Commissioner's Directive

Date:
2012-12-01

Number:
701

Information Sharing

Issued under the authority of the Commissioner of the Correctional Service of Canada

 

Policy Objective

1. To ensure information is received and shared with the appropriate individuals and/or groups as per legal requirements and protocols.

Authorities

2. Corrections and Conditional Release Act (CCRA), sections 2(1), 3, 3.1, 4, 23, 24, 25, 26, 27, 141, and 142

Corrections and Conditional Release Regulations (CCRR), sections 5, 11, 12, 19, 25, 88, 94 and 166

Canadian Charter of Rights and Freedoms, section 7

Privacy Act, sections 3, 6, 7 and 8(2)

Access to Information Act

Application

3. This Commissioner's Directive applies to staff involved in the sharing of offender information.

Responsibilities and Procedures

4. The Regional Deputy Commissioner will enter into protocols related to the disclosure of information, where necessary.

5. The Regional Deputy Commissioner will inform Legal Services and the Assistant Commissioner, Correctional Operations and Programs, prior to finalizing any protocols.

The Institutional Head/District Director:

  1. may withhold information from offenders under subsection 27(3) of the CCRA;
  2. will ensure that a designated person is available to help offenders with formal access to information and privacy requests as per the Access to Information and Privacy: Process and Compliance Manual;
  3. will ensure that assistance is provided to offenders who require help to understand a report or a decision as per section 88 of the CCRR;
  4. will sign the Memo to File and implement a process to ensure information sharing procedures are followed for high profile offenders; and
  5. will ensure processes outlined in CD 784 - Information Sharing Between Victims and the Correctional Service of Canada are respected.

7. The Security Intelligence Officer:

  1. is responsible for maintaining and safeguarding Preventive Security files as well as restricting unauthorized access to these files;
  2. will disclose preventive security information to staff on a need to know basis;
  3. will prepare a gist of protected intelligence information as required; and
  4. will vet "Protected C" documents prior to transmission to the Parole Board of Canada (PBC), if required.

8. The Manager, Assessment and Interventions/Manager, Intensive Intervention Strategy/Parole Officer Supervisor/CCC Manager will ensure that information sharing is compliant with legislation and policy and that the Information Sharing Checklist Update (CSC/SCC 1197), Procedural Safeguard Declaration (CSC/SCC 1198), and Primary Information Sharing Checklist (CSC/SCC 1199) are completed when required.

9. The Parole Officer will:

  1. verify the accuracy of case management information and consult with his/her supervisor as necessary;
  2. vet any references to other offenders or private citizens in protected documents;
  3. ensure disclosed information is in compliance with the Access to Information Act, the Privacy Act, sections 23 to 27 of the CCRA and CD 784 - Information Sharing Between Victims and the Correctional Service of Canada;
  4. prepare a gist, as per Annex C, as required;
  5. forward written requests from offenders for file information to the appropriate staff member;
  6. ensure that any documents used in the decision making process are shared with the offender and submitted to the PBC at least 28 days before the scheduled date of the hearing. The Primary Information Sharing Checklist (CSC/SCC 1199) or Information Sharing Checklist Update (CSC/SCC 1197), and the Procedural Safeguard Declaration (CSC/SCC 1198) must be included;
  7. for statutory release cases referred for detention, make every effort to provide the information to the offender no later than 60 days prior to the statutory release date. In cases where there is new information that results in a Commissioner's referral for detention, the information will be shared as soon as possible; and
  8. ensure copies of Protected Information Reports or Security Intelligence Reports used in the preparation of a gist are provided to the PBC.

10. Where new information is received within 15 days before a PBC hearing, the Parole Officer will provide the information or a summary thereof to the offender and the PBC as soon as practicable with an Information Sharing Checklist Update (CSC/SCC 1197) and a Procedural Safeguard Declaration (CSC/SCC 1198). In all other cases, if new information is received after the Assessment for Decision and information sharing have been completed and forwarded to the PBC, it will be submitted to the PBC and shared with the offender as soon as possible.

11. All staff involved with information sharing under the CCRA will be aware that:

  1. they have a legal obligation to protect individuals who would be harmed by the inappropriate disclosure of information;
  2. the confidentiality of an offender's personal health information will be maintained, except where disclosure is permitted under the CCRA, the Privacy Act, or when the information is relevant to offender risk or to the risk of others;
  3. personal health information is protected and may be shared with other CSC staff without consent, only after the need to know is established and it has been determined to be consistent with the stated purposes for which the personal information was collected. The information that is shared, however, must be limited to only that which is relevant for the staff member to perform his/her specific duties;
  4. where disclosure is necessary under the CCRA, the rules in the Privacy Act that would normally restrict disclosure of personal information do not apply;
  5. any personal information that is disclosed beyond what is permitted by the CCRA, the Privacy Act or other legal means could be considered a contravention of the Privacy Act; and
  6. before sharing any information, even where this is permitted by the CCRA, they must carefully consider whether it must be shared in order to meet the requirements of the CCRA. Only relevant personal information sufficient to meet the requirements of the CCRA needs to be disclosed.

File Corrections

12. When warranted, a staff member responsible for the file can make changes or corrections to a document created by CSC, as per Annex B.

13. The staff member must ensure that reliable documents or other sources exist which support or contradict the information on file and/or the requested change to the information.

14. The staff member will inform the original author and supervisor that the report is being amended, where possible.

Provision of Information to CSC

15. When CSC is requesting offender information from an external source (e.g. police, offender's family, victims), the request will include the following statement:

"The Correctional Service of Canada has a responsibility under subsections 27(1) and (2) of the Corrections and Conditional Release Act to share the information with the offender, unless it meets one of the exceptions set out in subsection 27(3) of the Act, i.e., where there are reasonable grounds to believe that disclosure to the offender would jeopardize:

  • (1) the safety of any person;
  • (2) the security of a penitentiary; or
  • (3) the conduct of any lawful investigation."

Further, even if one, or more, of the above is met, it may be necessary to provide at least a "gist" of that information to the offender as per Annex C.

16. Where an offender discloses that relevant, official information exists that is not available through the courts (e.g. psychological and/or psychiatric reports from a provincial mental health facility), staff will ask them to consent to the release of the information to CSC by signing the Consent for Disclosure of Personal Information (Inmate) (CSC/SCC 0487). Where the offender refuses to consent, CSC staff will explore all possible legal options to obtain the information and complete a Casework Record.

17. The limitations on the confidentiality of information will be explained to those sources providing information about an offender. While CSC cannot guarantee confidentiality, CSC will make every effort to maintain it. However, this may not be possible if the information is to be used for decision-making purposes.

18. Where the Institutional Head/District Director has determined that there are sufficient grounds, under subsection 27(3) of the CCRA, for not sharing all of the information with the offender, a gist will be prepared and shared with him/her as per Annex C. Both the gist and the documents which formed the basis of the gist will be provided to the PBC.

Information Sharing with Offenders

19. Information that can be shared directly should be given immediately to the offender.

20. The following types of information can be disclosed to the offender:

  1. information provided by the offender;
  2. publicly available information;
  3. information about the offender in a locked report in the Offender Management System; and
  4. opinions that CSC and other federal employees, PBC members, members of the criminal justice system, agency employees and contracted agency employees have expressed about the offender's needs, attitudes, behaviours, etc., provided that there are no reasonable grounds to believe that the safety of any person will be jeopardized.

21. The offender is permitted to keep copies of the reports used in the decision-making process or alternatively, the Institutional Head/District Director will provide the offender reasonable access to them so that he/she may have extensive opportunity to review them privately and/or with his/her assistant at least 28 days before the scheduled date of the PBC hearing.

22. The Parole Officer will advise the offender that the PBC will review the report(s) before making a decision. The offender may contact his/her Parole Officer if he/she believes that there is inaccurate or incomplete information contained in the report.

23. In the package of documents submitted to the PBC, CSC will clearly mark any sensitive reports as Protected A, B, or C. CSC will also indicate that the gist has been shared with the offender. When it is determined that not even the gist can be provided, the reasons will be stated.

24. Prior to any decision to disclose contents of reports for which confidentiality has been requested, the PBC is responsible for consulting the appropriate CSC authorities. In the event that no agreement can be reached, advice will be sought from Regional and National Headquarters. Although the final decision rests with the PBC, CSC's views must be fully considered, given the context in which the sources have provided the information and the repercussions of not maintaining its confidentiality.

25. The PBC is responsible for advising both the offender and CSC of information that it has received independently, through channels other than the documentation submitted by CSC.

Limitations to Information Sharing

26. Under subsection 27(3), information may be withheld from an offender if disclosure would jeopardize:

  1. the safety of any person;
  2. the security of a penitentiary; or
  3. the conduct of any lawful investigation.
Jeopardizes the Safety of Individuals

27. The withholding of this information must be supported by information that leads to the conclusion that disclosure could reasonably be expected to result in a direct threat to the safety of an individual (e.g., an employee, a registered victim, a PBC member, another offender, private citizen). Examples include:

  1. sensitive information furnished by another offender, the disclosure of which would easily identify the source; or
  2. information given by an offender's partner or a registered victim who specifically requests confidentiality as he/she is afraid that the offender will harm him/her if it is disclosed that he/she is the source.
Jeopardizes the Security of a Penitentiary

28. The potential for injury should be clearly demonstrated with a reasonable degree of probability of occurrence. It should not be seen as vague general harm which might occur. Examples include:

  1. information as to the location of the institutional arms storage facilities, and information about the Perimeter Intrusion Detection System and the main computer and communications;
  2. information describing any security system; or
  3. information on investigative techniques used for security intelligence purposes.
Jeopardizes the Conduct of Any Lawful Investigation

29. This allows for the protection of information relating to investigative techniques or information collection methods that could have a detrimental effect on future investigative processes. Examples include:

  1. information as to how the investigation was conducted (e.g., use of wire taps, informants, etc.); or
  2. information which would reveal the existence of a current investigation. For example, general statements such as "is suspected of drug trafficking" should normally be disclosed unless the source can demonstrate that there is an ongoing investigation and that letting the individual know of its existence could be injurious to the further progress of that investigation.

When Disclosure Does Not Occur

30. When relevant information is of such a highly sensitive nature that not even a gist can be provided to the offender, the following statement will be included in the decision-making report:

"The information contained in certain reports cannot be shared with you at this time since it is considered that disclosing this information to you would be injurious to a public interest which outweighs your right to receive the information."

31. If a situation arises where the fact that information exists may need to be withheld to protect the safety of persons, the security of a penitentiary or the conduct of any lawful investigation, staff must consult with both their supervisor and Legal Services, National Headquarters.

Sharing of Information Outside of CSC

32. CSC may share information with officials and other external parties where this sharing is authorized by law. This disclosure must also support CSC's role in making informed and responsible decisions and ensuring the protection of society.

33. No personal information will be released to anyone other than the individual it relates to, unless one of the following conditions applies:

  1. the information is already public;
  2. the individual concerned consents to release of the information; or
  3. there exists a legal authority to disclose.
Provision of Information to Individuals Providing Support to the Offender

34. Within the parameters of the law, all persons in the community who will play a significant role in offering support to the offender will be provided, on a need to know basis, with basic information regarding the offender's criminal background (nature of current and past offences) and present areas of concern. They will also be fully briefed on the offender's release plan and their role in it. This sharing of information will be documented.

Sharing Information with Agencies or Volunteers

35. Pursuant to subsection 25(1) of the CCRA, the Service shall give, at the appropriate times, to the PBC, provincial/territorial governments, provincial parole boards, police, and anyone authorized by the Service to supervise offenders, all information under its control that is relevant to release decision-making or to the supervision or surveillance of offenders.

36. In order to receive this information, staff in private agencies and volunteers must be cleared or reliability screened in accordance with the Policy on Government Security.

Information Disclosed to Police Forces or Investigative Bodies

37. In accordance with section 25 of the CCRA and under paragraph 8(2)(f) of the Privacy Act, personal information under CSC's control may be disclosed to police forces or investigative bodies for the purpose of administering or enforcing any law or carrying out a lawful investigation. This includes the RCMP when they are acting in such capacities. Any other request from the RCMP or any federal investigative bodies for personal offender information must be processed in accordance with paragraph 8(2)(e) of the Privacy Act. Refer to the Access to Information and Privacy: Process and Compliance Manual or to institutional, regional or national ATIP representatives for guidance on such cases.

Request from the Office of the Correctional Investigator

38. Subsection 172(1) of the CCRA gives the Correctional Investigator the authority to investigate on behalf of offenders. Under section 172, the Correctional Investigator can require CSC staff to provide him/her with information that in his/her opinion relates to an investigation.

Public Requests for Information

39. Consistent with public education, credibility and accountability, the following is a list of information which can be disclosed to the public by authorized members of CSC:

  1. the offender's name;
  2. the fact that the offender is under federal jurisdiction;
  3. the current offence of which the offender was convicted and the court that convicted the offender;
  4. the date of commencement and length of the sentence that the offender is serving;
  5. the eligibility dates applicable to the offender under the CCRA for temporary absences or conditional release;
  6. the offender's statutory release date; and
  7. the offender's warrant expiry date.

Place of Incarceration

40. The place of incarceration, including the Community-Based Residential Facility, may be disclosed in accordance with subsection 8(2) of the Privacy Act.

41. The place of incarceration may also be disclosed to other individuals to whom the offender has consented the information be disclosed. This can only be done after he/she has completed the Consent for Disclosure of Personal Information (Inmate) (CSC/SCC 0487) form.

Disclosure to the Courts

42. The court can issue a subpoena or warrant requiring CSC to produce documents concerning the offender, or call upon a CSC staff member to give evidence in a court proceeding.

43. If subpoenaed, the staff member must immediately contact his/her supervisor and Legal Services, National Headquarters.

High Profile Offenders

44. If it is determined that the proposed decision or event regarding a high profile offender is likely to generate significant public interest, the Institutional Head/District Director will:

  1. ensure the Parole Officer completes a draft Memo to File titled "High Prof", for review by the Institutional Head/District Director that includes, at a minimum, the following:
    1. the offender's name and FPS number,
    2. a short summary of the case, including offence history,
    3. public interest in the case from the time of arrest to present,
    4. a short summary of the offender's security classification history,
    5. a short summary of key assessments (psychological/psychiatric/mental health),
    6. concerns of stakeholders (victims, police, community groups, individuals, etc.) and actions taken or anticipated to prepare the community (any sensitive information should be documented in a Protected Information Report),
    7. any community dynamics that could impact the situation, and
    8. any considerations as to the need for a communications strategy;
  2. ensure the draft memo is forwarded to the appropriate Regional Administrator and the Regional Manager, Communications, normally three weeks prior to the event or decision for their review and comments; and
  3. following consultation with Regional Headquarters, ensure that the "High Prof" Memo to File is completed, signed and distributed via email, normally two weeks prior to the event or decision to:
    • Receiving Region/Area
      • Institutional Head/District Director
      • Assistant Deputy Commissioner, Institutional Operations
      • Regional Administrator, Assessment and Interventions
      • Regional Administrator, Communications
    • National Headquarters
      • Assistant Commissioner, Communications and Engagement
      • Assistant Commissioner, Correctional Operations and Programs
      • Deputy Commissioner for Women, if applicable
      • Executive Assistant to the Commissioner
      • Director General, Offender Programs and Reintegration
      • Director General, Community Reintegration
      • Director General, Security
      • Director, Parliamentary Relations
      • Director, Public Affairs
      • National Manager, Media Relations
      • Manager, Victim Services

45. When warranted, the Parole Officer will update the Memo to File by addressing the following:

  1. public interest in the case from the time of arrest to present;
  2. concerns of stakeholders (victims, police, community groups, individuals, etc.) and actions taken or anticipated to prepare the community (any sensitive information should be documented in a Protected Information Report);
  3. any community dynamics that could impact the situation; and
  4. any considerations as to the need for a communications strategy.

46. Following the Memo to File being updated, the Institutional Head/District Director will again ensure the update is signed and distributed to the Receiving Region/Area and National Headquarters normally five working days prior to the event.

47. Should a communications strategy be required, the Manager, Assessment and Interventions/Parole Officer Supervisor, in collaboration with the Parole Officer, will consult with Regional Headquarters Communications when updating the Memo to File.

48. When an update of the Memo to File is not required, the Parole Officer will detail his/her reasoning in a Casework Record.

Enquiries

49. Strategic Policy Division
National Headquarters
Email: Gen-NHQPolicy-Politi@csc-scc.gc.ca

Commissioner,

Original signed by

Don Head

Annex A: Cross-References and Definitions

Cross-References

Definitions

High profile offender:
An offender whose offence dynamics elicited or have a potential to elicit a community reaction in the form of significant public and/or media interest.
Need to know:
Information that is pertinent and necessary to an individual performing his/her duties.

Annex B: Requests for File Corrections

1. The offender can make a request for corrections to his/her file information under paragraph 24(2)(a) of the CCRA.

2. When an offender believes that there is an error or omission in information collected by CSC, he/she may request that the information be corrected.

3. The offender must submit his/her request for file corrections in writing to the author of the report or to his/her Parole Officer. A copy of the written request will be placed on the offender's Case Management file.

4. Those making administrative decisions on the basis of the information will be made aware that the offender has formally contested its accuracy.

5. The review of the file and any subsequent changes to it will normally be completed within 30 days of the offender's request.

Corrections Accepted in Full

6. The staff member conducting the review will assess whether the information is in fact inaccurate, erroneous or omitted. If it is confirmed, he/she will correct the information in all CSC files, including the Offender Management System (OMS) records.

7. The original OMS report will be unlocked. At the beginning of the report, indicate the date the information is being changed, the date of the original report, what is being changed, the reason, by whom, and the name of the supervisor who approves the changes.

8. The original information in the report should not be changed. The corrected information will be inserted in capital letters directly below the original. The usual quality control process and review will apply prior to locking the report, when necessary.

9. The changed OMS report will replace the original report on the appropriate hard copy files. The staff member will ensure that the original version (incorrect version) of the hard copy report is removed and destroyed.

10. When applicable, a copy of the corrected report will be provided to the PBC. A request will be made for the PBC to replace the original report on their files with the amended/corrected report.

11. A copy of the corrected report will be given to the offender.

12. In cases where documents on the file have been numbered for an access to information and privacy request, Information Management staff will insert a note in place of the original report, indicating that the document has been deleted and replaced by the new report filed under the new report date.

Corrections Accepted in Part

13. In cases where the offender's request for correction is accepted in part, the above procedure will apply. In addition, the Institutional Head/District Director will provide a memorandum to the offender advising him/her of the action taken and of his/her right to appeal as per CD 081 - Offender Complaints and Grievances.

Corrections Denied

14. When the offender's request for correction has been denied, staff will attach a note to the information, indicating that the offender has requested a correction and detailing its content.

15. The offender must be advised by a Memo to File, titled "Request for File Correction" (located in OMS), that the file correction request has been denied. The memo will identify the reason(s) for the denial and advise the offender of his/her right to appeal as per CD 081 - Offender Complaints and Grievances. A copy of the Memo to File will be provided to the offender and, when applicable, a copy will also be forwarded to the PBC.

Annex C: how to Prepare a Gist for Protected Information

Gist for Protected Information

1. An offender is normally entitled to know the substance of the information which is being used in making a decision about his/her case. The substance of the information and/or significant details are shared with the offender in a "gist". This is the "duty to act fairly".

2. A gist conveys the essence of the information to be considered by decision makers and provides sufficient detail to allow the offender to know what the information is about. It must give as much of the information as possible without disclosing information which can legitimately be withheld under the specified criteria for non-disclosure.

3. Only as much information as is strictly necessary to protect the interests identified in subsection 27(3) of the CCRA may be withheld.

4. A gist is only to be used in exceptional circumstances as normally all information will be shared with offenders. If information cannot be shared with the offender in a gist form, then the information should not be used in the decision making. (For exceptions, see "Withholding a Gist".)

5. Where the protected information is intelligence-related, the Security Intelligence Officer will prepare a gist in a separate document and provide it to the Parole Officer.

6. In all other circumstances, the Parole Officer will normally prepare the gist.

Preparing a Gist

7. The information shared must provide the offender with sufficient details to enable him/her to respond meaningfully to the assertions being made.

8. The gist must provide the relevant facts, including:

  1. the dates and places of specific incidents;
  2. the manner in which these became known to the authorities; and
  3. any other evidence supporting the intelligence information.

9. The name of the source is not relevant information.

10. The disclosure of information to an offender does not necessarily mean that he/she has a right to:

  1. know the identity of the source of the information, or details and circumstances which could reveal the identity of a source of information;
  2. a copy of the actual documents; or
  3. all of the details of the case against him/her.

Withholding a Gist

11. In order to justify withholding a gist, it will have to be demonstrated that the information meets one of the injury tests outlined in subsection 27(3) of the CCRA.

12. In some cases, the information is time-sensitive and must be withheld from the offender until the injury test no longer applies. The Parole Officer, in consultation with the Security Intelligence Officer will share the gist of the information when there is no imminent risk to the source.

13. In rare cases, there may be circumstances which preclude even the gist from being disclosed to the offender without compromising the security of the institution or endangering life. The reasons for the full exemption of the file will be prepared and provided to the PBC.

14. Where relevant information is of such a highly sensitive nature that a gist cannot be provided to the offender, the PBC must be informed and the following statement appended to the decision-making report:

"In accordance with subsection 27(3) of the CCRA, the information contained in certain reports cannot be shared with you at this time since it is considered that disclosing this information to you would be injurious to a public interest which outweighs your right to receive the information."

15. In order to support the rationale not to disclose under subsection 27(3) of the CCRA, the following points should be noted:

  1. when information has already been made public, the offender will already know the names of the victims and the details of the alleged crime thereby rendering it unlikely not to be able to share information; and
  2. fear that disclosure would threaten the safety of sources or informants requires evidence of this allegation.

Preventive Security Files

16. The information contained in Preventive Security files may be shared only after the Security Intelligence Officer has fully determined and considered the potential injury arising from access to the information.

17. The documentation of sensitive information is recorded using either a Protected Information Report (CSC/SCC 0426) or a Security Intelligence Report (CSC/SCC 0232) which is maintained in the Preventive Security file.

18. When a Protected Information Report or a portion or summary thereof is shared with the offender, a notation will be placed on the Protected Information Report indicating that a gist was shared. A copy of the gist will be included in the Preventive Security file for future reference and to facilitate any file review in the event of a formal request for access under the Privacy Act.

19. When required, the Security Intelligence Officer will prepare a gist of security intelligence information and provide it to the Parole Officer.

20. The Parole Officer will share the gist of his/her information with the Security Intelligence Officer for review and concurrence.

21. The gist is provided to the PBC as part of the report (if applicable, it may be discussed during a hearing).

22. Copies of Protected Information Reports or Security Intelligence Reports used in the preparation of a gist must be provided to the PBC.

23. If an offender registers an appeal of a PBC decision, the PBC will liaise with National Headquarters to obtain documents considered necessary by the Board.