Federal (Canada) privacy & access decisions

The complainant alleged that Natural Resources Canada (NRCan) improperly withheld information under paragraphs 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The request sought records related to NRCan and/or Canadian Forest Service representatives on the Board of Governors of the Maritime College of Forest Technology (MCFT). While NRCan also withheld information under subsection 19(1) and section 23, these exemptions were not at issue in the complaint. During the investigation, MCFT agreed to disclose two pieces of information that were publicly available. For the remaining information, the Commissioner found that NRCan and MCFT failed to demonstrate that the information met the confidentiality criteria or that there was a reasonable expectation of harm from disclosure, as required by the exemptions. Consequently, the Commissioner ordered NRCan to disclose the information not covered by subsection 19(1) or section 23. NRCan subsequently notified the Commissioner that it would implement the order.

• Whether the records were under the control of Natural Resources Canada
• 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 information was supplied by a third party to a government institution under s.20(1)(b)
• Whether the third party consistently treated the information as confidential under s.20(1)(b)
• Whether disclosure could reasonably be expected to result in material financial loss or gain to the third party under s.20(1)(c)
• Whether disclosure could reasonably be expected to injure the competitive position of the third party under s.20(1)(c)
• Whether there was a reasonable expectation of harm under s.20(1)(c)
• Whether a third party is or will be conducting contractual or other negotiations under s.20(1)(d)
• Whether disclosure could reasonably be expected to interfere with those negotiations under s.20(1)(d)
• Whether there was a reasonable expectation of harm under s.20(1)(d)

The complainant alleged that the Atlantic Canada Opportunities Agency (ACOA) improperly withheld information related to a grant made to the Organisation for Economic Co-operation and Development (OECD) under paragraphs 20(1)(b) and 20(1)(d) of the Access to Information Act. The withheld information included details about the OECD's operating expenses, ACOA's contribution, and a statement regarding the OECD. The Office of the Information Commissioner (OIC) found that neither ACOA nor the OECD provided sufficient evidence to support the application of either exemption. Specifically, the OIC determined that the information did not meet the confidentiality requirements of paragraph 20(1)(b) and that there was no reasonable expectation of harm to negotiations under paragraph 20(1)(d). Consequently, the Commissioner ordered ACOA to disclose the records in their entirety, and ACOA agreed to implement the order.

• Whether the information constitutes confidential third-party financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether the information is financial, commercial, scientific or technical
• Whether the information is confidential by an objective standard
• Whether the third party supplied the information to a government institution
• Whether the third party has consistently treated the information as confidential
• Whether the information could reasonably be expected to interfere with contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether a third party is or will be conducting contractual or other negotiations
• Whether disclosing the information could interfere with those negotiations
• Whether there is a reasonable expectation that harm could occur

The complainant alleged that the Canada School of Public Service (CSPS) failed to conduct a reasonable search for emails of a specified senior executive, improperly considered the requester's identity, and intentionally deleted records. The OIC's investigation found that CSPS did not conduct a reasonable search, as evidenced by delays in initiating the search, the deletion of the executive's email account, and the subsequent discovery of additional records after OIC intervention. The Commissioner concluded that CSPS mishandled the request, including keeping it on hold without lawful authority and failing to retain responsive records. However, the OIC found no evidence of an intent to deny access or that the requester's identity influenced processing. The complaint was found to be well founded regarding the unreasonable search.

• Whether the institution conducted a reasonable search for records
• Whether the institution intentionally deleted records with intent to deny access (s.67.1 ATIA)
• Whether the institution processed the request with regard to the identity of the requester

The complainant alleged that the Immigration and Refugee Board of Canada (IRB) took an unreasonable extension of time to respond to an access request for records related to an updated 'Weighing Evidence' document. The IRB claimed a 1,295-day extension under paragraph 9(1)(a) of the Access to Information Act, which would have delayed the response until March 31, 2025. While the Commissioner accepted that the request involved a large volume of records and that responding within 30 days would interfere with operations, she found the length of the extension unreasonable. The IRB's calculation of timeframes for review, particularly the 160 weeks for an analyst and the sequential review process, was not justified given the institution's ATIP resources and the nature of the records. Consequently, the Commissioner found the extension invalid, deeming the IRB to have refused access. The complaint was well founded, and the Commissioner ordered the IRB to process the records by April 18, 2023.

• Whether the institution properly notified the complainant of the extension of time
• Whether the request was for a large volume of records or necessitated a search through a large volume of records
• Whether responding to the request within 30 days would unreasonably interfere with the institution's operations
• Whether the length of the time extension claimed under paragraph 9(1)(a) was reasonable
• Whether the 160-week timeframe for an analyst's preliminary review was justified
• Whether the 10 weeks for ATI Management's review and 10 weeks for final approval were justified
• Whether the 3 additional weeks for miscellaneous delays were justified
• Whether the institution established why processing steps must be taken sequentially without overlap
• Whether the institution was deemed to have refused access under subsection 10(3) due to an invalid extension

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsection 15(1) of the Access to Information Act, concerning historical documents related to the defence of the Arctic region. LAC initially made a partial disclosure and later a supplementary disclosure during the investigation, but continued to withhold the majority of the information, citing national security implications. The OIC found that LAC failed to demonstrate how the release of the information, much of which was historical, publicly available, or related to cancelled programs and defunct entities (like the USSR), would reasonably be expected to harm national security or defence. The Commissioner concluded that LAC did not meet the requirements of the exemption, as the alleged harm was not probable but merely a possibility. The complaint was found to be well founded, and LAC agreed to disclose the records in their entirety.

• Whether the disclosure of historical documents regarding Arctic defence could reasonably be expected to harm national security or defence under s.15(1) ATIA
• Whether the institution demonstrated a reasonable expectation of harm, beyond a mere possibility
• Whether the public availability of similar information negated the harm claim
• Whether the historical nature of the information (e.g., cancelled programs, defunct states) impacted the harm claim
• Whether the institution reasonably exercised its discretion to withhold the information

The complainant alleged that the Office of the Auditor General of Canada (OAG) improperly determined that witness statements and documentation supporting a harassment investigation final report were not under its control, thus denying access. The OIC investigated whether the records, though not in the OAG's physical possession, were under its control according to the Supreme Court's interpretation of the Access to Information Act. The OIC considered several factors, including whether the records related to an institutional matter, if the OAG had a legally enforceable right to access them, and if communication of their content required OAG authorization. The OIC found that the records were indeed under the OAG's control. Consequently, the OAG retrieved and processed the records, issuing an interim release to the complainant, who expressed satisfaction. The complaint was found to be well founded.

• Whether records not in physical possession of the institution are under its control
• Whether the records relate to an institutional matter
• Whether the institution has a legally enforceable right of access to the records
• Whether the communication of the content of the records requires the authorization of an officer or employee of an institution
• Whether the institution relied on the records when preparing other government records
• Whether a senior official of the institution should reasonably expect to obtain a copy of the records upon request

The complainant alleged that the Federal Economic Development Agency for Southern Ontario (FedDev Ontario) improperly withheld information under subsections 19(1), 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The request sought information related to funding applications from The Corporation of the Town of Niagara-on-the-Lake. During the investigation, the complainant narrowed the scope, no longer requiring investigation into s.19(1) or specific financial columns for non-funded third parties. The OIC sought representations from FedDev Ontario and relevant third parties, but neither provided evidence to support the applied exemptions. The Commissioner found that the institution failed to demonstrate that the information met the requirements for confidentiality, that it was 'supplied' by a third party, or that disclosure would cause a reasonable expectation of harm to financial interests or negotiations. Consequently, the complaint was found to be well founded, and FedDev Ontario was ordered to disclose the withheld information.

• Whether s.19(1) personal information exemption was properly applied
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied
• Whether the information was financial, commercial, scientific or technical
• Whether the information was confidential
• Whether the information was supplied by a third party
• Whether the third party consistently treated the information as confidential
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied
• Whether disclosure could result in material financial loss or gain to the third party
• Whether there was a reasonable expectation of harm under s.20(1)(c)
• Whether s.20(1)(d) interference with contractual or other negotiations of a third party exemption was properly applied
• Whether a third party is or will be conducting contractual or other negotiations
• Whether disclosure could interfere with those negotiations
• Whether there was a reasonable expectation of harm under s.20(1)(d)

The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to conduct a reasonable search for records related to pay equity for unionized CSIS employees. The request sought communications between CSIS and other federal government departments and agencies on this topic. CSIS initially searched its Human Resource Compensation Branch but refused to search its Departmental Legal Services Unit (DLSU), arguing that DLSU records were under the control of the Department of Justice, not CSIS. The Office of the Information Commissioner found that CSIS's refusal to task its DLSU was premature and that records physically located with the DLSU could still be under CSIS's control, especially given the solicitor-client relationship and the subject matter relating directly to CSIS's mandate. The Commissioner concluded that CSIS failed to conduct a reasonable search by not retrieving and reviewing these records to determine control. The complaint was found to be well founded, and the Commissioner recommended that CSIS retrieve, review, and respond to the records from its DLSU, but CSIS declined to implement the recommendations.

• Whether CSIS conducted a reasonable search for records
• Whether records physically located with CSIS's Departmental Legal Services Unit (DLSU) are under the control of CSIS
• Whether CSIS's refusal to task its DLSU for records constitutes a failure to conduct a reasonable search

The complainant alleged that Export Development Canada (EDC) improperly withheld information related to financial assistance provided to Canadian companies in Honduras. The request sought a summary of all financial assistance over $50,000 from 2009 to 2019. EDC claimed exemptions under subsections 18.1(1) (confidential financial, commercial, scientific or technical information of EDC) and 24(1) (disclosure restricted by another law) of the Access to Information Act. The Information Commissioner found that EDC failed to demonstrate that the information "belonged to" it for the purpose of s.18.1(1), as it was shared with and retained by customers. For s.24(1), EDC invoked section 24.3 of the Export Development Act, but the Commissioner determined that the information was "created" by EDC, not "obtained" by it, thus falling outside the scope of the exemption. The Commissioner ordered EDC to disclose policy types, policy numbers, and maximum liability amounts. EDC partially implemented the order, disclosing only policy types, and indicated its intention to seek a Federal Court review regarding the interpretation of the Export Development Act.

• Whether the information "belongs to" EDC for the purpose of s.18.1(1) ATIA
• Whether EDC consistently treated the information as confidential for the purpose of s.18.1(1) ATIA
• Whether the information was "obtained by" EDC or "created by" EDC for the purpose of s.24.3(1) of the Export Development Act
• Whether the information falls under s.24(1) ATIA due to s.24.3(1) of the Export Development Act

The complainant alleged that the Old Port of Montreal Corporation Inc. improperly withheld information related to the "Autopsy of a Murder" exhibit under several sections of the Access to Information Act. The withheld records included contracts, photographs, and inventory lists. The institution claimed exemptions under paragraphs 18(b) and 18(d) for competitive position and financial interests, subsection 19(1) for personal information, and paragraphs 20(1)(c) and 20(1)(d) for third-party financial impact and negotiations. The Commissioner found that the institution failed to provide sufficient evidence to demonstrate a reasonable expectation of harm for the exemptions under section 18 and 20. Regarding subsection 19(1), the Commissioner determined that the photographs of human remains either did not identify an individual or related to individuals deceased for over 20 years, thus not qualifying as personal information. The complaint was found to be well-founded, and the Commissioner ordered the disclosure of all information at issue.

• Whether s.18(b) ATIA (competitive position of government institutions, negotiations by government institutions) was properly applied
• Whether s.18(d) ATIA (government financial interests, undue benefit to an individual) was properly applied
• Whether s.19(1) ATIA (personal information) was properly applied to photographs of human remains
• Whether s.19(1) ATIA (personal information) was properly applied to signatures (removed from scope)
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied
• Whether s.20(1)(d) ATIA (negotiations by a third party) was properly applied
• Whether the Coroner's office had a right to make representations as a third party under s.35(2)(c) ATIA

The complainant alleged that Employment and Social Development Canada (ESDC) improperly withheld information related to a contract for an Advanced Access to Information and Privacy consultant. ESDC had withheld portions of the records under various exemptions, including personal information (s.19(1)), third-party financial harm (s.20(1)(c)), consultations or deliberations (s.21(1)(b)), solicitor-client privilege (s.23), and statutory prohibitions (s.24(1)). The Commissioner found that ESDC improperly applied s.19(1) to certain information in a consultant's CV related to their position, function, and responsibilities, as this fell under exceptions to the definition of personal information. ESDC also failed to demonstrate reasonable efforts to seek consent for the release of other personal information. For s.20(1)(c), the Commissioner found that ESDC and third parties did not provide sufficient evidence to support the exemption for most of the withheld contract details, except for hourly rates. Regarding s.21(1)(b), ESDC failed to show that some withheld information constituted accounts of consultations or deliberations. The Commissioner upheld ESDC's application of s.23 and s.24(1). The complaint was found to be well founded, and ESDC was ordered to disclose the improperly withheld information and to make reasonable efforts to seek consent for other personal information.

• Whether s.19(1) ATIA (personal information) was properly applied to information in a consultant's CV related to position, function, and responsibilities
• Whether information related to position, function, and responsibilities falls under exceptions to the definition of personal information (Privacy Act s.3(j) and s.3(k))
• Whether ESDC made reasonable efforts to seek consent for the release of personal information under s.19(2)(a) ATIA
• Whether ESDC reasonably exercised discretion under s.19(2)(b) ATIA regarding publicly available personal information
• Whether ESDC reasonably exercised discretion under s.19(2)(c) ATIA regarding public interest in disclosure of personal information
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied to hourly rates
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied to names and details of candidates
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied to contract details (number of hours, days per week, maximum value of amendments, reference to third-party contract)
• Whether there was a reasonable expectation of material financial loss or harm to competitive position under s.20(1)(c) ATIA
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to specific pages of records
• Whether information withheld under s.21(1)(b) constituted factual information
• Whether ESDC reasonably exercised discretion under s.21(1)(b) ATIA
• Whether s.23 ATIA (solicitor-client and litigation privilege) was properly applied
• Whether ESDC reasonably exercised discretion under s.23 ATIA
• Whether s.24(1) ATIA (disclosure restricted by another law) was properly applied to supplier business numbers under s.241 of the Income Tax Act

The complainant alleged that Innovation, Science and Economic Development Canada (ISED) improperly withheld "Repayments to Date" figures for 16 projects related to 12 third parties under paragraph 20(1)(c) of the Access to Information Act. ISED and several third parties argued that disclosure could lead to material financial impact or harm competitive position. The Commissioner found that neither ISED nor the third parties demonstrated a clear and direct connection between the disclosure of the specific repayment figures and a reasonable expectation of harm. The Commissioner also considered, but rejected, the applicability of paragraph 20(1)(d) for one third party, finding insufficient evidence of interference with negotiations. Consequently, the Commissioner ordered ISED to disclose all the withheld "Repayments to Date" figures. ISED agreed to implement the order.

• Whether s.20(1)(c) ATIA (financial impact on a third party or harm to competitive position) was properly applied to "Repayments to Date" figures
• Whether there was a clear and direct connection between disclosure and a risk of harm well beyond the merely possible for s.20(1)(c)
• Whether s.20(1)(d) ATIA (interference with contractual or other negotiations of a third party) was properly applied to "Repayments to Date" figures
• Whether there was a clear and direct connection between disclosure and a risk of harm well beyond the merely possible for s.20(1)(d)

The complainant alleged that the Royal Canadian Mounted Police (RCMP) failed to conduct a reasonable search for records related to its "E Norther" file and National Administrative Records Management System (NARMS). Specifically, the complainant identified the RCMP's Legal Services Unit as a potential source of records, but the RCMP initially refused to search this area, claiming the records would not be under its control. The OIC's investigation found that any such records would likely be under the RCMP's control. The RCMP subsequently agreed to task its Legal Services Unit, which led to the identification and release of additional records to the complainant. The Commissioner concluded that the RCMP's initial search was not reasonable and ordered the RCMP to confirm with an outstanding Office of Primary Interest (OPI) and process any further responsive records. The RCMP later confirmed that the outstanding OPI had responded and an additional response was sent to the complainant.

• Whether the Royal Canadian Mounted Police conducted a reasonable search for records
• Whether records held by the RCMP's Departmental Legal Services Unit were under the control of the RCMP

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to respond to an access request by the extended due date. The request sought all documents related to the Copyright Media Clearance Program for a specific period. PSPC had extended the response deadline by 420 days, but failed to provide a response by the new due date. The OIC found that PSPC did not meet its obligation to respond within the time limits, leading to a deemed refusal of access. Despite PSPC citing resource limitations and COVID-19 related difficulties, the Commissioner concluded that these were not valid reasons for continued delay. The Commissioner ordered PSPC to provide a final response within 10 days, but PSPC indicated it would not fully implement the order, proposing a phased approach with a later completion date.

• Whether the institution responded to the access request by the extended due date under subsection 9(1) of the Access to Information Act
• Whether the institution is deemed to have refused access under subsection 10(3) of the Access to Information Act

The complainant alleged that the Immigration and Refugee Board of Canada (IRB) failed to conduct a reasonable search for records in response to a request for "all final decisions rendered pursuant to section 37 of the Immigration and Refugee Protection Act (IRPA) from January 2018 until June 2020." The IRB provided only written decisions, stating that audio recordings are only provided when specifically requested. However, the OIC found that the IRB's ATIP office had erroneously informed its Office of Primary Interest that only written decisions were sought, thereby reducing the scope of the request without the complainant's approval. The Commissioner determined that "all final decisions" includes audio recordings, as a record under the Act means any documentary material regardless of medium or form. Consequently, the Commissioner found that the IRB did not perform a reasonable search.

• Whether the institution conducted a reasonable search for records
• Whether audio recordings fall within the scope of "all final decisions"