Decisions

120 decisions found

Dec 8
2015

Legal fee totals tend to be neutral information

Institution
Blue Water Bridge Canada
Section of the Act
23
Decision Type
notable investigation
Summary

Complaint: Blue Water Bridge Canada withheld in its entirety a cover letter and statement of account from a legal firm, citing section 23.

Investigation: The OIC disagreed that solicitor-client privilege applied to the cover letter and urged the institution to release the total fees billed (such as appeared on the statement of account), since disclosing them would not reveal information subject to solicitor-client privilege.

Outcome: The institution released both the cover letter and the billing totals.

Information Commissioner’s position:

  • Certain administrative information, such as the total or aggregate amount billed on a legal matter, tends to be neutral information that would not lead to any privileged information being revealed. This kind of information should be disclosed.
  • This is also true of legal fee totals associated with ongoing litigation. The Department of Justice Canada attempted to withhold such information in two instances but released it following OIC investigations.
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Dec 8
2015

When information is known to exist, subsection 10(2) does not apply

Institution
Justice Canada
Section of the Act
10(2)
Decision Type
notable investigation
Summary

Complaint: The Department of Justice Canada declined to confirm or deny the existence of both a letter from the Costa Rican foreign minister and the institution’s response, as per subsection 10(2).

Investigation: The OIC learned that Costa Rican authorities had publicly acknowledged that the foreign minister had requested the information.

Outcome: The institution ceased to rely on subsection 10(2) and released the records to the requester, albeit with many exemptions applied.

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, as in this case.
  • Similarly, the Department of Foreign Affairs, Trade and Development disclosed information it had previously declined to confirm or deny existed about the visit of a Canadian consular official to an internment camp in Afghanistan when the OIC found that the institution’s own public affairs group had released information about the visit.
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Dec 8
2015

Embarrassing information does not constitute threat to safety

Institution
Canada Revenue Agency
Section of the Act
17
Decision Type
notable investigation
Summary

Complaint: The Canada Revenue Agency released a DVD containing video clips introducing various parts of the organization, but withheld one clip. This segment, which CRA said qualified for protection under section 17, showed various employees wearing Batman costumes.

Investigation: The institution was unable to provide evidence of the threat to the safety of the individuals depicted that would result if the video clip were released, as section 17 requires.

Outcome: CRA offered to allow the requester to view the clip on site. The requester refused but did agree to receive a copy of the segment with the employees’ faces blurred.

Information Commissioner’s position:

  • Section 17 allows institutions to protect information whose disclosure could reasonably be expected to threaten the safety of a person. Merely embarrassing information does not meet this test.
  • When claiming this exemption, institutions must show that the harm described in the provision could occur.
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May 14
2015

Investigation into an access to information request for the Long-gun Registry

Institution
Royal Canadian Mounted Police
Section of the Act
30(1)(f)
Decision Type
systemic investigation
Summary

The request at the basis of the complaint was made to the RCMP on March 27, 2012, before the coming into force of the Ending the Long-gun Registry Act. It requested access to the Firearms Registry database.

The requester filed a complaint with the Office of the Information Commissioner after receiving a response from the RCMP alleging that:

  1. That the information provided was incomplete (missing both columns and registrations);
  2. That the RCMP did not justify the incomplete response;
  3. That by destroying the responsive records, the RCMP obstructed his right of access, pursuant to section 67.1 of the Act.
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Jun 5
2014

Length of extensions must reflect number of pages being sent for consultation

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

Complaint: Natural Resources Canada (NRCan) took a 300-day time extension to consult with the Department of Foreign Affairs, Trade and Development (DFATD) about requested briefing notes.

Investigation: NRCan sent just seven pages to DFATD for review. In addition, NRCan set the extension at 300 days even though it had not yet contacted DFATD to get an approximate return date. NRCan said it did so because, in its experience, DFATD did not always meet its promised deadlines.

Outcome: The consultations were ultimately completed in 51 days. NRCan responded to the request several months before the extended due date.

Information Commissioner’s position:

  • Institutions must take into account the number of pages of records responsive to requests and the number being sent for consultation when determining the length of time extensions under paragraph 9(1)(b).
  • In this case, the extension of 300 days was well beyond what was needed to consult DFATD on seven pages of records and to complete the processing of the request.
  • The extension was contrary to the Treasury Board of Canada Secretariat requirement that extensions be as short as possible. The extension likewise went against institutions’ duty to provide timely access to information, as set out in subsection 4(2.1).
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Jun 5
2014

Institutions may not close files pending consultations

Institution
Treasury Board of Canada Secretariat
Section of the Act
7
10(3)
Decision Type
notable investigation
Summary

Complaint: The Treasury Board of Canada Secretariat (TBS) claimed a 180-day time extension to consult another institution about requested records. On the extended due date, TBS informed the requester that it had not received a response to its consultation request and that it was closing the file.

Investigation: TBS advised the requester that it would provide any releasable records at the conclusion of the consultation, whenever that might occur. However, TBS had no procedure in place to monitor the progress of the consultation and ensure its eventual completion after the file was closed.

Outcome: In light of the Information Commissioner’s investigation, TBSfollowed up with the institution it had consulted. Once the consultation was complete, TBS issued the final response to the requester.

Information Commissioner’s position:

  • There is no basis in the Act for institutions to close requests before receiving consultation responses.
  • Closing a request pending outstanding consultations does not constitute a response to a request under either section 7 or section 10. These provisions define the appropriate timelines for and information to be included in a response.
  • As the institution to which the request was made in this case, TBS was responsible for responding accurately and in a timely manner, making any necessary decisions to ensure it met its statutory obligations.
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Jun 5
2014

Institutions must review records before exempting them

Institution
Foreign Affairs, Trade and Development Canada
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: The Department of Foreign Affairs, Trade and Development (DFATD) cited various exemptions to withhold information contained in documents sent or received by the Canadian embassy in Mexico about a businessman killed in Acapulco.

Investigation: The investigation revealed that DFATD routinely advises embassies not to provide consular files in response to access requests. In its view, these files are exempt under subsection 19(1) in their entirety.

Outcome: DFATD processed the records at the Information Commissioner’s request and subsequently released an additional 195 pages.

Information Commissioner’s position:

  • The complaint was well founded, since DFATD had not initially retrieved or processed all the records.
  • The Federal Court of Appeal confirmed that records must be reviewed to ensure proper processing (Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2011 FCA 326).
  • A failure to retrieve records jeopardizes the rights the Act confers, since there is a risk the program area could dispose of records not properly identified.
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Jun 5
2014

Paragraph 9(1)(c) covers only consultations with third parties on commercial information

Institution
Treasury Board of Canada Secretariat
Section of the Act
9(1)
Decision Type
notable investigation
Summary

Complaint: The Treasury Board of Canada Secretariat (TBS) took a 60-day time extension under paragraph 9(1)(c) to consult the House of Commons about requested briefing materials for the appearance of TBS officials before a parliamentary committee.

Investigation: TBS noted that it is not clear what the proper procedure is for responding to requests for records that may be covered by parliamentary privilege. The institution also stated that, in taking the time extension, it was following common practice.

Outcome: Since parliamentary privilege did not cover any of the records at issue, the extension was invalid.

Information Commissioner’s position:

  • Paragraph 9(1)(c) was not intended to be used to consult the House of Commons.
  • Rather, it was designed to accommodate consultations with third parties about records that could be considered confidential commercial information, as described in section 20.
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Jun 5
2014

Records about attendance at mandatory training are not personal information

Institution
Royal Canadian Mounted Police
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: The Royal Canadian Mounted Police (RCMP) withheld in their entirety under subsection 19(1) records about the attendance of a newly commissioned inspector at the RCMP’s Officer Orientation and Developmental Course.

Investigation: The RCMP stated that the information sought (the dates of the inspector’s attendance, the complete list of courses, and the names of all the facilitators and any others in attendance), in conjunction with the name, rank and employee identification number of regular members of the RCMP, constituted personal information, as described in section 3 of the Privacy Act. However, the course was mandatory for newly commissioned officers.

Outcome: After a formal request from the Information Commissioner to justify its position, the RCMP agreed to release the information.

Information Commissioner’s position:

  • The fact that a member had attended this course is not personal information, since the training was mandatory and therefore related to the position or functions of an individual who is an employee of a government institution. This constitutes an exception to subsection 19(1), as per paragraph (3)(j) of the Privacy Act.
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Jun 5
2014

Claiming the “mosaic effect” requires showing that specific personal information would be disclosed

Institution
Transport Canada
Section of the Act
19
Decision Type
notable investigation
Summary

Complaint: Transport Canada refused to release aircraft registration numbers, claiming they were personal information under subsection 19(1).

Investigation: Transport Canada maintained that by cross-referencing these numbers with information on the publicly available Canadian Civil Aviation Register website, it would be possible to discern the names and addresses of the owners of registered aircraft involved in air occurrences.

Outcome: As a result of the investigation, Transport Canada released the records in full, claiming it was doing so using its discretion to release personal information in the public interest under subparagraph 8(2)(m)(i) of the Privacy Act. However, the Information Commissioner found that the information did not qualify as personal information and should not have been withheld under subsection 19(1) in the first place.

Information Commissioner’s position:

  • To withhold records under subsection 19(1) in this instance, Transport Canada would have had to demonstrate that releasing various types of seemingly unrelated information would paint a larger picture that would disclose specific personal information (known as the “mosaic effect”).
  • Transport Canada could not do so in this case. At most, someone might have been able discern the identity of the owners of aircraft involved in air occurrences, but not whether these owners were personally involved.
  • In its decision in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157, the Federal Court of Appeal said that the possibility that information might be cross-referenced with other sources does not render otherwise “non-personal” information “personal.”
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