Annual Report: 2002-2003

Background

Correctional Service Canada (CSC) is required, by directives issued by the Commissioner of Corrections, to disclose certain information to inmates. The information, concerning rules, rights, obligations, procedures and so forth, is compiled on a CD-ROM and copies of the CD-ROM are made available for inspection in inmate libraries.

An inmate was not satisfied with being limited to inspecting the content of the CD-ROM in the inmate library and made a request for a copy of the CD-ROM under the Access to Information Act. The request was refused. CSC took the position that, under section 68, published material or material maintained for public reference, is not subject to the right of access.

The inmate complained to the Information Commissioner about CSC's refusal to disclose a copy of the CD-ROM.

Legal Issue

Is information placed in an inmate library "published material" or "library material preserved solely for public reference"? If so, section 68 of the Access Act excludes it from the right of access; if not, the information must be disclosed.

The investigation confirmed that some of the information on the CD-ROM was previously published elsewhere by the CSC or other government departments. However, some of the contents were exclusively prepared for inmate purposes and had not been made available to the public at large. The investigation also confirmed that the CD-ROM was not available to the general public through any library loan system or even listed as a reference item for availability to public libraries. Finally, the investigation confirmed that inmate libraries are not open to the general public.

Against this factual background, the commissioner concluded that, since some of its contents had not been published, the CD-ROM could not be exempt from the right of access as "published material". Second, the commissioner concluded that the CD-ROM is not "library material preserved for public reference" since inmate libraries are not accessible to the general public.

Consequently, the Information Commissioner found the complaint to be well-founded and recommended that the CD-ROM be disclosed to the requester. CSC accepted the recommendation and disclosed the record.

Lessons Learned

As discussed in the previous case summary, the section 68 exclusion for "published" and "public reference" material is not intended as a barrier to access. When section 68 is relied upon in circumstances where the result is the inability of the requester to obtain access to or a copy of the information, it is likely that the exclusion has been improperly invoked.