Federal (Canada) privacy & access decisions

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld records related to Taseko Mines Limited’s New Prosperity Project under several exemptions in the Access to Information Act. The Information Commissioner found that ECCC failed to demonstrate that information withheld under paragraphs 20(1)(d) (negotiations by a third party), 21(1)(a) (advice or recommendations), and 21(1)(b) (accounts of consultations or deliberations) met the exemption criteria, and that certain information claimed under section 23 (solicitor-client privilege) did not qualify. ECCC has agreed to comply with the order to disclose the specified information. The complaint was found to be well founded.

• Whether information withheld under paragraph 20(1)(d) interfered with third-party negotiations
• Whether information withheld under paragraph 21(1)(a) constituted advice or recommendations
• Whether information withheld under paragraph 21(1)(b) constituted accounts of consultations or deliberations
• Whether information withheld under section 23 met the criteria for solicitor-client or litigation privilege

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly withheld records concerning the negotiation of a 1991 lease under section 23 of the Access to Information Act, citing solicitor-client and litigation privilege. PSPC applied these exemptions broadly to 96,781 pages of records. The Information Commissioner found that while some information qualified for solicitor-client privilege, PSPC failed to demonstrate that any information met the criteria for litigation privilege. Furthermore, PSPC did not reasonably exercise its discretion in withholding information and failed to perform severance as required by section 25.

• Application of section 23 (solicitor-client and litigation privilege)
• Application of section 25 (severance)
• Reasonableness of the institution's exercise of discretion
• Burden of proof on the institution to justify exemptions

The complainant alleged that the Canada Border Services Agency (CBSA) did not conduct a reasonable search for Microsoft Teams messages related to ArriveCAN. CBSA's policy retains these messages for only 30 days, but an administrative error delayed the processing of the request beyond this period, leading officials to believe no records existed. Although CBSA later found one relevant record in its corporate repositories during the investigation, the initial delay meant a reasonable search was not conducted at the time of the request. The complaint was found to be well founded.

• Reasonableness of the search conducted by the institution
• Timeliness of request processing
• Impact of administrative errors on the right of access
• Proper retention and retrieval of electronic records

The complainant alleged that Transport Canada improperly withheld information related to rail workplace fatality investigation reports. The request was for copies of all such reports completed since January 2000. The Information Commissioner found that Transport Canada failed to demonstrate that the exemptions for personal information (s.19) and third-party commercial/financial/technical information (s.20) were properly applied in all instances. Specifically, Transport Canada did not reasonably exercise its discretion regarding publicly available personal information and failed to justify withholding certain third-party information.

• Proper application of the personal information exemption (s.19 ATIA)
• Proper application of the third-party commercial, financial, or technical information exemption (s.20(1)(b) ATIA)
• Proper application of the third-party financial impact or competitive harm exemption (s.20(1)(c) ATIA)
• Reasonable exercise of discretion by the institution

The complainant alleged that Health Canada improperly withheld information related to campfires and air quality, citing exemptions for personal information and financial impact on third parties. Health Canada initially withheld names and short texts about third parties under the financial impact exemption. However, the third parties did not provide evidence of material financial harm, and one explicitly stated disclosure would not cause harm. The Information Commissioner found the complaint well-founded, ordering Health Canada to disclose the withheld information.

• Whether information withheld under paragraph 20(1)(c) met the requirements of the exemption.
• Whether third parties demonstrated a material financial impact or harm to their competitive position.
• Whether disclosure was in the public interest and outweighed potential harm.