Federal (Canada) privacy & access decisions

The complainant alleged that the Royal Canadian Mounted Police (RCMP) failed to respond to four access to information requests within the 30-day statutory time limit. The OIC investigation confirmed that the RCMP did not issue responses by the deadlines for any of the four requests, leading to a deemed refusal of access under subsection 10(3) of the Act. The RCMP attributed the delays to operational challenges due to the COVID-19 pandemic, including difficulties in obtaining records from its Offices of Primary Interest (OPIs) and the need for legal consultations regarding potential Cabinet confidences. However, the Information Commissioner found these explanations insufficient to justify the significant, prolonged delays, noting that the issues identified were not new and had been the subject of previous commitments. Consequently, the Commissioner found all four complaints to be well founded and ordered the Minister of Public Safety and Emergency Preparedness to provide final responses to each request forthwith. The RCMP subsequently informed the OIC that the complainant agreed to consolidate the requests, and a response would be provided by March 18, 2022.

• Whether the institution responded to the access requests within the 30-day time limit under s.7 ATIA
• Whether the institution's reasons for delay (COVID-19 operational challenges, OPI delays, potential Cabinet confidences) justified the failure to respond within the statutory timeframe

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly processed an access request for a list of COVID-19 related contracts, specifically claiming the institution concealed records. The Office of the Information Commissioner (OIC) investigated the processing of the request, noting that a separate investigation had already found PSPC's delay in responding to be well-founded. This investigation focused on whether PSPC obstructed the right of access by concealing records. The OIC found that PSPC's internal processes, such as grouping requests and issues with obtaining records from the office of primary interest (OPI), led to significant delays. While acknowledging serious failures in processing, the Commissioner found no evidence of intent to conceal records or commit an offense under section 67.1 of the Act. The complaint was ultimately found to be well founded due to PSPC's failure to provide timely access and assist the requester.

• Whether PSPC processed the access request in accordance with the Access to Information Act
• Whether PSPC obstructed the right of access by concealing records
• Whether PSPC met its obligations under subsection 4(2.1) of the ATIA to assist the requester and provide timely access
• Whether there was evidence of an offense under subsection 67.1(1) of the ATIA (obstructing right of access)

The complainant alleged that the Treasury Board of Canada Secretariat (TBS) improperly withheld information under several sections of the Access to Information Act in response to a request for records about increased sick leave prior to retirement. During the investigation, the complainant narrowed the scope of the complaint, dropping the s.19(1) personal information claim and focusing on specific pages. The OIC found that TBS failed to demonstrate a reasonable expectation of harm for its s.18(b) claim, noting the statistical and dated nature of the information and the ongoing nature of negotiations. TBS also failed to substantiate its s.21(1)(a) claim for advice or recommendations. For s.21(1)(c) and s.21(1)(d), the OIC concluded that the information consisted of statistics, not positions, plans for negotiations, or plans related to personnel management. The Information Commissioner recommended full disclosure of the pages at issue, but TBS declined to implement the recommendations. The complaint was found to be well founded.

• Whether s.18(b) ATIA (negotiations by government institutions) was properly applied to statistical and dated information about sick leave usage
• Whether there was a reasonable expectation of harm to negotiations from disclosing sick leave usage data
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to a briefing note on sick leave usage
• Whether the information constituted advice or recommendations under s.21(1)(a)
• Whether s.21(1)(c) ATIA (positions or plans developed for negotiations) was properly applied to statistics and analyses about sick leave usage
• Whether the information consisted of positions or plans developed for negotiations under s.21(1)(c)
• Whether s.21(1)(d) ATIA (plans related to personnel management or administration) was properly applied to statistics and analyses about sick leave usage
• Whether the information consisted of plans related to personnel management or administration under s.21(1)(d)

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information related to cases filed with the Tax Court of Canada involving section 245 of the Income Tax Act. The request sought the name, file number, and pleadings of these cases. Justice initially provided a two-page printout and later, during the OIC's investigation, retrieved the full pleadings, exempting all information under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. Justice argued that identifying the responsive records relied on privileged information in its iCase database, which contained legal counsel's views on potential legal issues. The Information Commissioner found that Justice failed to establish that the identification of these publicly available pleadings required legal advice or was subject to litigation privilege. The Commissioner concluded that the information used to generate the list was not privileged and that publicly available pleadings do not become privileged simply because they were identified through an internal, privileged system. The complaint was found to be well founded, and the Commissioner recommended full disclosure, but Justice refused to implement the recommendation.

• Whether the two-page printout generated from the iCase database was subject to solicitor-client privilege under s.23 ATIA
• Whether the two-page printout generated from the iCase database was subject to litigation privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to solicitor-client privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to litigation privilege under s.23 ATIA
• Whether the identification of responsive records hinged on information subject to legal advice privilege
• Whether the identification of responsive records hinged on information subject to litigation privilege
• Whether populating the 'issues' field in iCase with 'GAAR' reveals privileged information
• Whether a list generated to identify publicly available records is subject to solicitor-client privilege
• Whether a list generated to identify publicly available records is subject to litigation privilege

The complainant alleged that Immigration, Refugees and Citizenship Canada (IRCC) improperly withheld information under paragraph 21(1)(a) of the Access to Information Act. The request sought Fee Analysis Reports and fee monitoring dashboards containing cost recovery information for immigration application programs from 2013-2019. During the investigation, IRCC also invoked section 23 for the entire records. The Commissioner found that the information did not constitute advice or recommendations under paragraph 21(1)(a), as it appeared to be purely factual and devoid of specific advice. Furthermore, IRCC failed to demonstrate that the records were prepared or gathered for the dominant purpose of litigation, as required for section 23. Consequently, the Commissioner concluded that neither exemption applied. Although an order to release the records was initially intended, IRCC released the information in full before the order was issued, rendering it unnecessary.

• Whether the Fee Analysis Reports and fee monitoring dashboards constitute "advice or recommendations" under s.21(1)(a) ATIA
• Whether the information was created by or for a government institution or Minister for the purpose of s.21(1)(a) ATIA
• Whether the information is subject to solicitor-client privilege under s.23 ATIA
• Whether the information is subject to litigation privilege under s.23 ATIA
• Whether the information was prepared or gathered for the dominant purpose of litigation for s.23 ATIA

The complainant alleged that Correctional Service Canada (CSC) improperly withheld information from a contract with Presidia Security Consulting Inc. under subsections 19(1), 20(1)(b), 20(1)(c), and 21(1)(a) of the Access to Information Act. During the investigation, CSC agreed to no longer rely on subsection 21(1)(a) and conceded that some information withheld under subsection 19(1) did not meet the exemption criteria. The Information Commissioner found that CSC had properly applied subsection 19(1) to the remaining personal information, as the criteria were met and no circumstances for discretionary disclosure under subsection 19(2) existed. However, the Commissioner determined that information on page 337 was improperly withheld under paragraphs 20(1)(b) and 20(1)(c), as CSC and Presidia failed to demonstrate how it met the requirements for confidentiality, financial/commercial nature, or potential for financial harm/competitive injury. Consequently, the Commissioner ordered CSC to release the information it had agreed to disclose, as well as the specific information on page 337 previously withheld under section 20. CSC subsequently released the additional information.

• Whether s.19(1) personal information exemption was properly applied
• Whether s.19(2) discretion to disclose personal information was required
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied
• Whether s.21(1)(a) advice or recommendations exemption was properly applied

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsections 15(1) (national security) and 19(1) (personal information) of the Access to Information Act. The request sought information related to "Active Measures – The Soviet Bloc Practice of Deception, Disruption and Defamation." Initially, LAC withheld the entire 33-page record but later dropped its reliance on subsection 19(1) and released some information. The Information Commissioner found that LAC failed to demonstrate that the remaining withheld information met the requirements of subsection 15(1), noting the extensive public domain information on the topic. Despite the Commissioner's recommendation to disclose all remaining information, LAC refused to implement it. Consequently, the complaint was found to be well founded.

• Whether s.15(1) national security exemption was properly applied
• Whether disclosure could reasonably be expected to harm national security
• Whether the institution provided sufficient justification for the s.15(1) claim
• Whether the information was already in the public domain
• Whether s.19(1) personal information exemption was properly applied

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information from a 1989 RCMP Security Service briefing on Hugh George Hambleton under subsections 13(1), 15(1), and 19(1) of the Access to Information Act. During the investigation, LAC dropped its reliance on subsections 13(1) and 19(1). The Information Commissioner focused on LAC's application of subsection 15(1) (national security). The Commissioner found that a significant amount of information about Hambleton, including his espionage activities, conviction, and parliamentary discussions, was already in the public domain. Consequently, the Commissioner determined that LAC failed to demonstrate a reasonable expectation of harm from disclosure, as required by subsection 15(1). The complaint was found to be well founded, and the Commissioner recommended full disclosure of the records. However, the Minister of Canadian Heritage declined to implement the recommendations.

• Whether s.13(1) ATIA (confidential information from government bodies) was properly applied
• Whether s.15(1) ATIA (national security) was properly applied
• Whether s.19(1) ATIA (personal information) was properly applied
• Whether disclosure of the withheld information could reasonably be expected to harm national security interests under s.15(1)
• Whether the public availability of information about Hugh George Hambleton undermines the application of s.15(1)
• Whether the passage of time affects the applicability of s.15(1)
• Whether the institution fulfilled its burden of demonstrating the requirements of the exemption under s.15(1)

The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to respond to an access request within the time limits set out in the Access to Information Act. The request sought records pertaining to specific operational reviews concerning co-operation between CSIS and the Royal Canadian Mounted Police (RCMP). CSIS claimed a 240-day extension, which the OIC previously found to be valid, setting the due date for May 31, 2021. However, CSIS failed to respond by this extended deadline. The OIC found that CSIS was in deemed refusal, noting that the delay was partly due to outstanding consultations with the RCMP and operational challenges from the COVID-19 pandemic. Despite CSIS's stated intention to process records without further delay, it proposed an additional month beyond the RCMP's consultation timeline. The Commissioner concluded that CSIS had not adequately addressed the delay and ordered the institution to complete processing and provide a response within 36 business days.

• Whether CSIS failed to respond to an access request within the time limits
• Whether CSIS was in deemed refusal pursuant to subsection 10(3) of the Act

The complainant alleged that the Royal Canadian Mounted Police (RCMP) improperly withheld GPS tracking records for a specific RCMP vehicle for a 30-minute period on February 19, 2017, under paragraphs 16(1)(c) and 16(2) of the Access to Information Act. The RCMP argued that releasing the GPS coordinates could reveal patrol patterns, facilitate illegal activities, and endanger officers. The Information Commissioner found that the RCMP did not demonstrate how this specific, limited, and four-year-old information could reasonably be expected to cause the alleged harms. The Commissioner also noted that the RCMP failed to explain its exercise of discretion regarding disclosure. Consequently, the complaint was found to be well-founded, and the Commissioner recommended the release of the withheld GPS information.

• Whether s.16(1)(c) law enforcement harm was reasonably expected from the disclosure of specific GPS coordinates
• Whether s.16(2) facilitation of an offence was reasonably expected from the disclosure of specific GPS coordinates
• Whether the institution reasonably exercised its discretion to withhold information under s.16(1)(c)
• Whether the institution reasonably exercised its discretion to withhold information under s.16(2)

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to respond to two access to information requests within the statutory deadlines. The requests sought records related to the procurement of animals for the Prison Farm program run by CORCAN at Collins Bay and Joyceville institutions. PSPC claimed extensions for both requests, citing the volume of records and resource limitations, exacerbated by the COVID-19 pandemic. However, PSPC missed the extended deadlines, leading to a deemed refusal under subsection 10(3) of the Act. The Commissioner found that PSPC had not adequately addressed the unreasonable delay, noting that the complainant had been waiting over two years for a response. The Commissioner concluded that the complaints were well founded and ordered PSPC to provide a final response to both requests forthwith.

• Whether Public Services and Procurement Canada failed to respond to access requests within statutory deadlines
• Whether Public Services and Procurement Canada was in deemed refusal under subsection 10(3) ATIA
• Whether the extensions claimed by Public Services and Procurement Canada were valid
• Whether the delay in processing the requests was unreasonable

The complainant alleged that Immigration, Refugees and Citizenship Canada (IRCC) improperly withheld information under paragraph 16(2)(c) of the Access to Information Act in response to 64 separate access requests. The withheld information was located in the "History" field of IRCC's GCMS Information Request: Application, which IRCC initially claimed would facilitate the commission of an offence if disclosed. IRCC argued that releasing this audit trail could allow individuals to manipulate immigration programs. The OIC investigated, finding that IRCC had not established a reasonable expectation of harm beyond a mere possibility, and the causal link between disclosure and facilitating an offence was too remote. After extensive discussions, IRCC ultimately agreed to release the information in its entirety. Although the information was released, the Commissioner found the complaints to be well founded because IRCC was not justified in its initial withholding.

• Whether s.16(2)(c) ATIA (facilitating the commission of an offence) was properly applied to information in the "History" field of GCMS records
• Whether there was a reasonable expectation of harm beyond a mere possibility if the information was disclosed
• Whether a causal link existed between the disclosure of information and the facilitation of an offence

The complainant alleged that Fisheries and Oceans Canada (DFO) improperly withheld information related to piscine reovirus, heart and skeletal muscle inflammation, the Creative Salmon Company Ltd., or jaundice syndrome, claiming exemptions under paragraphs 18(c), 20(1)(b), and 20(1)(c) of the Access to Information Act. The OIC found that DFO failed to demonstrate that disclosure of the information would threaten the exclusive rights of government researchers to publish their findings first, as required by paragraph 18(c). Furthermore, neither DFO nor the third party, Creative Salmon Ltd., established that the information was confidential, supplied by the third party, or consistently treated as confidential, as required by paragraph 20(1)(b). The OIC also concluded that DFO and Creative Salmon Ltd. did not show a reasonable expectation of substantial financial loss or harm to competitive position from disclosure, as claimed under paragraph 20(1)(c). The Information Commissioner recommended full disclosure of the information, with the exception of personal information. DFO agreed to implement the recommendations, and the complaint was found to be well founded.

• Whether the information was scientific or technical
• Whether the information was obtained through research by a government employee or officer
• Whether disclosing the information could threaten the exclusive rights of government researchers to publish the results of their research first
• Whether there was a reasonable expectation of harm under s.18(c)
• Whether DFO reasonably exercised its discretion under s.18(c)
• 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 third party supplied the information to a government institution under s.20(1)(b)
• Whether the third party has consistently treated the information as confidential under s.20(1)(b)
• Whether DFO reasonably exercised its discretion under s.20(1)(b)
• Whether disclosing the information could result in substantial financial loss or gain to the third party under s.20(1)(c)
• Whether there is a reasonable expectation of substantial financial loss or gain under s.20(1)(c)
• Whether disclosing the information could injure the competitive position of the third party under s.20(1)(c)
• Whether there is a reasonable expectation of injury to competitive position under s.20(1)(c)
• Whether DFO reasonably exercised its discretion under s.20(1)(c)
• Whether DFO should have considered disclosure under subsection 20(6) for public health, safety, or environmental protection reasons

The complainant alleged that Environment and Climate Change Canada (ECCC) failed to conduct a reasonable search for records related to reports and assessments by the Northgate Group. The investigation revealed that ECCC had overwritten an original draft report from the contractor by saving edits directly onto it, effectively destroying a contract deliverable that should have been preserved in a corporate repository. This action meant the original draft report no longer existed and could not be retrieved, irreversibly undermining the right of access. Although ECCC identified an additional 122 pages of records during the investigation, the destruction of the key draft report was a significant issue. The Commissioner found the complaint to be well founded due to ECCC's failure to preserve a record of business value, impacting the complainant's right of access. ECCC committed to implementing the Commissioner's recommendation for improved training and record-keeping practices.

• Whether Environment and Climate Change Canada conducted a reasonable search for records
• Whether a draft report from a contractor constituted a record of business value
• Whether the destruction of the original draft report by overwriting undermined the right of access

The complainant alleged that Natural Resources Canada (NRCan) failed to conduct a reasonable search for driving data, including GPS data and driver logbook entries from its fleet vehicles, for three specific time periods. The OIC's investigation found that while NRCan's Office of Primary Interest conducted a search of corporate repositories, NRCan also had a responsibility to retrieve GPS data stored with a third-party data storage company. NRCan conceded that this data, though not in its physical possession, was under its control according to the Access to Information Act. Consequently, NRCan retrieved the GPS records and located additional logbook entries, which were subsequently provided to the complainant during the investigation. The Commissioner concluded that NRCan's initial search was not reasonable as it failed to include records under its control held by a third party. The complaint was found to be well founded.

• Whether Natural Resources Canada conducted a reasonable search for records
• Whether GPS data held by a third-party data storage company was under the control of Natural Resources Canada for the purposes of the Access to Information Act