Annual Report: 2002-2003

Background

Industry Canada maintains a registry of corporations registered under the Canadian Business Corporations Act which includes the names of the corporations' directors. On the department's Strategis website, all registered corporations are listed by corporation name and registration number; for each listing the corporation directors are included. For a period of time, Industry Canada also maintained a computer kiosk with a search capability which allowed interested members of the public to search the Strategis database. For example, a search could be conducted for all corporations having a particular director.

As a result of public discussion about the purchase by a Toronto businessman of Prime Minister Chrétien's interest in a golf club, an individual went to Industry Canada to search the Strategis database for a list of the names of all corporations of which the Toronto purchaser was a director. To his surprise, the person who wanted to conduct the search was told by Industry Canada that it had closed to the public the computer kiosk containing the search capability. This action prompted the interested individual to make an access to information request for the list of companies.

Upon receipt of the access request, Industry Canada took the position that it had no obligation to provide the requested information since the information was already public in the Strategis database. In other words, the department invited the requester to go through all the listings for every federally incorporated company and, through a process of elimination, make up his own list of companies having the Toronto businessman as a director.

Industry Canada offered to supply the requester with printed pages from the Strategis database at a cost of $564,000. As might be expected, the puzzled and frustrated requester complained to the Information Commissioner.

Legal Issue

Section 68 of the Access to Information Act provides that the right of access does not extend to "published material or material available for purchase by the public". Could Industry Canada rely on this provision to refuse to create the sought-after list electronically from the raw data which was, admittedly, published on its Strategis website? This was the legal issue at the heart of the case.

The commissioner determined, first, that Industry Canada had the capability to electronically search the database and produce the requested list. When asked by the commissioner's investigator, the department was able to electronically generate the list in minutes without special programming or cost.

Second, the commissioner determined that the list of companies (for which the Toronto businessman was a director) was not "published" or "available for purchase by the public".

Against this factual background, the commissioner determined that Industry Canada had given an overly broad interpretation to the exclusion from the right of access described in section 68 of the Act. Taking into account the purpose of the Act, set out in section 2 (including the principles "that government information should be available to the public" and "that necessary exceptions to the right of access should be limited and specific"), the commissioner concluded that Parliament did not intend section 68 to be used as a barrier to reasonable access. The unreasonableness of the department's position, according to the commissioner, was evident from the department's own admission that a manual search of the public database would be prohibitively costly.

Having determined that section 68 did not justify the refusal to disclose, the commissioner then considered whether the Act required the department to create the requested list of companies when no such list existed in the department. In this regard, the commissioner took into account subsection 4(3) of the Act which explicitly states the right of access applies to records which do not exist but can be produced electronically "using computer hardware and software and technical expertise normally used by the government institution". The commissioner concluded that the list of companies at issue in this case could easily be produced by Industry Canada using already existing electronic search capabilities.

For these reasons, the commissioner found the complaint to be well-founded and recommended that the requested list of companies be created and disclosed to the requester. Industry Canada accepted and implemented the commissioner's recommendation.

Lessons Learned

The right of access set out in section 4 of the Act is a right of access to "records under the control of a government institution". As a general rule, the Act does not require departments to do research for requesters and to create records to respond to requester questions or research interests. However, if electronic data can be manipulated or searched so as to produce specifically requested records (without unreasonably interfering with the operations of the government institution), there is an obligation on government to create the requested record.

Moreover, it is not open to a government institution to refuse to create specifically requested records simply because the database in question is publicly accessible. The exclusion of published information from the right of access must not be interpreted and applied as a barrier to access--that is not its intended purpose. Government institutions may only rely on section 68 to refuse disclosure when the requested information is already in the public domain and readily accessible to interested members of the public.