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Federal (Canada)Access to Information ActWell-founded

5820-02762 — Environment and Climate Change Canada

Organization: Environment and Climate Change CanadaComplainant: Anonymous applicant
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Plain-language brief

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information related to the Roberts Bank Terminal 2 Project, specifically concerning biofilm and shorebirds, under several exemptions of the Access to Information Act. The complaint initially included exemptions s.16(2) and s.19(1), but these were later removed from the scope of the investigation. The OIC found that ECCC had appropriately applied s.21(1)(a) and s.21(1)(b) to most of the withheld records, as they constituted advice, recommendations, or accounts of consultations. However, ECCC's application of s.20(1)(b), s.21(1)(a), and s.21(1)(b) to a scientific manuscript was deemed improper, as the manuscript was found not to be confidential and ECCC later agreed to its disclosure. The Commissioner also noted inconsistencies in ECCC's disclosure practices. The complaint was found to be well founded, and ECCC was ordered to disclose the manuscript and correct the inconsistencies.

Key issues
  1. 1Whether s.16(2) ATIA (facilitating the commission of an offence) was properly applied (removed from scope)
  2. 2Whether s.19(1) ATIA (personal information) was properly applied (removed from scope)
  3. 3Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to the scientific manuscript
  4. 4Whether the scientific manuscript was 'financial, commercial, scientific or technical' information under s.20(1)(b)
  5. 5Whether the scientific manuscript was 'confidential' under s.20(1)(b) (Air Atonabee test)
  6. 6Whether the information in the scientific manuscript was supplied by a third party under s.20(1)(b)
  7. 7Whether the third party consistently treated the information in the scientific manuscript as confidential under s.20(1)(b)
  8. 8Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to the scientific manuscript
  9. 9Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to the scientific manuscript
  10. 10Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to other records
  11. 11Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to other records
  12. 12Whether ECCC reasonably exercised its discretion to disclose information under s.21(1)(a) and s.21(1)(b)
  13. 13Whether there were inconsistencies in ECCC's disclosure of information
Outcome breakdownFavours: Both, in part
  • s.21(1)(a) exemption: Exemption upheld for most records
  • s.21(1)(b) exemption: Exemption upheld for most records
  • s.20(1)(b) exemption: Exemption not upheld for manuscript
  • s.21(1)(a) exemption: Exemption not upheld for manuscript
  • s.21(1)(b) exemption: Exemption not upheld for manuscript
  • Disclosure of records: Manuscript ordered disclosed
  • Disclosure practices: Inconsistencies noted and ordered corrected
Outcome

Complaint well founded — disclosure ordered

Reasoning

The Commissioner found that ECCC improperly withheld a scientific manuscript under s.20(1)(b), s.21(1)(a), and s.21(1)(b) because it did not meet the criteria for confidentiality or advice/consultations, and ECCC itself later agreed to its disclosure. While other records were properly withheld under s.21(1)(a) and s.21(1)(b), the institution's inconsistent disclosure practices also contributed to the well-founded finding.

AI-generated summary for reference only. Always verify against the official decision ↗
Decision notes
Recommended action / remedy

The Minister of Environment and Climate Change was ordered to disclose all withheld information on pages 6408 to 6441 and to correct inconsistencies in disclosure on specific pages.

Statutes considered
  • s.16(2) ATIA
  • s.19(1) ATIA
  • s.20(1)(b) ATIA
  • s.21(1)(a) ATIA
  • s.21(1)(b) ATIA
  • s.30(1)(a) ATIA
  • s.35(2)(c) ATIA
  • s.36.1(1) ATIA
  • s.37(4) ATIA
  • s.43 ATIA

This summary is for informational purposes only and does not constitute legal advice.

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