Annual Report: 2002-2003

Background

A journalist with a special interest in military matters had, in 1999, asked for and received from National Defence, the recruiting poster for the elite JTF2 unit. When he asked informally for the 2001/2002 version of the recruiting poster, National Defence refused. The refusal prompted the journalist to make a formal request for the poster under the Access to Information Act.

In response to the formal access request, National Defence sent the requester an electronic copy by e-mail and a black and white photocopy by regular mail (neither copy was equivalent in size, colour, detail or quality to the poster itself). National Defence continued to refuse to provide the requester with the poster itself. The requester complained to the Information Commissioner.

Legal Issue

When a department holds specially printed versions of a record (in this case, a recruiting poster), must it give one of those specially printed versions, if asked under the Act, or may it simply make a photocopy or an electronic copy? That was the issue in this case.

The investigation determined that 3000 JTF2 recruiting posters had been printed at a cost of one dollar each. At the time of the request, approximately 2000 were in storage. The other 1000 posters had been distributed to 14 Canadian Forces bases and three Reserve Force armories. In other words, National Defence was not concerned about cost or availability in coming to its decision to refuse access.

Rather, National Defence relied upon jurisprudence which concluded that the Access Act does not give requesters a right to specify the format in which information is to be provided. For his part, the commissioner took the view that, in some circumstances, a photocopy may not constitute an acceptable copy--such as, in this case, when the original is in colour and of greater size and superior quality to the photocopy offered by the department.

In an effort to find a "common sense" solution, the commissioner asked National Defence to consider giving the requester one of the posters from storage. Without prejudice to its legal position, National Defence agreed and the commissioner considered the matter resolved on that basis.

Lessons Learned

Given the vast range of records to which there is a right of access (drawings, paintings, photographs, maps, x-rays, films, videos and "any other documentary material, regardless of physical form or characteristics"), it may be difficult to determine what is an acceptable copy for access purposes. As a rule-of-thumb, a copy is the best replica of the original consistent with standards of reasonableness of cost and effort.