Canadian privacy & access decisions

The Information Commissioner initiated a complaint against Canadian Heritage (PCH) after reports indicated the institution had suspended processing access requests due to the COVID-19 pandemic. The investigation revealed that PCH's Access to Information and Privacy Secretariat could not access its work premises or departmental network remotely between March 16, 2020, and July 10, 2020. This resulted in a backlog of 224 access requests. The Commissioner found that PCH's failure to respond to these requests was not justified by any of the circumstances outlined in subsection 9(1) of the Act, thereby breaching requesters' quasi-constitutional rights of access. The complaint was deemed well-founded, and the Commissioner made six recommendations to the Minister of Canadian Heritage, who agreed to implement corrective measures.

• Whether the institution's suspension of access request processing constituted a breach of the Access to Information Act
• Whether the institution's failure to respond to requests was justified under subsection 9(1) of the Act

The complainant challenged Transport Canada's decision to withhold information concerning vehicle safety recall completion rates, citing sections 14, 20, and 21 of the Access to Information Act. The Office of the Information Commissioner (OIC) requested submissions from the complainant, Transport Canada, and a third party. The Commissioner determined that neither Transport Canada nor the third party had adequately demonstrated that the claimed exemptions applied to the information in question. Consequently, the Commissioner recommended that Transport Canada disclose all previously withheld information, excluding any personal information. Transport Canada confirmed its intention to implement these recommendations. The complaint was found to be well founded.

• Whether s.14 ATIA (federal-provincial affairs) applied to the withheld information
• Whether s.20 ATIA (third-party information) applied to the withheld information
• Whether s.21 ATIA (advice and recommendations) applied to the withheld information
• Whether Transport Canada and the third party met their burden of proof for the claimed exemptions

The complainant challenged VIA Rail's decision to withhold information concerning a High Frequency Rail Proposal. VIA Rail had applied multiple exemptions under the Access to Information Act. The Information Commissioner found that VIA Rail failed to demonstrate that the withheld information properly fell within the scope of the claimed exemptions. Furthermore, VIA Rail did not perform a severance exercise to release non-exempt portions of the records. The Commissioner recommended that VIA Rail conduct a severance exercise, disclose all information not meeting exemption criteria, and properly exercise discretion for any remaining exempt information. Consequently, the complaint was deemed well founded.

• Whether the information fell within the scope of the exemptions claimed under s.18 ATIA
• Whether the information fell within the scope of the exemptions claimed under s.21 ATIA
• Whether VIA Rail conducted a proper severance exercise to disclose non-exempt information

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request within the statutory time limits. The request sought minutes of the Joint Intelligence Committee from 1968. PCO claimed an extension, partly for consultations, but then closed the file under its 'no late file' policy when consulted institutions did not respond by the deadline. The OIC found that the Act does not permit an institution to cease processing a request due to delayed consultations, concluding that PCO was in deemed refusal under subsection 10(3) of the Act. The Information Commissioner recommended PCO respond to the request and revoke its 'no late file' policy. PCO agreed to revoke the policy and committed to responding by a revised date.

• Whether the institution responded to the access request within the time limits set out in the Access to Information Act
• Whether the institution was authorized to close the file due to delayed responses from consulted institutions
• Whether the institution was in deemed refusal pursuant to subsection 10(3) of the Act

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request for minutes of the Joint Intelligence Committee from 1971 within the time limits stipulated by the Access to Information Act. PCO had claimed an extension, partly for consultations with other government institutions. When these consultations were not completed by the deadline, PCO informed the complainant it would not process the request, citing its 'no late file' policy. The Office of the Information Commissioner found that the Act does not permit an institution to cease processing a request due to outstanding consultations. Consequently, PCO was deemed to have refused the request under subsection 10(3) of the Act. The Commissioner recommended that PCO respond to the request and revise its policy to comply with the Act. PCO agreed to implement both recommendations, and the complaint was found to be well founded.

• Whether the institution failed to respond to an access request within the time limits set out in the Access to Information Act
• Whether the institution's 'no late file' policy, which led to closing a file due to outstanding consultations, is compliant with the Act
• Whether the institution was in deemed refusal pursuant to subsection 10(3) of the Act

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request within the statutory time limits. The request sought minutes of the Joint Intelligence Committee from 1962. PCO claimed an extension, partly for consultations, but then closed the file, citing its 'no late file' policy and the lack of recommendations from other government institutions. The Office of the Information Commissioner found that the Act does not permit an institution to cease processing a request due to outstanding consultations, concluding that PCO was in deemed refusal under subsection 10(3) of the Act. The Commissioner recommended PCO respond to the request by a specific date and revoke or revise its 'no late file' policy to comply with the Act. PCO committed to a revised response date and confirmed the revocation of its policy. The complaint was found to be well founded.

• Whether the institution responded to the access request within the time limits set out in the Access to Information Act
• Whether the institution was authorized to cease processing an access request due to outstanding recommendations from consulted institutions
• Whether the institution was in deemed refusal pursuant to subsection 10(3) of the Act

An applicant complained that Health Canada failed to identify all records responsive to an access request and improperly refused to provide an index of all responsive records. The investigation by the Office of the Information Commissioner (OIC) found that Health Canada had conducted a reasonable search for records and there was no evidence that any records were missing. The OIC also determined that Health Canada's refusal to create an index of records did not violate its duty to assist obligations under subsection 4(2.1) of the Access to Information Act. The Commissioner concluded that creating such an index for this specific request would have been unreasonable. Therefore, the complaint was deemed not well-founded.

• Whether Health Canada conducted a reasonable search for responsive records
• Whether Health Canada's refusal to provide an index of responsive records contravened its duty to assist under subsection 4(2.1) ATIA
• Whether creating an index of records for this request would have been unreasonable

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request within the statutory time limits. The request sought minutes of the Joint Intelligence Committee from 1957 to 1958. PCO claimed an extension, partly for consultations with other government institutions. When these consultations were not completed by the deadline, PCO closed the file, citing a "no late file" policy and the absence of recommendations from consulted institutions. The Office of the Information Commissioner found that the Access to Information Act does not permit an institution to close a file or fail to respond due to outstanding consultations. Consequently, PCO was deemed to be in refusal under subsection 10(3) of the Act. The Commissioner recommended that PCO respond to the request and revise its policy to comply with the Act. PCO did not implement the recommendations.

• Whether the institution responded to the access request within the time limits set out in the Access to Information Act
• Whether an institution can close an access request file due to outstanding consultations with other government institutions
• Whether the institution was in deemed refusal pursuant to subsection 10(3) of the Act

The Information Commissioner initiated a systemic investigation into the Royal Canadian Mounted Police's (RCMP) ability to provide timely responses to access to information requests between 2016-2017 and 2018-2019. The investigation was prompted by persistent complaints about the RCMP's failure to meet statutory timeframes and its lack of participation in delay complaint investigations. The Commissioner found that the RCMP's performance had significantly deteriorated, with a substantial increase in requests taking over 365 days to complete and a growing backlog. The RCMP attributed these issues to its geographical dispersion, the volume of requests, and the sensitive nature of its information holdings. The Commissioner made 15 recommendations across six areas, including tasking processes, procedures, training, electronic systems, resources, and a comprehensive strategy. However, the Minister of Public Safety's response largely ignored or inadequately addressed most of these recommendations, failing to commit to concrete plans or provide explanations for not addressing identified failings. Consequently, the Commissioner found the complaint to be well-founded, concluding that the Minister had accepted the status quo despite the dire situation.

• Whether the RCMP's tasking processes contributed to delays in responding to access requests
• Whether the RCMP's procedures for processing access requests were adequate and consistently applied
• Whether the RCMP provided sufficient training to staff involved in access to information
• Whether the RCMP's electronic systems were adequate for processing access requests efficiently
• Whether the RCMP had adequate human and financial resources for its access to information program
• Whether the RCMP had a comprehensive strategy to meet its access obligations and reduce its backlog
• Whether the Minister of Public Safety's response to the Commissioner's recommendations was satisfactory
• Whether the RCMP's failure to provide representations to the OIC during delay complaint investigations was appropriate

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access to information request within the statutory time limits. The request, submitted in July 2016, sought records related to assistance for the 2016 Alberta fire disaster, involving approximately 9,100 pages. PCO initially claimed a 120-day extension but then put the request on indefinite hold for consultations, a practice not permitted by the Act. Despite the Information Commissioner's recommendation to provide a final response by June 1, 2020, PCO failed to meet this deadline, citing ongoing consultations and the impact of the COVID-19 pandemic. The Commissioner found the complaint to be well founded, noting that PCO was deemed to have refused access due to the delay. However, due to the complaint's filing date, the Commissioner lacked the authority to issue a binding order for disclosure.

• Whether the institution responded to the access request within the time limits set out in the Access to Information Act
• Whether the institution's indefinite 'hold' for consultations is permissible under the Act
• Whether the institution was deemed to have refused access under subsection 10(3) due to delay

The complainant alleged that the Department of Justice Canada (Justice) failed to respond to an access request within the statutory time limits. The OIC had previously investigated a complaint regarding the same request and recommended a response by December 15, 2019. Justice did not accept this recommendation but committed to disclosing the records by April 27, 2020. When Justice failed to meet this extended deadline, a new complaint was filed. The Commissioner found that Justice was deemed to have refused access under subsection 10(3) of the Act due to its failure to provide records within the prescribed timeframes. Consequently, the complaint was found to be well founded, and Justice was ordered to respond to the access request by September 30, 2020.

• Whether the institution failed to respond to an access request within the time limits set out in the Act
• Whether the institution was deemed to have refused access pursuant to subsection 10(3) of the Act

The Office of the Information Commissioner (OIC) conducted a systemic investigation into the processing of access to information requests at National Defence (DND). The investigation focused on the six offices of primary interest (OPIs) most frequently tasked with responding to requests between January 2017 and December 2018. OIC officials interviewed OPIs and DND's Directorate of Access to Information and Privacy (DAIP), and reviewed internal documents, manuals, and statistics. The Commissioner identified significant issues with DND's compliance with the Access to Information Act. The Minister of National Defence acknowledged the need for improvements and proposed corrective actions, which were accepted or built upon by the Commissioner. The Commissioner issued nine recommendations to the Minister, who agreed to implement them to address the identified shortcomings.

• Processing of access to information requests at National Defence
• Compliance with the Access to Information Act by National Defence
• Efficiency and effectiveness of DND's Access to Information and Privacy (ATIP) processes

The complainant challenged the Department of Justice Canada's (Justice) decision to withhold an entire Memorandum of Understanding (MOU) for legal services under section 23 of the Access to Information Act. Justice claimed the entire MOU was protected by solicitor-client privilege. The Commissioner found that Justice failed to demonstrate that general identifying information, such as the title and signature blocks, fell under this privilege. Furthermore, the Commissioner determined that Justice had waived its solicitor-client privilege over certain information within the MOU. Consequently, the Commissioner concluded that the complaint was well founded and recommended the release of part of the record. Justice indicated its intention to implement this recommendation.

• Whether the entire Memorandum of Understanding (MOU) was protected by solicitor-client privilege under s.23 ATIA
• Whether general identifying information (title, signature blocks) in the MOU was protected by solicitor-client privilege
• Whether solicitor-client privilege had been waived over any information in the MOU

The complainant alleged that National Defence (DND) failed to respond to an access to information request within the statutory time limits. DND argued that the request did not meet the requirements of section 6 of the Access to Information Act, which stipulates that a request must be for a record under the control of a government institution. The OIC investigated whether DND's decision not to process the request was justified. The Commissioner found that DND had made numerous attempts to clarify the request with the applicant, but the applicant did not provide the necessary clarification to enable DND to identify the records sought. Consequently, the Commissioner concluded that DND was not obligated to process a request that did not adequately describe the records. The complaint was therefore deemed not well-founded.

• Whether the access request met the requirements of section 6 of the Access to Information Act
• Whether National Defence was justified in not processing the request due to lack of clarity
• Whether National Defence failed to respond within the statutory time limits

The complainant challenged the Canadian Human Rights Commission's (CHRC) decision to withhold information under subsections 19(1) (personal information), section 22 (testing/auditing procedures), and section 23 (solicitor-client privilege) of the Access to Information Act. During the investigation, the CHRC agreed to release all information previously withheld under section 22 and some under section 23. The OIC found that while some information met the requirements for personal information under s.19(1), specific file numbers did not, as their disclosure would not identify an individual. Regarding solicitor-client privilege, the OIC found that certain draft investigation reports were not shown to have received legal review or advice, thus not meeting the exemption's criteria. The Commissioner recommended the disclosure of the file numbers and the draft investigation reports. The CHRC agreed to the recommendations and released the additional information.

• Whether s.19(1) personal information exemption applies to personal contact information of government employees, leave information, and names of CHRC complainants
• Whether s.19(1) personal information exemption applies to file numbers
• Whether the institution reasonably exercised discretion under s.19(2) for applicable personal information
• Whether s.22 testing/auditing procedures exemption applies
• Whether s.23 solicitor-client privilege exemption applies to communications between client and counsel for legal advice
• Whether s.23 solicitor-client privilege exemption applies to draft investigation reports
• Whether the institution reasonably exercised discretion under s.23 for applicable solicitor-client privileged information