Repeat offender: CSC unlawfully denies complainant access to his personal information a second time

Complaint under the Privacy Act

June 12, 2018

1. The complainant is a federal inmate who was, at the time his complaint was received by our Office, residing at a federal correctional institution (the Institution). He alleges that the Correctional Service Canada (CSC) contravened the Privacy Act (the Act) in numerous instances by failing to provide him with access to personal information under the Act.
2. In terms of background to this complaint, the complainant originally submitted a series of complaints to our office in 2011, making similar allegations against CSC. At that time, he sought access to video recordings allegedly showing “CSC officers committing assaults, hate crimes, and sexual harassment upon myself …” The complainant alleged that the requested information was withheld from him by CSC “in a blatant attempt to conceal corruption, harassment, and criminal misconduct by many of its officers.”
3. On September 14, 2012, the former Assistant Privacy Commissioner issued her report of findings regarding the complainant’s allegations. The report detailed serious deficiencies in terms of how CSC dealt with the complainant’s requests. In several cases, CSC inappropriately applied exemptions to disclosure. Even more troubling was the fact that in six cases, we found that CSC failed to make reasonable efforts to secure the video recordings prior to their destruction. We determined that CSC had a 4.5 day (108 hour) retention period for video recordings and that no effort was made to retain records requested by the complainant before the video was overwritten. We considered this to be a serious violation of sections 6 and 16 of the Act and section 4(1) of the Privacy Regulations, which ultimately resulted in a denial of access.
4. In light of those findings, we recommended that CSC implement appropriate processes to ensure that requests made under the Act for records for which there is a short retention period are expeditiously forwarded to the appropriate officials to ensure that the records are obtained before they are overwritten.
5. With respect to the complaint at hand, the complainant alleged that CSC continued to deny him access to video and audio recordings. More specifically, in correspondence to our Office dated January 25, 2016, the complainant wrote:

   My problem is, is [sic] that despite your formal report with the official findings in the past reports (…) in a letter dated Sept. 14th, 2011, CSC Security Intelligence Officers (SIO's) [sic] continue to delete any and all evidence of officer abuse, corruption, or officer criminal misconduct, especially when it proves my innocence and their culpability, and with the explicit and full consent of the Wardens of the institutions.

   I have been submitting internal CSC grievances surrounding CSC discrimination, harassment, and abuses, and always with formal requests for the applicable video / photographic / audio recordings since my arrival here at [the Institution]. In all of that time I have NOT been provided with even one single audio or video recording …

6. The complaint cited numerous requests that he made to CSC in 2015 in support of his allegations. We report here on CSC’s processing of six of those requests that specifically relate to the complainant’s allegations that CSC contravened the access and retention provisions of the Act with respect to his requests for access to video recordings.

Relevant sections of the Act

7. Subsection 6(1) states that personal information that has been used by a government institution for an administrative purpose shall be retained by the institution for a period of time as may be prescribed by regulation in order to ensure that the individual to whom it relates has a reasonable opportunity to obtain access to the information.
8. Subsection 12(1) gives every individual who is a Canadian citizen or a permanent resident a right of access to (a) any personal information about the individual contained in a personal information bank; and (b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
9. Subsection 16(3) states that where the head of a government institution fails to give access to any personal information requested under subsection 12(1) within the time limits set out in this Act, the head of the institution shall, for the purposes of the Act, be deemed to have refused to give access.
10. Paragraph 22(1)(c) states that the head of a government institution may refuse to disclose any personal information requested under subsection 12(1) where the disclosure could reasonably be expected to be injurious to the security of penal institutions.
11. Section 26 provides that head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request.
12. Subsection 4(1) of the Privacy Regulations states that personal information concerning an individual that has been used by a government institution for an administrative purpose shall be retained by the institution (a) for at least two years following the last time the personal information was used for an administrative purpose unless the individual consents to its disposal; and (b) where a request for access to the information has been received, until such time as the individual has had the opportunity to exercise all his rights under the Act.

Summary of Investigation

13. In addition to the complainant’s allegations cited above, his correspondence of January 25, 2016, also states:

    I have a number of new files in which I am accusing CSC of blatant, flagrant corruption as the SIO dept. here at [the Institution] along with the grievance dept. and the Chief of Administrative Services … have been deliberately and wilfully destroying video and audio recordings that I have requested well within the 104.5 hour timeframe that CSC has set out in it's [sic] policies regarding retention, and the audio recordings of institutional charges as well as segregation reviews that are to be retained for 2 years.

14. In support of his allegations, the complainant provided a list of 17 different CSC file numbers. During the course of our investigation, we looked at each of those files and sought representations from CSC with respect to their processing. We note that in nine instances, the requests made no mention of audio or video recordings.
15. In two cases, the complainant specifically requested access to video recordings from two separate dates in October 2015. CSC originally advised the complainant on December 11, 2015, that it was unable to locate any records in response to his requests. CSC later determined that responsive video recordings were in fact retained by the Institution and subsequently advised the complainant on February 22, 2017, that both video recordings were being withheld under paragraph 22(1)(c) and section 26 of the Act. A Senior Privacy Investigator from our Office attended at CSC's Access to Information and Privacy (ATIP) Branch and reviewed the withheld video recordings, confirming that they were properly exempted under these provisions.
16. In four cases, the complainant requested records relating to grievance files or tribunal hearings, also specifying that he was seeking access to audio and/or video recordings. Although his requests were made in 2015 – more than two and a half years ago – CSC has not, at the time of writing this report, responded to the complainant regarding any of these four requests. Accordingly, pursuant to subsection 16(3) of the Act, CSC is deemed to have refused to give access.
17. The remaining two cases are requests in which the complainant specified that he was seeking access to video recordings relating to two separate incidents occurring in November 2015. In both cases, CSC responded to the complainant on December 18, 2015, advising that no responsive records were located.
18. During the course of our investigation, we determined that in both of these cases, despite the fact that the complainant made his requests on the same date that the incidents for which he sought video recordings occurred, CSC failed to process his requests within the 108 hour video retention period. There was a significant delay from the time that the complainant submitted his requests at the Institution to the time that they were forwarded to, and received by, CSC’s ATIP Branch, and the retrieval of the recordings was then tasked back to the Institution.

    Date on Request	Date received by CSC ATIP	Retrieval request sent to the Institution	Response from the Institution
    Nov 20, 2015	Nov 26, 2015	Nov 27, 2015 (7 days)	Dec 14, 2015
    Nov 25, 2015	Dec 2, 2015	Dec 7, 2015 (14 days)	Dec 14, 2015

19. In the case of the November 20, 2015 request, it took six days before the request was received by CSC’s ATIP Branch, and one additional day before the Institution was tasked with retrieving the video recording. Similarly, in the case of the November 25, 2015 request, it took seven days before the request was received by CSC’s ATIP Branch, and seven additional days before the Institution was tasked with retrieving the video recording.
20. In both of these cases, CSC failed to retrieve and retain the requested video recordings before they were overwritten. This, despite our previous recommendation that CSC implement appropriate processes to ensure that requests for records for which there is a short retention period are expeditiously forwarded to the appropriate officials to ensure that the records are obtained before being overwritten. We consider this a serious breach of the Act.
21. Although we did not find any evidence to support the complainant’s claim that CSC is deliberately and wilfully destroying video and audio recordings, we are concerned that CSC has failed to provide the complainant with timely access in the four cases in which it has yet to respond to the complainant’s requests, and the two cases in which it failed to retrieve and retain the requested video recordings before they were overwritten.
22. While the complainant alleged that CSC failed to retain the video recordings that he requested, we are of the view that CSC has contravened the access provisions found in subsection 12(1) of the Act, which state that a Canadian citizen or permanent resident has a right to and shall, on request, be given access to any personal information about themselves contained in a personal information bank or that is otherwise under the control of a government institution, so long as it is reasonably retrievable. In these cases, the complainant clearly provided sufficient information to render the information reasonably retrievable. Since CSC did not action the retrieval of the video recordings until well after the short retention period had already elapsed, the complainant was denied his right under the Act. Therefore, the complaint is well-founded.

Recommendations

23. We were dismayed that, despite the former Assistant Privacy Commissioner’s recommendation that CSC implement new processes to ensure that records with short retention periods are retrieved before they are destroyed, it appears that it did not take any action to implement that recommendation.
24. The process by which CSC dealt with the complainant’s requests was clearly inadequate. The complainant submitted each of his requests directly to the Institution and those requests were then forwarded to CSC’s ATIP Branch in Ottawa for processing, which took several days before they were received. Once received, CSC ATIP then tasked the Institution with retrieving the records. Given the short retention period for the records at issue, we made a formal recommendation to CSC that it develop appropriate processes to action personal information requests to ensure that it is compliant with the requirements of the Act.
25. With respect to the four files for which CSC has been deemed to have denied the complainant access to his personal information, we also recommended that CSC provide the complainant with complete responses to all four requests as soon as possible.
26. We are pleased to report that in correspondence dated June 29, 2018, CSC’s then Interim Commissioner accepted our recommendations and advised that it will ensure that staff is aware that all relevant videos must be immediately retrieved when a personal information access request is received and that the recordings must be preserved and retained in compliance with the Act. Additionally, CSC is working to provide the complainant with responses to his outstanding request as soon as possible. CSC also committed to providing us a formal response within six months to advise of any other actions taken in response to our recommendations.