Federal (Canada) privacy & access decisions

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly withheld 96,781 pages of records under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. The records related to the negotiation of a 1991 lease for the Louis St-Laurent Building. PSPC applied section 23 in a blanket manner, claiming both solicitor-client and litigation privilege. The Information Commissioner found that while some information met the requirements for solicitor-client privilege, PSPC failed to demonstrate that any information met the requirements for litigation privilege. Furthermore, PSPC's exercise of discretion was deemed unreasonable as it considered irrelevant factors and failed to consider relevant ones. The Commissioner also concluded that PSPC failed to adhere to section 25 by not performing a proper severance exercise. The complaint was found to be well founded, and PSPC was ordered to disclose specific types of records, all records not meeting solicitor-client privilege, and to reconsider its discretion for information genuinely subject to solicitor-client privilege.

• Whether the information met the requirements for solicitor-client privilege under s.23 ATIA
• Whether the information met the requirements for litigation privilege under s.23 ATIA
• Whether PSPC reasonably exercised its discretion to withhold information under s.23 ATIA
• Whether PSPC adhered to its severance obligations under s.25 ATIA

The complainant alleged that the Canada Border Services Agency (CBSA) failed to conduct a reasonable search for Microsoft Teams messages related to ArriveCAN. The CBSA initially informed the complainant that no such records existed, citing a 30-day retention period for MS Teams messages. However, the OIC's investigation revealed that an administrative error prevented the request from being promptly entered into CBSA's case management system, causing a significant delay in processing. This delay meant that by the time the request was actioned, the MS Teams messages would have been automatically deleted. Despite this, CBSA policy required business-related information from MS Teams to be saved to corporate repositories. During the investigation, CBSA searched these repositories and located one responsive record, which was subsequently provided to the complainant. The Commissioner found that the CBSA did not conduct a reasonable search initially due to the processing delays and failure to task program areas, but acknowledged that a reasonable search was eventually completed during the investigation.

• Whether the institution conducted a reasonable search for records
• Whether the administrative error in processing the request impacted the search for records
• Whether the institution's MS Teams retention policy and corporate repository policy were followed

The complainant alleged that Health Canada improperly withheld information under subsection 19(1) and paragraph 20(1)(c) of the Access to Information Act concerning documents about the impact of campfires on air quality. During the investigation, the complainant withdrew the allegation regarding subsection 19(1). Health Canada had withheld names of third parties and short texts about them under paragraph 20(1)(c), claiming potential financial impact on third parties. The third parties, Canadian Automobile Association (CAA) and Canadian Institute of Planners (CIP), were invited to make representations. The CAA opposed disclosure, citing "future risk" from misinformation, but provided no evidence of specific harm. The CIP stated disclosure would not cause it harm. The Commissioner found that the information did not meet the requirements of paragraph 20(1)(c) as there was no clear and direct connection between disclosure and a risk of harm beyond mere possibility. Health Canada agreed to disclose the information following an order from the Commissioner. The complaint was found to be well founded, and Health Canada was ordered to disclose the information.

• Whether s.19(1) ATIA (personal information) was properly applied
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied
• Whether disclosure could result in material financial loss or gain to the third party with a reasonable expectation of harm
• Whether disclosure could injure the competitive position of the third party with a reasonable expectation of prejudice
• Whether the third parties provided sufficient evidence to demonstrate a reasonable expectation of harm under s.20(1)(c)

An anonymous applicant complained that Transport Canada improperly withheld information from rail workplace fatality investigation reports under sections 19(1), 20(1)(b), and 20(1)(c) of the Access to Information Act. The Commissioner found that while some information was properly withheld as personal information under section 19(1), Transport Canada failed to reasonably exercise its discretion regarding publicly available personal information. For section 20(1)(b), most of the withheld information did not meet the requirements for confidentiality or being "supplied by" a third party, with only specific financial and technical details qualifying. The Commissioner rejected the application of section 20(1)(c), finding that the institution and third parties did not demonstrate a clear and direct connection between disclosure and a reasonable expectation of harm. Furthermore, a third party's claim under section 23 for solicitor-client and litigation privilege was also rejected due to insufficient evidence. Consequently, the complaint was well-founded, and Transport Canada was ordered to disclose most of the withheld information.

• Whether the withheld information constituted "personal information" under subsection 19(1) ATIA
• Whether Transport Canada reasonably exercised its discretion under subsection 19(2)(b) ATIA regarding publicly available personal information
• Whether the withheld information was "financial, commercial, scientific or technical" under paragraph 20(1)(b) ATIA
• Whether the withheld information was "confidential" under paragraph 20(1)(b) ATIA
• Whether the withheld information was "supplied by a third party" under paragraph 20(1)(b) ATIA
• Whether the third party "consistently treated the information as confidential" under paragraph 20(1)(b) ATIA
• Whether disclosure of the information could reasonably be expected to result in "material financial loss or gain" or "prejudice to the competitive position" of a third party under paragraph 20(1)(c) ATIA
• Whether the withheld information was subject to "solicitor-client privilege" under section 23 ATIA
• Whether the withheld information was subject to "litigation privilege" under section 23 ATIA

The complainant alleged that Transport Canada improperly withheld information from a Final Report of an investigation into an accidental death at a Canadian Pacific Railway Company (CP) yard. Transport Canada initially withheld information under paragraphs 16(1)(c), 19(1), and 20(1)(b) of the Access to Information Act. CP also asserted additional exemptions under paragraphs 20(1)(c), section 23, and subsection 24(1). The Information Commissioner found that Transport Canada did not meet the burden for withholding an incident number under 16(1)(c). For 19(1), the Commissioner found that while much of the witness statement information was personal and posed a serious re-identification risk, factual information could be severed and disclosed. Regarding 20(1)(b), the Commissioner determined that some technical and commercial information met the exemption criteria, but other information, particularly safety-related content, did not meet the confidentiality requirement. The Commissioner rejected CP's additional exemption claims under 20(1)(c), 23, and 24(1) due to insufficient evidence. The complaint was found to be well founded, and Transport Canada was ordered to disclose specific information.

• Whether s.16(1)(c) law enforcement or investigation harm was reasonably expected for the incident number
• Whether information was personal information under s.19(1)
• Whether factual information could be severed from personal information under s.19(1)
• Whether there was a serious risk of re-identification for personal information under s.19(1)
• Whether Transport Canada reasonably exercised discretion under s.19(2)
• Whether information was financial, commercial, scientific or technical under s.20(1)(b)
• Whether information was confidential under s.20(1)(b)
• Whether information was supplied by a third party under s.20(1)(b)
• Whether the third party consistently treated information as confidential under s.20(1)(b)
• Whether Transport Canada reasonably exercised discretion under s.20(6)
• Whether s.20(1)(c) financial impact or competitive harm was reasonably expected
• Whether information was subject to solicitor-client privilege under s.23
• Whether information was subject to litigation privilege under s.23
• Whether information was restricted by another law under s.24(1) (Canada Labour Code s.144(3))