Canadian privacy & access decisions

An anonymous applicant complained that Innovation, Science and Economic Development Canada (ISED) improperly withheld "Total Repayment figures" related to several projects under the Technology Partnerships Canada (TPC) program, involving 21 third parties. ISED initially relied on paragraph 20(1)(c) of the Access to Information Act, while some third parties also raised paragraphs 20(1)(b) and 20(1)(d). The Commissioner found that the information was financial and commercial but not objectively confidential under paragraph 20(1)(b), as there was no reasonable expectation of non-disclosure for public funds, nor would confidentiality foster public benefit. For paragraph 20(1)(c), the Commissioner determined that neither ISED nor the third parties demonstrated a clear and direct connection between disclosure and a reasonable expectation of material financial harm or injury to competitive position, deeming their arguments speculative. Similarly, for paragraph 20(1)(d), insufficient evidence was provided to show that disclosure would interfere with contractual negotiations. Consequently, the complaint was found to be well-founded, and the Commissioner ordered ISED to disclose all the Total Repayments figures at issue.

• Whether the Total Repayment figures are financial or commercial information under s.20(1)(b) ATIA
• Whether the Total Repayment figures are confidential under s.20(1)(b) ATIA
• Whether the circumstances of communication gave rise to a reasonable expectation of non-disclosure for the Total Repayment figures under s.20(1)(b) ATIA
• Whether confidential communication of the Total Repayment figures would foster the relationship between third parties and ISED for public benefit under s.20(1)(b) ATIA
• Whether disclosure of the Total Repayment figures could reasonably be expected to result in material financial loss or gain to a third party under s.20(1)(c) ATIA
• Whether disclosure of the Total Repayment figures could reasonably be expected to injure the competitive position of a third party under s.20(1)(c) ATIA
• Whether a clear and direct connection between disclosure and harm was demonstrated for s.20(1)(c) ATIA
• Whether arguments of public misunderstanding justify withholding information under s.20(1)(c) ATIA
• Whether disclosure of the Total Repayment figures could reasonably be expected to interfere with contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether a clear and direct connection between disclosure and interference (obstruction) was demonstrated for s.20(1)(d) ATIA

The complainant alleged that Shared Services Canada (SSC) improperly refused to process an access request for records related to informal official language complaints. SSC argued that the request, even after being narrowed to a one-year timeframe and specific keywords in email subject lines, did not meet the requirements of section 6 of the Access to Information Act because it would require tasking over 8,300 employees and create an unreasonable administrative burden. The Information Commissioner disagreed, stating that the term "reasonable effort" in section 6 refers to identifying records, not limiting the number of individuals tasked. The Commissioner also noted that the Act provides for time extensions for large requests and that the potential for redacting personal information under section 19 is not a valid reason to refuse processing. The Commissioner concluded that the request was sufficiently detailed and ordered SSC to process it.

• Whether the access request provided sufficient detail to enable an experienced employee to identify records with a reasonable effort under s.6 ATIA
• Whether the administrative burden on the institution constitutes a valid reason to refuse processing a request under s.6 ATIA
• Whether the potential for retrieving personal information that would be exempt under s.19 ATIA is a valid reason to refuse processing a request

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to provide records in response to an access request concerning a contract awarded to Brookfield Global Integrated Solutions (BGIS) and a related subcontract. PSPC initially stated it could not identify relevant records, arguing the subcontract was not under its control. The investigation found that while the records were not in PSPC's physical possession, they were under its control for the purposes of the Access to Information Act, based on the legal relationship between PSPC and BGIS and the terms of their contract. The Commissioner concluded that PSPC did not conduct a reasonable search because it made no effort to obtain the subcontract and related documents from BGIS. The complaint was found to be well founded, and the Commissioner recommended PSPC retrieve and process the records. However, PSPC declined to implement the recommendations.

• Whether the subcontract and related records were "under the control" of Public Services and Procurement Canada (PSPC) for the purposes of the Access to Information Act
• Whether the contents of the record relate to an institutional matter
• Whether PSPC could expect to obtain a copy of the record upon request
• Whether PSPC conducted a reasonable search for records responsive to the request

The complainant alleged that Innovation, Science and Economic Development Canada (ISED) improperly withheld information under paragraph 20(1)(c) of the Access to Information Act. The request sought records related to job creation estimates and estimated jobs maintained figures for projects that received assistance between 2011 and 2018. The complaint's scope was narrowed to information concerning eleven third parties, with only Toyota Motor Manufacturing Canada (Toyota) providing representations to support the exemption claim. The Commissioner found that neither Toyota nor ISED demonstrated a clear and direct connection between disclosure and a risk of material financial loss or harm to Toyota's competitive position, beyond mere speculation. Arguments regarding potential public misunderstanding were also deemed insufficient to meet the legal test for harm under s.20(1)(c), especially given that an explanatory note could address such concerns. Consequently, the Commissioner concluded that the information did not qualify for the exemption. The complaint was found to be well founded, and the Commissioner recommended full disclosure, though ISED indicated it would not fully implement the recommendation for some Toyota-related information.

• Whether s.20(1)(c) ATIA (financial impact on a third party) applies to job creation estimates and estimated jobs maintained figures
• Whether disclosure could result in material financial loss or gain to a third party
• Whether there is a reasonable expectation of harm beyond a mere possibility
• Whether disclosure could injure the competitive position of a third party
• Whether arguments of public misunderstanding are sufficient to meet the legal test for harm under s.20(1)(c)
• Whether an explanatory note could prevent potential harm to a third party
• Whether ISED met its burden of proof for applying s.20(1)(c) to information where third parties did not provide representations

The Information Commissioner initiated a systemic investigation into Library and Archives Canada's (LAC) delayed responses to access requests. This investigation was prompted by a long-standing trend of LAC failing to meet legislative deadlines for responding to access requests, which worsened during the COVID-19 pandemic. The investigation found that during the period under review, nearly 80% of requests completed by LAC did not comply with the timeframes set out in the Access to Information Act. The Commissioner informed the Minister of Canadian Heritage, as the head of LAC, of these findings and made ten recommendations. A special report was subsequently tabled in Parliament, highlighting issues within LAC and broader challenges in Canada's access to information system, specifically regarding inter-institutional consultations and the absence of a government-wide declassification framework.

• Whether Library and Archives Canada was responding to access requests within the legislative deadlines
• Whether the delays in responding to access requests constituted a systemic issue

The complainant alleged that the Vancouver Fraser Port Authority (VFPA) improperly withheld information under paragraphs 18(b), 18(d), 20(1)(b), and 20(1)(d) of the Access to Information Act, concerning records related to $103 million in funding from the National Trade Corridors Fund. The OIC found that VFPA did not demonstrate that all information withheld under paragraphs 18(b) and 18(d) met the exemption requirements. Specifically, VFPA agreed to disclose some information initially withheld under these sections. For paragraphs 20(1)(b) and 20(1)(d), neither VFPA nor the third party (Canadian National Railway) provided sufficient evidence to justify the exemptions. The Commissioner ordered VFPA to disclose all information withheld under paragraphs 20(1)(b) and 20(1)(d), and specific information withheld under paragraphs 18(b) and 18(d). VFPA subsequently agreed to implement the order, leading to a well-founded complaint.

• Whether s.18(b) ATIA (competitive position or negotiations of government institutions) was properly applied to fiscal year budgeting, Monitoring Committee, and project information
• Whether s.18(b) ATIA (competitive position or negotiations of government institutions) was properly applied to estimated project expenditures and contributions
• Whether the institution reasonably exercised its discretion under s.18(b) ATIA
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to commodity information
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to certain project details
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to future development plans
• Whether s.18(d) ATIA (government financial interests, ability to manage economy, undue benefit) was properly applied to project costs
• Whether the institution reasonably exercised its discretion under s.18(d) ATIA
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to project descriptions and CN funding information
• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is confidential by an objective standard under s.20(1)(b) ATIA
• Whether the information was supplied by a third party to a government institution under s.20(1)(b) ATIA
• Whether the third party consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether s.20(1)(d) ATIA (negotiations by a third party) was properly applied to the name of a contributor and contribution amount from CN
• Whether there was a reasonable expectation of interference with third-party negotiations under s.20(1)(d) ATIA

The complainant alleged that the Department of Justice Canada (Justice) took an unreasonable 2,280-day extension to respond to an access to information request. Justice claimed the extension under paragraphs 9(1)(a) and 9(1)(b) of the Access to Information Act, citing a large volume of records and the need for consultations. The Information Commissioner found that while the request involved a large volume of records and responding within 30 days would interfere with operations, Justice failed to sufficiently justify the reasonableness of the 2,190-day extension claimed under 9(1)(a). Specifically, Justice did not explain how the duration of various processing steps was determined or why certain steps could not be conducted concurrently. However, the Commissioner found the 90-day extension for consultations under 9(1)(b) to be reasonable. Due to the unreasonable extension under 9(1)(a), Justice was deemed to have refused access. The complaint was found to be well-founded, and Justice was ordered to provide a final response forthwith.

• Whether the request was for a large volume of records or required searching through a large number of records under s.9(1)(a)
• Whether responding within 30 days would unreasonably interfere with the institution's operations under s.9(1)(a)
• Whether the length of the time extension claimed under s.9(1)(a) was reasonable
• Whether consultations with other institutions or bodies were necessary under s.9(1)(b)
• Whether the length of the time extension claimed under s.9(1)(b) was reasonable
• Whether the institution was in deemed refusal under s.10(3)

The Information Commissioner initiated a systemic investigation into Library and Archives Canada's (LAC) persistent delays in responding to access requests, prompted by a history of non-compliance with legislative deadlines. The investigation found that LAC failed to meet its obligation to provide timely access, with almost 80% of requests completed after the statutory deadlines in 2020-21. Key contributing factors identified were the backlog from suspending ATIP operations during the pandemic, problematic consultation practices with other institutions, inadequate infrastructure for processing classified records, the absence of a government-wide declassification program, and insufficient ATIP funding and resources. The Commissioner concluded the complaint was well-founded and issued ten recommendations to the Minister of Canadian Heritage to address these systemic issues. However, the Commissioner found the Minister's responses largely lacked urgency and concrete commitments, leading to concerns about the sufficiency of proposed measures. The Commissioner also tabled a special report to Parliament highlighting broader challenges in the access to information system.

• Whether Library and Archives Canada (LAC) met its obligation to provide timely access to records under subsection 4(2.1) and section 7 of the ATIA
• Whether LAC's suspension of ATIP operations during the early months of the pandemic contributed to delays and non-compliance
• Whether LAC's practices regarding consultations with other institutions were consistent with paragraph 9(1)(b) of the ATIA and the Interim Directive
• Whether LAC's lack of adequate infrastructure for digitizing, reviewing, and consulting on Secret and Top Secret records contributed to processing delays
• Whether the absence of a mandatory government-wide declassification program contributed to delays in processing classified records
• Whether the lack of adequate funding for LAC's ATIP office to support new programs introduced by other institutions contributed to its inability to provide timely access
• Whether the ATIP and Litigation Response Division's large workload, vacant positions, and staff instability contributed to delays in responding to access requests

The complainant alleged that Parks Canada improperly withheld portions of a draft feasibility study under subsections 19(1), 20(1)(c), and 20(1)(d) of the Access to Information Act. During the investigation, the complainant narrowed the scope, and Parks Canada changed its reliance to subsection 20(1)(b). The Commissioner found that Parks Canada and the third party did not demonstrate that all the withheld information met the requirements of subsection 20(1)(b), particularly where some information was publicly available or where they no longer opposed disclosure. While some information was found to be legitimately confidential financial/commercial data, other parts were not. Consequently, the Commissioner ordered Parks Canada to disclose specific information that did not meet the exemption criteria. Parks Canada agreed to implement the order, leading to a well-founded complaint.

• Whether s.19(1) personal information was properly withheld
• Whether s.20(1)(c) financial impact on third party was properly withheld
• Whether s.20(1)(d) negotiations by a third party was properly withheld
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information applied
• Whether the information was financial, commercial, scientific or technical
• Whether the information was confidential (not publicly available, expectation of confidence, fostering relationship)
• Whether the information was supplied by a third party to a government institution
• Whether the third party consistently treated the information as confidential

The complainant alleged that Trans Mountain Corporation (TMC) improperly withheld information under paragraphs 21(1)(a), 21(1)(b), and section 26 of the Access to Information Act, concerning documents related to specific Board of Directors meetings in 2019 for the Trans Mountain Project. During the investigation, TMC expanded its claims to include twelve additional exemptions, but failed to provide sufficient details or justification for any of the claimed exemptions or to properly consider severability. The Commissioner found that TMC had not applied the Act correctly and that further disclosure was warranted. Consequently, the Commissioner issued an initial report with an intended order for TMC to disclose all withheld information. TMC subsequently released portions of the records, which satisfied the complainant, making a formal order unnecessary.

• Whether s.21(1)(a) (advice or recommendations) applied to the withheld information
• Whether s.21(1)(b) (accounts of consultations or deliberations) applied to the withheld information
• Whether s.26 (information to be published) applied to the withheld information
• Whether s.13(1)(c) (confidential information from government bodies) applied to the withheld information
• Whether s.17 (safety of individuals) applied to the withheld information
• Whether s.18(a) (government financial, commercial, scientific or technical information) applied to the withheld information
• Whether s.18(b) (competitive position of government institutions) applied to the withheld information
• Whether s.20(1)(a) (third-party trade secrets) applied to the withheld information
• Whether s.20(1)(b) (confidential third-party financial, commercial, scientific or technical information) applied to the withheld information
• Whether s.20(1)(b.1) (third-party emergency management plans) applied to the withheld information
• Whether s.20(1)(c) (financial impact on a third party) applied to the withheld information
• Whether s.20(1)(d) (negotiations by a third party) applied to the withheld information
• Whether s.22 (testing or auditing procedures or techniques) applied to the withheld information
• Whether s.22.1(1) (draft internal audit reports and their working papers) applied to the withheld information
• Whether s.23 (solicitor-client and litigation privilege) applied to the withheld information
• Whether Trans Mountain Corporation met its burden of justifying the refusal to disclose information
• Whether Trans Mountain Corporation properly considered severability under s.25 of the Act
• Whether Trans Mountain Corporation's late introduction of additional exemptions and arguments was appropriate

The complainant alleged that the Department of Finance Canada (Finance) failed to respond to an access to information request within the statutory time limits. The request, submitted on July 22, 2020, sought records related to a backgrounder on COVID-19 support for students. Although Finance sought clarifications, it did not claim an extension, and the due date was October 16, 2020. The investigation revealed that the delay was primarily due to Finance's internal Federal-Provincial Relations and Social Policy Branch failing to provide records to the ATIP office in a timely manner. The Commissioner found that Finance was deemed to have refused access under subsection 10(3) of the Act due to the prolonged delay. The Commissioner ordered Finance to provide a final response forthwith, and Finance agreed to implement the order.

• Whether the Department of Finance Canada failed to respond to an access request within the time limits set out in the Access to Information Act
• Whether the institution was deemed to have refused access pursuant to subsection 10(3) of the Act

The complainant alleged that the Royal Canadian Mounted Police (RCMP) failed to respond to four access to information requests within the 30-day statutory time limit. The OIC investigation confirmed that the RCMP did not issue responses by the deadlines for any of the four requests, leading to a deemed refusal of access under subsection 10(3) of the Act. The RCMP attributed the delays to operational challenges due to the COVID-19 pandemic, including difficulties in obtaining records from its Offices of Primary Interest (OPIs) and the need for legal consultations regarding potential Cabinet confidences. However, the Information Commissioner found these explanations insufficient to justify the significant, prolonged delays, noting that the issues identified were not new and had been the subject of previous commitments. Consequently, the Commissioner found all four complaints to be well founded and ordered the Minister of Public Safety and Emergency Preparedness to provide final responses to each request forthwith. The RCMP subsequently informed the OIC that the complainant agreed to consolidate the requests, and a response would be provided by March 18, 2022.

• Whether the institution responded to the access requests within the 30-day time limit under s.7 ATIA
• Whether the institution's reasons for delay (COVID-19 operational challenges, OPI delays, potential Cabinet confidences) justified the failure to respond within the statutory timeframe

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly processed an access request for a list of COVID-19 related contracts, specifically claiming the institution concealed records. The Office of the Information Commissioner (OIC) investigated the processing of the request, noting that a separate investigation had already found PSPC's delay in responding to be well-founded. This investigation focused on whether PSPC obstructed the right of access by concealing records. The OIC found that PSPC's internal processes, such as grouping requests and issues with obtaining records from the office of primary interest (OPI), led to significant delays. While acknowledging serious failures in processing, the Commissioner found no evidence of intent to conceal records or commit an offense under section 67.1 of the Act. The complaint was ultimately found to be well founded due to PSPC's failure to provide timely access and assist the requester.

• Whether PSPC processed the access request in accordance with the Access to Information Act
• Whether PSPC obstructed the right of access by concealing records
• Whether PSPC met its obligations under subsection 4(2.1) of the ATIA to assist the requester and provide timely access
• Whether there was evidence of an offense under subsection 67.1(1) of the ATIA (obstructing right of access)

The complainant alleged that the Treasury Board of Canada Secretariat (TBS) improperly withheld information under several sections of the Access to Information Act in response to a request for records about increased sick leave prior to retirement. During the investigation, the complainant narrowed the scope of the complaint, dropping the s.19(1) personal information claim and focusing on specific pages. The OIC found that TBS failed to demonstrate a reasonable expectation of harm for its s.18(b) claim, noting the statistical and dated nature of the information and the ongoing nature of negotiations. TBS also failed to substantiate its s.21(1)(a) claim for advice or recommendations. For s.21(1)(c) and s.21(1)(d), the OIC concluded that the information consisted of statistics, not positions, plans for negotiations, or plans related to personnel management. The Information Commissioner recommended full disclosure of the pages at issue, but TBS declined to implement the recommendations. The complaint was found to be well founded.

• Whether s.18(b) ATIA (negotiations by government institutions) was properly applied to statistical and dated information about sick leave usage
• Whether there was a reasonable expectation of harm to negotiations from disclosing sick leave usage data
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to a briefing note on sick leave usage
• Whether the information constituted advice or recommendations under s.21(1)(a)
• Whether s.21(1)(c) ATIA (positions or plans developed for negotiations) was properly applied to statistics and analyses about sick leave usage
• Whether the information consisted of positions or plans developed for negotiations under s.21(1)(c)
• Whether s.21(1)(d) ATIA (plans related to personnel management or administration) was properly applied to statistics and analyses about sick leave usage
• Whether the information consisted of plans related to personnel management or administration under s.21(1)(d)

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information related to cases filed with the Tax Court of Canada involving section 245 of the Income Tax Act. The request sought the name, file number, and pleadings of these cases. Justice initially provided a two-page printout and later, during the OIC's investigation, retrieved the full pleadings, exempting all information under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. Justice argued that identifying the responsive records relied on privileged information in its iCase database, which contained legal counsel's views on potential legal issues. The Information Commissioner found that Justice failed to establish that the identification of these publicly available pleadings required legal advice or was subject to litigation privilege. The Commissioner concluded that the information used to generate the list was not privileged and that publicly available pleadings do not become privileged simply because they were identified through an internal, privileged system. The complaint was found to be well founded, and the Commissioner recommended full disclosure, but Justice refused to implement the recommendation.

• Whether the two-page printout generated from the iCase database was subject to solicitor-client privilege under s.23 ATIA
• Whether the two-page printout generated from the iCase database was subject to litigation privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to solicitor-client privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to litigation privilege under s.23 ATIA
• Whether the identification of responsive records hinged on information subject to legal advice privilege
• Whether the identification of responsive records hinged on information subject to litigation privilege
• Whether populating the 'issues' field in iCase with 'GAAR' reveals privileged information
• Whether a list generated to identify publicly available records is subject to solicitor-client privilege
• Whether a list generated to identify publicly available records is subject to litigation privilege