Federal (Canada) privacy & access decisions

An anonymous applicant complained that Innovation, Science and Economic Development Canada (ISED) improperly withheld "Total Repayment figures" related to several projects under the Technology Partnerships Canada (TPC) program, involving 21 third parties. ISED initially relied on paragraph 20(1)(c) of the Access to Information Act, while some third parties also raised paragraphs 20(1)(b) and 20(1)(d). The Commissioner found that the information was financial and commercial but not objectively confidential under paragraph 20(1)(b), as there was no reasonable expectation of non-disclosure for public funds, nor would confidentiality foster public benefit. For paragraph 20(1)(c), the Commissioner determined that neither ISED nor the third parties demonstrated a clear and direct connection between disclosure and a reasonable expectation of material financial harm or injury to competitive position, deeming their arguments speculative. Similarly, for paragraph 20(1)(d), insufficient evidence was provided to show that disclosure would interfere with contractual negotiations. Consequently, the complaint was found to be well-founded, and the Commissioner ordered ISED to disclose all the Total Repayments figures at issue.

• Whether the Total Repayment figures are financial or commercial information under s.20(1)(b) ATIA
• Whether the Total Repayment figures are confidential under s.20(1)(b) ATIA
• Whether the circumstances of communication gave rise to a reasonable expectation of non-disclosure for the Total Repayment figures under s.20(1)(b) ATIA
• Whether confidential communication of the Total Repayment figures would foster the relationship between third parties and ISED for public benefit under s.20(1)(b) ATIA
• Whether disclosure of the Total Repayment figures could reasonably be expected to result in material financial loss or gain to a third party under s.20(1)(c) ATIA
• Whether disclosure of the Total Repayment figures could reasonably be expected to injure the competitive position of a third party under s.20(1)(c) ATIA
• Whether a clear and direct connection between disclosure and harm was demonstrated for s.20(1)(c) ATIA
• Whether arguments of public misunderstanding justify withholding information under s.20(1)(c) ATIA
• Whether disclosure of the Total Repayment figures could reasonably be expected to interfere with contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether a clear and direct connection between disclosure and interference (obstruction) was demonstrated for s.20(1)(d) ATIA

The complainant alleged that Shared Services Canada (SSC) improperly refused to process an access request for records related to informal official language complaints. SSC argued that the request, even after being narrowed to a one-year timeframe and specific keywords in email subject lines, did not meet the requirements of section 6 of the Access to Information Act because it would require tasking over 8,300 employees and create an unreasonable administrative burden. The Information Commissioner disagreed, stating that the term "reasonable effort" in section 6 refers to identifying records, not limiting the number of individuals tasked. The Commissioner also noted that the Act provides for time extensions for large requests and that the potential for redacting personal information under section 19 is not a valid reason to refuse processing. The Commissioner concluded that the request was sufficiently detailed and ordered SSC to process it.

• Whether the access request provided sufficient detail to enable an experienced employee to identify records with a reasonable effort under s.6 ATIA
• Whether the administrative burden on the institution constitutes a valid reason to refuse processing a request under s.6 ATIA
• Whether the potential for retrieving personal information that would be exempt under s.19 ATIA is a valid reason to refuse processing a request

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to provide records in response to an access request concerning a contract awarded to Brookfield Global Integrated Solutions (BGIS) and a related subcontract. PSPC initially stated it could not identify relevant records, arguing the subcontract was not under its control. The investigation found that while the records were not in PSPC's physical possession, they were under its control for the purposes of the Access to Information Act, based on the legal relationship between PSPC and BGIS and the terms of their contract. The Commissioner concluded that PSPC did not conduct a reasonable search because it made no effort to obtain the subcontract and related documents from BGIS. The complaint was found to be well founded, and the Commissioner recommended PSPC retrieve and process the records. However, PSPC declined to implement the recommendations.

• Whether the subcontract and related records were "under the control" of Public Services and Procurement Canada (PSPC) for the purposes of the Access to Information Act
• Whether the contents of the record relate to an institutional matter
• Whether PSPC could expect to obtain a copy of the record upon request
• Whether PSPC conducted a reasonable search for records responsive to the request

The complainant alleged that Innovation, Science and Economic Development Canada (ISED) improperly withheld information under paragraph 20(1)(c) of the Access to Information Act. The request sought records related to job creation estimates and estimated jobs maintained figures for projects that received assistance between 2011 and 2018. The complaint's scope was narrowed to information concerning eleven third parties, with only Toyota Motor Manufacturing Canada (Toyota) providing representations to support the exemption claim. The Commissioner found that neither Toyota nor ISED demonstrated a clear and direct connection between disclosure and a risk of material financial loss or harm to Toyota's competitive position, beyond mere speculation. Arguments regarding potential public misunderstanding were also deemed insufficient to meet the legal test for harm under s.20(1)(c), especially given that an explanatory note could address such concerns. Consequently, the Commissioner concluded that the information did not qualify for the exemption. The complaint was found to be well founded, and the Commissioner recommended full disclosure, though ISED indicated it would not fully implement the recommendation for some Toyota-related information.

• Whether s.20(1)(c) ATIA (financial impact on a third party) applies to job creation estimates and estimated jobs maintained figures
• Whether disclosure could result in material financial loss or gain to a third party
• Whether there is a reasonable expectation of harm beyond a mere possibility
• Whether disclosure could injure the competitive position of a third party
• Whether arguments of public misunderstanding are sufficient to meet the legal test for harm under s.20(1)(c)
• Whether an explanatory note could prevent potential harm to a third party
• Whether ISED met its burden of proof for applying s.20(1)(c) to information where third parties did not provide representations

The Information Commissioner initiated a systemic investigation into Library and Archives Canada's (LAC) delayed responses to access requests. This investigation was prompted by a long-standing trend of LAC failing to meet legislative deadlines for responding to access requests, which worsened during the COVID-19 pandemic. The investigation found that during the period under review, nearly 80% of requests completed by LAC did not comply with the timeframes set out in the Access to Information Act. The Commissioner informed the Minister of Canadian Heritage, as the head of LAC, of these findings and made ten recommendations. A special report was subsequently tabled in Parliament, highlighting issues within LAC and broader challenges in Canada's access to information system, specifically regarding inter-institutional consultations and the absence of a government-wide declassification framework.

• Whether Library and Archives Canada was responding to access requests within the legislative deadlines
• Whether the delays in responding to access requests constituted a systemic issue

The complainant alleged that the Vancouver Fraser Port Authority (VFPA) improperly withheld information under paragraphs 18(b), 18(d), 20(1)(b), and 20(1)(d) of the Access to Information Act, concerning records related to $103 million in funding from the National Trade Corridors Fund. The OIC found that VFPA did not demonstrate that all information withheld under paragraphs 18(b) and 18(d) met the exemption requirements. Specifically, VFPA agreed to disclose some information initially withheld under these sections. For paragraphs 20(1)(b) and 20(1)(d), neither VFPA nor the third party (Canadian National Railway) provided sufficient evidence to justify the exemptions. The Commissioner ordered VFPA to disclose all information withheld under paragraphs 20(1)(b) and 20(1)(d), and specific information withheld under paragraphs 18(b) and 18(d). VFPA subsequently agreed to implement the order, leading to a well-founded complaint.

• Whether s.18(b) ATIA (competitive position or negotiations of government institutions) was properly applied to fiscal year budgeting, Monitoring Committee, and project information
• Whether s.18(b) ATIA (competitive position or negotiations of government institutions) was properly applied to estimated project expenditures and contributions
• Whether the institution reasonably exercised its discretion under s.18(b) ATIA
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to commodity information
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to certain project details
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to future development plans
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to project costs
• Whether the institution reasonably exercised its discretion under s.18(d) ATIA
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to project descriptions and CN funding information
• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is confidential by an objective standard 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 s.20(1)(d) ATIA (negotiations by a third party) was properly applied to the name of a contributor and contribution amount from CN
• Whether there was a reasonable expectation of interference with third-party negotiations under s.20(1)(d) ATIA

The complainant alleged that the Department of Justice Canada (Justice) took an unreasonable 2,280-day extension to respond to an access to information request. Justice claimed the extension under paragraphs 9(1)(a) and 9(1)(b) of the Access to Information Act, citing a large volume of records and the need for consultations. The Information Commissioner found that while the request involved a large volume of records and responding within 30 days would interfere with operations, Justice failed to sufficiently justify the reasonableness of the 2,190-day extension claimed under 9(1)(a). Specifically, Justice did not explain how the duration of various processing steps was determined or why certain steps could not be conducted concurrently. However, the Commissioner found the 90-day extension for consultations under 9(1)(b) to be reasonable. Due to the unreasonable extension under 9(1)(a), Justice was deemed to have refused access. The complaint was found to be well-founded, and Justice was ordered to provide a final response forthwith.

• Whether the request was for a large volume of records or required searching through a large number of records under s.9(1)(a)
• Whether responding within 30 days would unreasonably interfere with the institution's operations under s.9(1)(a)
• Whether the length of the time extension claimed under s.9(1)(a) was reasonable
• Whether consultations with other institutions or bodies were necessary under s.9(1)(b)
• Whether the length of the time extension claimed under s.9(1)(b) was reasonable
• Whether the institution was in deemed refusal under s.10(3)