Federal (Canada) privacy & access decisions

The complainant alleged that the Privy Council Office (PCO) improperly withheld information under subsections 15(1) (national security, defence) and 19(1) (personal information) of the Access to Information Act concerning historical Canadian intelligence assessments. The OIC found that PCO was justified in withholding information under subsection 19(1). However, PCO failed to demonstrate how the release of distribution markings, names of former Communications Security Establishment (CSE) employees, a distribution list of allies, information on nuclear development programs, and technology transfer details would cause a reasonable expectation of harm under subsection 15(1). The Commissioner noted that similar information had been previously released by PCO and other institutions, discrediting PCO's claims of harm. Furthermore, the Commissioner was not satisfied that PCO properly exercised its discretion in deciding against disclosure. The complaint was found to be well founded, and PCO was ordered to disclose the records in their entirety, but PCO indicated it would not implement the order.

• Whether s.19(1) personal information exemption was properly applied
• Whether s.15(1) national security, defence exemption was properly applied to distribution markings
• Whether s.15(1) national security, defence exemption was properly applied to names of CSE employees
• Whether s.15(1) national security, defence exemption was properly applied to a distribution list of allies
• Whether s.15(1) national security, defence exemption was properly applied to information on nuclear development programs
• Whether s.15(1) national security, defence exemption was properly applied to information on technology transfer
• Whether s.15(1) national security, defence exemption was properly applied to information on a region-based working group
• Whether PCO reasonably exercised its discretion to disclose information under s.15(1)

The complainant alleged that the Canada Mortgage and Housing Corporation (CMHC) improperly withheld information in response to an access request for final versions of documents. CMHC initially claimed exemptions under paragraphs 18(a), 18(b), 19(1), 20(1)(b), 21(1)(a), 21(1)(b), and section 23 of the Access to Information Act. During the investigation, the scope of the complaint was narrowed, and CMHC voluntarily disclosed some information previously withheld under paragraphs 18(a), 18(b), 21(1)(a), and 21(1)(b). The remaining information was withheld under paragraph 20(1)(b), concerning third-party financial, commercial, scientific, or technical information. The Information Commissioner found that CMHC and the third parties (TD Bank Financial Group and Andrew Kalotay Associates, Inc.) failed to demonstrate that the information met the requirements of paragraph 20(1)(b), as the third parties did not provide representations and CMHC could not show that all conditions for the exemption were met. Consequently, the Commissioner ordered CMHC to disclose all information withheld under paragraph 20(1)(b). CMHC agreed to implement the order.

• Whether s.18(a) ATIA (government trade secrets, government financial, commercial, scientific or technical information) was properly applied
• Whether s.18(b) ATIA (competitive position of government institutions, negotiations by government institutions) was properly applied
• Whether s.19(1) ATIA (personal information) was properly applied
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied
• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is confidential under s.20(1)(b) ATIA
• Whether the third party supplied the information to a government institution under s.20(1)(b) ATIA
• Whether the third party has consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied
• Whether s.23 ATIA (solicitor-client privilege) was properly applied

The complainant alleged that Transport Canada improperly withheld information under subsection 19(1) and paragraph 20(1)(b) of the Access to Information Act, related to applications and Minimum Safe Manning Documents for the motor vessel Spirit of Vancouver Island. The complaint regarding subsection 19(1) was later removed from the investigation's scope. During the investigation, Transport Canada also applied paragraph 20(1)(b.1) to one document. The Commissioner found that while portions of one document met the requirements of paragraph 20(1)(b.1), the titles and headings did not. Furthermore, neither Transport Canada nor the third party provided sufficient representations to justify withholding information under paragraph 20(1)(b), except for the titles and headings of the document also claimed under 20(1)(b.1). The Commissioner ordered Transport Canada to disclose all information withheld under paragraphs 20(1)(b) and 20(1)(b.1), with the exception of the main content of page 50, and to disclose the titles and headings on page 50. Transport Canada indicated it would "likely" comply with the order.

• Whether s.19(1) personal information was properly withheld
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information was properly withheld
• Whether s.20(1)(b.1) third-party emergency management plans information was properly withheld
• Whether the information concerned critical infrastructure information under s.20(1)(b.1)
• Whether the information was supplied in confidence under s.20(1)(b.1)
• Whether the information was supplied for the preparation, maintenance, testing or implementation of emergency management plans under s.20(1)(b.1)
• Whether Transport Canada reasonably exercised its discretion under s.20(5) regarding s.20(1)(b.1)
• Whether Transport Canada reasonably exercised its discretion under s.20(6) regarding s.20(1)(b.1)
• Whether the information was financial, commercial, scientific or technical under s.20(1)(b)
• Whether the information was confidential under s.20(1)(b)
• Whether the third party supplied the information to a government institution under s.20(1)(b)
• Whether the third party consistently treated the information as confidential under s.20(1)(b)

The complainant alleged that Public Safety Canada (Public Safety) took an unreasonable extension of time to respond to an access request for correspondence between Public Safety and the Royal Canadian Mounted Police (RCMP). Public Safety claimed a 240-day extension under paragraphs 9(1)(a) and 9(1)(b) of the Access to Information Act. The Commissioner found that Public Safety properly notified the complainant of the extension. However, Public Safety failed to demonstrate that the request involved a large number of records or that processing it within 30 days would unreasonably interfere with its operations, thus not meeting the requirements of paragraph 9(1)(a). While Public Safety needed to consult with the RCMP, the Commissioner found the 180-day consultation period requested by the RCMP, based on service standards rather than complexity, to be unreasonable. Consequently, the Commissioner concluded that Public Safety did not meet the requirements for a valid extension under either paragraph 9(1)(a) or 9(1)(b), rendering the extension invalid. Public Safety was deemed to have refused access under subsection 10(3) of the Act.

• Whether the institution properly notified the complainant of the extension of time
• Whether the access request was for a large number of records under s.9(1)(a)
• Whether meeting the 30-day deadline would unreasonably interfere with the institution's operations under s.9(1)(a)
• Whether the institution needed to carry out consultations on the requested records under s.9(1)(b)
• Whether the consultations could reasonably be completed within 30 days under s.9(1)(b)
• Whether the extension of time was for a reasonable period under s.9(1)(b)
• Whether the institution responded within the time limits

The complainant alleged that the Public Health Agency of Canada (PHAC) failed to conduct a reasonable search for records in response to two access requests. The requests sought electronic records related to masks, sent or received by a specific warehouse manager within defined timeframes. Initially, PHAC found no responsive records because the employee had deleted their entire mailbox, considering the contents transitory. During the OIC's investigation, PHAC conducted additional searches using IT forensics and identified 107 pages of responsive records, which were subsequently released. The Commissioner found that PHAC's initial search was inadequate as it did not consider other potential sources of records, such as emails sent to or from the employee by others, or corporate repositories. Despite the subsequent release of records and PHAC's commitment to an action plan for improved information management, the Commissioner concluded that the complaints were well founded due to the initial failure to conduct a reasonable search.

• Whether the Public Health Agency of Canada conducted a reasonable search for records in response to the first access request (5820-04413)
• Whether the Public Health Agency of Canada conducted a reasonable search for records in response to the second access request (5820-04414)
• Whether the deletion of an employee's email account impacted the ability to conduct a reasonable search
• Whether PHAC considered all reasonable sources for responsive records

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to respond to an access request for records concerning the procurement of new handguns for the military within the 30-day statutory time limit. PSPC received the request on June 4, 2021, and the response was due by July 5, 2021, but no response was provided. PSPC cited a backlog, operational challenges, heavy workloads, staff turnover, and competing priorities as reasons for the delay, and indicated a plan to respond by February 28, 2025. The Commissioner found that PSPC's reasons, including staffing shortages and the need for inter-institutional consultations, did not absolve it of its statutory obligation to provide a timely response. The Commissioner concluded that PSPC failed to meet its obligations under the Act and was deemed to have refused access. The complaint was found to be well founded, and PSPC was ordered to provide a complete response within 36 business days, an order which PSPC indicated it would not fully implement.

• Whether the institution responded to the access request within the 30-day time limit set out in section 7 of the Access to Information Act
• Whether the institution's reasons for delay (backlog, operational challenges, staff turnover, competing priorities, inter-institutional consultations) absolved it of its statutory obligation to respond within the time limit

The complainant alleged that National Defence (DND) failed to respond to an access request within the 30-day statutory period, leading to a deemed refusal. The request sought records related to strategic communications campaigns concerning perceptions about drones. DND argued that the request did not meet the requirements of section 6 of the Access to Information Act, claiming it lacked sufficient detail to identify records with reasonable effort. The Information Commissioner found that the request, which included a timeframe and subject, provided sufficient detail for an experienced employee to identify the records. The Commissioner also rejected DND's arguments that parts of the request were hypothetical or related to external academic papers. Consequently, DND was found to be in a state of deemed refusal. The complaint was well founded, and DND was ordered to provide a complete response to the access request.

• Whether National Defence responded to the access request within the 30-day period set out in section 7 of the Act
• Whether the access request met the requirements of section 6 of the Act to provide sufficient detail to identify records with reasonable effort
• Whether the request for 'strategic communications campaign(s)' was too broad
• Whether parts of the request were related to a hypothetical strategic communications plan
• Whether parts of the request were related to an academic paper not available within DND/CAF

The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to sufficiently identify redacted portions of records and the basis for withholding information in response to an access request for historical information about Warren Hart. CSIS used negative (white) redactions and cited exemptions only in the response letter, arguing that marking redactions on the records could cause harm. The Information Commissioner found that CSIS did not provide a cogent explanation for how clearly marked redactions and exemptions would reveal protected information. The Commissioner concluded that CSIS failed to meet its obligations regarding severance and the duty to assist. CSIS was recommended to provide a new response with clearly identified redactions and specific exemption provisions, and to cease using negative redactions and citing exemptions only in response letters. CSIS agreed to implement these recommendations.

• Whether CSIS sufficiently identified redacted portions of records
• Whether CSIS sufficiently identified the basis for withholding information
• Whether the use of negative (white) redactions by CSIS was appropriate
• Whether citing exemptions only in response letters by CSIS was appropriate
• Whether CSIS's practice contravened the duty to assist under subsection 4(2.1) ATIA
• Whether CSIS's practice contravened the severance requirement under section 25 ATIA
• Whether clearly marking redactions and exemptions on records would reveal protected information or cause harm

The complainant alleged that National Defence (DND) failed to conduct a reasonable search for records related to unidentified aerial phenomena (UAP) held by two named individuals. The investigation revealed that DND's Office of Primary Interest misread the request, limiting the search to only 'reports of UAP' instead of the broader 'general subject of UAP', and also unnecessarily restricted its search to keywords. The Office of the Information Commissioner (OIC) requested DND to perform an additional search, which resulted in the retrieval of 11 additional pages of records. The Commissioner concluded that DND did not conduct a reasonable search. The complaint was found to be well founded, and DND was ordered to provide access to the additional records.

• Whether National Defence conducted a reasonable search for records
• Whether the Office of Primary Interest misread the access request
• Whether limiting the search to keywords constituted a reasonable search

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsection 15(1) of the Access to Information Act, concerning records of the Intelligence Advisory Committee from 1989-1995. These records pertained to migration trends and global developments. The Office of the Information Commissioner (OIC) found that the Canadian Government had previously disclosed similar records and that the information reflected public and Parliamentary debate, leading the OIC to conclude that disclosure would not harm national security or international relations. Consequently, the OIC determined that the requirements for exemption under subsection 15(1) were not met. As a result of the OIC's intervention, LAC disclosed the records in their entirety on January 20, 2023. The complainant expressed satisfaction with this disclosure.

• Whether s.15(1) ATIA (national security and international relations) was properly applied to records of the Intelligence Advisory Committee, 1989-1995
• Whether disclosure of the records would cause harm to national security or international relations

The complainant alleged that Transport Canada improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act. The request sought information related to applications and Minimum Safe Manning (MSM) Documents for the passenger ship, Queen of Cumberland. During the investigation, the complainant removed the s.19(1) aspect from the complaint. The OIC found that Transport Canada and the third party (BC Ferries) failed to demonstrate that all requirements for the s.20(1)(b) exemption were met. Specifically, the OIC was not convinced that all information was financial, commercial, scientific, or technical, nor that it was consistently treated as confidential or supplied by the third party. Consequently, the Commissioner ordered Transport Canada to disclose the information withheld under paragraph 20(1)(b). Transport Canada indicated it would likely comply with the order.

• Whether the information is financial, commercial, scientific or technical under s.20(1)(b)
• Whether the information is confidential under s.20(1)(b)
• Whether the information was supplied to a government institution by a third party under s.20(1)(b)
• Whether the third party has consistently treated the information as confidential under s.20(1)(b)
• Whether the relationship between the government and the third party is fostered for public benefit by the confidential communication

The complainant alleged that Employment and Social Development Canada (ESDC) improperly withheld information under subsections 19(1), 20(1)(b), and 24(1) of the Access to Information Act regarding records about Canadian universities' engagement in the Federal Contractors Program. The OIC removed the s.24(1) claim from the scope of the complaint as the only information withheld under it (business numbers) was no longer at issue. The Commissioner found that ESDC did not demonstrate that all information withheld under s.19(1) was personal information about identifiable individuals, nor did it appropriately exercise its discretion under s.19(2)(b). Furthermore, neither ESDC nor the third party (University of Waterloo) demonstrated that the requirements of s.20(1)(b) were met for a completed Employment Equity Achievement Awards Application Form. The complaint was found to be well founded, and the Commissioner ordered ESDC to disclose the information at issue. ESDC subsequently gave notice that it would fully implement the order.

• Whether information withheld under s.19(1) was personal information about identifiable individuals
• Whether ESDC properly severed non-personal information from personal information under s.19(1)
• Whether ESDC reasonably exercised its discretion under s.19(2)(b) regarding publicly available information
• Whether the Employment Equity Achievement Awards Application Form met the requirements of s.20(1)(b)
• Whether the information was financial, commercial, scientific or technical under s.20(1)(b)
• Whether the information was confidential under s.20(1)(b)
• Whether the third party consistently treated the information as confidential under s.20(1)(b)

The complainant alleged that Trans Mountain Corporation (TMC) improperly responded to an access request by invoking subsection 10(2) of the Access to Information Act, neither confirming nor denying the existence of records, and stating that if records existed, they would be withheld under subsection 16(2). The OIC found that TMC failed to demonstrate that the existence or absence of records itself warranted withholding, especially since TMC had previously confirmed the existence of similar records in response to a nearly identical request. The Commissioner also determined that TMC did not show how all responsive records, if they existed, could reasonably be expected to facilitate the commission of an offence under subsection 16(2). Consequently, the Commissioner concluded that TMC's reliance on subsection 10(2) was not justified. The complaint was found to be well founded, and TMC was ordered to provide a new response confirming or denying the existence of records and, if records exist, to provide access unless a specific exemption applies.

• Whether the institution met the requirements for invoking subsection 10(2) of the ATIA
• Whether the existence or absence of records itself is information that warrants being withheld under the Act
• Whether, if responsive records existed, they could reasonably be exempted under specific provisions of the Act
• Whether the institution's reliance on subsection 10(2) was a reasonable exercise of discretion
• Whether disclosure of records could reasonably be expected to facilitate the commission of an offence under subsection 16(2)

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.

• Whether s.16(2) ATIA (facilitating the commission of an offence) was properly applied (removed from scope)
• Whether s.19(1) ATIA (personal information) was properly applied (removed from scope)
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to the scientific manuscript
• Whether the scientific manuscript was 'financial, commercial, scientific or technical' information under s.20(1)(b)
• Whether the scientific manuscript was 'confidential' under s.20(1)(b) (Air Atonabee test)
• Whether the information in the scientific manuscript was supplied by a third party under s.20(1)(b)
• Whether the third party consistently treated the information in the scientific manuscript as confidential under s.20(1)(b)
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to the scientific manuscript
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to the scientific manuscript
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to other records
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to other records
• Whether ECCC reasonably exercised its discretion to disclose information under s.21(1)(a) and s.21(1)(b)
• Whether there were inconsistencies in ECCC's disclosure of information

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information under various sections of the Access to Information Act, including s.16(2), s.19(1), s.21(1)(a), s.21(1)(b), s.23, and s.69(1), related to the Alternate Independent Process for St-Anne’s Residential School hearings. During the investigation, the complainant withdrew the s.19(1) allegation. The Commissioner found that Justice appropriately applied s.16(2), s.21(1)(a), s.21(1)(b), and s.69(1). However, Justice could not demonstrate that all information withheld under s.23 (solicitor-client and litigation privilege) met the exemption's requirements, particularly regarding communications outside the direct solicitor-client relationship or where common interest privilege was not established. The Commissioner recommended disclosure of the improperly withheld s.23 information. Justice maintained its position on s.23 but committed to reviewing the records for potential disclosure. The complaint was found to be well founded.

• Whether s.16(2) facilitating the commission of an offence was properly applied
• Whether discretion was reasonably exercised for s.16(2)
• Whether s.21(1)(a) advice or recommendations was properly applied
• Whether discretion was reasonably exercised for s.21(1)(a)
• Whether s.21(1)(b) accounts of consultations or deliberations was properly applied
• Whether discretion was reasonably exercised for s.21(1)(b)
• Whether s.23 solicitor-client privilege was properly applied to all communications
• Whether s.23 litigation privilege was properly applied to all communications
• Whether common interest privilege was established for s.23 claims
• Whether discretion was reasonably exercised for s.23
• Whether s.69(1) Cabinet confidences was properly applied