How can I find out what is in the CBSA's
files about me?
Written By: Cyndee Todgham Cherniak
Date: November 5, 2019
We are regularly contacted by individuals and companies who would like us to help them obtain information from the Canada Border Services Agency ("CBSA") files. Would you like to know why the Canada Border Services Agency ("CBSA") did not approve your NEXUS application? Would you like to know what a CBSA officer wrote in his/her handwritten notes during or cafter your secondary inspection? Would you like to know what a CBSA Officer wrote in their Narrative Report written in connection with an enforcement action? Would you like to see what a CBSA Officer wrote in the forms to justify the search of your mobile phone or computer? Would you like to know what is in your CBSA verification file? Would you like to get a copy of the verification file? Would you like to obtain copies of correspondence between the CBSA and your company under a previous manager? Would you like to see what tariff classification decisions the CBSA has issued about an item (e.g., medicaments)? Would you like to get a copy of the CBSA's Enforcement Manual or training manual for officers?
You can obtain information in the CBSA's files about you or your company by filing an access to information program request ("ATIP Request"). You can also obtain information that might be relevant to you or your company. Canadian citizens, permanent residents, and individuals and corporations present in Canada can request access to:
- Information about the CBSA (e.g., General government records related to the operations of government institutions, such as information about government spending, programs, policies, or activities of the government);
- Information that would have been created by the CBSA (e.g., a CBSA officer's handwriten notes. previous lettesr sent to the individual); and
- Personal information submitted by a representative (with a client's authorization/consent) where the client is or is not in Canada, not a Canadian Citizen or not a Permanent Resident.
This information may be very valuable in finding out whether the CBSA made a mistake or what is the basis for the misunderstanding about your dealings at the border. The information in your CBSA file may help you prepare a request for a redetermination or request (that is an informal appeal to the CBS) for a decision or appeal to the Canadian International Trade Tribunal or Federal Court of Canada. The information in your CBSA files may also be very useful during an examination for discovery in the context of an action before the Federal Court of Canada.
Basically, having what is in your file provides you with information that you may use to your advantage. For example, if the CBSA classifies a good under one H.S. category, but has test results that would support your classification, you would want to know that. If the CBSA has denied a NEXUS membership due to a mistake in identity, you would want to correct the error in their files. If the CBSA has denied a NEXUS membership based on a failure to declare goods or currency, you would like to know what the CBSA officer has written and correct any errors in the facts. If the CBSA has detained your goods at the time of export export thinking that you have previously sold goods to Iran (and you have not), you would want to correct the information in the CBSA’s files.
The ATIP Requester must complete an ATIP Request form and submit it to the CBSA. The CBSA also has an online ATIP Request form that can be submitted online. If you do not know what to ask for, hire a customs lawyer to help you ask for the right documents. Customs lawyers have come into contact with many docuemtns in customs appeals cases and would be able to ask for the right documents, forms, policies, etc.
If a representative is assisting with the ATIP request, you will have to provide authorization in the form of a Authority to Release Personal Information to a Designated Representative form. Where you may need the assistance of a customs lawyer is to ensure you are asking for the correct information.
The CBSA posts limited information on the CBSA web-site about making an ATIP request. You will have to pay a $5.00 filing fee and pay for copies once the access request in processed.
Normally, you can receive volumes of information if you travel frequently. In connection with a NEXUS membership application denial and export seizures, some information may not be released due to reasons of national security. Whether the national security claim is valid is something that can be disputed. There is the right of appeal should the CBSA withhold certain information. The CBSA cannot withhold information just because it does not help them take an action against you or your company.
If you require assistance, please contact Cyndee Todgham Cherniak at 416-307-4168 or cyndee@lexsage.com. We offer flat rates to file ATIP requests.
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