Canadian privacy & access decisions

The complainant alleged that Employment and Social Development Canada (ESDC) improperly withheld information under subsections 19(1), 20(1)(b), and 24(1) of the Access to Information Act regarding records about Canadian universities' engagement in the Federal Contractors Program. The OIC removed the s.24(1) claim from the scope of the complaint as the only information withheld under it (business numbers) was no longer at issue. The Commissioner found that ESDC did not demonstrate that all information withheld under s.19(1) was personal information about identifiable individuals, nor did it appropriately exercise its discretion under s.19(2)(b). Furthermore, neither ESDC nor the third party (University of Waterloo) demonstrated that the requirements of s.20(1)(b) were met for a completed Employment Equity Achievement Awards Application Form. The complaint was found to be well founded, and the Commissioner ordered ESDC to disclose the information at issue. ESDC subsequently gave notice that it would fully implement the order.

• Whether information withheld under s.19(1) was personal information about identifiable individuals
• Whether ESDC properly severed non-personal information from personal information under s.19(1)
• Whether ESDC reasonably exercised its discretion under s.19(2)(b) regarding publicly available information
• Whether the Employment Equity Achievement Awards Application Form met the requirements of s.20(1)(b)
• 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 third party consistently treated the information as confidential under s.20(1)(b)

The complainant alleged that Trans Mountain Corporation (TMC) improperly responded to an access request by invoking subsection 10(2) of the Access to Information Act, neither confirming nor denying the existence of records, and stating that if records existed, they would be withheld under subsection 16(2). The OIC found that TMC failed to demonstrate that the existence or absence of records itself warranted withholding, especially since TMC had previously confirmed the existence of similar records in response to a nearly identical request. The Commissioner also determined that TMC did not show how all responsive records, if they existed, could reasonably be expected to facilitate the commission of an offence under subsection 16(2). Consequently, the Commissioner concluded that TMC's reliance on subsection 10(2) was not justified. The complaint was found to be well founded, and TMC was ordered to provide a new response confirming or denying the existence of records and, if records exist, to provide access unless a specific exemption applies.

• Whether the institution met the requirements for invoking subsection 10(2) of the ATIA
• Whether the existence or absence of records itself is information that warrants being withheld under the Act
• Whether, if responsive records existed, they could reasonably be exempted under specific provisions of the Act
• Whether the institution's reliance on subsection 10(2) was a reasonable exercise of discretion
• Whether disclosure of records could reasonably be expected to facilitate the commission of an offence under subsection 16(2)

The complainant alleged that the Royal Canadian Mounted Police (RCMP) failed to conduct a reasonable search for records in response to an access request. The request sought the total annual amount paid by the RCMP due to sexual harassment/assault from 2009 to 2020. The RCMP disclosed information related to two publicly known class action settlements but stated it could not identify other relevant payments from its general ledger due to confidentiality and the ledger's design, which does not detail the nature of settlement claims. The investigation confirmed that the RCMP's general ledger does not capture the specific nature of settlement payments, making it impossible to identify those related to sexual harassment/assault. Furthermore, the RCMP did not maintain a comprehensive list of such payments, and creating one would require an unreasonable review of thousands of files. The Information Commissioner concluded that the RCMP conducted a reasonable search by disclosing the only information it could reasonably compile.

• Whether the institution conducted a reasonable search for records under the Access to Information Act

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information related to the Roberts Bank Terminal 2 Project, specifically concerning biofilm and shorebirds, under several exemptions of the Access to Information Act. The complaint initially included exemptions s.16(2) and s.19(1), but these were later removed from the scope of the investigation. The OIC found that ECCC had appropriately applied s.21(1)(a) and s.21(1)(b) to most of the withheld records, as they constituted advice, recommendations, or accounts of consultations. However, ECCC's application of s.20(1)(b), s.21(1)(a), and s.21(1)(b) to a scientific manuscript was deemed improper, as the manuscript was found not to be confidential and ECCC later agreed to its disclosure. The Commissioner also noted inconsistencies in ECCC's disclosure practices. The complaint was found to be well founded, and ECCC was ordered to disclose the manuscript and correct the inconsistencies.

• Whether s.16(2) ATIA (facilitating the commission of an offence) was properly applied (removed from scope)
• Whether s.19(1) ATIA (personal information) was properly applied (removed from scope)
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to the scientific manuscript
• Whether the scientific manuscript was 'financial, commercial, scientific or technical' information under s.20(1)(b)
• Whether the scientific manuscript was 'confidential' under s.20(1)(b) (Air Atonabee test)
• Whether the information in the scientific manuscript was supplied by a third party under s.20(1)(b)
• Whether the third party consistently treated the information in the scientific manuscript as confidential under s.20(1)(b)
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to the scientific manuscript
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to the scientific manuscript
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to other records
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to other records
• Whether ECCC reasonably exercised its discretion to disclose information under s.21(1)(a) and s.21(1)(b)
• Whether there were inconsistencies in ECCC's disclosure of information