Canadian 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

The complainant alleged that Library and Archives Canada (LAC) took an unreasonable extension of time to respond to an access request for 974 pages of records. LAC claimed a 639-day extension under paragraph 9(1)(b) of the Access to Information Act to consult with the Canadian Security Intelligence Service (CSIS). The Commissioner found that LAC failed to demonstrate that the length of the extension was reasonable or that it made a serious effort to determine the necessary length, noting that LAC relied on CSIS's 18-24 month estimate for review. The Commissioner highlighted that LAC's practice of automatic consultations on all security and intelligence matters, as observed in a previous systemic investigation, impedes timely access. Consequently, the Commissioner concluded that the extension was unreasonable, leading to a deemed refusal of access. An order was issued for LAC to provide a complete response within 60 business days, and a recommendation was made for LAC to report on improved consultation timelines.

• Whether the 639-day extension of time claimed by Library and Archives Canada under paragraph 9(1)(b) was reasonable
• Whether Library and Archives Canada made a serious effort to assess the necessary length of the extension of time
• Whether there was a link between the reasons for the extension and its length
• Whether the calculation of the length of the extension was sufficiently rigorous, logical, and supportable
• Whether Library and Archives Canada's practice of automatic consultations on all security and intelligence matters is consistent with its obligations under the Act and the Interim Directive
• Whether Library and Archives Canada's reliance on CSIS's consultation timeline was compliant with the Directive on Access to Information Requests

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for records related to a contract for decommissioning and demolition services. The request specifically sought various documents, including environmental assessments, meeting minutes, and inventory reports, concerning a subcontract awarded by Brookfield Global Integrated Solutions (BGIS) to Temprano & Young Architects Inc. PSPC initially did not acknowledge control over some records and did not attempt to obtain them from BGIS. The Information Commissioner found that, based on a Supreme Court of Canada precedent, records held by BGIS were under PSPC's control due to the nature of their contractual relationship and PSPC's ability to obtain them. The Commissioner also determined that PSPC's search was unreasonable, as it failed to identify numerous responsive records and did not seek records from BGIS. Consequently, the complaint was found to be well founded, and PSPC was ordered to conduct further searches, including contacting BGIS, and to provide a new response to the complainant.

• Whether records in the physical possession of a third party (BGIS) were under the control of PSPC
• Whether PSPC conducted a reasonable search for records responsive to the access request
• Whether PSPC should have sought records from BGIS

The complainant alleged that Library and Archives Canada (LAC) took an unreasonable extension of time to respond to an access request for Royal Canadian Mounted Police records concerning Communist Party of Canada activity from 1970 to 1984. LAC claimed an 80-day extension under paragraph 9(1)(a) and a 730-day extension under paragraph 9(1)(b) for consultations with the Canadian Security Intelligence Service (CSIS) on 4,985 pages of records. The Commissioner found the 730-day extension unreasonable, noting that LAC failed to demonstrate a serious effort to assess the necessary length of the extension and relied solely on CSIS's two-year estimate. The Commissioner also highlighted that significant disclosures of similar historical records have occurred and that the records are approximately 50 years old, questioning LAC's practice of automatic consultations on all security and intelligence-related records. Since LAC had not responded by the time the 80-day extension expired, the Commissioner concluded that LAC was deemed to have refused access. The Commissioner ordered LAC to provide a complete response within 60 business days, but LAC gave notice that it would not implement the order, citing workload and other commitments.

• Whether the 730-day extension of time under paragraph 9(1)(b) for consultations was reasonable
• Whether LAC made a serious effort to assess the necessary length of the extension of time
• Whether there was a link between the reasons for the extension and its length
• Whether the calculation of the length of the extension was sufficiently rigorous, logical, and supportable
• Whether the 80-day extension of time under paragraph 9(1)(a) was reasonable given LAC's failure to respond within that period
• Whether LAC was deemed to have refused access pursuant to subsection 10(3) of the Act
• Whether LAC's practice of automatic consultations on all security and intelligence-related records is consistent with its obligations under the Act and the Interim Directive

The complainant alleged that the Department of Justice Canada (Justice) took an unreasonable extension of time to respond to an access request for records pertaining to the booking and cancellation of a specific presentation. Justice claimed a 382-day extension, comprising 292 days under paragraph 9(1)(a) and 90 days under paragraph 9(1)(b) of the Access to Information Act. The Commissioner found that the 292-day extension under 9(1)(a) was unreasonable and unjustified, noting that the request was clear and concise, and the institution's reasons (such as OPI workload and a low page review rate) were not sufficient. Furthermore, Justice failed to respond within the 90-day extension claimed under 9(1)(b), leading to a deemed refusal of access under subsection 10(3). The Commissioner also criticized Justice for basing its extension on an inflated page count due to unaddressed duplicates and non-relevant records. The complaint was found to be well-founded, and Justice was ordered to provide a complete response within 36 business days.

• Whether the 292-day extension of time under paragraph 9(1)(a) was reasonable and justified
• Whether the 90-day extension of time under paragraph 9(1)(b) was reasonable and justified
• Whether the institution failed to respond within the extended period
• Whether the institution was deemed to have refused access under subsection 10(3)
• Whether the institution's page count for the extension was accurate and reflected responsive records

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly refused to process an access request for all emails of a named employee. PSPC argued that the request lacked sufficient detail because it did not specify a subject matter or timeframe. The Information Commissioner found that PSPC failed to demonstrate that an experienced institutional employee could not identify the relevant records with reasonable effort, even without a specified subject or timeframe. The Commissioner concluded that PSPC's refusal to process the request was unreasonable and that the institution was deemed to have refused access due to not responding by the legislated due date. Given the estimated 50,000 pages of responsive records, the Commissioner ordered PSPC to provide a complete response by July 9, 2029, and recommended training for employees on information management. PSPC agreed to implement both the order and the recommendation, leading to a well-founded complaint.

• Whether the access request met the requirements of section 6 of the ATIA
• Whether the request provided enough detail for experienced institutional employees to identify relevant records with a reasonable effort
• Whether PSPC's refusal to process the request was reasonable
• Whether PSPC was deemed to have refused access under subsection 10(3) of the ATIA

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information in response to a request for the recovery strategy for the whitebark pine. The OIC investigated ECCC's application of several exemptions, including those related to personal information, third-party commercial information, federal-provincial affairs, and advice/recommendations. The Commissioner found that ECCC failed to make reasonable efforts to seek consent for personal information and did not demonstrate that third-party information met the exemption requirements. Additionally, ECCC improperly withheld factual information under advice/recommendations exemptions and did not reasonably exercise discretion for some information withheld under federal-provincial affairs. The Commissioner ordered ECCC to seek consent for personal information, disclose certain third-party and factual information, and re-exercise discretion for specific records. ECCC agreed to comply with the order, leading to a well-founded complaint.

• Whether s.19(1) personal information exemption was properly applied to the name and contact information of an individual
• Whether ECCC made reasonable efforts to seek consent under s.19(2)(a) for personal information
• Whether the personal information was publicly available under s.19(2)(b)
• Whether disclosure of personal information would be consistent with s.8 of the Privacy Act under s.19(2)(c)
• Whether the information met the requirements of s.20(1)(b) for confidential third-party financial, commercial, scientific or technical information
• 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)
• Whether the information met the requirements of s.21(1)(b) for accounts of consultations or deliberations
• Whether factual information was improperly withheld under s.21(1)(b)
• Whether ECCC reasonably exercised discretion under s.21(1)(b) for information Parks Canada indicated could be disclosed
• Whether ECCC reasonably exercised discretion under s.21(1)(b) for other information
• Whether the information met the requirements of s.21(1)(a) for advice or recommendations
• Whether factual information was improperly withheld under s.21(1)(a)
• Whether ECCC reasonably exercised discretion under s.21(1)(a)
• Whether the information met the requirements of s.14 for federal-provincial affairs
• Whether ECCC reasonably expected harm to federal-provincial affairs from disclosure of information on page 2947
• Whether ECCC reasonably exercised discretion under s.14

The complainant alleged that the Port Alberni Port Authority (PAPA) improperly withheld information under several sections of the Access to Information Act in response to a request for documents related to the lease or sale of its assets. The investigation focused on withheld company names and financial amounts. PAPA claimed exemptions under paragraphs 18(a), 18(b), 18(c), subsection 19(1), and paragraphs 20(1)(b) and 20(1)(c). The Commissioner found that PAPA failed to demonstrate that the withheld information met the requirements for any of the claimed exemptions. Specifically, PAPA did not show that the financial information had substantial value, that its disclosure would harm its competitive position or interfere with negotiations, or that the information was scientific/technical from government research. The Commissioner also determined that a company name was not personal information and that the third-party commercial information was not objectively confidential nor was a clear link established between disclosure and financial harm. Consequently, the Commissioner ordered PAPA to disclose the redacted information. PAPA agreed to implement the order, and the complaint was found to be well founded.

• Whether s.18(a) ATIA (government financial, commercial, scientific or technical information) applied to the withheld amounts related to equipment rental
• Whether the withheld financial information had substantial value under s.18(a) ATIA
• Whether s.18(b) ATIA (competitive position of government institutions or negotiations by government institutions) applied to the withheld amounts related to equipment rental
• Whether disclosure of the information would reasonably be expected to harm PAPA's competitive position or interfere with negotiations under s.18(b) ATIA
• Whether s.18(c) ATIA (government scientific or technical information obtained from research) applied to any withheld information
• Whether the withheld information was scientific or technical, obtained through government research, and if its disclosure would jeopardize publication rights under s.18(c) ATIA
• Whether s.19(1) ATIA (personal information) applied to the name of a company
• Whether the company name constituted personal information under s.19(1) ATIA
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) applied to the third party's name and leased premises information
• Whether the third-party information was confidential by an objective standard under s.20(1)(b) ATIA
• Whether s.20(1)(c) ATIA (financial impact on a third party) applied to portions of a lease agreement and specific amounts
• Whether disclosure of the information would reasonably be expected to cause material financial loss or gain to the third party or injure its competitive position under s.20(1)(c) ATIA

The complainant alleged that the Canada Border Services Agency (CBSA) improperly withheld information related to cybersecurity and data breach risk assessments of the ArriveCAN application under subsection 16(2) and paragraph 20(1)(d) of the Access to Information Act. During the investigation, CBSA initially disclosed some records but continued to withhold others under subsection 16(2) and additionally claimed subsection 19(1). The Commissioner found that while some information met the requirements of subsection 16(2) (facilitating an offence), other portions did not. Furthermore, the Commissioner concluded that CBSA failed to properly exercise its discretion under subsection 19(2) regarding personal information, as it did not demonstrate efforts to seek consent or consider public availability. The complaint was found to be well founded. Although the Commissioner issued an initial report with orders, CBSA subsequently made further disclosures, and the complainant indicated satisfaction, making a formal order unnecessary.

• Whether s.16(2) ATIA (facilitating the commission of an offence) was properly applied to cybersecurity review information, including intranet/internal network addresses and specific vulnerabilities
• Whether s.16(2) ATIA was properly applied to statements related to asset identification and valuation, lists of components, summaries of changes, names of reference documents, and executive overviews
• Whether CBSA reasonably exercised its discretion under s.16(2) ATIA for information that met the exemption's requirements
• Whether s.19(1) ATIA (personal information) was properly applied to pictures and contact information of KPMG employees
• Whether CBSA made reasonable efforts to seek consent for disclosure of personal information under s.19(2)(a) ATIA
• Whether CBSA considered if personal information was publicly available under s.19(2)(b) ATIA
• Whether CBSA properly exercised its discretion under s.19(2) ATIA

The complainant alleged that the Canadian Broadcasting Corporation (CBC) improperly withheld information under section 17 (safety of individuals) and subsection 19(1) (personal information) of the Access to Information Act. The request sought communications between specific CBC and Twitter employees since January 1, 2018. During the investigation, the CBC released some information previously withheld under subsection 19(1) and section 17, but also applied subsection 16(2) (facilitating the commission of an offence) to some remaining information. The Commissioner found that the CBC failed to demonstrate how disclosing the name and contact information of an information security team member would reasonably be expected to facilitate an offence, especially since some of this information was publicly available. Regarding section 17, while acknowledging that psychological harm could fall under the exemption, the Commissioner concluded that the CBC did not show the harm went beyond distress or that there was a reasonable expectation of harm if the information, including names and Twitter handles of journalists, were disclosed. The Commissioner ordered the CBC to disclose the information withheld under subsection 16(2) and section 17. The CBC notified the Commissioner that it would implement the order.

• Whether s.16(2) facilitating the commission of an offence was properly applied to the name and contact information of a CBC employee
• Whether there was a clear and direct linkage between disclosure and the alleged harm under s.16(2)
• Whether the information met the requirements of s.16(2)
• Whether s.17 safety of individuals was properly applied to the names and Twitter handles of CBC journalists
• Whether psychological harm is encompassed by s.17
• Whether the CBC demonstrated a reasonable expectation of harm under s.17 for journalists' identifying information
• Whether s.17 safety of individuals was properly applied to the name and contact information of a non-journalist CBC employee
• Whether the CBC demonstrated a reasonable expectation of harm under s.17 for the non-journalist employee's identifying information

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information under several exemptions of the Access to Information Act related to Taseko Mines Limited’s New Prosperity Project. The OIC investigated claims under subsections 16(2), 19(1), paragraphs 20(1)(d), 21(1)(a), 21(1)(b), and section 23. During the investigation, the complainant narrowed the scope, removing all information withheld under subsection 16(2) from the complaint. The Commissioner found that ECCC did not demonstrate that the requirements for paragraphs 20(1)(d), 21(1)(a), 21(1)(b), or section 23 were met for certain information. However, where the requirements for discretionary exemptions were met, ECCC was found to have reasonably exercised its discretion. The Commissioner ordered ECCC to disclose specific information that did not meet the exemption requirements. ECCC agreed to comply with the order, and the complaint was deemed well founded.

• Whether s.16(2) facilitating the commission of an offence applied
• Whether s.19(1) personal information applied
• Whether ECCC reasonably exercised its discretion under s.19(2)
• Whether s.20(1)(d) negotiations by a third party applied
• Whether ECCC reasonably exercised its discretion under s.20(5)
• Whether ECCC reasonably exercised its discretion under s.20(6)
• Whether s.21(1)(a) advice or recommendations applied
• Whether ECCC reasonably exercised its discretion under s.21(1)(a)
• Whether s.21(1)(b) accounts of consultations or deliberations applied
• Whether ECCC reasonably exercised its discretion under s.21(1)(b)
• Whether s.23 solicitor-client and litigation privilege applied
• Whether ECCC reasonably exercised its discretion under s.23

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly withheld 96,781 pages of records under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. The records related to the negotiation of a 1991 lease for the Louis St-Laurent Building. PSPC applied section 23 in a blanket manner, claiming both solicitor-client and litigation privilege. The Information Commissioner found that while some information met the requirements for solicitor-client privilege, PSPC failed to demonstrate that any information met the requirements for litigation privilege. Furthermore, PSPC's exercise of discretion was deemed unreasonable as it considered irrelevant factors and failed to consider relevant ones. The Commissioner also concluded that PSPC failed to adhere to section 25 by not performing a proper severance exercise. The complaint was found to be well founded, and PSPC was ordered to disclose specific types of records, all records not meeting solicitor-client privilege, and to reconsider its discretion for information genuinely subject to solicitor-client privilege.

• Whether the information met the requirements for solicitor-client privilege under s.23 ATIA
• Whether the information met the requirements for litigation privilege under s.23 ATIA
• Whether PSPC reasonably exercised its discretion to withhold information under s.23 ATIA
• Whether PSPC adhered to its severance obligations under s.25 ATIA