Canadian privacy & access decisions

The complainant alleged that Innovation, Science and Economic Development Canada (ISED) took an unreasonable extension of time to respond to an access request for Microsoft Teams messages and related policies. ISED claimed a 390-day extension, citing the volume of records, complexity, and the need for senior-level review, as well as internal and external consultations. The Commissioner found that ISED failed to demonstrate a link between the reasons for the extension and its length, or that a serious attempt was made to determine the necessary length. Specifically, the 240-day extension for volume and interference was deemed excessive, and the 150-day extension for consultations lacked sufficient justification. The Commissioner concluded that the extension was invalid, leading to a deemed refusal of access. The complaint was found to be well-founded, and ISED was ordered to provide a complete response within 60 business days.

• Whether the 240-day extension under s.9(1)(a) ATIA for volume and interference was reasonable
• Whether the 150-day extension under s.9(1)(b) ATIA for consultations was reasonable
• Whether ISED 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 ISED was in deemed refusal under s.10(3) ATIA

An unnamed federal institution applied to the Information Commissioner for approval to decline to act on an access request, arguing it constituted an abuse of the right of access under subsection 6.1(1) of the Access to Information Act. The request sought extensive records related to rare diseases and medications, spanning from the earliest records to the present, across multiple departments and communication types. The institution contended the request was overly broad, would overburden its small staff, and required manual review of an unmanageable volume of records. The Commissioner found that the request, particularly its fifth part, was indeed overly broad and that responding to it would overburden the institution, which has only 15 employees and processes a modest number of pages annually. Despite the requester's offer to provide a more specific list of diseases, the Commissioner concluded that the institution had made reasonable efforts to assist and that the request would still be unduly burdensome. Consequently, the Commissioner granted the institution's application to decline to act on the request.

• Whether the access request is an abuse of the right of access under s.6.1(1) ATIA
• Whether the request is overly broad
• Whether acting on the request would overburden the institution
• Whether the institution met its duty to assist the requester under s.4(2.1) ATIA
• Whether the circumstances warrant granting approval to decline to act on the request

The complainant sought records related to the Canada Student Service Grant from Employment and Social Development Canada (ESDC), alleging improper withholding of information under several exemptions and an unreasonable search for records. The Commissioner found that ESDC improperly withheld information claimed under paragraphs 20(1)(b) and 20(1)(c), determining that the institution failed to demonstrate the information's confidentiality, its financial/commercial/scientific/technical nature, or a reasonable expectation of harm from disclosure. For information withheld under paragraphs 21(1)(a) and 21(1)(b), the Commissioner concluded that factual information and final decisions did not meet the exemption requirements and that ESDC failed to reasonably exercise its discretion for other information that did meet the requirements. Similarly, while the majority of information claimed under section 23 met the requirements for solicitor-client privilege, some portions did not, and privilege was waived for other parts by the Privy Council Office. However, the Commissioner found that ESDC conducted a reasonable search for records, despite the complainant's concerns about missing emails, handwritten notes, and cabinet confidences. Consequently, the complaint was found to be well founded regarding the improper application of exemptions and the failure to exercise discretion. The Commissioner ordered ESDC to disclose specific information and to re-exercise its discretion for other information withheld under sections 21 and 23. ESDC notified the Commissioner of its intent to comply with the order, though it also indicated a desire to apply additional exemptions not raised during the investigation, which the Commissioner rejected.

• Whether ESDC improperly withheld information under s.16(2) ATIA
• Whether ESDC improperly withheld information under s.19(1) ATIA
• Whether the information met the requirements of s.20(1)(b) ATIA (confidential financial, commercial, scientific or technical information)
• Whether the information met the requirements of s.20(1)(c) ATIA (material financial impact or harm to competitive position)
• Whether the information met the requirements of s.21(1)(a) ATIA (advice or recommendations)
• Whether the information met the requirements of s.21(1)(b) ATIA (accounts of consultations or deliberations)
• Whether the information met the requirements of s.23 ATIA (solicitor-client and litigation privilege)
• Whether ESDC reasonably exercised its discretion to disclose information under s.20(5) ATIA
• Whether ESDC reasonably exercised its discretion to disclose information under s.21 ATIA
• Whether ESDC reasonably exercised its discretion to disclose information under s.23 ATIA
• Whether ESDC conducted a reasonable search for records
• Whether PCO waived solicitor-client privilege over certain information

An anonymous applicant complained that Public Services and Procurement Canada (PSPC) improperly withheld information under paragraphs 18(b) and 20(1)(b) of the Access to Information Act. The request sought annual rent figures for leases exceeding $500,000 signed by PSPC in specific cities between 2018 and 2022. PSPC and several third parties argued that disclosure would harm PSPC's competitive position and negotiations, and constitute confidential third-party financial information, also suggesting paragraphs 20(1)(c) and 20(1)(d). The Commissioner found PSPC's and the third parties' arguments for all claimed exemptions to be speculative, failing to demonstrate a reasonable expectation of probable harm or objective confidentiality. Specifically, the rent figures were not considered "supplied by" the third parties for the purpose of s.20(1)(b). Consequently, the complaint was found to be well founded, and the Commissioner ordered PSPC to disclose the records in full. PSPC subsequently gave notice that it would comply with the order.

• Whether PSPC improperly withheld information under paragraph 18(b) ATIA
• Whether disclosure of annual rent figures could reasonably be expected to harm the competitive position of PSPC under s.18(b) ATIA
• Whether disclosure of annual rent figures could reasonably be expected to interfere with contractual or other negotiations of PSPC under s.18(b) ATIA
• Whether PSPC's representations on harm under s.18(b) were speculative
• Whether PSPC improperly withheld information under paragraph 20(1)(b) ATIA
• Whether annual rent figures constitute financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether annual rent figures are confidential by an objective standard under s.20(1)(b) ATIA
• Whether annual rent figures are publicly available
• Whether the circumstances give rise to a reasonable expectation that annual rent figures would not be disclosed
• Whether the relationship between PSPC and third parties would be fostered for public benefit by confidentiality of annual rent figures
• Whether annual rent figures were "supplied by" the third party to PSPC under s.20(1)(b) ATIA
• Whether third parties consistently treated annual rent figures as confidential under s.20(1)(b) ATIA
• Whether PSPC improperly withheld information under paragraph 20(1)(c) ATIA
• Whether disclosure of annual rent 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 annual rent figures could reasonably be expected to prejudice a third party's competitive position under s.20(1)(c) ATIA
• Whether third parties' representations on harm under s.20(1)(c) were speculative
• Whether PSPC improperly withheld information under paragraph 20(1)(d) ATIA
• Whether disclosure of annual rent figures could reasonably be expected to interfere with the contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether third parties' representations on interference under s.20(1)(d) were speculative
• Whether the complaint was well founded under s.30(1)(a) ATIA
• Whether an order for disclosure should be issued under s.36.1 ATIA

The complainant alleged that Indigenous Services Canada (ISC) failed to conduct a reasonable search for records related to a video posted on Facebook. The request specifically excluded draft copies, media articles, and French records where English equivalents existed. During the investigation, it was discovered that ISC's Communications and Public Affairs unit had removed records deemed to be drafts, including logistics, filming arrangements, and approvals, based on their interpretation of the exclusion criteria. This led to an incomplete initial search. Following the OIC's intervention, ISC located an additional 1,087 pages of records. The Commissioner found that while the appropriate offices were tasked, the initial removal of records based on an incorrect interpretation of "drafts" rendered the search unreasonable. The complaint was found to be well-founded, and ISC was ordered to process the newly found records and provide a supplementary response.

• Whether Indigenous Services Canada conducted a reasonable search for records
• Whether the institution's interpretation of 'draft copies' exclusion was appropriate

The complainant alleged that the Privy Council Office (PCO) improperly withheld information under subsections 16(2) and 19(1) of the Access to Information Act. The request sought records concerning a meeting between Clerk John Hannaford and the official languages commissioner. The Commissioner found that PCO appropriately applied subsection 16(2) to a phone number, concluding that its disclosure could reasonably facilitate the commission of an offence and that PCO's exercise of discretion was reasonable. However, the Commissioner determined that PCO improperly applied subsection 19(1) to a signature and two initials, as PCO failed to demonstrate why this information, used in the performance of official duties, was not excluded from the definition of personal information by paragraph 3(j) of the Privacy Act. The Office of the Privacy Commissioner concurred with this assessment. Despite being given an opportunity to release the information informally, PCO did not respond. The Commissioner ordered PCO to disclose the signature and initials, which PCO ultimately agreed to do after obtaining consent from the individuals involved, while still maintaining its disagreement with the Commissioner's position.

• Whether the disclosure of a phone number could reasonably be expected to facilitate the commission of an offence under s.16(2) ATIA
• Whether the institution reasonably exercised its discretion in applying s.16(2) ATIA
• Whether a signature and initials on official documents constitute personal information under s.19(1) ATIA
• Whether the signature and initials are excluded from the definition of personal information by paragraph 3(j) of the Privacy Act
• Whether the institution sufficiently justified the application of s.19(1) ATIA

An anonymous applicant complained that Transport Canada improperly withheld records related to a workplace fatality under sections 19(1), 20(1)(b), and 20(1)(c) of the Access to Information Act, and failed to conduct a reasonable search. During the investigation, Transport Canada also invoked sections 16(1)(c) and 16(2), and the reasonable search complaint was resolved. The Commissioner found that most personal information was properly withheld under section 19(1), and Transport Canada's exercise of discretion under section 19(2) was reasonable. However, the Commissioner rejected the application of sections 16(1)(c), 20(1)(c), and 24(1), finding no reasonable expectation of harm or that the information did not meet the exemption criteria. While section 16(2) was upheld for URLs and passwords, Transport Canada failed to demonstrate it had exercised its discretion. Section 20(1)(b) was upheld in part, with significant portions of information ordered disclosed as they did not meet all the exemption's requirements. Consequently, the complaint was found well-founded, and Transport Canada was ordered to disclose specific information and re-exercise its discretion for other records.

• Whether Transport Canada improperly withheld information under s.19(1) ATIA (personal information).
• Whether Transport Canada reasonably exercised its discretion under s.19(2) ATIA regarding personal information.
• Whether Transport Canada improperly withheld information under s.16(1)(c) ATIA (conduct of investigations).
• Whether disclosure of information could reasonably be expected to harm the conduct of lawful investigations under s.16(1)(c) ATIA.
• Whether Transport Canada improperly withheld information under s.16(2) ATIA (facilitating the commission of an offence).
• Whether Transport Canada reasonably exercised its discretion under s.16(2) ATIA regarding information that could facilitate an offence.
• Whether Transport Canada improperly withheld information under s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information).
• Whether the information met the "financial, commercial, scientific or technical" requirement of s.20(1)(b) ATIA.
• Whether the information was "confidential" by an objective standard under s.20(1)(b) ATIA.
• Whether the information was "supplied by" a third party under s.20(1)(b) ATIA.
• Whether the third party "consistently treated the information as confidential" under s.20(1)(b) ATIA.
• Whether Transport Canada improperly withheld information under s.20(1)(c) ATIA (financial impact on a third party).
• Whether disclosure could reasonably be expected to result in material financial loss or gain to the third party under s.20(1)(c) ATIA.
• Whether disclosure could reasonably be expected to injure the competitive position of the third party under s.20(1)(c) ATIA.
• Whether Transport Canada improperly withheld information under s.24(1) ATIA (disclosure restricted by another law).
• Whether the information related to a "secret process or trade secret" under s.24(1) ATIA.
• Whether Transport Canada conducted a reasonable search for records.