Canadian privacy & access decisions

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information under various sections of the Access to Information Act, including s.16(2), s.19(1), s.21(1)(a), s.21(1)(b), s.23, and s.69(1), related to the Alternate Independent Process for St-Anne’s Residential School hearings. During the investigation, the complainant withdrew the s.19(1) allegation. The Commissioner found that Justice appropriately applied s.16(2), s.21(1)(a), s.21(1)(b), and s.69(1). However, Justice could not demonstrate that all information withheld under s.23 (solicitor-client and litigation privilege) met the exemption's requirements, particularly regarding communications outside the direct solicitor-client relationship or where common interest privilege was not established. The Commissioner recommended disclosure of the improperly withheld s.23 information. Justice maintained its position on s.23 but committed to reviewing the records for potential disclosure. The complaint was found to be well founded.

• Whether s.16(2) facilitating the commission of an offence was properly applied
• Whether discretion was reasonably exercised for s.16(2)
• Whether s.21(1)(a) advice or recommendations was properly applied
• Whether discretion was reasonably exercised for s.21(1)(a)
• Whether s.21(1)(b) accounts of consultations or deliberations was properly applied
• Whether discretion was reasonably exercised for s.21(1)(b)
• Whether s.23 solicitor-client privilege was properly applied to all communications
• Whether s.23 litigation privilege was properly applied to all communications
• Whether common interest privilege was established for s.23 claims
• Whether discretion was reasonably exercised for s.23
• Whether s.69(1) Cabinet confidences was properly applied

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under section 23 (solicitor-client privilege) of the Access to Information Act, concerning regulations under the Food and Drugs Act and related litigation. The Information Commissioner found that the withheld information did meet the requirements for solicitor-client privilege. However, LAC failed to demonstrate that it had reasonably exercised its discretion in deciding whether to disclose the information, as it did not provide evidence of considering all relevant factors for and against disclosure. The Commissioner noted that the records were nearly 90 years old and had historical significance, suggesting that exceptional circumstances might exist to warrant disclosure. Consequently, the Commissioner ordered LAC to re-exercise its discretion, taking into account all relevant factors, including the age and historical significance of the records. LAC agreed to implement the order.

• Whether the information met the requirements of s.23 ATIA (solicitor-client privilege)
• Whether the communications were between a lawyer/notary and client
• Whether the communications related to seeking or giving legal advice
• Whether the parties intended the communication to remain confidential
• Whether there was an implied waiver of solicitor-client privilege due to prior disclosure
• Whether there was a selective waiver of privilege
• Whether LAC reasonably exercised its discretion to disclose the information under s.23 ATIA
• Whether LAC considered all relevant factors for and against disclosure

An individual complained that the Canada Border Services Agency (CBSA) over-disclosed their personal information to the Information Commissioner (IC) when seeking approval to decline two Access to Information Act (ATIA) requests. The CBSA provided not only information related to the ATIA requests but also a sensitive labour relations report about the complainant. The CBSA argued the disclosure was a "consistent use" under paragraph 8(2)(a) of the Privacy Act, as the information was collected in the context of workplace conflict and the disclosure was to determine how to handle the complainant's requests for their personal information. The OPC found that while information related to the ATIA requests was a consistent use, the disclosure of the labour relations report was not, as its original purpose (addressing workplace conflict) was distinct from responding to ATIA requests. The OPC concluded that the CBSA contravened section 8 of the Privacy Act and recommended the CBSA develop guidance for consistent use disclosures. The CBSA disagreed with the finding and declined to implement the recommendation, leading to a "well-founded and not resolved" outcome.

• Whether the disclosure of personal information to the Information Commissioner was for a "consistent use" under paragraph 8(2)(a) of the Privacy Act
• Whether information collected for administering ATIA requests can be disclosed to the IC as a consistent use
• Whether a labour relations report, originally collected for addressing workplace conflict, can be disclosed to the IC as a consistent use in the context of ATIA requests

The complainant alleged that Transport Canada improperly withheld information related to a Boeing 737 MAX aircraft system (MCAS) under various exemptions of the Access to Information Act. Transport Canada initially withheld all records under paragraphs 20(1)(a), (b), and (c), and the third party, Boeing, also suggested the application of subsection 13(1). The Commissioner found that Transport Canada and Boeing did not demonstrate that all the withheld information met the requirements for trade secrets under paragraph 20(1)(a), nor for confidential third-party information under paragraph 20(1)(b), particularly for general or publicly available information. Similarly, the Commissioner found that the institution failed to demonstrate a reasonable expectation of harm for all information under paragraph 20(1)(c). The Commissioner also concluded that subsection 13(1) did not apply as the information was not provided in confidence. Furthermore, Transport Canada's exercise of discretion under subsection 20(6) was deemed unreasonable as it did not consider the public interest related to the Lion Air and Ethiopian Airlines crashes. The complaint was found to be well-founded, and Transport Canada was ordered to disclose specific information and re-exercise discretion.

• Whether s.19(1) personal information exemption was properly applied (removed from scope)
• Whether s.20(1)(a) trade secrets exemption was properly applied to all records
• Whether the information was secret for s.20(1)(a)
• Whether the third party intended to treat the information as secret for s.20(1)(a)
• Whether the information had industrial or commercial application for s.20(1)(a)
• Whether the third party had an interest worthy of legal protection for s.20(1)(a)
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied to all records
• Whether the information was financial, commercial, scientific or technical for s.20(1)(b)
• Whether the information was confidential for s.20(1)(b)
• Whether the information was supplied by a third party to a government institution for s.20(1)(b)
• Whether the third party consistently treated the information as confidential for s.20(1)(b)
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to all records
• Whether disclosure could result in material financial loss or gain to the third party for s.20(1)(c)
• Whether there was a reasonable expectation of harm for s.20(1)(c)
• Whether disclosure could injure the competitive position of the third party for s.20(1)(c)
• Whether Transport Canada reasonably exercised discretion under s.20(5) regarding disclosure with consent
• Whether Transport Canada reasonably exercised discretion under s.20(6) for public health or public safety reasons
• Whether s.13(1) confidential information from government bodies exemption was properly applied
• Whether the information was obtained in confidence from a government body for s.13(1)

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for records related to a Designated Substances Report for the Health Protection Building. PSPC provided some records but withheld others, claiming they were not under its control as they were held by a subcontractor, BGIS. The Information Commissioner investigated whether the records were under PSPC's control and whether a reasonable search was conducted. The Commissioner found that despite not having physical possession, the records were under PSPC's control due to the contractual relationship with BGIS, which included a legally enforceable right to obtain such documents. Consequently, the Commissioner concluded that PSPC had not conducted a reasonable search for these controlled records. The complaint was found to be well founded, and PSPC was ordered to retrieve and process the records. However, PSPC notified the Commissioner that it would not implement the order.

• Whether records not in physical possession of the institution are 'under the control' of the institution for the purposes of the Access to Information Act
• Whether the contents of the record relate to an institutional matter
• Whether the institution could reasonably expect to obtain a copy of the record upon request
• Whether the legal relationship between the institution and the record holder indicates control
• Whether the institution conducted a reasonable search for records under its control

The complainant alleged that the Transportation Safety Board of Canada (TSB) improperly withheld information from an Aviation Occurrence Reporting Form and photographs related to an Air Inuit incident, citing subsections 19(1), 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The OIC investigation into subsection 19(1) was discontinued at the complainant's request. The Commissioner found that TSB and the third party, Air Inuit, failed to provide sufficient evidence or representations to demonstrate that the withheld information met the requirements for confidentiality, commercial nature, potential financial impact, or interference with negotiations under paragraphs 20(1)(b), (c), and (d). Specifically, the Commissioner was not convinced the information was commercial, confidential, or that its disclosure would cause the claimed harms. Consequently, the Commissioner ordered TSB to disclose all information at issue, excluding any information previously withheld under subsection 19(1). TSB notified the Commissioner that it would implement the order.

• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is confidential under s.20(1)(b) ATIA
• Whether the third party supplied the information to a government institution under s.20(1)(b) ATIA
• Whether the third party has consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether disclosure could result in material financial loss or gain to the third party under s.20(1)(c) ATIA
• Whether there is a reasonable expectation of harm under s.20(1)(c) ATIA
• Whether disclosure could injure the competitive position of the third party under s.20(1)(c) ATIA
• Whether a third party is or will be conducting contractual or other negotiations under s.20(1)(d) ATIA
• Whether disclosing the information could interfere with those negotiations under s.20(1)(d) ATIA
• Whether there is a reasonable expectation of harm under s.20(1)(d) ATIA

The complainant alleged that Natural Resources Canada (NRCan) improperly withheld information under paragraphs 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The request sought records related to NRCan and/or Canadian Forest Service representatives on the Board of Governors of the Maritime College of Forest Technology (MCFT). While NRCan also withheld information under subsection 19(1) and section 23, these exemptions were not at issue in the complaint. During the investigation, MCFT agreed to disclose two pieces of information that were publicly available. For the remaining information, the Commissioner found that NRCan and MCFT failed to demonstrate that the information met the confidentiality criteria or that there was a reasonable expectation of harm from disclosure, as required by the exemptions. Consequently, the Commissioner ordered NRCan to disclose the information not covered by subsection 19(1) or section 23. NRCan subsequently notified the Commissioner that it would implement the order.

• Whether the records were under the control of Natural Resources Canada
• Whether the information was financial, commercial, scientific or technical under s.20(1)(b)
• Whether the information was confidential under s.20(1)(b)
• Whether the information was supplied by a third party to a government institution under s.20(1)(b)
• Whether the third party consistently treated the information as confidential under s.20(1)(b)
• Whether disclosure could reasonably be expected to result in material financial loss or gain to the third party under s.20(1)(c)
• Whether disclosure could reasonably be expected to injure the competitive position of the third party under s.20(1)(c)
• Whether there was a reasonable expectation of harm under s.20(1)(c)
• Whether a third party is or will be conducting contractual or other negotiations under s.20(1)(d)
• Whether disclosure could reasonably be expected to interfere with those negotiations under s.20(1)(d)
• Whether there was a reasonable expectation of harm under s.20(1)(d)

The complainant alleged that the Atlantic Canada Opportunities Agency (ACOA) improperly withheld information related to a grant made to the Organisation for Economic Co-operation and Development (OECD) under paragraphs 20(1)(b) and 20(1)(d) of the Access to Information Act. The withheld information included details about the OECD's operating expenses, ACOA's contribution, and a statement regarding the OECD. The Office of the Information Commissioner (OIC) found that neither ACOA nor the OECD provided sufficient evidence to support the application of either exemption. Specifically, the OIC determined that the information did not meet the confidentiality requirements of paragraph 20(1)(b) and that there was no reasonable expectation of harm to negotiations under paragraph 20(1)(d). Consequently, the Commissioner ordered ACOA to disclose the records in their entirety, and ACOA agreed to implement the order.

• Whether the information constitutes confidential third-party financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether the information is financial, commercial, scientific or technical
• Whether the information is confidential by an objective standard
• Whether the third party supplied the information to a government institution
• Whether the third party has consistently treated the information as confidential
• Whether the information could reasonably be expected to interfere with contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether a third party is or will be conducting contractual or other negotiations
• Whether disclosing the information could interfere with those negotiations
• Whether there is a reasonable expectation that harm could occur

The complainant alleged that the Canada School of Public Service (CSPS) failed to conduct a reasonable search for emails of a specified senior executive, improperly considered the requester's identity, and intentionally deleted records. The OIC's investigation found that CSPS did not conduct a reasonable search, as evidenced by delays in initiating the search, the deletion of the executive's email account, and the subsequent discovery of additional records after OIC intervention. The Commissioner concluded that CSPS mishandled the request, including keeping it on hold without lawful authority and failing to retain responsive records. However, the OIC found no evidence of an intent to deny access or that the requester's identity influenced processing. The complaint was found to be well founded regarding the unreasonable search.

• Whether the institution conducted a reasonable search for records
• Whether the institution intentionally deleted records with intent to deny access (s.67.1 ATIA)
• Whether the institution processed the request with regard to the identity of the requester

The complainant alleged that the Immigration and Refugee Board of Canada (IRB) took an unreasonable extension of time to respond to an access request for records related to an updated 'Weighing Evidence' document. The IRB claimed a 1,295-day extension under paragraph 9(1)(a) of the Access to Information Act, which would have delayed the response until March 31, 2025. While the Commissioner accepted that the request involved a large volume of records and that responding within 30 days would interfere with operations, she found the length of the extension unreasonable. The IRB's calculation of timeframes for review, particularly the 160 weeks for an analyst and the sequential review process, was not justified given the institution's ATIP resources and the nature of the records. Consequently, the Commissioner found the extension invalid, deeming the IRB to have refused access. The complaint was well founded, and the Commissioner ordered the IRB to process the records by April 18, 2023.

• Whether the institution properly notified the complainant of the extension of time
• Whether the request was for a large volume of records or necessitated a search through a large volume of records
• Whether responding to the request within 30 days would unreasonably interfere with the institution's operations
• Whether the length of the time extension claimed under paragraph 9(1)(a) was reasonable
• Whether the 160-week timeframe for an analyst's preliminary review was justified
• Whether the 10 weeks for ATI Management's review and 10 weeks for final approval were justified
• Whether the 3 additional weeks for miscellaneous delays were justified
• Whether the institution established why processing steps must be taken sequentially without overlap
• Whether the institution was deemed to have refused access under subsection 10(3) due to an invalid extension

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsection 15(1) of the Access to Information Act, concerning historical documents related to the defence of the Arctic region. LAC initially made a partial disclosure and later a supplementary disclosure during the investigation, but continued to withhold the majority of the information, citing national security implications. The OIC found that LAC failed to demonstrate how the release of the information, much of which was historical, publicly available, or related to cancelled programs and defunct entities (like the USSR), would reasonably be expected to harm national security or defence. The Commissioner concluded that LAC did not meet the requirements of the exemption, as the alleged harm was not probable but merely a possibility. The complaint was found to be well founded, and LAC agreed to disclose the records in their entirety.

• Whether the disclosure of historical documents regarding Arctic defence could reasonably be expected to harm national security or defence under s.15(1) ATIA
• Whether the institution demonstrated a reasonable expectation of harm, beyond a mere possibility
• Whether the public availability of similar information negated the harm claim
• Whether the historical nature of the information (e.g., cancelled programs, defunct states) impacted the harm claim
• Whether the institution reasonably exercised its discretion to withhold the information

The complainant alleged that the Office of the Auditor General of Canada (OAG) improperly determined that witness statements and documentation supporting a harassment investigation final report were not under its control, thus denying access. The OIC investigated whether the records, though not in the OAG's physical possession, were under its control according to the Supreme Court's interpretation of the Access to Information Act. The OIC considered several factors, including whether the records related to an institutional matter, if the OAG had a legally enforceable right to access them, and if communication of their content required OAG authorization. The OIC found that the records were indeed under the OAG's control. Consequently, the OAG retrieved and processed the records, issuing an interim release to the complainant, who expressed satisfaction. The complaint was found to be well founded.

• Whether records not in physical possession of the institution are under its control
• Whether the records relate to an institutional matter
• Whether the institution has a legally enforceable right of access to the records
• Whether the communication of the content of the records requires the authorization of an officer or employee of an institution
• Whether the institution relied on the records when preparing other government records
• Whether a senior official of the institution should reasonably expect to obtain a copy of the records upon request

The complainant alleged that the Federal Economic Development Agency for Southern Ontario (FedDev Ontario) improperly withheld information under subsections 19(1), 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The request sought information related to funding applications from The Corporation of the Town of Niagara-on-the-Lake. During the investigation, the complainant narrowed the scope, no longer requiring investigation into s.19(1) or specific financial columns for non-funded third parties. The OIC sought representations from FedDev Ontario and relevant third parties, but neither provided evidence to support the applied exemptions. The Commissioner found that the institution failed to demonstrate that the information met the requirements for confidentiality, that it was 'supplied' by a third party, or that disclosure would cause a reasonable expectation of harm to financial interests or negotiations. Consequently, the complaint was found to be well founded, and FedDev Ontario was ordered to disclose the withheld information.

• Whether s.19(1) personal information exemption was properly applied
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied
• Whether the information was financial, commercial, scientific or technical
• Whether the information was confidential
• Whether the information was supplied by a third party
• Whether the third party consistently treated the information as confidential
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied
• Whether disclosure could result in material financial loss or gain to the third party
• Whether there was a reasonable expectation of harm under s.20(1)(c)
• Whether s.20(1)(d) interference with contractual or other negotiations of a third party exemption was properly applied
• Whether a third party is or will be conducting contractual or other negotiations
• Whether disclosure could interfere with those negotiations
• Whether there was a reasonable expectation of harm under s.20(1)(d)

The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to conduct a reasonable search for records related to pay equity for unionized CSIS employees. The request sought communications between CSIS and other federal government departments and agencies on this topic. CSIS initially searched its Human Resource Compensation Branch but refused to search its Departmental Legal Services Unit (DLSU), arguing that DLSU records were under the control of the Department of Justice, not CSIS. The Office of the Information Commissioner found that CSIS's refusal to task its DLSU was premature and that records physically located with the DLSU could still be under CSIS's control, especially given the solicitor-client relationship and the subject matter relating directly to CSIS's mandate. The Commissioner concluded that CSIS failed to conduct a reasonable search by not retrieving and reviewing these records to determine control. The complaint was found to be well founded, and the Commissioner recommended that CSIS retrieve, review, and respond to the records from its DLSU, but CSIS declined to implement the recommendations.

• Whether CSIS conducted a reasonable search for records
• Whether records physically located with CSIS's Departmental Legal Services Unit (DLSU) are under the control of CSIS
• Whether CSIS's refusal to task its DLSU for records constitutes a failure to conduct a reasonable search

The complainant alleged that Export Development Canada (EDC) improperly withheld information related to financial assistance provided to Canadian companies in Honduras. The request sought a summary of all financial assistance over $50,000 from 2009 to 2019. EDC claimed exemptions under subsections 18.1(1) (confidential financial, commercial, scientific or technical information of EDC) and 24(1) (disclosure restricted by another law) of the Access to Information Act. The Information Commissioner found that EDC failed to demonstrate that the information "belonged to" it for the purpose of s.18.1(1), as it was shared with and retained by customers. For s.24(1), EDC invoked section 24.3 of the Export Development Act, but the Commissioner determined that the information was "created" by EDC, not "obtained" by it, thus falling outside the scope of the exemption. The Commissioner ordered EDC to disclose policy types, policy numbers, and maximum liability amounts. EDC partially implemented the order, disclosing only policy types, and indicated its intention to seek a Federal Court review regarding the interpretation of the Export Development Act.

• Whether the information "belongs to" EDC for the purpose of s.18.1(1) ATIA
• Whether EDC consistently treated the information as confidential for the purpose of s.18.1(1) ATIA
• Whether the information was "obtained by" EDC or "created by" EDC for the purpose of s.24.3(1) of the Export Development Act
• Whether the information falls under s.24(1) ATIA due to s.24.3(1) of the Export Development Act