Federal (Canada) privacy & access decisions

The complainant alleged that the Old Port of Montréal Corporation Inc. (OPMC) improperly withheld information under paragraphs 18(b), 18(d), 20(1)(c), 20(1)(d), and subsection 19(1) of the Access to Information Act. The request sought information related to two requests for proposals (RFP) by invitation. The OPMC argued that disclosure would harm its competitive position, financial interests, or interfere with negotiations, and that some information was personal. The Commissioner found that the OPMC's claims of harm were speculative and did not meet the requirements for the exemptions. Specifically, the names redacted under subsection 19(1) were found to be subject to the exception at paragraph 3(j) of the Privacy Act, as they pertained to employees receiving documents as part of their duties. The Commissioner ordered the OPMC to disclose the records in their entirety, and the OPMC agreed to implement the order. The complaint was found to be well founded.

• Whether s.18(b) ATIA (competitive position of government institutions or negotiations by government institutions) was properly applied
• Whether s.18(d) ATIA (government financial interests or Government of Canada’s ability to manage the economy) was properly applied
• Whether s.19(1) ATIA (personal information) was properly applied
• Whether the names of employees receiving documents as part of their duties fall under the exception at paragraph 3(j) of the Privacy Act
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied
• Whether s.20(1)(d) ATIA (negotiations by a third party) was properly applied
• Whether the alleged harms were speculative in nature

The complainant alleged that the Canadian Transportation Agency (CTA) improperly withheld information under various sections of the Access to Information Act related to Case No. 17-05835. The OIC investigated claims under paragraphs 20(1)(b), 20(1)(c), 20(1)(d), 21(1)(a), 21(1)(b), and section 23. The Commissioner found that the CTA and Air Transat (a third party) failed to demonstrate that the requirements for exemptions under paragraphs 20(1)(b), 20(1)(c), and 20(1)(d) were met for certain information, particularly regarding the objective confidentiality and potential harm. The Commissioner also found that Air Transat failed to establish that section 23 (litigation privilege) applied to its information. While some information withheld by the CTA under section 23 was found to be privileged, the CTA failed to demonstrate a reasonable exercise of discretion for its non-disclosure. Similarly, for information under paragraph 21(1)(b), the CTA failed to show a reasonable exercise of discretion. The complaint was found to be well-founded, and the Commissioner ordered the disclosure of certain information and a re-exercise of discretion for other parts.

• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information applied to specific records
• Whether the information was financial, commercial, scientific or technical
• Whether the information was objectively confidential
• Whether s.20(1)(c) financial impact on a third party applied to specific records
• Whether disclosure could reasonably be expected to cause material financial impact or harm competitive position
• Whether s.20(1)(d) interference with contractual or other negotiations of a third party applied to specific records
• Whether disclosure could reasonably be expected to interfere with negotiations
• Whether s.23 solicitor-client and litigation privilege applied to Air Transat's information
• Whether Air Transat's information was prepared for the dominant purpose of litigation
• Whether s.23 solicitor-client and litigation privilege applied to CTA's information
• Whether communications between CTA and CRTC lawyers maintained solicitor-client privilege
• Whether the CTA reasonably exercised discretion under s.23
• Whether s.21(1)(b) accounts of consultations or deliberations applied to specific records
• Whether the CTA reasonably exercised discretion under s.21(1)(b)

The complainant alleged that Transport Canada improperly withheld records related to a motor vehicle crash test under paragraph 20(1)(c) of the Access to Information Act. Transport Canada initially claimed the exemption due to concerns that misinterpretation of the preliminary test results could cause harm, but later withdrew this claim. The Commissioner found that Transport Canada and the third parties did not demonstrate that the requirements for exemption under paragraph 20(1)(c) were met, particularly given the institution's proposal to include an explanatory note. The Commissioner noted that courts have consistently found that explanatory notes can mitigate the risk of misinterpretation. Consequently, the Commissioner ordered Transport Canada to disclose the records in full, accompanied by an explanatory note. Transport Canada agreed to comply with the order.

• Whether the information met the requirements of paragraph 20(1)(c) ATIA (financial impact on a third party)
• Whether disclosure could result in material financial loss or gain to a third party
• Whether there was a reasonable expectation of harm to a third party's competitive position
• Whether the information constituted product testing results under subsection 20(4) ATIA
• Whether an explanatory note could mitigate the risk of misinterpretation and harm

The complainant alleged that Transport Canada improperly withheld information under paragraph 20(1)(c) of the Access to Information Act, concerning records related to a Motor Vehicle Crash Test. Transport Canada initially withheld the records, citing concerns that misinterpretation could lead to harm, but later proposed an explanatory note to mitigate this risk. The Office of the Information Commissioner (OIC) sought representations from third parties, with Ford Canada agreeing to disclosure if an adequate explanatory note was included. The OIC found that Transport Canada and the third parties did not demonstrate that the requirements of paragraph 20(1)(c) were met, particularly given the institution's own proposed explanatory note. The Commissioner concluded that the information did not meet the requirements for exemption under paragraph 20(1)(c). The complaint was deemed well founded, and Transport Canada was ordered to disclose the records in full with an explanatory note, to which the institution agreed to comply.

• Whether the information was properly withheld under s.20(1)(c) ATIA (financial impact on a third party)
• Whether disclosing the information could result in material financial loss or gain to a third party
• Whether there is a reasonable expectation of harm well beyond a mere possibility
• Whether disclosing the information could injure the competitive position of a third party
• Whether the information constitutes preliminary testing under s.20(4) ATIA
• Whether an explanatory note can mitigate the risk of misinterpretation leading to harm