Federal (Canada) privacy & access decisions

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• Whether s.19(1) personal information exemption was properly applied (withdrawn by complainant)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

The Office of the Privacy Commissioner of Canada (OPC) investigated a complaint against Immigration, Refugees and Citizenship Canada (IRCC) regarding a privacy breach. IRCC inadvertently disclosed the personal information of 497 individuals when sending mass email notifications for a work permit extension program. An employee failed to apply a filter to the email address column in an Excel spreadsheet, causing email addresses to misalign with other personal data, leading to notifications being sent to incorrect recipients. The OPC found that IRCC contravened section 8 of the Privacy Act by disclosing personal information without a permissible purpose and that its prevention measures were insufficient. While IRCC's mitigation efforts, including notifying affected individuals, were deemed adequate, the OPC recommended implementing robust procedural and administrative controls. IRCC accepted these recommendations, committing to measures such as a 'two pairs of eyes' rule, updated operating procedures, and data quality assurance checks. Consequently, the OPC considered the matter resolved.

• Whether IRCC's disclosure of personal information to unintended recipients contravened section 8 of the Privacy Act.
• Whether IRCC had sufficient measures in place to prevent unauthorized disclosures of personal information of this nature.
• Whether IRCC's response to mitigate the impact of the breach on affected individuals was adequate.

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) failed to conduct a reasonable search for records related to the Wood Mountain (Lakota) First Nation's land claim from 2000 to 2020. Initially, CIRNAC provided records only from 2017 onwards, claiming no earlier records could be located. The OIC's investigation highlighted the absence of records from key periods, specifically 2009-2012 when the claim was first submitted and rejected, and 2014-2016 when the First Nation filed with the Specific Claims Tribunal. After the OIC's persistent questioning and research, CIRNAC conducted subsequent searches and located additional responsive records. The Information Commissioner concluded that CIRNAC had not conducted a reasonable search and ordered the institution to retrieve and process all newly identified records and issue a new response to the complainant.

• Whether Crown-Indigenous Relations and Northern Affairs Canada conducted a reasonable search for records

A federal institution submitted an application 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 to make a request. The Commissioner reviewed the institution's submission and found that the institution successfully established that the access request was indeed an abuse of the right to make a request. Consequently, the Commissioner determined that the circumstances warranted granting approval for the institution to decline to act on the request. The application was therefore granted, allowing the institution to refuse processing the access request.

• Whether the access request constituted an abuse of the right to make a request under s.6.1(1) ATIA
• Whether the circumstances warrant granting approval for the institution to decline to act on the request

An institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act, seeking approval to decline to act on five access requests. The institution argued that these requests were vexatious and an abuse of the right to make a request. The Commissioner found that the institution successfully demonstrated that two of the five requests (A-2023-00305 and A-2023-00314) constituted an abuse of the right to make a request, and therefore approved the institution's request to decline to act on these two. However, the Commissioner determined that the institution did not establish that the remaining three requests (A-2023-00303, A-2023-00308, and A-2023-00310) were vexatious or an abuse of the right. Consequently, the application was partially granted.

• Whether access request A-2023-00305 is an abuse of the right of access
• Whether access request A-2023-00314 is an abuse of the right of access
• Whether access request A-2023-00303 is vexatious or an abuse of the right of access
• Whether access request A-2023-00308 is vexatious or an abuse of the right of access
• Whether access request A-2023-00310 is vexatious or an abuse of the right of access

An applicant complained that the Vancouver Fraser Port Authority (VFPA) improperly withheld an agreement with the Musqueam Indian Band under sections 18(b) and 20(1)(b) of the Access to Information Act. The Commissioner found that while some parts of the agreement could reasonably be expected to interfere with the VFPA's negotiations under s.18(b), other parts were publicly known or deducible and did not meet the exemption criteria. Furthermore, the VFPA failed to reasonably exercise its discretion by not considering factors in favour of disclosure. Regarding s.20(1)(b), the Commissioner determined that the agreement, in its entirety, did not meet the criteria for confidential financial, commercial, scientific, or technical information, particularly because it consisted of negotiated terms rather than information supplied by a third party. The Commissioner ordered the VFPA to disclose information not meeting s.20(1)(b) criteria and to re-exercise discretion for information meeting s.18(b). The VFPA agreed to release some information but did not address the re-exercise of discretion.

• Whether s.18(b) competitive position harm was reasonably expected
• Whether s.18(b) interference with negotiations was reasonably expected
• Whether the VFPA reasonably exercised its discretion under s.18(b)
• Whether the information was financial, commercial, scientific, or technical under s.20(1)(b)
• Whether the information was confidential under s.20(1)(b)
• Whether the information was supplied by a third party under s.20(1)(b)
• Whether the third party consistently treated the information as confidential under s.20(1)(b)

The complainant alleged that Fisheries and Oceans Canada (DFO) improperly withheld information related to the Laval River slope stabilization project under several sections of the Access to Information Act. Specifically, DFO claimed exemptions under paragraphs 13(1)(c) (confidential information from government bodies), 16(2) (security), 16(2)(c) (facilitating an offence), 19(1) (personal information), and 20(1)(c) (financial impact on a third party). During the investigation, the complainant narrowed the scope, removing the application of subsections 16(2) and 19(1) to signatures where the signing authority's name was present. The Information Commissioner found that DFO failed to demonstrate that the information withheld under paragraph 13(1)(c) was obtained in confidence, and neither DFO nor the third party justified the application of paragraph 20(1)(c). However, the Commissioner upheld the application of subsection 19(1) for personal information. Consequently, the Commissioner ordered DFO to release all information previously withheld under paragraphs 13(1)(c) and 20(1)(c), with the exception of the personal information properly withheld under subsection 19(1). DFO notified the Commissioner that it would implement the order.

• Whether s.13(1)(c) ATIA (confidential information from government bodies) was properly applied
• Whether the information was obtained in confidence for s.13(1)(c) ATIA
• Whether s.19(1) ATIA (personal information) was properly applied
• Whether the information is about an individual for s.19(1) ATIA
• Whether there is a serious possibility of identification for s.19(1) ATIA
• Whether the information falls under exceptions to the definition of personal information for s.19(1) ATIA
• Whether DFO reasonably exercised discretion under s.19(2) ATIA
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied
• Whether disclosure could result in material financial loss or gain to the third party for s.20(1)(c) ATIA
• Whether there is a reasonable expectation of harm for s.20(1)(c) ATIA
• Whether disclosure could injure the competitive position of the third party for s.20(1)(c) ATIA

The complainant alleged that Global Affairs Canada (Global Affairs) failed to conduct a reasonable search for records related to 2010 roundtable discussions on international education and the "London Statement." The initial search yielded few records, prompting the Office of the Information Commissioner (OIC) to question the institution. Global Affairs admitted that additional responsive records should have existed but were not preserved due to inadvertence, including improper filing, destruction of IT accounts, and a malfunctioning USB drive. Following further inquiries from the OIC, Global Affairs conducted additional searches, including tasking former employees, which led to the discovery of additional responsive records on an internal drive and a CD-ROM. The Commissioner found that Global Affairs did not conduct a reasonable search initially and raised concerns about its information management practices. The complaint was found to be well founded, and Global Affairs was ordered to provide the newly found records and implement information management recommendations.

• Whether Global Affairs Canada conducted a reasonable search for records
• Whether additional responsive records ought to have existed
• Whether the institution's information management practices were adequate

The complainant alleged that Health Canada improperly withheld information under paragraphs 20(1)(b) and 20(1)(c) of the Access to Information Act. The request sought records related to an Abbreviated New Drug Submission (ANDS) for the medicinal ingredient "tacrolimus." Specifically, the complaint focused on the dates of correspondence between a third party and Health Canada, which were withheld concurrently under both exemptions. The Commissioner found that the dates did not constitute "commercial" information as required by paragraph 20(1)(b), citing Supreme Court jurisprudence that administrative details like dates are not typically commercial. Regarding paragraph 20(1)(c), the Commissioner determined that neither Health Canada nor the third party provided convincing evidence that disclosing these specific dates would lead to a reasonable expectation of material financial harm or competitive prejudice. The evidence presented was deemed too speculative. Consequently, the Commissioner concluded that neither exemption applied and ordered Health Canada to disclose the dates.

• Whether the dates of correspondence constitute "financial, commercial, scientific or technical information" under s.20(1)(b) ATIA
• Whether the information is confidential under s.20(1)(b) ATIA
• Whether the third party consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether disclosure of the dates could reasonably be expected to result in material financial loss or gain to the third party under s.20(1)(c) ATIA
• Whether there is a reasonable expectation of harm occurring under s.20(1)(c) ATIA

The complainant alleged that Fisheries and Oceans Canada (DFO) failed to conduct a reasonable search for records related to the Old Fort Band, Fort Babine Band, and Lake Babine Nation in British Columbia between 1871 and 1960. During the investigation, the Office of the Information Commissioner (OIC) requested additional information from DFO regarding its search parameters and program areas tasked. In response, DFO conducted a second search, including an additional program area not originally tasked, which resulted in the retrieval of approximately 7000 additional responsive pages. The OIC concluded that DFO's initial search was not reasonable, but the subsequent search satisfied the requirement for a reasonable search. The Information Commissioner ordered DFO to complete the retrieval of the identified records and provide a new response to the complainant within 60 days. DFO agreed to implement the order.

• Whether Fisheries and Oceans Canada conducted a reasonable search for records

The complainant alleged that Transport Canada improperly withheld portions of a Hazardous Occurrence Investigation Report concerning a Canadian National Railway (CN) employee's death, citing subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party information) of the Access to Information Act. The Information Commissioner found that certain information, such as train numbers, track numbers, and locations, did not meet the requirements for exemption under subsection 19(1) as their disclosure would not create a serious possibility of identifying individuals. While some information did qualify as personal information, Transport Canada failed to demonstrate it had properly exercised its discretion under paragraph 19(2)(c) regarding public interest disclosure. Furthermore, the Commissioner concluded that the institution and CN did not prove that the information withheld under paragraph 20(1)(b) met all four requirements of that exemption, particularly regarding confidentiality and public interest. Consequently, the complaint was found to be well founded, and Transport Canada was ordered to disclose the information not properly exempted.

• Whether information such as train numbers, track numbers, and locations constitutes personal information under s.19(1) ATIA
• Whether disclosure of portions of witness statements would create a serious possibility of identification under s.19(1) ATIA
• Whether Transport Canada reasonably exercised its discretion under s.19(2)(c) ATIA regarding public interest disclosure
• Whether the withheld information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the withheld 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

The complainant alleged that Natural Resources Canada (NRCan) improperly withheld information under various sections of the Access to Information Act in response to a request for records related to a specific contract. During the investigation, the Office of the Information Commissioner (OIC) narrowed the scope to NRCan's application of paragraphs 20(1)(b) and 20(1)(c). NRCan and the third party, Welund North America, failed to demonstrate that all requirements for these exemptions were met for most of the withheld information. The OIC found that only a void cheque and unit prices/quantities qualified for exemption. The Commissioner recommended that NRCan disclose all other information previously withheld under these paragraphs. NRCan made an additional disclosure but did not fully implement the recommendation. The complaint was found to be well founded.

• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is confidential under s.20(1)(b) ATIA
• Whether the information was supplied by a third party under s.20(1)(b) ATIA
• Whether the third party consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether disclosure could result in material financial loss or gain to the third party under s.20(1)(c) ATIA
• Whether there is a reasonable expectation of harm under s.20(1)(c) ATIA
• Whether disclosure could injure the competitive position of the third party under s.20(1)(c) ATIA

An institution sought the Information Commissioner's approval to decline to act on three access requests under subsection 6.1(1) of the Access to Information Act, arguing they were made in bad faith and constituted an abuse of the right of access. The requests sought all communications containing specific vulgar words over a three-year period. The institution claimed it had met its duty to assist the requester and that processing these requests would be unduly burdensome, requiring 4,068 employees to manually search for keywords and yielding thousands of non-relevant records, thereby hindering its ability to process other legitimate requests. The Commissioner found that the institution had fulfilled its duty to assist and that the requests, as framed, were an abuse of the right of access due to their breadth, the volume of requests submitted by the requester in a short timeframe, and the significant burden they would place on the institution, which would negatively impact other requesters. Consequently, the Commissioner granted the institution's application to decline to act on the requests.

• Whether the institution met its duty to assist the requester under s.4(2.1) ATIA
• Whether the access requests were an abuse of the right to make a request under s.6.1(1) ATIA
• Whether the requests were vexatious under s.6.1(1) ATIA
• Whether the requests were made in bad faith under s.6.1(1) ATIA

The complainant alleged that National Defence (DND) failed to conduct reasonable searches for records related to specific contracts under the Access to Information Act. The OIC investigation found that DND had not attempted to retrieve records from a third-party contractor, despite being entitled to them under the contract, nor had it searched paper records or a cloud-based platform. While DND initially argued the records were not under its control, it later conceded this point. As a result of the OIC's investigation, DND contacted the contractor and retrieved additional documents from the cloud platform. The Information Commissioner concluded that DND's initial searches were not reasonable. The complaints were found to be well founded, and DND was ordered to process the newly located records and provide new responses to the complainant.

• Whether National Defence conducted reasonable searches for records related to contracts W6369-21-X008 and W6369-19-X033/A
• Whether records held by a third-party contractor, which National Defence was entitled to obtain, were under the control of National Defence
• Whether National Defence adequately searched paper records
• Whether National Defence adequately searched cloud-based platforms

The complainant alleged that Parks Canada improperly withheld information under various sections of the Access to Information Act in response to a request for records related to Benga Mining or the Grassy Mountain Coal Project. The institution withheld information under subsection 19(1) (personal information), paragraphs 21(1)(a), (b), (c) (advice, consultations, plans), and section 23 (litigation privilege). During the investigation, Parks Canada disclosed a portion of the record initially withheld under paragraph 21(1)(a) due to the passage of time. The Commissioner found that the remaining information withheld under subsection 19(1), paragraph 21(1)(a), and section 23 met the criteria for exemption and that the institution had reasonably exercised its discretion. The Commissioner also addressed the complainant's concern about records marked as "not relevant," finding that Parks Canada was justified in not processing these records given the complainant's prior agreement to narrow the scope of the request. Despite upholding the institution's application of most exemptions, the complaint was found to be well-founded because the institution initially improperly withheld information under paragraph 21(1)(a) that was later released.

• Whether s.19(1) personal information exemption was properly applied
• Whether discretion under s.19(2) was reasonably exercised
• Whether s.21(1)(a) advice or recommendations exemption was properly applied
• Whether discretion under s.21(1)(a) was reasonably exercised
• Whether s.21(1)(b) accounts of consultations or deliberations exemption was properly applied
• Whether s.21(1)(c) positions or plans developed for negotiations exemption was properly applied
• Whether s.23 litigation privilege exemption was properly applied
• Whether discretion under s.23 was reasonably exercised
• Whether Parks Canada was justified in not processing records deemed 'not relevant' based on complainant's prior agreement