Canadian privacy & access decisions

An institution applied to the Information Commissioner for approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act, arguing the request was both an abuse of the right to make a request and vexatious. The request sought emails from three employees containing specific keywords and the HR file of one employee. The institution claimed it had fulfilled its duty to assist the requester by engaging in numerous communications to clarify and narrow the request. The Commissioner found that the institution had indeed made every reasonable effort to assist the requester. However, the Commissioner determined that the institution failed to provide clear and compelling evidence that the request constituted an abuse of the right of access or was vexatious. The Commissioner noted that seeking information related to government employees is not inherently abusive and that the institution did not adequately substantiate claims of undue burden or privacy invasion. Consequently, the application to decline to act on the request was denied.

• Whether the institution met its obligation to assist the requester under subsection 4(2.1) ATIA
• Whether the access request is an abuse of the right to make a request under subsection 6.1(1) ATIA
• Whether the access request is vexatious under subsection 6.1(1) ATIA

The complainant alleged that the Social Sciences and Humanities Research Council of Canada (SSHRC) improperly withheld information related to the Canada Research Chairs’ Equity, Diversity and Inclusion (EDI) Public Accountability and Transparency Requirements under several sections of the Access to Information Act. Initially, SSHRC claimed exemptions under s.16(2)(c), s.19(1), s.20(1)(c), s.20(1)(d), s.21(1)(a), and s.21(1)(b). During the investigation, the s.16(2)(c) claim was removed from the scope, and SSHRC additionally relied on s.20(1)(b). The Commissioner found that SSHRC appropriately withheld information under s.19(1) (personal information) and parts of s.21(1)(a) and s.21(1)(b) (advice/recommendations and consultations/deliberations), as the requirements for these exemptions were met and discretion was reasonably exercised. However, SSHRC failed to demonstrate that the information met the requirements for s.20(1)(b), s.20(1)(c), and s.20(1)(d) due to insufficient evidence of confidentiality, financial impact, or interference with negotiations. Consequently, the Commissioner ordered SSHRC to disclose all redacted information except that falling under s.19(1), s.21(1)(a), and s.21(1)(b). SSHRC agreed to implement the order, and the complaint was found to be well founded.

• Whether s.16(2)(c) facilitating the commission of an offence applied to the withheld information
• Whether s.19(1) personal information applied to the withheld information
• Whether SSHRC reasonably exercised discretion under s.19(2)
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information applied to the withheld information
• Whether s.20(1)(c) material financial impact on a third party applied to the withheld information
• Whether s.20(1)(d) interference with contractual or other negotiations of a third party applied to the withheld information
• 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 SSHRC reasonably exercised discretion under s.21(1)

An anonymous applicant requested internal and external communications, research findings, and results concerning the monitoring of adverse events and causation between COVID-19 vaccines and fatalities/serious adverse events from January 2021 to December 2022. A federal institution applied under subsection 6.1(1) of the Access to Information Act to decline to act on this request, arguing it was vexatious, made in bad faith, and an abuse of the right of access, and that it had fulfilled its duty to assist. The Commissioner found that the institution had made every reasonable effort to assist the requester in narrowing the request, which the requester largely declined. The Commissioner determined that the request, as framed, was an abuse of the right of access because it was overly broad, would generate an estimated 700,000 pages, and processing it would unreasonably interfere with the institution's operations and hinder other requesters' rights. The Commissioner also noted overlap with other requests from the same requester. Consequently, the Commissioner granted the institution's application to decline to act on the request.

• Whether the institution's application under subsection 6.1(1) ATIA was timely
• Whether the institution met its duty to assist the requester under subsection 4(2.1) ATIA
• Whether the access request was an abuse of the right of access under subsection 6.1(1) ATIA
• Whether processing the request would unreasonably interfere with the institution's operations
• Whether processing the request would hinder other requesters' right of access
• Whether the access request was repetitive or overlapped with other requests from the same requester

The complainant alleged that the Privy Council Office (PCO) improperly withheld information from Minutes of the Intelligence Advisory Committee from 1989, citing subsections 13(1), 15(1), and paragraph 21(1)(b) of the Access to Information Act. During the investigation, PCO agreed to cease reliance on paragraph 21(1)(b) and committed to disclosing much of the previously withheld information, but continued to withhold specific categories under subsections 13(1) and 15(1). The Information Commissioner found that PCO failed to demonstrate that the remaining withheld information met the requirements of either subsection 13(1) or 15(1), noting a lack of evidence for confidentiality or reasonable expectation of harm. The Commissioner recommended full disclosure of the contested information. However, PCO notified the Commissioner that it would not implement the recommendation, stating it would release a high percentage of the information after further interdepartmental consultations, but not the entirety.

• Whether s.13(1) ATIA applied to titles of Liaison Officers from other countries
• Whether s.13(1) ATIA applied to information regarding visits of Intelligence Community members from other countries
• Whether s.15(1) ATIA applied to titles of Liaison Officers from other countries
• Whether s.15(1) ATIA applied to distribution markings of classified reports
• Whether s.15(1) ATIA applied to names of Communications Security Establishment (CSE) employees
• Whether s.15(1) ATIA applied to certain Intelligence Report titles
• Whether PCO reasonably exercised its discretion under s.13(2) ATIA
• Whether PCO reasonably exercised its discretion under s.15(1) ATIA