Federal (Canada) privacy & access decisions

A federal institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act, seeking approval to decline to act on an access request. The institution argued that the request constituted an abuse of the right of access. However, the Commissioner found that the institution's submissions and evidence were insufficient to demonstrate that the access request met the criteria for abuse of right. The Commissioner noted that the institution appeared to confuse the issue of whether records were under its control with the question of abuse of right, and also failed to demonstrate any attempt to assist the requester. Consequently, the Commissioner decided that the application did not merit further consideration and denied the institution's request.

• Whether the access request constituted an abuse of the right of access under s.6.1(1) ATIA
• Whether the institution provided sufficient evidence to support its s.6.1 application
• Whether the institution attempted to assist the requester

The complainant alleged that National Defence (DND) improperly withheld information under subsections 15(1) and 19(1) of the Access to Information Act, concerning historical records of the Intelligence Advisory Committee. During the investigation, DND issued two supplementary responses, disclosing additional information, and the complainant narrowed the complaint to specific pages withheld under subsection 15(1). DND proposed a third supplementary response, agreeing to disclose more information but maintaining some redactions under subsection 15(1). The Information Commissioner concluded that the remaining withheld information did not meet the requirements of subsection 15(1), particularly regarding the absence of apparent harm from disclosure. The Commissioner recommended DND disclose all remaining information withheld under subsection 15(1). However, DND notified the Commissioner that it would not implement this recommendation. Consequently, the complaint was found to be well-founded.

• Whether information was properly withheld under s.15(1) ATIA (international affairs and national security)
• Whether information was properly withheld under s.19(1) ATIA (personal information)
• Whether disclosure of the remaining information could reasonably be expected to harm international affairs, defence, or national security
• Whether DND provided sufficient evidence of harm to justify the s.15(1) exemption
• Whether DND reasonably exercised its discretion to withhold the information

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) failed to conduct a reasonable search for records in response to an access request for Canada's School Narratives and supporting documents related to the Independent Assessment Process. CIRNAC officials acknowledged the existence of responsive records but refused to process them, citing confidentiality, the extensive time required (12 months), and existing priorities. They also expressed concerns about potential privacy violations and breaches of undertakings if the records were processed. The Information Commissioner found CIRNAC's refusal to process the records unacceptable, concluding that the institution denied the complainant's right of access. The Commissioner ordered CIRNAC to retrieve all responsive records, process them, and provide a complete response to the request within 60 business days. CIRNAC subsequently agreed to implement the order.

• Whether Crown-Indigenous Relations and Northern Affairs Canada conducted a reasonable search for records
• Whether the institution's refusal to process identified records constitutes a denial of the right of access

The complainant alleged that National Defence (DND) failed to conduct a reasonable search for records related to a selection process for a Steward/Command Master Sailor to the Commander of the Royal Canadian Navy. Initially, DND tasked two program areas, which reported no relevant records. The OIC, based on complainant representations, requested DND re-task these areas with specific keywords and task five named individuals. DND's subsequent search was incomplete, failing to task all individuals and use the correct date range, though it did yield seven pages of emails. Despite DND's claims of having provided all records, the OIC found that more records existed and DND had not provided a supplementary disclosure. The Commissioner concluded that DND had not conducted a reasonable search and ordered it to complete the retrieval of all responsive records, including tasking specified individuals, and to provide a new response within 36 business days.

• Whether National Defence conducted a reasonable search for records
• Whether all relevant Offices of Primary Interest were tasked
• Whether taskings included all pertinent keywords
• Whether all specified individuals were tasked
• Whether the correct date range was used in searches

The complainant alleged that Indigenous Services Canada (ISC) failed to conduct a reasonable search for records related to the Non-Insured Health Benefits Mental Health Counselling benefit. Specifically, the request sought information on a "detailed review" of service delivery, proposals for community mental wellness projects, and a "risk-based review" for financial controls, all referenced in an ISC briefing note. ISC initially claimed the "detailed review" was verbal and found no records for parts 2 and 3 of the request. The Office of the Information Commissioner (OIC) found this response unreasonable, noting that the reference in an official briefing note implied the existence of responsive documentation. Following the OIC's intervention, ISC conducted additional searches, which yielded at least 170 pages of previously unlocated documents. The Commissioner concluded that ISC had not conducted a reasonable search and ordered the institution to complete the retrieval and processing of all responsive records and issue a new response to the complainant. ISC agreed to implement the order.

• Whether Indigenous Services Canada conducted a reasonable search for records related to the "detailed review" of Non-Insured Health Benefits Mental Health Counselling benefit service delivery
• Whether Indigenous Services Canada conducted a reasonable search for records related to proposals to fund community mental wellness projects outside of Benefits Program authorities
• Whether Indigenous Services Canada conducted a reasonable search for records related to the "risk-based review to improve financial controls and management practices across all regions" for the mental health benefit

The complainant alleged that Health Canada improperly withheld information under various sections of the Access to Information Act concerning records related to Dukoral. During the investigation, the complainant narrowed the scope, no longer requiring investigation into personal information or information about the production process or composition of Dukoral. The Commissioner found that Health Canada and the third party (Valneva) did not adequately demonstrate that all information withheld under paragraphs 20(1)(b) and 20(1)(c) met the exemption requirements, particularly regarding confidentiality and reasonable expectation of harm. Similarly, certain information withheld under paragraph 21(1)(a) was found not to constitute advice or recommendations. However, the institution successfully demonstrated that information withheld under section 23 (solicitor-client privilege) was properly exempted. The Commissioner ordered Health Canada to disclose specific information previously withheld under paragraphs 20(1)(b), 20(1)(c), and 21(1)(a). Health Canada agreed to implement the order, and the complaint was found to be well founded.

• Whether s.19(1) personal information exemption was properly applied (withdrawn by complainant)
• 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 (not publicly available, reasonable expectation of confidence, relationship fostered for public benefit)
• Whether the information was supplied by a third party
• Whether the information was consistently treated as confidential by the third party
• 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 is a reasonable expectation of harm (well beyond a mere possibility)
• Whether disclosure could injure the competitive position of the third party
• Whether Health Canada reasonably exercised its discretion under s.20(5) and s.20(6)
• Whether s.21(1)(a) advice or recommendations exemption was properly applied
• Whether the information constitutes advice or recommendations
• Whether the information was created by or for a government institution or minister
• Whether Health Canada reasonably exercised its discretion under s.21(1)(a)
• Whether s.23 solicitor-client privilege exemption was properly applied
• Whether the information consists of communication between a lawyer/notary and client for legal advice
• Whether the parties intended the communication to remain confidential
• Whether Health Canada reasonably exercised its discretion under s.23