Canadian privacy & access decisions

The complainant alleged that Environment and Climate Change Canada (ECCC) failed to conduct a reasonable search for records related to reports and assessments by the Northgate Group. The investigation revealed that ECCC had overwritten an original draft report from the contractor by saving edits directly onto it, effectively destroying a contract deliverable that should have been preserved in a corporate repository. This action meant the original draft report no longer existed and could not be retrieved, irreversibly undermining the right of access. Although ECCC identified an additional 122 pages of records during the investigation, the destruction of the key draft report was a significant issue. The Commissioner found the complaint to be well founded due to ECCC's failure to preserve a record of business value, impacting the complainant's right of access. ECCC committed to implementing the Commissioner's recommendation for improved training and record-keeping practices.

• Whether Environment and Climate Change Canada conducted a reasonable search for records
• Whether a draft report from a contractor constituted a record of business value
• Whether the destruction of the original draft report by overwriting undermined the right of access

The complainant alleged that Natural Resources Canada (NRCan) failed to conduct a reasonable search for driving data, including GPS data and driver logbook entries from its fleet vehicles, for three specific time periods. The OIC's investigation found that while NRCan's Office of Primary Interest conducted a search of corporate repositories, NRCan also had a responsibility to retrieve GPS data stored with a third-party data storage company. NRCan conceded that this data, though not in its physical possession, was under its control according to the Access to Information Act. Consequently, NRCan retrieved the GPS records and located additional logbook entries, which were subsequently provided to the complainant during the investigation. The Commissioner concluded that NRCan's initial search was not reasonable as it failed to include records under its control held by a third party. The complaint was found to be well founded.

• Whether Natural Resources Canada conducted a reasonable search for records
• Whether GPS data held by a third-party data storage company was under the control of Natural Resources Canada for the purposes of the Access to Information Act

The complainant alleged that the Department of Justice Canada (Justice) failed to conduct a reasonable search for records related to the Asia-Pacific Economic Cooperation (APEC) conference and the Hughes Inquiry. Initially, Justice stated it could not locate any responsive records. However, during the OIC's investigation, it was discovered that Justice had not tasked the National Litigation Sector (NLS), which was identified as the most appropriate Office of Primary Interest. After being tasked, the NLS located over 40,000 pages of responsive records. The Commissioner concluded that Justice did not conduct a reasonable search and found the complaint to be well founded. The Commissioner also found Justice's estimated processing time of 55 months to be unreasonable and recommended a final response by September 4, 2023.

• Whether the Department of Justice Canada conducted a reasonable search for records
• Whether the National Litigation Sector (NLS) was appropriately tasked for the search
• Whether the institution's estimated processing time for the records was reasonable

The complainant alleged that Library and Archives Canada (LAC) failed to respond to an access request within the time limits stipulated by the Access to Information Act. LAC received a request for records concerning the LGBTQ community in the military and initially claimed a 565-day extension, which the OIC previously found to be valid. However, LAC missed this extended deadline, leading to the current complaint. The OIC found that LAC was in deemed refusal under subsection 10(3) of the Act, as it had not fully responded to the request by the extended due date. Despite having located over 9,000 pages of responsive material and providing an interim release, LAC had not completed its review or provided a final disclosure date, citing human resource issues and the COVID-19 pandemic. The Commissioner concluded that LAC had not adequately addressed the delay and ordered the institution to complete processing and respond forthwith.

• 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 is in deemed refusal pursuant to subsection 10(3) of the Access to Information Act

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 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

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 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 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

The Information Commissioner initiated a systemic investigation into Immigration, Refugees and Citizenship Canada's (IRCC) processing of access requests for immigration application files due to a dramatic increase in requests and complaints. The investigation found that IRCC's practice of automatically extending response times for frequent requesters under paragraph 9(1)(a) of the Access to Information Act was improper. This practice disregarded Federal Court of Appeal guidance and the Act's requirement to not consider a requester's identity. The Commissioner issued five recommendations to IRCC, including ceasing the improper extension practice, developing a work plan to improve ATIP office performance, publishing results, improving the availability of client immigration information, and securing adequate short-term resources. IRCC agreed to all recommendations and submitted a work plan. The complaint was found to be well-founded.

• Whether IRCC's practice of extending time limits under paragraph 9(1)(a) for frequent requesters was compliant with the ATIA
• Whether IRCC's extension practice disregarded Federal Court of Appeal guidance on s.9(1)(a)
• Whether IRCC's extension practice violated subsection 4(2.1) by considering requester identity
• Whether IRCC had sufficient resources and effective processes to manage the volume of access requests
• Whether IRCC provided adequate alternative means for clients to obtain immigration application information