Employment and Social Development Canada (Re), 2023 OIC 35
The complainant sought rail industry workplace fatality investigation reports from Employment and Social Development Canada (ESDC) between 2000 and 2020. ESDC withheld information under several exemptions, including those for law enforcement, personal information, third-party commercial information, financial impact on third parties, and advice/recommendations. The Commissioner found that ESDC improperly applied the law enforcement exemption and most of the third-party exemptions, noting a lack of demonstrated harm or failure to meet exemption requirements. While some information was genuinely personal, ESDC failed to justify withholding information about individuals deceased for over 20 years or general report titles, and did not reasonably exercise its discretion regarding publicly available information or public interest. Furthermore, ESDC did not properly apply severance to all records and failed to reasonably exercise discretion for the advice/recommendations exemption. Consequently, the complaint was found to be well founded. The Commissioner ordered ESDC to disclose information not properly exempted, re-exercise discretion where appropriate, and conduct a proper severance exercise. ESDC subsequently notified the Commissioner that it would implement the order.
- 1Whether s.16(1)(c) law-enforcement harm was reasonably expected from disclosing photographs taken during investigations
- 2Whether information met the requirements of s.19(1) personal information, particularly for individuals deceased for over 20 years or general report titles
- 3Whether ESDC reasonably exercised its discretion under s.19(2)(a) regarding consent for personal information disclosure
- 4Whether ESDC reasonably exercised its discretion under s.19(2)(b) regarding publicly available personal information
- 5Whether ESDC reasonably exercised its discretion under s.19(2)(c) by properly weighing public interest against invasion of privacy for personal information
- 6Whether information met the requirements of s.20(1)(b) confidential third-party financial, commercial, scientific or technical information, specifically regarding its commercial/technical nature, confidentiality, and whether it was 'supplied by' a third party
- 7Whether information met the requirements of s.20(1)(c) financial impact on a third party, particularly regarding speculative harm arguments
- 8Whether ESDC reasonably exercised its discretion under s.20(6) by properly weighing public interest against potential harm to third parties for commercial information
- 9Whether information met the requirements of s.21(1)(b) accounts of consultations or deliberations
- 10Whether ESDC reasonably exercised its discretion under s.21(1)(b) for accounts of consultations or deliberations
- 11Whether ESDC adhered to s.25 severance by failing to apply it to records related to CN
- Law enforcement exemption: Exemption improperly applied
- Third-party commercial information: Exemption improperly applied
- Financial impact on third parties: Exemption improperly applied
- Personal information: Exemption improperly applied for deceased individuals and general titles
- Severance: Improperly applied
- Advice/recommendations exemption: Discretion improperly exercised
- Public interest override: Discretion improperly exercised
Complaint well founded — disclosure ordered
The institution failed to demonstrate that most of the withheld information met the requirements of the claimed exemptions and did not reasonably exercise its discretion in several instances, including for personal information, third-party information, and advice/recommendations. It also failed to properly apply severance.
The Information Commissioner ordered ESDC to disclose information it had not shown to meet the requirements of the exemptions, consider whether its discretion was triggered where it had not yet done so, and re-exercise its discretion where it had not demonstrated that discretion was reasonably exercised.
- s.16(1)(c) ATIA
- s.19(1) ATIA
- s.20(1)(b) ATIA
- s.20(1)(c) ATIA
- s.21(1)(b) ATIA
- s.30(1)(a) ATIA
- s.35(2)(c) ATIA
- s.36.1(1) ATIA
- s.36.3 ATIA
- s.43 ATIA
- s.25 ATIA
- s.19(2) ATIA
- s.20(6) ATIA
- s.24(1) ATIA
This summary is for informational purposes only and does not constitute legal advice.
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