Federal (Canada) privacy & access decisions

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly processed an access request for a list of COVID-19 related contracts, specifically claiming the institution concealed records. The Office of the Information Commissioner (OIC) investigated the processing of the request, noting that a separate investigation had already found PSPC's delay in responding to be well-founded. This investigation focused on whether PSPC obstructed the right of access by concealing records. The OIC found that PSPC's internal processes, such as grouping requests and issues with obtaining records from the office of primary interest (OPI), led to significant delays. While acknowledging serious failures in processing, the Commissioner found no evidence of intent to conceal records or commit an offense under section 67.1 of the Act. The complaint was ultimately found to be well founded due to PSPC's failure to provide timely access and assist the requester.

• Whether PSPC processed the access request in accordance with the Access to Information Act
• Whether PSPC obstructed the right of access by concealing records
• Whether PSPC met its obligations under subsection 4(2.1) of the ATIA to assist the requester and provide timely access
• Whether there was evidence of an offense under subsection 67.1(1) of the ATIA (obstructing right of access)

The complainant alleged that the Treasury Board of Canada Secretariat (TBS) improperly withheld information under several sections of the Access to Information Act in response to a request for records about increased sick leave prior to retirement. During the investigation, the complainant narrowed the scope of the complaint, dropping the s.19(1) personal information claim and focusing on specific pages. The OIC found that TBS failed to demonstrate a reasonable expectation of harm for its s.18(b) claim, noting the statistical and dated nature of the information and the ongoing nature of negotiations. TBS also failed to substantiate its s.21(1)(a) claim for advice or recommendations. For s.21(1)(c) and s.21(1)(d), the OIC concluded that the information consisted of statistics, not positions, plans for negotiations, or plans related to personnel management. The Information Commissioner recommended full disclosure of the pages at issue, but TBS declined to implement the recommendations. The complaint was found to be well founded.

• Whether s.18(b) ATIA (negotiations by government institutions) was properly applied to statistical and dated information about sick leave usage
• Whether there was a reasonable expectation of harm to negotiations from disclosing sick leave usage data
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to a briefing note on sick leave usage
• Whether the information constituted advice or recommendations under s.21(1)(a)
• Whether s.21(1)(c) ATIA (positions or plans developed for negotiations) was properly applied to statistics and analyses about sick leave usage
• Whether the information consisted of positions or plans developed for negotiations under s.21(1)(c)
• Whether s.21(1)(d) ATIA (plans related to personnel management or administration) was properly applied to statistics and analyses about sick leave usage
• Whether the information consisted of plans related to personnel management or administration under s.21(1)(d)

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information related to cases filed with the Tax Court of Canada involving section 245 of the Income Tax Act. The request sought the name, file number, and pleadings of these cases. Justice initially provided a two-page printout and later, during the OIC's investigation, retrieved the full pleadings, exempting all information under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. Justice argued that identifying the responsive records relied on privileged information in its iCase database, which contained legal counsel's views on potential legal issues. The Information Commissioner found that Justice failed to establish that the identification of these publicly available pleadings required legal advice or was subject to litigation privilege. The Commissioner concluded that the information used to generate the list was not privileged and that publicly available pleadings do not become privileged simply because they were identified through an internal, privileged system. The complaint was found to be well founded, and the Commissioner recommended full disclosure, but Justice refused to implement the recommendation.

• Whether the two-page printout generated from the iCase database was subject to solicitor-client privilege under s.23 ATIA
• Whether the two-page printout generated from the iCase database was subject to litigation privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to solicitor-client privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to litigation privilege under s.23 ATIA
• Whether the identification of responsive records hinged on information subject to legal advice privilege
• Whether the identification of responsive records hinged on information subject to litigation privilege
• Whether populating the 'issues' field in iCase with 'GAAR' reveals privileged information
• Whether a list generated to identify publicly available records is subject to solicitor-client privilege
• Whether a list generated to identify publicly available records is subject to litigation privilege

An anonymous complainant alleged that the Treasury Board of Canada Secretariat (TBS), as the administrator of the federal access to information system, failed to provide adequate support to government institutions during the COVID-19 pandemic. The complainant argued that this failure impeded the right of access to government information and was contrary to the principles of openness and transparency. The OIC's investigation reviewed over 5,000 pages of emails and guidance documents from TBS, covering the period from mid-March 2020 to June 22, 2020. The investigation found that TBS actively reminded institutions of their obligations, clarified responsibilities, and addressed misinterpretations. TBS also collected and shared data on institutions' operational capacities and provided tailored support to those facing significant challenges. Given TBS's limited authority over institutions' day-to-day operations, the Commissioner concluded that the support provided was adequate. Therefore, the complaint was not well founded.

• Whether the Treasury Board of Canada Secretariat provided adequate support to government institutions during the COVID-19 pandemic
• Whether the alleged lack of support impeded the right of access to government information
• Whether the alleged lack of support was contrary to the principles of openness and transparency

The complainant alleged that Immigration, Refugees and Citizenship Canada (IRCC) improperly withheld information under paragraph 21(1)(a) of the Access to Information Act. The request sought Fee Analysis Reports and fee monitoring dashboards containing cost recovery information for immigration application programs from 2013-2019. During the investigation, IRCC also invoked section 23 for the entire records. The Commissioner found that the information did not constitute advice or recommendations under paragraph 21(1)(a), as it appeared to be purely factual and devoid of specific advice. Furthermore, IRCC failed to demonstrate that the records were prepared or gathered for the dominant purpose of litigation, as required for section 23. Consequently, the Commissioner concluded that neither exemption applied. Although an order to release the records was initially intended, IRCC released the information in full before the order was issued, rendering it unnecessary.

• Whether the Fee Analysis Reports and fee monitoring dashboards constitute "advice or recommendations" under s.21(1)(a) ATIA
• Whether the information was created by or for a government institution or Minister for the purpose of s.21(1)(a) ATIA
• Whether the information is subject to solicitor-client privilege under s.23 ATIA
• Whether the information is subject to litigation privilege under s.23 ATIA
• Whether the information was prepared or gathered for the dominant purpose of litigation for s.23 ATIA

The complainant alleged that Correctional Service Canada (CSC) improperly withheld information from a contract with Presidia Security Consulting Inc. under subsections 19(1), 20(1)(b), 20(1)(c), and 21(1)(a) of the Access to Information Act. During the investigation, CSC agreed to no longer rely on subsection 21(1)(a) and conceded that some information withheld under subsection 19(1) did not meet the exemption criteria. The Information Commissioner found that CSC had properly applied subsection 19(1) to the remaining personal information, as the criteria were met and no circumstances for discretionary disclosure under subsection 19(2) existed. However, the Commissioner determined that information on page 337 was improperly withheld under paragraphs 20(1)(b) and 20(1)(c), as CSC and Presidia failed to demonstrate how it met the requirements for confidentiality, financial/commercial nature, or potential for financial harm/competitive injury. Consequently, the Commissioner ordered CSC to release the information it had agreed to disclose, as well as the specific information on page 337 previously withheld under section 20. CSC subsequently released the additional information.

• Whether s.19(1) personal information exemption was properly applied
• Whether s.19(2) discretion to disclose personal information was required
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied
• Whether s.21(1)(a) advice or recommendations exemption was properly applied

The complainant alleged that Transport Canada's 510-day time extension to respond to an access request was unreasonable. The request sought records related to the implementation of new testing and quarantine measures for non-essential international air travel. Transport Canada justified the extension under paragraphs 9(1)(a) for a large volume of records, 9(1)(b) for necessary consultations with five other government institutions, and 9(1)(c) for third-party consultations. The Commissioner found that the request involved a large volume of records (over 3,000 pages) and that responding within 30 days would unreasonably interfere with Transport Canada's operations, particularly due to COVID-19 restrictions limiting on-site access to classified documents. The Commissioner also determined that consultations with other government bodies and third parties were necessary and could not be completed within 30 days. The Commissioner concluded that the total 510-day extension was reasonable given the circumstances, including the pandemic's impact on operations and the complexity of consultations. Therefore, the complaint was not well founded.

• Whether the time extension taken by Transport Canada was unreasonable
• Whether the request was for a large number of records or required searching through a large number of records (s.9(1)(a))
• Whether meeting the 30-day deadline would unreasonably interfere with the institution’s operations (s.9(1)(a))
• Whether the extension of time was for a reasonable period, given the circumstances (s.9(1)(a))
• Whether consultations on the requested records were necessary (s.9(1)(b))
• Whether consultations could reasonably be completed within 30 days (s.9(1)(b))
• Whether the extension of time for consultations was for a reasonable period, given the circumstances (s.9(1)(b))
• Whether consultations with third parties were necessary (s.9(1)(c))
• Whether the extension of time for third-party consultations was for a reasonable period, given the circumstances (s.9(1)(c))
• Whether Transport Canada met the requirements to claim an extension of time by notifying the requester within 30 days

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsections 15(1) (national security) and 19(1) (personal information) of the Access to Information Act. The request sought information related to "Active Measures – The Soviet Bloc Practice of Deception, Disruption and Defamation." Initially, LAC withheld the entire 33-page record but later dropped its reliance on subsection 19(1) and released some information. The Information Commissioner found that LAC failed to demonstrate that the remaining withheld information met the requirements of subsection 15(1), noting the extensive public domain information on the topic. Despite the Commissioner's recommendation to disclose all remaining information, LAC refused to implement it. Consequently, the complaint was found to be well founded.

• Whether s.15(1) national security exemption was properly applied
• Whether disclosure could reasonably be expected to harm national security
• Whether the institution provided sufficient justification for the s.15(1) claim
• Whether the information was already in the public domain
• Whether s.19(1) personal information exemption was properly applied

The complainant alleged that National Defence (DND) conducted an incomplete search for records related to the Official Radio Log Book of the HMCS Shawinigan for a specific period in 2016. During the investigation, the Office of the Information Commissioner (OIC) found that DND had tasked the Royal Canadian Navy (RCN) to retrieve the records, but the RCN reported them as "lost." DND conducted a Summary Investigation into the disappearance of the log pages, which revealed that the log book had been transferred and used by another vessel, and the relevant pages had been removed. Despite extensive efforts, including interviews with crew members, DND's investigation could not definitively determine when or how the pages went missing. The OIC concluded that DND conducted a reasonable search, tasking appropriate sectors and making reasonable efforts, but the records could not be found. The OIC noted the implications of deficiencies in records management but found no basis to conclude that DND failed its search obligations or that records could reasonably be found.

• Whether National Defence conducted a reasonable search for the requested records

The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to respond to an access request within the time limits set out in the Access to Information Act. The request sought records pertaining to specific operational reviews concerning co-operation between CSIS and the Royal Canadian Mounted Police (RCMP). CSIS claimed a 240-day extension, which the OIC previously found to be valid, setting the due date for May 31, 2021. However, CSIS failed to respond by this extended deadline. The OIC found that CSIS was in deemed refusal, noting that the delay was partly due to outstanding consultations with the RCMP and operational challenges from the COVID-19 pandemic. Despite CSIS's stated intention to process records without further delay, it proposed an additional month beyond the RCMP's consultation timeline. The Commissioner concluded that CSIS had not adequately addressed the delay and ordered the institution to complete processing and provide a response within 36 business days.

• Whether CSIS failed to respond to an access request within the time limits
• Whether CSIS was in deemed refusal pursuant to subsection 10(3) of the Act

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information from a 1989 RCMP Security Service briefing on Hugh George Hambleton under subsections 13(1), 15(1), and 19(1) of the Access to Information Act. During the investigation, LAC dropped its reliance on subsections 13(1) and 19(1). The Information Commissioner focused on LAC's application of subsection 15(1) (national security). The Commissioner found that a significant amount of information about Hambleton, including his espionage activities, conviction, and parliamentary discussions, was already in the public domain. Consequently, the Commissioner determined that LAC failed to demonstrate a reasonable expectation of harm from disclosure, as required by subsection 15(1). The complaint was found to be well founded, and the Commissioner recommended full disclosure of the records. However, the Minister of Canadian Heritage declined to implement the recommendations.

• Whether s.13(1) ATIA (confidential information from government bodies) was properly applied
• Whether s.15(1) ATIA (national security) was properly applied
• Whether s.19(1) ATIA (personal information) was properly applied
• Whether disclosure of the withheld information could reasonably be expected to harm national security interests under s.15(1)
• Whether the public availability of information about Hugh George Hambleton undermines the application of s.15(1)
• Whether the passage of time affects the applicability of s.15(1)
• Whether the institution fulfilled its burden of demonstrating the requirements of the exemption under s.15(1)

The complainant alleged that the Royal Canadian Mounted Police (RCMP) improperly withheld GPS tracking records for a specific RCMP vehicle for a 30-minute period on February 19, 2017, under paragraphs 16(1)(c) and 16(2) of the Access to Information Act. The RCMP argued that releasing the GPS coordinates could reveal patrol patterns, facilitate illegal activities, and endanger officers. The Information Commissioner found that the RCMP did not demonstrate how this specific, limited, and four-year-old information could reasonably be expected to cause the alleged harms. The Commissioner also noted that the RCMP failed to explain its exercise of discretion regarding disclosure. Consequently, the complaint was found to be well-founded, and the Commissioner recommended the release of the withheld GPS information.

• Whether s.16(1)(c) law enforcement harm was reasonably expected from the disclosure of specific GPS coordinates
• Whether s.16(2) facilitation of an offence was reasonably expected from the disclosure of specific GPS coordinates
• Whether the institution reasonably exercised its discretion to withhold information under s.16(1)(c)
• Whether the institution reasonably exercised its discretion to withhold information under s.16(2)

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to respond to two access to information requests within the statutory deadlines. The requests sought records related to the procurement of animals for the Prison Farm program run by CORCAN at Collins Bay and Joyceville institutions. PSPC claimed extensions for both requests, citing the volume of records and resource limitations, exacerbated by the COVID-19 pandemic. However, PSPC missed the extended deadlines, leading to a deemed refusal under subsection 10(3) of the Act. The Commissioner found that PSPC had not adequately addressed the unreasonable delay, noting that the complainant had been waiting over two years for a response. The Commissioner concluded that the complaints were well founded and ordered PSPC to provide a final response to both requests forthwith.

• Whether Public Services and Procurement Canada failed to respond to access requests within statutory deadlines
• Whether Public Services and Procurement Canada was in deemed refusal under subsection 10(3) ATIA
• Whether the extensions claimed by Public Services and Procurement Canada were valid
• Whether the delay in processing the requests was unreasonable