Implementation Report

Through Bill C-208, which was proclaimed on March 25, 1999, section 67.1 has been added to the Access to Information Act to provide sanctions for any person who destroys, alters, falsifies or conceals a record, or directs anyone to do so, with the intent of obstructing the right of access provided by the Act (copy attached). To assist in the implementation of this amendment to the legislation, the following sections will be added to the Policy and Guidelines on Access to Information issued by the Treasury Board Secretariat. Additional guidelines will be provided after consultation with the Department of Justice and the Office of the Information Commissioner. 

Government institutions must forthwith notify all their employees of this amendment to the Access to Information Act and their responsibilities in relation to it. The notice must set out the provisions of section 67.1, highlighting the creation of the criminal offence, and provide employees with a departmental contact and phone number for any questions they may have on this section. 

Government institutions must then develop, implement and communicate policies and procedures to follow in case of a suspected violation of this section. Government institutions must ensure that these procedures provide for an appropriate investigation of any allegation, a rapid response to stop any destruction or alteration activity, and clear procedures for employees who believe they may have been asked to commit this crime. 

Institutional policies and procedures should provide that a suspected contravention of this section of the ATIA would be treated in a similar fashion to a suspected theft, destruction of property or other security breach which may involve criminal activity. The policies and procedures should include: 

- provision for employees to consult the ATI unit with any questions or concerns they have relating to this issue; 

- the designation of an official responsible for investigating any allegation of falsification, concealment or improper destruction of records. This official should be given authority to halt any activity until the ATI co-ordinator or other authority can verify that the activity does not contravene the Act. 

- a requirement for the designated official to immediately report any suspected falsification, concealment or improper destruction of records to the deputy head,

- a requirement that any investigation be documented, 

- procedures for a rapid response to halt any destruction or alteration activity, and 

- procedures for reporting a suspected contravention to law enforcement for investigation. 

These procedures would normally be the same as procedures for reporting a suspected theft of property. 

Institutional policies and procedures concerning suspected alteration, falsification, concealment or improper destruction of records may stand on their own, or may be integrated with another institutional policy, such as security or Access to Information. 

When notifying their employees of this amendment to the Access to Information Act, institutions should emphasize that there is expected to be little impact on the day-to-day activities of public servants and that, in the absense of a specific request under the Act, the Records Disposal Schedules of the National Archives are unaffected. The notification should advise employees that they may direct questions concerning this, or any other section of the Access to Information Act, to their ATI unit. The notification should also tell employees whom to contact if they suspect that someone is altering, falsifying, concealing or improperly destroying records, or if someone has asked them to do so, and describe where they will be able to find the institutional policies and procedures concerning section 67.1 of the Access to Information Act. 

The Department of Justice is considering the impact of this amendment and will shortly be issuing guidance on an individual's right to counsel during an investigation by the Information Commissioner or other authority in circumstances where they may be suspected of having committed this crime. 

Access to Information Co-ordinators and Departmental Security Officers should work together in consultation with their legal services to establish the required policies and procedures under this section. 

File No.: IMM-2078-93

References: [1994] F.C.J. No. 2041 (QL) (F.C.T.D.)

Date of Decision: June 10, 1994

Before: Denault J. (F.C.T.D.)

Section(s) of ATIA / PA: S. 8(2)(a) Privacy Act (PA)

• Immigration 

• Authority to collect information relating to admissibility and Convention refugee claim 

• Disclosure of border documents to Convention Refugee Determination Division within para. 8(2)(a) of the Privacy Act 

Whether the border documents were inadmissible on the grounds that their disclosure to the Convention Refugee Determination Division contravened the Privacy Act. 

This was an application for judicial review of a decision made by the Convention Refugee Determination Division of the Immigration and Refugee Board (hereinafter the "CRDD") which dismissed the applicant's claim for refugee status on the ground that his testimony generally lacked credibility. In reaching its decision, the CCRD relied on border documents, specifically on the "examination sheet" of an immigration officer who examined the applicant at the port of entry. A comparison of the applicant's oral testimony with this documentary evidence led the CCRD to conclude that the applicant gave totally different, mutually exclusive, reasons for his departure from Bangladesh and that, therefore,he lacked credibility. 

The applicant submitted, among other things, that the border documents were inadmissible because they were protected by the Privacy Act. More particularly, the applicant argued that a determination of admissibility is unrelated to a Convention refugee determination and that, therefore, the immigration officer had no authority to collect information relating to the applicant's refugee claim. The applicant further argued that the proper procedure for their disclosure pursuant to the Access to Information Act had not been followed. 

The application for judicial review was dismissed. (With respect to the issue of whether the CCRD's determination was arbitrary and capricious, see the text of the decision.) 

The immigration officer had authority, under subs. 12(1) of the Immigration Act, to collect information to determine whether the applicant should be admitted into Canada. It was also within his authority, under subs. 44(1) of that Act, to collect the information that the applicant was seeking a determination of a refugee claim and any other information relevant to that claim. The border documents to which the CCRD referred contained information relevant to both his admissibility and his refugee claim. 

The purpose for which the information was collected may be expressed as general immigration purposes or, more specifically, as admissibility and refugee determination purposes. Under either interpretation, the use by the Convention Refugee Determination Division of the information for the purpose of determining whether the applicant was a Convention refugee may be considered for the same purpose for which it was obtained or, in the alternative, a consistent purpose pursuant to para. 8(2)(a) of the Privacy Act.

Since neither para. 8(2)(a) nor the Privacy Act or the Access to Information Act mandate a particular procedure for disclosure, it would be unreasonable to impose an intervening process, other than timely disclosure to the applicant, between the Canada Employment and Immigration Commission (the institution who collected the information) and the Immigration and Refugee Board. 

File No.: IMM-7410-93

References: [1994] F.C.J. No. 1705 (QL) (F.C.T.D.)

Date of Decision: November 17, 1994

Before: McGillis J. (F.C.T.D.)

Section(s) of ATIA / PA: S. 8(2)(a) Privacy Act (PA)

• Immigration

• Convention refugee claim

• Allegation of improper disclosure of personal information to Nigerian police officials 

• Consistent use within meaning of para. 8(2)(a) of the Privacy Act

Whether disclosure, if any, of personal information to Nigerian police officials without the individual's consent contravened the Privacy Act. 

This is an application for judicial review of the decision of the Immigration Refugee Board rejecting the refugee claim of the applicant on the ground that he lacked credibility. The applicant, a citizen from Nigeria, signed two personal information forms which differed in content. In one of the forms, the applicant stated that he had been charged with murder and released on bail in Nigeria. Information obtained from the Nigerian police through Canadian diplomatic channels revealed that the applicant had not been charged with murder. In reaching its decision, the Board admitted into evidence the telex from the Canadian High Commission in Lagos which confirmed that information. 

The applicant submitted that the admission into evidence of the telex violated his rights under the Privacy Act. He argued that the confidential statements in the personal information form had been improperly disclosed by officials of the Canadian government.

The application for judicial review was dismissed. (With respect to the issue of whether the Board exercised its discretion properly, see the text of the decision.)

There was no evidence to indicate that any confidential information given by the applicant in his personal information form had been disclosed. Alternatively, even if Canadian officials had provided confidential information to the Nigerian police, the disclosure was made for the purpose of permitting the Minister to formulate an opinion as to whether the applicant's claim raised a matter which fell within one of the Articles of the United Nations Convention Relating to the Status of Refugees. Since the applicant provided the information for immigration purposes, its use, if any, by the Minister or his representatives was clearly "for a use consistent with that purpose" within the meaning of para. 8(2)(a) of the Privacy Act. The Court referred to Rahman v. Canada (Minister of Employment and Immigration), decision dated June 10, 1994, F.C.T.D., No. IMM-2078-93. 

File No. : T-2634-97

References: [1998] F.C.J. No. 1909 (QL) (F.C.T.D.)

Date of Decision : December 30, 1998

Before : Wetston J. (F.C.T.D.)

Section(s) of ATIA / PA : S. 41 Privacy Act (PA)

• Personal information

• Draft document

• Retention under Privacy Regulations

• Criteria: Personal information substantially identical (or not) to later version

Whether a federal government institution has the obligation to retain draft documents containing personal information for a period of two years in accordance with the Privacy Regulations. 

This is an application under s. 41 of the Privacy Act against the decision of the Commissioner of Official Languages (the "respondent") for failing to release two documents which do not exist in the file. The respondent refused the applicant's request for a draft working document (the "preliminary report"), not filed and now destroyed, and for a document (the "fax") which the respondent alleges does not exist or may never have existed and, therefore, was also not filed.

The documents at issue pertain to a complaint submitted to the Office of the Commissioner of Official Languages ("OCOL") against the designation of a position as bilingual CCC-imperative.OCOL's principal investigator phoned the applicant to inform him of his preliminary findings to the effect that the CCC level of the position was justified, but that the imperative designation of the position was not justified and should be changed to non-imperative. However, the final report, which was issued under the supervisor's signature, concluded that the designation of the position as bilingual imperative CCC was warranted. 

The applicant submits that the respondent's policies indicate that the following should not be in a file: duplication and drafts of no archival or legal value. The applicant argues that the preliminary report communicated to him by phone (1) was not a duplicate of the final report released to him as it was penned by a different author and reached an opposite conclusion and (2) was of archival and legal value because it was communicated to him. With respect to the fax, the applicant submits that the respondent had either withheld it purposely or destroyed it deliberately or negligently.

The respondent explained that when a draft is provided to a superior for comments or approval, the supervisor will write his comments on the draft itself and return the file to the investigator. 

The draft on the investigator's computer is thereupon modified and reprinted by the investigator, and so on until the final approved version of the document is signed. The respondent further explained that the signed version is always kept on file while the earlier draft versions may neither be physically placed on file nor saved as several drafts.

The respondent submits that it did not have a duty to keep the preliminary report on file for two years in accordance with the Privacy Act for the following reasons: (1) most of the information in the preliminary report was analysis; (2) the personal information contained in the final report would have been the same or would have been contained in the preliminary report; (3) the personal information contained in the preliminary report was contained in the documents already provided to the applicant. With respect to the fax, it is the respondent's submission that even if that document did exist, it would contain the same information about the applicant as was contained in the final report. 

The s. 41 application was dismissed. 

The Commissioner of Official Languages is bound by the Treasury Board policies with respect to how federal institutions should implement the Privacy Act. The Court cannot, with any degree of certainty, determine if the preliminary report contained any personal information whatsoever. In these circumstances, the best it can do is infer whether the reports may have likely been different with respect to the personal information contained therein. 

The Court was of the view that a preliminary report or draft report that contains personal information must be retained for two years pursuant to the Privacy Regulations if the personal information contained in such a document is different from, or not substantially identical to, later versions of the same document. Conversely, if the personal information is substantially identical the draft need not be retained on file. In the case at bar, the Court found that there was no reasonable basis to conclude that the personal information in the preliminary report, despite the different conclusion contained in the final report, was substantially different than the personal information contained in the final report. 

Finally, the Court refused to draw the inferences advanced by the applicant regarding the deliberate destruction of the fax as such inferences, in light of the evidence, would have been unreasonable.