to the view that DND could not have reasonably expected to complete the report by the initial deadline, since important stages of the investigation had not yet begun. DND did not mention this fact to the OIC during the first investigation.

Outcome: DND ultimately released the report 18 months after the original access request had been made and 10 months after the promised publication date.

Information Commissioner’s position:

  • The delay in releasing the report, and the second investigation in its entirety, could have been avoided if DND had met its basic obligations under the duty to assist to provide an accurate, complete and timely response at the outset.
  • When the information requesters are seeking is to be published, institutions should monitor the situation and follow up with requesters when publication occurs or is to be delayed.
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Jun 16
2016

Co-location means looking beyond one institution to find records

Institution
National Defence
Section of the Act
6
Decision Type
notable investigation
Summary

Complaint: The Department of National Defence (DND) said it had no records that responded to a request for information about the process to submit an application to the Spectrum Management Office.

Investigation: The OIC learned that this office was part of Innovation, Science and Economic Development Canada (ISED), but that DND had co-located employees there. DND access officials had made no effort to reach out to ISED when searching for records, despite that institution’s having been named in the request.

Outcome: A co-located DND employee found 54 responsive pages, which were released in their entirety.

Information Commissioner’s position:

  • To qualify as thorough, a search must extend to all individuals and offices belonging to the institution that may have records responsive to a request.
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Jun 16
2016

A thorough search means looking for and examining all known records

Institution
Royal Canadian Mounted Police
Section of the Act
6
Decision Type
notable investigation
Summary

Complaint: The Royal Canadian Mounted Police (RCMP) said it had no records that had been generated in response to an incident, including pages from the notebooks of four named officers.

Investigation: The OIC learned that access officials had not asked the four officers to provide their notebooks. It is standard RCMP practice for officers to keep these at home and to retain them both when they are full and upon retirement. This is despite an internal operations manual statement that the notebooks are the property of the RCMP and subject to the Act. The RCMP subsequently found one of the officers, who had no responsive records. It later consulted a second officer, who was located at the RCMP, but under another name. When the RCMP refused to track down the two remaining officers, who had retired, the OIC did so.

Outcome: As a result of this thorough search, additional records from the officers’ notebooks were released.

Information Commissioner’s position:

  • To qualify as thorough, a search must extend to all individuals and offices belonging to the institution that may have records responsive to a request.
  • In addition, institutions may not claim that no records exist without retrieving and reviewing all records they are aware of that may fall within the scope of a request.
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Jun 16
2016

Plans are “put into operation” when implementation begins

Institution
National Defence
Section of the Act
21
Decision Type
notable investigation
Summary

Complaint: DND withheld the majority of a briefing note relating to workforce adjustment plans, citing paragraph 21(1)(d) and noting that the plans would not be fully implemented for another two years.

Investigation: DND alleged that releasing the information could cause unnecessary stress within the DND workforce, since it could give an inaccurate account of the final number of employees who could be subject to workforce adjustment.

Outcome: DND eventually agreed to disclose the information, given the passage of time.

Information Commissioner’s position:

  • Paragraph 21(1)(d) allows institutions to withhold records that contain plans relating to the management of personnel or the administration of an institution that have not yet been put into operation.
  • There is nothing in the Act to support DND’s view that the plan must have been fully implemented in order for it to be considered to have been “put into operation.”
  • Instead, based on a plain reading of paragraph 21(1)(d), DND should have considered the plan to have been put into operation once it had been formally approved, notice had been given by a final authority of the plan’s existence and implementation had begun.
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