Decisions

127 decisions found

Jun 5
2014

Merely speculating that harm would result from disclosure insufficient

Institution
Crown-Indigenous Relations and Northern Affairs / Indigenous Services
Section of the Act
18
20
23
Decision Type
notable investigation
Summary

Complaint: Aboriginal Affairs and Northern Development Canada (AANDC) withheld in their entirety under section 23 settlement agreements between it and seven companies related to a building project.

Investigation: During the investigation, AANDC acknowledged that the exemption did not apply to such documents and decided to rely instead on subsection 18(b) and paragraph 20(1)(d) to withhold them. The institution argued that settlement agreements are intended to be confidential and that disclosure could result in financial loss to the federal government or in financial benefit to parties not involved in the settlement, based on the information the agreements contain.

Outcome: AANDC failed to provide sufficient evidence that these harms would occur and disclosed all of the records to the requester.

Information Commissioner’s position:

  • To be properly exempted under paragraph 20(1)(d), information must be such that its disclosure could reasonably be expected to interfere with contractual or other negotiations of a third party. This test is similar to that set out in subsection 18(b).
  • It is not enough to merely speculate that some harm may occur. When invoking this provision, institutions must refer to an obstruction to negotiations and not simply the heightening of competition that may follow from disclosure.
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Jun 5
2014

Similar details previously posted on the Web negate claim of confidentiality

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

Complaint: VIA Rail Canada exempted information under section 18.1 in response to a request for the number, by station, of passengers who had gotten on and off trains in 2011 and 2012.

Investigation: The OIC learned that VIA Rail Canada had publicly released the information in question from 2007 to 2010.

Outcome: VIA Rail Canada disclosed the information to the requester.

Information Commissioner’s position:

  • Section 18.1 allows four government institutions, including VIA Rail Canada, to refuse to disclose records that contain trade secrets or financial, commercial, scientific or technical information that belongs to them, and that they have consistently treated as confidential.
  • Institutions must meet all of the criteria of the exemption in order to properly claim it.
  • In this case, VIA Rail Canada did not consistently treat the requested information as confidential, as paragraph 18.1(1)(d) requires.
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Jun 5
2014

Section 26 requires publication before 90-day deadline

Institution
Canada Mortgage and Housing Corporation
Section of the Act
21
26
Decision Type
notable investigation
Summary

Complaint: The Canada Mortgage and Housing Corporation (CMHC) withheld in its entirety a study, Assessing the Outcomes for Habitat for Humanity, Home Buyers in Canada, under paragraph 21(1)(b).

Investigation: The OIC determined that the report did not comprise accounts of deliberations or consultations, as paragraph 21(1)(b) requires, and asked CMHC to review the records again. Instead of doing so, CMHC said it would withhold the information under section 26, since the study was soon to be published.

Outcome: During the investigation, CMHC published the report on its website and provided the link to the requester.

Information Commissioner’s position:

  • Under section 26, institutions may refuse to disclose records when they are likely to be published within 90 days after the request is made.
  • Even when they intend to publish a record, institutions must demonstrate that it was reasonable to believe publication would occur within 90 days after receiving the request.
  • In this case, the proposed publication date was more than 90 days after CMHC had received the request. Consequently, the Information Commissioner found that that CMHC could not invoke section 26 to withhold the study.
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Jun 5
2014

Almost identical records do not constitute new versions

Institution
Canada Revenue Agency
Section of the Act
68
Decision Type
notable investigation
Summary

Complaint: The Canada Revenue Agency (CRA) withheld Internal Technical Interpretations produced for a particular period. CRA cited subsection 68(a) in refusing to release the records, since it had licensed the Interpretations to publishers to sell, with some modifications.

Investigation: The OIC compared the original and published versions of the Interpretations, which showed that what was published was almost identical to the original. In some cases, the publishers had added footnotes for clarity and value to subscribers.

Outcome: The Information Commissioner agreed with CRA that the information at issue had been published and was available for purchase, which excluded it from the Act.

Information Commissioner’s position:

  • Subsection 68(a) excludes from the Act published material or material available for purchase.
  • In this case, the requester had argued that the publishers’ changes were substantial enough to make the published versions a “new” or “derivative work” under copyright law.
  • If this had been so, subsection 68(a) would not have applied, since the original versions would have been neither published nor available for purchase.
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Apr 10
2014

Interference with Access to Information: Part 2

Institution
Public Works and Government Services
Section of the Act
30(1)(f)
Decision Type
systemic investigation
Summary

Pursuant to section 39 of the Access to Information Act, the Information Commissioner is reporting her findings in relation to her self-initiated investigation into the processing of eight access to information or consultation requests received by Public Works and Government Services Canada (PWGSC) between July 22, 2008, and January 19, 2010. This investigation concerned the possibility of interference in the processing of these requests.

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Nov 28
2013

Access to information at risk from instant messaging

Institution
Crown-Indigenous Relations and Northern Affairs / Indigenous Services
Foreign Affairs, Trade and Development Canada
Health Canada
Industry Canada
Justice Canada
Library and Archives Canada
National Defence
Privy Council Office
Public Works and Government Services
Transport Canada
Treasury Board of Canada Secretariat
Section of the Act
30(1)(f)
Decision Type
systemic investigation
Summary

In August 2012, the Information Commissioner launched a systemic investigation into the use and preservation of non-email, text-based messages on government-issued wireless devices. The decision to launch this investigation was, in part, the result of a complaint against Indian and Northern Affairs Canada (now Aboriginal Affairs and Northern Development Canada). In that case, the complainant had received an email in which one government official asked another to use a “pin” instead of email to communicate. When we investigated the complaint, we were informed that, prior to receiving the request for information, the relevant BlackBerrys had been replaced and subsequently destroyed. Thus, any information that might have existed and fallen within the scope of the access request was permanently lost.

Based on this complaint, as well as an increasing number of complaints related to missing records and “pins,” the Commissioner determined that there were reasonable grounds to self-initiate a complaint in order to investigate the impact of instant messaging, including PINs, on the right of access to information in Canada. The investigation focused on 11 institutions.

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Oct 17
2013

Time extensions must be both valid and reasonable

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

Complaint: Transport Canada took time extensions totalling 540 days to respond to a request for records related to the development of a joint Canada–U.S. declaration on security and competitiveness.

Investigation: The OIC determined that the extension under paragraph 9(1)(a) was invalid, since Transport Canada had not met the requirements of the provision. The paragraph 9(1)(b) extension was unreasonable, due to Transport Canada’s not having initiated consultations on the records for almost a year, largely because of one sector’s reluctance to provide records it deemed to be sensitive.

Outcome: After initially proposing to respond to the request more than two months after the combined extensions had expired, Transport Canada committed to responding one month before that deadline, as the result of a formal recommendation from the Information Commissioner.

Information Commissioner’s position:

  • To validly claim an extension under paragraph 9(1)(a), institutions must be able to demonstrate that the request involves a large volume of records or that searching for those records would unreasonably interfere with operations. Transport Canada was able to do neither.
  • For an extension under paragraph 9(1)(b) to be considered reasonable, institutions must promptly initiate the consultations for which the extension was taken.
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Oct 17
2013

Extension length must reflect actual time required for tasks

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

Complaint: The Department of National Defence (DND) took time extensions totalling 1,100 days to respond to a request for information about the sale of surplus military assets to Uruguay.

Investigation: The OIC learned from DND that the necessary consultations would only take 160 days, considerably fewer than the 880 days it claimed under paragraph 9(1)(b). DND did not justify the 230 days it had claimed under paragraph 9(1)(a) to process the responsive records.

Outcome: DND did not accept the Information Commissioner’s recommendation to respond to the requester within 90 days of the expected completion of the consultations.

Information Commissioner’s position:

  • Subsection 9(1) requires extensions to be “for a reasonable period of time.” In this case, since the consultations for which the extension under paragraph 9(1)(b) was taken could be completed in far less time than claimed, the extension was not, in fact, reasonable.
  • Institutions must justify any extensions they take. For extensions under paragraph 9(1)(a) to be valid, institutions must demonstrate that the request involves a large volume of records or that searching for those records would unreasonably interfere with operations.
  • The Information Commissioner subsequently sought judicial review of DND’s actions. In a 2015 ruling (Information Commissioner of Canada v. Minister of National Defence, et al., 2015 FCA 56, rev’g 2014 FC 205; OIC summary of decision), the Federal Court of Appeal established that an unreasonable extension is not legally valid and amounts to a deemed refusal, giving a right of review to the Federal Court. It also set standards for institutions for how they must justify the use and length of extensions.
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Oct 17
2013

Extensions are allowed; just inform the requester

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

Complaint: Health Canada missed the 30-day deadline for responding to a request for records about a television advertisement and had not taken a time extension.

Investigation: The OIC learned that the request had lain dormant for significant periods and that Health Canada has not started the necessary consultations promptly.

Outcome: The Information Commissioner formally asked Health Canada for the date it would respond to the requester. The institution provided a date but, in end, only responded a month after that.

Information Commissioner’s position:

  • The Act includes provisions for taking reasonable time extensions when responding to requests within 30 days will not be possible. Institutions must simply inform the requester within 30 days of receiving the request that they will be doing so.
  • At the same time, institutions must not delay processing requests and initiating any necessary consultations.
  • 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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Oct 17
2013

Institutions must retrieve records to prevent their being disposed of

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

Complaint: The Correctional Service of Canada (CSC) withheld in their entirety all staff disciplinary investigation reports produced in its Pacific Region over two years, citing subsection 19(1).

Investigation: Upon reviewing CSC’s file on its processing of the request, it became clear that access officials had, instead of retrieving the records, only reviewed samples of similar records. The OIC determined, after examining the samples, that CSC could have removed certain details that would have identified individuals and released the remaining information.

Outcome: The complaint was well founded, but the requester did not receive the requested records, since CSC had disposed of them.

Information Commissioner’s position:

  • CSC failed to properly respond to the request. It did not retrieve the records, did not produce the records in response to the OIC’s request to see them and disposed of the them, despite being aware of the investigation and of requests to be provided with copies.
  • As such, CSC wholly failed in its duty to assist the requester and irremediably harmed the requester’s rights.
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