Federal (Canada) privacy & access decisions

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 Information Commissioner ceased investigation into seventeen complaints, finding them vexatious. The complaints alleged unreasonable time extensions taken by an institution. However, the Commissioner found that these seventeen requests sought the same information as a previous request from the same complainant, which had already been the subject of an OIC investigation where the time extension was deemed reasonable. The complainant had not pursued a Federal Court review of the previous finding. Evidence showed the institution was providing regular interim responses as committed, contrary to the complainant's assertion. The Commissioner concluded that the new complaints were an attempt to circumvent the OIC's previous findings and avoid the proper recourse mechanism of Federal Court review. Therefore, the Commissioner ceased investigation under paragraphs 30(4)(a) and (b) of the Access to Information Act.

• Whether the complaints were vexatious under s.30(4)(a) ATIA
• Whether further investigation was unnecessary under s.30(4)(b) ATIA
• Whether the new requests were substantively duplicative of a previously investigated complaint
• Whether the complainant was attempting to circumvent previous OIC findings