Federal (Canada) privacy & access decisions

The complainant alleged that the Department of National Defence (DND) improperly refused to process an access request for records of misconduct by an identified individual. DND argued that the request did not meet the requirements of section 6 of the Access to Information Act, claiming it lacked sufficient detail and that processing it would violate privacy principles. The Office of the Information Commissioner (OIC) found DND's arguments unconvincing, noting that the request clearly identified the subject and specified search parameters. The OIC clarified that the potential applicability of privacy exemptions (s.19) does not invalidate a request under s.6, and that the Access to Information Act takes precedence over the Privacy Act in this context. DND subsequently conceded that the request was valid and agreed to process it as worded. The OIC concluded that the complaint was well founded.

• Whether the access request provided sufficient detail to enable an experienced employee to identify records with reasonable effort under s.6 ATIA
• Whether the request for information about another individual invalidates a request under s.6 ATIA
• Whether the potential for s.19 ATIA exemption (personal information) affects the validity of a request under s.6 ATIA
• Whether the Privacy Act's restrictions on use and disclosure of personal information authorize refusal to process a request under the Access to Information Act

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for a recording of a specific Microsoft Teams meeting and related communications. PSPC confirmed that while Microsoft Teams has recording capabilities, this function was not used for the meeting in question, and therefore no recording existed. The institution also stated that the meeting was informal and did not involve activities or decisions requiring record creation under its policies. The OIC's investigation found that PSPC tasked the appropriate program area and IT branch to search for the records, and re-tasked meeting attendees, but no responsive records were identified. The OIC concluded that PSPC took reasonable steps to identify and locate responsive records, even though none were found. Consequently, the complaint was deemed not well founded.

• Whether Public Services and Procurement Canada conducted a reasonable search for a recording of a Microsoft Teams meeting
• Whether Public Services and Procurement Canada conducted a reasonable search for communications regarding a Microsoft Teams meeting
• Whether there was an obligation for Public Services and Procurement Canada to create a record of the informal meeting

The complainant alleged that Veterans Affairs Canada (VAC) improperly withheld the names and service numbers of individuals awarded the Arctic Star under section 19(1) of the Access to Information Act. During the investigation, VAC initially released some information, acknowledging it did not meet the criteria for personal information, but continued to withhold other names and service numbers. The Information Commissioner determined that the names and service numbers fell under the exception to the definition of "personal information" in paragraph 3(j) of the Privacy Act, as they relate to an individual's position or functions as a government institution officer or employee. The Privacy Commissioner was consulted and agreed with this assessment. Consequently, the Commissioner concluded that the information did not meet the requirements for exemption under section 19(1). The complaint was found to be well founded, and VAC agreed to disclose the remaining names and service numbers.

• Whether the names and service numbers of Arctic Star recipients constitute "personal information" under s.19(1) ATIA
• Whether the information falls under the exception to the definition of "personal information" in paragraph 3(j) of the Privacy Act

The complainant alleged that Library and Archives Canada (LAC) claimed an unreasonable 29,200-day time extension to process an access request for Royal Canadian Mounted Police (RCMP) records on Project Anecdote. LAC identified 780,000 pages of paper and microfilm records, along with other media, as responsive. The Commissioner found that while the request involved a large volume of records and responding within 30 days would interfere with operations, LAC failed to demonstrate that the 29,200-day extension was reasonable. LAC did not adequately explain the link between its justifications and the extension's length, nor did it show that a shorter processing time would unreasonably interfere with operations. The Commissioner concluded that LAC's time extension was invalid, leading to a deemed refusal of access under subsection 10(3) of the Act. Despite the OIC's efforts over three years to assist LAC in establishing a reasonable timeframe, LAC did not provide a concrete plan or commitment to respond, even indicating it was not actively processing the request. The complaint was found to be well founded.

• Whether the request was for a large number of records or required searching through a large number of records under paragraph 9(1)(a)
• Whether meeting the 30-day deadline would unreasonably interfere with the institution’s operations under paragraph 9(1)(a)
• Whether the extension of time was for a reasonable period, given the circumstances, under paragraph 9(1)(a)
• Whether Library and Archives Canada was in deemed refusal pursuant to subsection 10(3) of the Access to Information Act

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information under several sections of the Access to Information Act related to a Request for Proposals (RFP). The OIC found that ECCC failed to properly exercise its discretion under subsection 19(2) regarding publicly available personal information and did not seek consent from individuals where appropriate. While ECCC's application of paragraph 21(1)(a) for evaluators' comments was upheld due to the specialized field and small number of competitors, the Commissioner found that certain financial and commercial information withheld under paragraphs 20(1)(b) and 20(1)(c) did not meet the exemption criteria, particularly where information was publicly available or absolute confidentiality was unreasonable for public funds. The complaint was found to be well founded, and ECCC agreed to implement the Commissioner's recommendations to disclose the identified information.

• Whether s.19(1) personal information exemption was properly applied
• Whether ECCC reasonably exercised discretion under s.19(2) for publicly available personal information
• Whether s.21(1)(a) advice or recommendations exemption was properly applied to evaluators' comments
• Whether ECCC reasonably exercised discretion under s.21(1)(a)
• Whether s.21(1)(b) accounts of consultations or deliberations exemption was properly applied
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to evaluators' comments
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to the lowest bid amount and per diem rate
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to the Response to the RFP
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied to the lowest bid amount and per diem rate
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied to the Response to the RFP
• Whether the information met the confidentiality criteria under s.20(1)(b)

The complainant alleged that Employment and Social Development Canada (ESDC) improperly refused to process an access request, claiming the records were outside its control. The request sought records related to a named employee, including dates of leave, job grade, letters of offer, and salary history. ESDC argued that because the records contained personal information of an individual other than the complainant, they were not under its control. The Office of the Information Commissioner (OIC) found that while the records were indeed personal information of a third party, they were nonetheless under ESDC's control as they related to institutional operations, employment purposes, and statutory requirements. Consequently, ESDC agreed to process the request and has since issued a response to the complainant. The OIC concluded that the complaint was well founded.

• Whether records containing personal information of a third party are "under the control" of the institution
• Whether the institution properly tasked Offices of Primary Interest to search for records
• Whether the records relate to institutional operations
• Whether the records are intended for employment-related purposes
• Whether the records fulfill a statutory requirement imposed on the institution

An institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act to decline to act on two access requests, arguing they were vexatious, made in bad faith, and an abuse of the right of access. The institution also claimed it had fulfilled its duty to assist the requester. The Commissioner found that the institution did not provide sufficient evidence to establish that the requests were vexatious, made in bad faith, or an abuse of the right of access. Specifically, the Commissioner found no evidence of duplication, improper motive, or undue burden. Furthermore, the Commissioner determined that the institution failed to demonstrate it had met its duty to assist obligations before seeking approval to decline the requests. Consequently, the Commissioner denied the institution's application, requiring it to process the access requests.

• 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
• Whether the requests constituted an abuse of the right of access under s.6.1(1) ATIA
• Whether the institution fulfilled its duty to assist obligations under s.4(2.1) ATIA

The Office of the Information Commissioner (OIC) received a complaint alleging that a federal institution failed to provide records in French in response to an access request. During the OIC's investigation, the institution translated the requested documents into French and provided them to the complainant. As the complainant subsequently received the documents in their preferred official language, the OIC determined that continuing the investigation was unnecessary. Consequently, the Information Commissioner ceased the investigation under paragraph 30(4)(b) of the Access to Information Act, which permits ceasing an investigation when it is no longer required due to the circumstances.

• Whether the institution failed to provide records in French
• Whether continuing the investigation was unnecessary under paragraph 30(4)(b) of the ATIA

The complainant alleged that Correctional Service Canada (CSC) improperly withheld information under subsection 19(1) of the Access to Information Act, concerning an inmate's carceral file. The OIC investigation found that CSC had not retrieved or processed the records before applying the exemption, thus failing to properly exercise its jurisdiction. CSC argued that carceral files are inherently personal information and that retrieving them posed a privacy threat. The Commissioner determined that without reviewing the records, CSC could not legitimately claim the information met the criteria for personal information under s.19(1) or properly consider the discretionary release provisions of s.19(2). CSC subsequently reversed its position and agreed to retrieve and process the records. The complaint was found to be well founded, and CSC committed to implementing the Commissioner's recommendations.

• Whether Correctional Service Canada properly applied s.19(1) ATIA without retrieving or processing the records
• Whether the information met the criteria for personal information under s.19(1) ATIA without a review of the records
• Whether Correctional Service Canada properly exercised its discretion under s.19(2) ATIA without reviewing the records
• Whether Correctional Service Canada met its obligations under s.25 ATIA regarding severance

The complainant alleged that Transport Canada improperly withheld information related to mediation services provided by the Canadian Institute for Conflict Resolution (CICR) under paragraph 20(1)(b) of the Access to Information Act. Transport Canada initially applied the exemption to various details on CICR's invoices. During the investigation, the complainant withdrew the allegation regarding subsection 19(1) and Transport Canada conceded that several categories of information, such as the description of services and total amount, should not have been withheld. However, Transport Canada maintained that the hourly rate and number of hours billed were properly exempt. The Information Commissioner agreed that the hourly rate and number of hours billed met the criteria for exemption under paragraph 20(1)(b) as confidential commercial information consistently treated as such. Conversely, the Commissioner found that the description of services, dates of services, subtotal of charges, taxes, total amount, and amount paid did not meet all the requirements of paragraph 20(1)(b), either because they were not financial/commercial/scientific/technical, not objectively confidential, or not supplied by the third party. The complaint was found to be well founded, and Transport Canada was ordered to disclose the remaining redacted information.

• Whether the description of services billed is financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether the dates of services are financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether the subtotal of charges is confidential under s.20(1)(b) ATIA
• Whether the amount of taxes applied is confidential under s.20(1)(b) ATIA
• Whether the "total amount" is confidential under s.20(1)(b) ATIA
• Whether the "amount paid" was supplied by the third party under s.20(1)(b) ATIA
• Whether the hourly rate of the third party is confidential financial/commercial information consistently treated as such under s.20(1)(b) ATIA
• Whether the number of hours billed is confidential financial/commercial information consistently treated as such under s.20(1)(b) ATIA

The complainant alleged that Health Canada failed to respond to an access request for information about implantable medical devices within the statutory time limits. Health Canada initially claimed a 90-day time extension under paragraphs 9(1)(a) and 9(1)(c) of the ATIA, but failed to respond by the extended due date, leading to a deemed refusal under subsection 10(3). The institution had consulted nine third parties, one of whom filed a judicial review application under section 44, which Health Canada argued prevented the release of any records. During the OIC's investigation, the third party withdrew its application. Health Canada then indicated that further consultations were needed due to intertwined information and the passage of time. The Information Commissioner found the complaint to be well founded and recommended that Health Canada provide a final response to the complainant by a specified date. The Minister of Health agreed to implement this recommendation.

• Whether Health Canada responded to the access request within the time limits set out in the Access to Information Act
• Whether Health Canada's time extension under paragraphs 9(1)(a) and 9(1)(c) was valid
• Whether Health Canada was in deemed refusal under subsection 10(3) of the ATIA
• Whether a third-party judicial review application under section 44 justified the delay in processing the entire request

The Office of the Information Commissioner (OIC) ceased an investigation into a complaint alleging that a federal institution failed to conduct a reasonable search for records created in the 1990s. The OIC invoked paragraph 30(4)(b) of the Access to Information Act, which permits ceasing an investigation if it is unnecessary, such as when the matter has already been investigated. The OIC had previously investigated and issued a final report on an identical complaint regarding the same institution and type of records. The complainant was given an opportunity to provide representations on why the investigation should continue but did not respond. As no new evidence was presented to differentiate this complaint from the prior one, the OIC concluded that continuing the investigation was unnecessary.

• Whether the investigation was unnecessary under paragraph 30(4)(b) of the Access to Information Act because the matter had already been the subject of an investigation or final report

The complainant alleged that Library and Archives Canada (LAC) failed to respond to an access request within the time limits set out in the Access to Information Act. LAC took a 425-day extension but did not meet the extended deadline, leading to a deemed refusal. The investigation revealed that the delay was partly due to a lengthy consultation with the Canadian Security Intelligence Service (CSIS) and LAC's lack of infrastructure to process Top Secret classified records. Despite CSIS not agreeing to downgrade the classification, the Information Commissioner found that the lack of appropriate infrastructure was not a valid justification for LAC's failure to meet its obligations. The Commissioner recommended that the Minister of Canadian Heritage find an interim solution for the request and implement a permanent solution for handling classified records. The Minister confirmed that LAC responded to the request by redacting records by hand and is working towards digital processing capability. The complaint was found to be well founded.

• Whether Library and Archives Canada responded to the access request within the time limits set out in the Access to Information Act
• Whether Library and Archives Canada was in deemed refusal pursuant to subsection 10(3) of the Act
• Whether the lack of infrastructure to process Top Secret records is a valid justification for delay

The complainant alleged that Employment and Social Development Canada (ESDC) improperly stated it could not process an access request for emails to and from a named employee, containing specific keywords. ESDC argued the emails were not under its control, despite being on its servers, because they were personal and lacked business value. The Office of the Information Commissioner (OIC) investigated whether the records were "under the control" of ESDC, considering factors such as institutional purpose, relation to ESDC's mandate, and integration with other records. The OIC found the emails were entirely personal, had no institutional purpose, and ESDC had no authority to regulate their use or disposition. Therefore, the OIC concluded the emails were not under ESDC's control and not subject to the Access to Information Act. The complaint was deemed not well founded.

• Whether the requested emails were "under the control" of Employment and Social Development Canada (ESDC) as per the Access to Information Act
• Whether the contents of the emails related to an institutional matter and involved ESDC's mandate, obligations, functions, and operations
• Whether the emails were created to fulfill any ESDC officer's or employee's duties or functions and/or were intended for any employment-related purpose
• Whether the emails were created to fulfill a statutory requirement imposed on ESDC
• Whether ESDC relied on the emails when preparing government records
• Whether ESDC had any authority with regard to the use or disposition of the emails
• Whether communicating the contents of the emails required the authorization of an ESDC officer or employee
• Whether the emails were integrated with other ESDC records

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to respond to an access request for COVID-19-related contracts within the statutory time limit. PSPC received the request on April 6, 2020, with a response due by May 6, 2020. PSPC stated that the delay was partly due to the request being placed on hold because of COVID-19 measures. However, the Information Commissioner has previously ruled that the pandemic does not justify suspending access request processing. The investigation found that PSPC did not respond by the deadline and did not claim an extension. PSPC finally responded on April 1, 2021, nearly a year after the initial deadline. The Commissioner concluded that PSPC failed to meet its obligations under the Access to Information Act, resulting in a deemed refusal.

• Whether Public Services and Procurement Canada responded to the access request within the time limit set out in section 7 of the Access to Information Act
• Whether the COVID-19 pandemic justified suspending the processing of an access request