Federal (Canada) privacy & access decisions

An anonymous applicant complained that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) improperly withheld a 2000 land claim settlement agreement with the Squamish Nation. CIRNAC initially claimed exemptions under paragraphs 20(1)(b), 20(1)(c), and section 23 of the Access to Information Act, later adding paragraphs 18(b) and 20(1)(d) during the investigation. The Information Commissioner found that CIRNAC failed to demonstrate how any of the claimed exemptions applied to the records. Specifically, the institution did not establish a reasonable expectation of harm for the harms-based exemptions, nor did it meet all criteria for the class-based exemption. The Commissioner also rejected the argument that common law settlement privilege could be a stand-alone basis for refusal under the Act. Consequently, the complaint was found to be well-founded, and CIRNAC was ordered to disclose the records in their entirety. However, CIRNAC notified the Commissioner that it would not implement the order.

• Whether the information met the requirements of s.18(b) (competitive position or negotiations of a government institution)
• Whether the circumstances for exercising discretion under s.18(b) existed
• Whether the information met the requirements of s.20(1)(b) (confidential third-party financial, commercial, scientific or technical information)
• Whether the circumstances for exercising discretion under s.20(1)(b) existed
• Whether the information met the requirements of s.20(1)(c) (material financial impact on a third party or harm to its competitive position)
• Whether the circumstances for exercising discretion under s.20(1)(c) existed
• Whether the information met the requirements of s.20(1)(d) (interference with contractual or other negotiations of a third party)
• Whether the circumstances for exercising discretion under s.20(1)(d) existed
• Whether the information met the requirements of s.23 (solicitor-client or litigation privilege)
• Whether the circumstances for exercising discretion under s.23 existed
• Whether common law settlement privilege can be invoked as a stand-alone basis for refusing disclosure under the Access to Information Act
• Whether the public interest in access outweighed the public interest in preserving settlement privilege
• Whether CIRNAC fulfilled its severance obligations under s.25 of the Act

The complainant alleged that Fisheries and Oceans Canada (DFO) improperly withheld records related to an application for a Fisheries Act authorization for a berth expansion project. DFO initially withheld information under subsections 19(1) (personal information), 20(1)(b) (confidential third-party information), and 20(1)(c) (financial impact on a third party) of the Access to Information Act. A third party also argued for the application of paragraph 20(1)(d) (interference with negotiations). The Information Commissioner found that DFO failed to demonstrate that most of the withheld information met the requirements for paragraphs 20(1)(b), 20(1)(c), and 20(1)(d), citing issues with confidentiality, public availability, and lack of demonstrated harm. However, the Commissioner upheld the application of subsection 19(1) for personal information. Consequently, the complaint was found to be well founded, and DFO was ordered to disclose all information except that properly withheld under subsection 19(1). DFO notified the Commissioner of its intent to comply with the order.

• Whether DFO properly withheld information under s.19(1) ATIA
• Whether the information met the definition of "personal information" under s.19(1) ATIA
• Whether any circumstances under s.19(2) ATIA existed to require discretion to disclose
• Whether DFO properly withheld information under s.20(1)(b) ATIA
• Whether the information was financial, commercial, scientific, or technical under s.20(1)(b) ATIA
• Whether the information was objectively confidential under s.20(1)(b) ATIA
• Whether the information was publicly available (as a criterion for confidentiality under s.20(1)(b) ATIA)
• Whether the information was communicated with a reasonable expectation of confidentiality under s.20(1)(b) ATIA
• Whether the relationship between DFO and the third party would be fostered for public benefit by maintaining confidentiality under s.20(1)(b) ATIA
• Whether the information was supplied by a third party to a government institution under s.20(1)(b) ATIA
• Whether the third party consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether DFO properly withheld information under s.20(1)(c) ATIA
• Whether disclosure could reasonably be expected to result in material financial loss or gain to the third party under s.20(1)(c) ATIA
• Whether disclosure could reasonably be expected to injure the competitive position of the third party under s.20(1)(c) ATIA
• Whether DFO properly withheld information under s.20(1)(d) ATIA (as argued by third party)
• Whether a third party is or will be conducting contractual or other negotiations under s.20(1)(d) ATIA
• Whether disclosure could reasonably be expected to interfere with those negotiations under s.20(1)(d) ATIA