Employment and Social Development Canada (Re), 2022 OIC 33
The complainant alleged that Employment and Social Development Canada (ESDC) improperly withheld information related to a contract for an Advanced Access to Information and Privacy consultant. ESDC had withheld portions of the records under various exemptions, including personal information (s.19(1)), third-party financial harm (s.20(1)(c)), consultations or deliberations (s.21(1)(b)), solicitor-client privilege (s.23), and statutory prohibitions (s.24(1)). The Commissioner found that ESDC improperly applied s.19(1) to certain information in a consultant's CV related to their position, function, and responsibilities, as this fell under exceptions to the definition of personal information. ESDC also failed to demonstrate reasonable efforts to seek consent for the release of other personal information. For s.20(1)(c), the Commissioner found that ESDC and third parties did not provide sufficient evidence to support the exemption for most of the withheld contract details, except for hourly rates. Regarding s.21(1)(b), ESDC failed to show that some withheld information constituted accounts of consultations or deliberations. The Commissioner upheld ESDC's application of s.23 and s.24(1). The complaint was found to be well founded, and ESDC was ordered to disclose the improperly withheld information and to make reasonable efforts to seek consent for other personal information.
- 1Whether s.19(1) ATIA (personal information) was properly applied to information in a consultant's CV related to position, function, and responsibilities
- 2Whether information related to position, function, and responsibilities falls under exceptions to the definition of personal information (Privacy Act s.3(j) and s.3(k))
- 3Whether ESDC made reasonable efforts to seek consent for the release of personal information under s.19(2)(a) ATIA
- 4Whether ESDC reasonably exercised discretion under s.19(2)(b) ATIA regarding publicly available personal information
- 5Whether ESDC reasonably exercised discretion under s.19(2)(c) ATIA regarding public interest in disclosure of personal information
- 6Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied to hourly rates
- 7Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied to names and details of candidates
- 8Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied to contract details (number of hours, days per week, maximum value of amendments, reference to third-party contract)
- 9Whether there was a reasonable expectation of material financial loss or harm to competitive position under s.20(1)(c) ATIA
- 10Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to specific pages of records
- 11Whether information withheld under s.21(1)(b) constituted factual information
- 12Whether ESDC reasonably exercised discretion under s.21(1)(b) ATIA
- 13Whether s.23 ATIA (solicitor-client and litigation privilege) was properly applied
- 14Whether ESDC reasonably exercised discretion under s.23 ATIA
- 15Whether s.24(1) ATIA (disclosure restricted by another law) was properly applied to supplier business numbers under s.241 of the Income Tax Act
- s.19(1) personal information: Exemption improperly applied to consultant's CV; consent not reasonably sought for other personal information
- s.20(1)(c) third-party financial harm: Exemption not justified for most contract details, except hourly rates
- s.21(1)(b) consultations/deliberations: Exemption not justified for some withheld information
- s.23 solicitor-client privilege: Exemption upheld
- s.24(1) statutory prohibitions: Exemption upheld
- Disclosure of records: Improperly withheld information ordered disclosed
- Consent for personal information: Institution ordered to seek consent for other personal information
Complaint well founded — disclosure ordered
ESDC failed to demonstrate that certain information was properly exempt under s.19(1) (specifically, professional experience in a CV), failed to show reasonable efforts to seek consent under s.19(2)(a), and did not provide sufficient evidence to justify the application of s.20(1)(c) to most contract details or s.21(1)(b) to certain consultation records. The Commissioner found that the institution's application of these exemptions was not justified for significant portions of the withheld information.
The Minister of Employment and Social Development was ordered to disclose information from the consultant's CV related to position, function, and responsibilities, to make reasonable efforts to seek consent for other personal information and exercise discretion, to disclose most of the information withheld under s.20(1)(c) (excluding hourly rates and candidate details), and to disclose specific information withheld under s.21(1)(b).
- s.19(1) ATIA
- s.19(2)(a) ATIA
- s.19(2)(b) ATIA
- s.19(2)(c) ATIA
- s.20(1)(c) ATIA
- s.21(1)(b) ATIA
- s.23 ATIA
- s.24(1) ATIA
- s.3(j) Privacy Act
- s.3(k) Privacy Act
- s.8(2)(m)(i) Privacy Act
- s.241 Income Tax Act
This summary is for informational purposes only and does not constitute legal advice.
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