Federal (Canada) privacy & access decisions

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information from the "Nazi war criminals in Canada: The historical and policy setting from the 1940s to the present – prepared for the commission of inquiry on war criminals by Alti Rodal: September 1986" (the Rodal report) under subsections 13(1), 15(1), 16(1)(c), and section 23 of the Access to Information Act. During the investigation, LAC provided a supplementary response, disclosing most of the previously withheld information and ceasing reliance on 16(1)(c) and 23. The OIC found that LAC had properly applied subsection 13(1) to certain information, as it was obtained in confidence from a foreign government that did not consent to its release. The OIC also found that LAC properly applied subsection 15(1) to other information, including RCMP file numbers, as its disclosure could reasonably be expected to harm international affairs. The Commissioner concluded that LAC's exercise of discretion regarding the remaining withheld information was reasonable, having considered all relevant factors. However, because LAC initially withheld information improperly, the complaint was found to be well founded.

• Whether information was properly withheld under s.13(1) ATIA (confidential information from government bodies)
• Whether the information was obtained from a recognized government body
• Whether the information was obtained in confidence
• Whether the government body consented to release or made the information public
• Whether discretion was reasonably exercised under s.13(2) ATIA
• Whether information was properly withheld under s.15(1) ATIA (international affairs, defence)
• Whether disclosure could reasonably be expected to harm the conduct of international affairs, defence, or national security
• Whether discretion was reasonably exercised under s.15(1) ATIA
• Whether s.16(1)(c) ATIA (law enforcement or conduct of investigations) applied
• Whether s.23 ATIA (legal advice and litigation privilege) applied
• Whether past accidental disclosure of RCMP file numbers negated the application of s.15(1) ATIA

The complainant alleged that Health Canada improperly withheld information under paragraphs 20(1)(b), 20(1)(c), and 21(1)(b) of the Access to Information Act in response to a request for records related to Tetra Tech, including peer reviewer comments. The OIC found that Health Canada failed to demonstrate that the information withheld under paragraph 20(1)(b) was objectively confidential or entirely supplied by the third party, as some information was publicly available or originated from Health Canada itself. Regarding paragraph 20(1)(c), the OIC concluded that neither Health Canada nor Tetra Tech demonstrated a reasonable expectation of competitive harm from disclosure. However, the OIC upheld the application of paragraph 21(1)(b) for certain internal consultations and found Health Canada's exercise of discretion to be reasonable for this exemption. Consequently, the Commissioner ordered Health Canada to disclose the information improperly withheld under paragraph 20(1)(b). Health Canada agreed to implement the order.

• Whether the information withheld under s.20(1)(b) was financial, commercial, scientific or technical
• Whether the information withheld under s.20(1)(b) was objectively confidential
• Whether the information withheld under s.20(1)(b) was supplied by a third party to a government institution
• Whether the third party consistently treated the information withheld under s.20(1)(b) as confidential
• Whether disclosure of information could reasonably be expected to have a material financial impact on a third party under s.20(1)(c)
• Whether disclosure of information could reasonably be expected to injure the competitive position of a third party under s.20(1)(c)
• Whether the information withheld under s.21(1)(b) constituted accounts of consultations or deliberations
• Whether Health Canada reasonably exercised its discretion not to disclose information under s.21(1)(b)

The complainant alleged that the Impact Assessment Agency of Canada (IAAC) improperly withheld information under paragraphs 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act, concerning the Ksi Lisims LNG project. The complaint was later limited to specific pages, with page 57 also including a s.19(1) claim. The Commissioner found that the IAAC properly withheld personal information on page 57 under s.19(1), as no circumstances for disclosure under s.19(2) existed. For page 67, the Commissioner upheld the application of s.20(1)(c) for proprietary information but found the IAAC failed to exercise its discretion under s.20(6). However, the Commissioner rejected the application of s.20(1)(b), s.20(1)(c), and s.20(1)(d) for pages 62, 63, 65, and 73, determining the information was either publicly available or did not meet the exemption criteria for harm or confidentiality. Consequently, the complaint was found well-founded. The IAAC was ordered to disclose information on pages 62, 63, 65, and 73, and to properly exercise discretion for page 67.

• Whether the information on page 57 constituted personal information under s.19(1) ATIA
• Whether the circumstances for disclosure under s.19(2) ATIA existed for page 57
• Whether the IAAC reasonably exercised its discretion under s.19(2) ATIA for page 57
• Whether the information on page 67 could reasonably be expected to have a material financial impact on a third party or harm its competitive position under s.20(1)(c) ATIA
• Whether the information on pages 62, 63, 65, and 73 could reasonably be expected to have a material financial impact on a third party or harm its competitive position under s.20(1)(c) ATIA
• Whether the IAAC failed to consider the circumstances and exercise discretion under s.20(6) ATIA for page 67
• Whether the information on pages 62, 63, 65, and 73 was confidential financial, commercial, scientific or technical information provided by a third party under s.20(1)(b) ATIA
• Whether the information on pages 62, 63, 65, and 73 could reasonably be expected to interfere with contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether the information on page 62 was publicly available
• Whether the information on pages 63, 65, and 73 was publicly available or its essence already disclosed

The complainant alleged that the Privy Council Office (PCO) failed to conduct a reasonable search for records related to minutes of the Joint Intelligence Committee from November 1, 1957, to December 31, 1958. The Information Commissioner found that PCO did not initially conduct a reasonable search. During the investigation, PCO agreed to conduct a new search, which resulted in the retrieval of additional responsive records. PCO also indicated that it was consulting with Global Affairs Canada and the Department of National Defence regarding the processing of these records. The Commissioner ordered PCO to complete the retrieval and processing of all responsive records, provide access to them, and issue a supplementary response. PCO notified the Commissioner that it would implement the order and subsequently issued a supplementary response. The complaint was found to be well founded.

• Whether the Privy Council Office conducted a reasonable search for records under paragraph 30(1)(a) of the Access to Information Act

The complainant alleged that Shared Services Canada (SSC) took an unreasonable extension of time to respond to an access request for records related to solicitation documents, approvals, and decisions from January 1, 2020, to April 8, 2024. SSC initially took a 750-day extension, citing a large volume of records (estimated at 15,000 pages) and difficulties with new ATIP Express software. The Information Commissioner found SSC's benchmark of processing 500 pages per month to be unreasonable and disagreed with factoring in anticipated software delays. The Commissioner acknowledged the challenges with the new software but emphasized that technology issues should not unduly affect requesters' access rights. The Commissioner concluded that the extension was unreasonable, leading to a deemed refusal of access. SSC subsequently agreed to provide interim releases every three months and a complete response by September 30, 2025. The complaint was found to be well founded.

• Whether the extension of time taken under s.9(1)(a) was for a reasonable period
• Whether the institution's processing benchmark of 500 pages per month was reasonable
• Whether anticipated delays due to new ATIP Express software should factor into the length of an extension
• Whether the institution was deemed to have refused access under s.10(3)

The complainant alleged that the Privy Council Office (PCO) failed to conduct a reasonable search for records related to the creation of the Intelligence Coordinator position between September 1984 and February 1985, specifically mentioning a 'Memorandum for the Intelligence Coordinator' dated November 27, 1984. Initially, PCO did not provide documentation of its search efforts, leading the OIC to conclude that a reasonable search had not been demonstrated. Following the OIC's intervention, PCO conducted secondary searches, identifying 187 additional pages of responsive records. PCO committed to reviewing these records and providing a supplementary response to the access request. The Information Commissioner found the complaint to be well-founded and ordered PCO to complete the retrieval and processing of all responsive records and issue a supplementary response by December 10, 2024. PCO subsequently notified the Commissioner that it would implement the order.

• Whether the institution conducted a reasonable search for records responsive to the access request

The complainant alleged that the Privy Council Office (PCO) failed to conduct a reasonable search for records related to a review of the Canadian intelligence program by the Intelligence Advisory Committee (IAC) for the Cabinet Committee for Security and Intelligence (CCSI) between January 1972 and June 1975. The investigation found that PCO's initial search was inadequate, as Offices of Primary Interest did not retrieve all relevant records. The complainant specifically identified several missing documents and references to unreleased annexes within the records provided. Following the Office of the Information Commissioner's (OIC) intervention, PCO conducted a secondary search, which identified an additional 265 pages of responsive records. Although the OIC was satisfied with the subsequent search, the complaint was deemed well founded due to the initial failure. The Commissioner ordered PCO to complete the retrieval and processing of all additional records and provide a supplementary response by March 18, 2025, which PCO agreed to implement.

• Whether the Privy Council Office conducted a reasonable search for records responsive to the access request
• Whether specific requested records were omitted from the initial response
• Whether referenced annexes and supporting papers were missing from the initial release

A federal institution sought the Information Commissioner's approval to decline to act on an access request, arguing it constituted an abuse of the right to make a request under subsection 6.1(1) of the Access to Information Act. The institution claimed the request, for emails and chat messages from a specific office over a two-month period, was too broad and would result in over 75,800 pages, taking an estimated 12.6 years to process. It argued this would severely disrupt its operations, particularly a small office with limited resources, and hinder its ATIP office's ability to respond to other requests. The requester disputed the institution's capacity estimates and argued that exclusions and duplicates would significantly reduce the volume. The Commissioner found that the institution did not provide sufficient evidence to demonstrate that acting on the request would overburden its operations or hinder other requesters' rights, noting that the institution's ATIP processing capacity seemed understated and that no evidence of backlog was provided. Consequently, the Commissioner denied the institution's application.

• Whether the access request constitutes an abuse of the right to make a request under s.6.1(1) ATIA
• Whether the estimated volume of records would overburden the institution
• Whether the institution's efforts to assist the requester were sufficient
• Whether processing the request would severely impact the OPI's ability to advance its mandate
• Whether processing the request would cause undue strain on the ATIP office and hinder other requesters' rights of access
• Whether the institution's estimated processing capacity was accurate

A federal institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act, seeking approval to decline to act on 597 access requests. The institution argued that these requests constituted an abuse of the right to make a request and were vexatious. The Commissioner found that the institution successfully demonstrated that 550 of the 597 requests were indeed an abuse of the right to make a request. Consequently, the Commissioner granted approval for the institution to decline to act on these 550 requests. However, the institution failed to prove that the remaining 47 requests were vexatious or an abuse of the right. Therefore, the Commissioner did not grant approval for the institution to decline to act on those 47 requests. The application was partially granted.

• Whether 597 access requests constituted an abuse of the right to make a request under s.6.1(1) ATIA
• Whether 597 access requests were vexatious under s.6.1(1) ATIA

The complainant alleged that Canadian Heritage (PCH) failed to conduct reasonable searches for records in response to thirteen access requests concerning lobbying communications from 2020 and 2021. While the Offices of Primary Interest (OPIs) that were tasked conducted adequate searches, the Information Commissioner found that PCH did not task all relevant OPIs that were likely to hold responsive records. Specifically, the Corporate Secretariat and the Digital and Creative Marketplace Frameworks OPI were not consistently tasked despite being identified as likely holders of records related to ministerial staff and specific employees, respectively. The Commissioner concluded that PCH did not conduct reasonable searches for records. Consequently, the Commissioner ordered PCH to task the appropriate OPIs, conduct new searches, and provide access to any additional responsive records.

• Whether Canadian Heritage conducted reasonable searches for records in response to multiple access requests
• Whether all Offices of Primary Interest (OPIs) likely to hold relevant records were tasked with searching

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request within the extended timeframe, constituting a deemed refusal under the Access to Information Act. The request sought various records from September 1, 2022, onwards, concerning committee studies of foreign election interference. PCO had extended the response period by 330 days, making the deadline March 14, 2024, but failed to respond by this date. The investigation found that PCO did not meet its obligation, attributing the delay to a large volume of records (5,988 pages) and the ATIP office's failure to initiate timely consultations with eight other government departments. The Information Commissioner ordered PCO to provide a complete response by November 15, 2024. PCO subsequently notified the Commissioner that it would implement the order and respond by the specified date. The complaint was found to be well founded.

• Whether the institution responded within the extended period under subsection 9(1) of the Access to Information Act
• Whether the institution is deemed to have refused access under subsection 10(3) of the Act due to delay

The complainant alleged that Indigenous Services Canada (ISC) took an unreasonable extension of time to respond to an access request for permits, contracts, modifications, letters, and violation notices sent to G&R Recyclage in Kanasatake, as well as internal correspondence about the company since 2014. ISC had initially extended the response period by 210 days, making the deadline January 19, 2024, but failed to respond by that date. The investigation revealed that ISC was processing over 17,000 pages of records, with 9,000 pages already reviewed, and required consultations with third parties. The Information Commissioner found that the suggested response date of December 12, 2024, was reasonable given the volume and complexity of records and the need for third-party consultations. The Commissioner ordered ISC to issue required third-party notices by October 1, 2024, and provide a complete response by December 12, 2024. ISC agreed to implement the order. The complaint was found to be well founded.

• Whether the extension of time taken by Indigenous Services Canada under subsection 9(1) of the Access to Information Act was unreasonable
• Whether Indigenous Services Canada met its obligation to respond to the request within the extended period
• Whether the proposed date for a final response (December 12, 2024) is reasonable given the volume and complexity of records and the need for third-party consultations
• Whether third-party consultations are necessary for the requested records
• Whether Indigenous Services Canada must issue required notices to third parties by October 1, 2024

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request within the extended timeframe, constituting a deemed refusal under the Access to Information Act. The request sought electronic records mentioning specific terms, including "Democracy Watch," from October 2015 to April 2023. PCO received the request in April 2023 and extended the response period by 210 days, setting a new deadline of December 21, 2023, but failed to respond by this date. PCO attributed the delay to limited resources, high workload, and the need for extensive consultations, estimating a response by January 2025. The Commissioner found PCO's estimated timeline unreasonable, noting that the institution had committed inadequate resources to processing the request. The Commissioner concluded that PCO had not met its obligations under the Act and ordered PCO to provide a complete response by November 30, 2024, with interim releases where possible. PCO subsequently agreed to implement the order.

• Whether the institution responded within the extended time limits under subsection 9(1) of the Access to Information Act
• Whether the institution is deemed to have refused access under subsection 10(3) of the Access to Information Act
• Whether the institution's proposed timeline for response was reasonable

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request within the extended timeframe, constituting a deemed refusal under the Access to Information Act. The request sought records related to "ICSI Meetings 2001." PCO had extended the response period by 350 days, making the deadline August 17, 2023, but failed to respond by this date. The investigation revealed that the delay was due to PCO's ATIP office not initiating consultations and processing the request in a timely manner, citing employee shortages and high workload. The Information Commissioner found that PCO did not meet its obligation to respond within the statutory time limits, leading to a deemed refusal. The Commissioner emphasized PCO's ultimate responsibility to ensure timely responses, even when consultations are involved. The complaint was found to be well founded, and PCO was ordered to provide a complete response within 36 business days.

• Whether the institution responded within the extended period under subsection 9(1) of the Access to Information Act
• Whether the institution is deemed to have refused access to the requested records under subsection 10(3) of the Access to Information Act
• Whether the institution's reasons for delay (employee shortages, high workload, outstanding consultations) justify the failure to respond

The complainant alleged that Transport Canada failed to respond to an access request within the 30-day statutory period. The request sought records from specific dates concerning the operation and restrictions of certain aircraft, received and distributed by a particular employee. Transport Canada received the request on January 4, 2024, but did not issue a response within the 30-day timeframe, nor did it seek an extension or transfer the request. The investigation revealed that the program area took three months to locate 148 pages of potentially responsive records. Transport Canada subsequently identified 12 pages as potential Cabinet confidences and initiated consultations, projecting a response date of October 18, 2024. The Commissioner found the delay unacceptable, given the small volume of records, and concluded that Transport Canada failed to meet its obligations under the Act. The complaint was found to be well founded, and Transport Canada was ordered to provide a complete response.

• Whether Transport Canada responded to the access request within the 30-day period set out in section 7 of the Access to Information Act
• Whether Transport Canada validly extended the 30-day period for responding under section 9 of the Access to Information Act
• Whether Transport Canada is deemed to have refused access to the requested records under subsection 10(3) of the Access to Information Act