This site is directed primarily to the attention of union officers and employee representatives but is of interest to any Canadian wanting to know and receive personal or non-personal records held by any government institution.
The objective of this site is to provide the unionized reader with a hands on guide to making requests under either the Access to Information Act or the Privacy Act.
The content and perspective of this site is based on 10 years experience representing my colleagues at the Immigration Refugee Board during which there was frequent need to use both Acts to obtain information that would not otherwise have been disclosed.
Since 1983, two federal statutes, the Access to Information Act and the Privacy Act, have provided individuals with a right of access to both non-personal and personal information held by the federal public sector. In addition, the Privacy Act contains provisions regulating the confidentiality, collection, correction, disclosure, retention and use of personal information.
Individuals may request records directly from the institution which has the custody of the information. Accessible information includes written records, video and computer files.
The Act establishes a code of fair information practices which apply to government handling of personal records. The Canadian Federal Court has ruled that government has an obligation to answer all access requests regardless of the perceived motives of the requesters. Similarly, the commissioner must investigate all
complaints even if the government seeks to block him from so doing on the grounds that the complaints are made for an improper purpose.
The Privacy Act and the Access to Information Act are overseen by independent commissioners with the power to investigate, mediate and make recommendations, but with no ability to issue binding orders. However, a Commissioner can initiate a Federal Court review if he or she believes an individual has been improperly denied access.
You are investigating health or safety concerns and the Employer is not forthcoming with the necessary records (information).
Staffing issues (eg. the number of terms, casuals, students, contractors, etc.) appear to be a problem at your worksite or with your Employer and you need records in order to raise the issue in a regional or national labour-management consultation forum.
Discrimination relating to one of the elements identified under employment equity or human rights appears to be taking place and you need records in order to raise the issue in a regional or national labour-management consultation forum or to take formal action.
Another government branch has conducted an audit of certain areas of your Employer's responsibility and you want/need to review the audit.
The Employer has conducted an administrative investigation affecting more than one of the members that you represent.
You are dissatisfied with the handling of your Access request and want to review the working file prepared by the source's Access to Information and Privacy section.
The Employer has applied an inappropriately rigid definition of "personal information" to your Privacy request and you need contextual information available under Access.
Etc. Etc.
A list of information holdings at the IRB, accessible under the Access to Information Act, can be viewed here.
You have exercised your right under the collective agreement to review your personnel file but did not find the records you expected to find.
You have received a performance evaluation which contains negative elements for which the supervisor has provided no substantiating documentation.
You are finally acting to stop a pattern of supervisory harassment against you and need historical records which you haven't retained.
You have been denied an acting assignment or lateral transfer or secondment without sufficient rationale.
You have been employed in the civil service for many years and disagree with leave or pension calculations and require documentation to conduct your own review and audit.
You are an active employee representative or union officer about whom there appears to be extensive exchange of opinion and correspondence between management levels.
You don't understand or disagree with the rationale behind a grievance decision and want to review the briefing papers and documents provided to or by management at each level of the grievance process.
You were either the complainant or the subject of a harassment complaint and you want to know what was said about you during the course of the investigation.
You are dissatisfied with the handling of your Privacy request and want to review the working file prepared by your Employer's Access to Information and Privacy section.
Etc. Etc.
A list of federal employee information holdings accessible under the Privacy Act, can be viewed here. Click on "Standard Bank Descriptions" (generic to all government institutions) on the left side menu bar. For additional IRB specific banks, click on the "Immigration Refugee Board" in the left menu bar.
You will need Adobe Acrobat Reader to read the .pdf file that comes up. If you access the site from a federal government institution, more than likely your system already has it. If not, click on the Adobe link above to download and install a version appropriate to your system.
Requests for personal information made under the Privacy Act are free of charge. Requests for non-personal information made under the Access to Information Act are not.
A government institution may, but does not have to charge:
- an application fee not exceeding $25.00 (usually just $5.00) paid at the time of request;
In addition to the legitimate charges government institutions are entitled by law to levy, government institutions wishing to maintain secrecy will attempt to dissuade requesters by providing unreasonable and extreme estimates of search and preparation time and requesting a substantial deposit up front. In addition to the option of filing a formal complaint, there are other tactics available to deal with such institutions.
Here are some tips to reduce costs:
- for anything other than the most basic of requests, make the request by letter rather than on the recommended form;
- send your $5.00 cheque (made out to the Receiver General of Canada) but ask the institution to waive all fees;
- request to view the original documents (since arranging for the transport and escort of original documents is very costly, the institution may offer free photocopies in exchange for giving up your right to see the originals);
- as you are entitled to 5 free hours of search and preparation for each request, it may be cheaper to divide your requests into bite sized pieces (at $5.00 each);
- file a formal complaint every time a government institution provides an unreasonable estimate or charges an unreasonable fee for their compliance to the Act.
In the case of the IRB, send your request here:
Introduction
Access and Privacy Legislation
Situations suggesting the use of Access or Privacy
Access
Privacy
Making a Request
- photocopying fees at the rate prescribed by regulation (usually $0.20 each);
- search and preparation fees for time in excess of 5 hours at the rate prescribed by regulation;
- payment for machine readable records (eg. search for e-mails by keyword).
Government institutions have 30 days under both Acts to provide you with the records. Under certain circumstances, such as a request involving a large number of records or a requirement to consult with another institution, a government institution may extend for a reasonable period, usually another 30 days, the time required for them to comply.
Some government institutions, however, will take a 30 day extension to give them the time to prepare damage control measures or to deal with the problems or embarassment that release of the records will cause. Such a delay is not permitted under the Acts.
A complaint should be filed every time an extension appears unreasonable or unwarranted.
A complaint should also be filed every time a government institution takes longer than the 30 days stipulated under the Acts and has not applied a formal extension.
The records received should be carefully examined for indications of other records that have been withheld or "overlooked".
Whenever exemption or severence appears unwarranted, a complaint should be filed.
Things to look for:
- fax cover sheets but no fax;
- cover sheet reference to the number of pages but insufficient pages;
- missing signature page;
- documents referred to but not included;
- documents you know exist but are not included;
- missing appendix or attachments;
- anything that looks odd and suggests the possibility of missing records.
Both Acts allow for the representation of requesters by another individual. In the event that you are asked by a union member to process a request for records under either Act, you will require a letter:
- addressed to the records source;
- bearing your client's original signature;
- authorizing you to place a request for and receive records on their behalf.
You will also require:
- a separate letter;
- bearing original signature;
- authorizing you to process any complaints.
You will require one of each original letter for each source where records are requested.
Union representatives have a moral obligation to maintain the confidentiality and security of any records and information obtained on a member's behalf.
They know very well their obligations under both Acts. They are, however, subject to either the whim, the flawed legal advice, or the direction of senior management.
The Immigration Refugee Board has an unsatisfactory record of performance under the Acts and complaints are frequently necessary to achieve full disclosure of records.
I invite you to visit the home pages of the Office of the Information Commissioner and the Office of the Privacy Commissioner. Both sites have excellent lists of related links, both Canadian and International. As well, I invite you to review the annual reports for the last 5-10 years demonstrating their respective assessments of the IRB's track record of non-compliance.
You can also download a copy of the Access to Information Act and the Privacy Actfor future reference. (Bookmark this site before going there because a glitch at their site sometimes prevents the use of your back button.)
Finally, if you would like to read some horror stories concerning the travails employees and the union have gone through to get information from the IRB, visit my other pages. Both Acts have been used in efforts to resolve a number of labour relations issues.
| About the IRB
| NVP CEIU-IRB
| CEIU Locals at the IRB
| Union fights Amway |
| The Bruce Report
| Video Surveillance at the Montreal IRB
| Under Construction
| Under Construction |
