Decisions

122 decisions found

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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Jun 16
2016

Records collected but not created for a study not covered by litigation privilege

Institution
National Research Council
Section of the Act
23
Decision Type
notable investigation
Summary

Complaint: The National Research Council (NRC) refused to disclose records and 11 video files Marine Atlantic Inc. had sent to the NRC as part of a study of a marine accident. The NRC cited section 23 (litigation privilege), noting that there was to be a labour relations board hearing related to the collision.

Investigation: The OIC learned that some of the records and videos, such as the ship’s scheme, tidal charts, weather reports and CCTV videos, had been created before there was a reasonable prospect of litigation. Moreover, these documents would have been produced regardless of the collision.

Outcome: The NRC stated that it disagreed with the OIC’s analysis; however, it released the paper records that were collected but not created for the study. Five videos were also released (with the identities of some individuals obscured). Other exemptions were applied to the remaining videos to justify their being withheld.

Information Commissioner’s position:

  • When determining whether litigation privilege applies, institutions must determine the dominant purpose for which the documents were produced.
  • In this case, the documents produced during or as a result of the study were privileged information. The records collected but not created for the study were not.
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Jun 16
2016

Consider carefully whether releasing aggregated information will cause harm

Institution
Communications Security Establishment Canada
Section of the Act
15
Decision Type
notable investigation
Summary

Complaint: The Communications Security Establishment Canada (CSEC) withheld specific information within four pages of graphs showing the technical and operational assistance it had provided to federal law enforcement and security agencies. CSEC claimed, in part, that releasing the information could result in injury to the defence of Canada and its allies (section 15).

Investigation: CSEC gave a detailed rationale for applying the exemption, and the factors it considered when exercising its discretion. This included clear examples of how releasing information about specific requests for technical and operational assistance could reasonably be expected to result in injury. However, CSEC was not able to justify how injury could result from disclosing the aggregate information and categories found in the graphs.

Outcome: CSEC released more information, such as sub-totals and totals.

Information Commissioner’s position:

  • In deciding that releasing aggregated figures about requests for assistance would jeopardize ongoing investigations, CSEC applied section 15 too broadly.
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Jun 16
2016

Information must meet requirements of exemptions to be withheld

Institution
Canadian Radio-television and Telecommunications Commission
Section of the Act
16
23
Decision Type
notable investigation
Summary

Complaint: The Canadian Radio-television and Telecommunications Commission (CRTC) cited both section 16 and section 23 to withhold almost all of a four-page agreement between itself and a company involved in the 2011 robocalls scandal that set out the terms for resolving various concerns.

Investigation: The CRTC told the OIC that releasing the agreement in full could jeopardize outstanding investigations related to the robocalls scandal (section 16). The CRTC also alleged that, since the process that led to the agreement was subject to the legal advice privilege (section 23), the agreement itself should be, too.

Outcome: The CRTC agreed to review the exemptions and released almost all the information it had previously withheld.

Information Commissioner’s position:

  • Most of the information in the agreement was already in the public domain and, thus, disclosing it would not harm any outstanding investigations.
  • The agreement did not contain any legal advice between a solicitor and client; therefore, it could not be exempted under section 23.
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