Federal (Canada) privacy & access decisions

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for records related to a Designated Substances Report for the Health Protection Building. PSPC provided some records but withheld others, claiming they were not under its control as they were held by a subcontractor, BGIS. The Information Commissioner investigated whether the records were under PSPC's control and whether a reasonable search was conducted. The Commissioner found that despite not having physical possession, the records were under PSPC's control due to the contractual relationship with BGIS, which included a legally enforceable right to obtain such documents. Consequently, the Commissioner concluded that PSPC had not conducted a reasonable search for these controlled records. The complaint was found to be well founded, and PSPC was ordered to retrieve and process the records. However, PSPC notified the Commissioner that it would not implement the order.

• Whether records not in physical possession of the institution are 'under the control' of the institution for the purposes of the Access to Information Act
• Whether the contents of the record relate to an institutional matter
• Whether the institution could reasonably expect to obtain a copy of the record upon request
• Whether the legal relationship between the institution and the record holder indicates control
• Whether the institution conducted a reasonable search for records under its control

The complainant alleged that the Transportation Safety Board of Canada (TSB) improperly withheld information from an Aviation Occurrence Reporting Form and photographs related to an Air Inuit incident, citing subsections 19(1), 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The OIC investigation into subsection 19(1) was discontinued at the complainant's request. The Commissioner found that TSB and the third party, Air Inuit, failed to provide sufficient evidence or representations to demonstrate that the withheld information met the requirements for confidentiality, commercial nature, potential financial impact, or interference with negotiations under paragraphs 20(1)(b), (c), and (d). Specifically, the Commissioner was not convinced the information was commercial, confidential, or that its disclosure would cause the claimed harms. Consequently, the Commissioner ordered TSB to disclose all information at issue, excluding any information previously withheld under subsection 19(1). TSB notified the Commissioner that it would implement the order.

• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is confidential under s.20(1)(b) ATIA
• Whether the third party supplied the information to a government institution under s.20(1)(b) ATIA
• Whether the third party has consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether disclosure could result in material financial loss or gain to the third party under s.20(1)(c) ATIA
• Whether there is a reasonable expectation of harm under s.20(1)(c) ATIA
• Whether disclosure could injure the competitive position of the third party under s.20(1)(c) ATIA
• Whether a third party is or will be conducting contractual or other negotiations under s.20(1)(d) ATIA
• Whether disclosing the information could interfere with those negotiations under s.20(1)(d) ATIA
• Whether there is a reasonable expectation of harm under s.20(1)(d) ATIA

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