Federal (Canada) privacy & access decisions

The complainant requested a land claim settlement agreement signed in 2000 between the federal government and the Squamish band. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) initially withheld information under paragraphs 20(1)(b), 20(1)(c), and section 23 of the Access to Information Act. During the investigation, CIRNAC dropped its reliance on paragraph 20(1)(b) but continued to claim paragraph 20(1)(c) and section 23. The Information Commissioner found that neither CIRNAC nor the third party (Squamish Nation) provided sufficient evidence to demonstrate a reasonable expectation of harm for paragraph 20(1)(c) or that litigation privilege applied under section 23, particularly as the litigation cited was unrelated and commenced much later than the agreement. The Commissioner ordered CIRNAC to disclose the records in their entirety. CIRNAC notified the Commissioner that it would not implement the order, citing potential adverse impacts on its relationship with the Squamish Nation and its ability to conduct confidential negotiations.

• Whether s.20(1)(b) confidential third party information applied
• Whether s.20(1)(c) financial impact on a third party was reasonably expected
• Whether s.23 solicitor-client and litigation privilege applied
• Whether the information was prepared or gathered for the dominant purpose of litigation
• Whether the cited litigation was related to the settlement agreement for the purpose of litigation privilege
• Whether litigation privilege had expired or was waived

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 an access request. The institution argued the request was vexatious, made to seek retribution, bully, or circumvent an investigation, citing the requester's prior communications, refusal to narrow the request, and the timing and content of the request. The access request sought all emails, Teams messages, and iMessages from three ATIP office employees over a three-day period, regardless of subject matter. The Commissioner found that the institution did not establish that the request was vexatious. The Commissioner interpreted the requester's communications as indicating an intent to file an OIC complaint, not to bully or seek retribution, and found the refusal to narrow the scope plausible given the requester's stated interest in the ATIP office's deliberations. Consequently, the Commissioner denied the institution's application.

• Whether the access request was vexatious under subsection 6.1(1) ATIA
• Whether the requester's email stating 'further action will be taken' indicated a vexatious purpose
• Whether the requester's refusal to narrow the scope of the request indicated a vexatious purpose
• Whether the requester's email stating intent to contact the Public Sector Integrity Commissioner indicated a vexatious purpose
• Whether the content of the access request (seeking emails of ATIP employees) indicated a vexatious purpose
• Whether the timing of the access request indicated a vexatious purpose
• Whether there was a conflict of interest in the institution's application