Trans Mountain Corporation (Re), 2023 OIC 01
The complainant alleged that Trans Mountain Corporation (TMC) improperly responded to an access request by invoking section 10(2) of the Access to Information Act, refusing to confirm or deny the existence of records, and indicating that any responsive records would be withheld under section 16(2) (facilitating the commission of an offence). The Information Commissioner found that TMC failed to demonstrate that the existence of records itself warranted withholding, especially since TMC had previously acknowledged similar records. Furthermore, TMC did not sufficiently establish that any responsive records would meet the criteria for exemption under section 16(2).
- Proper application of section 10(2) (neither confirm nor deny existence of records)
- Whether the existence or absence of records can itself be information warranting withholding under the Act
- Whether records could reasonably be expected to facilitate the commission of an offence under section 16(2)
- TMC's inconsistent responses and blanket policy regarding record disclosure
Complaint well founded — disclosure ordered
The Commissioner found that TMC failed to meet the two-pronged test required to invoke section 10(2), specifically that the existence of records itself warranted withholding and that any responsive records would be exempt under section 16(2). Evidence showed TMC had previously acknowledged similar records, and TMC did not sufficiently demonstrate the likelihood of harm under section 16(2).
AI-generated summary for reference only. Always verify against the official decision ↗
TMC was ordered to provide a new response to the complainant, confirming or denying the existence of records, and to disclose responsive records unless access is refused under a specific provision of Part 1 of the Act.
- s.10(2) ATIA
- s.16(2) ATIA
- s.30(1)(a) ATIA
- s.36.1(1) ATIA
- s.37(4) ATIA
This is a summary of a decision for informational purposes only and does not constitute legal advice.