Federal (Canada) privacy & access decisions

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) improperly withheld records under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. The request sought records from the 1850s to 1980 related to land ownership, sale, reversion, or return on the Bruce/Saugeen Peninsula. CIRNAC initially claimed solicitor-client privilege but later conceded it did not apply, then reversed course to maintain section 23 based on litigation privilege, citing ongoing court cases. The Information Commissioner found that CIRNAC failed to establish that the records were subject to litigation privilege, specifically that they were produced or gathered for the dominant purpose of the cited litigation. The Commissioner recommended full disclosure of the records. CIRNAC refused to implement the recommendation, asserting the information remained protected by litigation privilege. The complaint was found to be well founded.

• Whether the records were subject to solicitor-client privilege under s.23 ATIA
• Whether the records were subject to litigation privilege under s.23 ATIA
• Whether the records were produced or gathered for the dominant purpose of litigation

The complainant alleged that the Department of Justice Canada (Justice) failed to conduct a reasonable search for a 2009 workplace report prepared by a consultant. Justice tasked its Ontario Regional Office and the Deputy Minister’s Office, both of which reported no responsive records, citing a five-year retention period for such documents, which had expired seven years prior to the request. The OIC investigated whether Justice was required to contact the consultant directly to fulfill the request. Justice maintained that it was not reasonable to expect them to task the consultant, as the business need for the report was time-limited, copies should no longer be with the contractor, and the matter was no longer active. The OIC concluded that Justice conducted a reasonable search based on its internal efforts and retention policies. The complaint was therefore deemed not well founded.

• Whether the Department of Justice Canada conducted a reasonable search for records
• Whether the institution was required to contact a consultant directly to conduct a reasonable search
• Whether the institution's application of its record retention policy was appropriate in determining search scope