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 Office of the Information Commissioner (OIC) received a complaint alleging that a federal institution failed to respond within an extended timeframe for an access request and engaged in inappropriate communication. The OIC accepted the complaint regarding the delay but deemed the complaint about inappropriate communication inadmissible. The institution had, on May 2, 2022, suggested the requester abandon their request, which the requester declined on May 22, 2022. The complainant argued the 60-day period for filing a complaint about the communication started when the extended response timeframe expired on August 25, 2022. However, the OIC determined that the alleged inappropriate conduct occurred on May 2, 2022, when the institution first communicated its proposal regarding the request. Since the complaint about communication was filed after the mandatory 60-day limit from May 2, 2022, the Commissioner found it inadmissible.

• Whether the institution responded within the extended timeframe for an access request
• Whether the complaint regarding the institution's alleged inappropriate communication was submitted within the 60-day time limit under s.31 ATIA
• When the complainant became aware of the grounds for complaint regarding alleged inappropriate communication

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

The complainant alleged that Health Canada improperly withheld information under paragraphs 20(1)(b) and 20(1)(c) of the Access to Information Act. The request sought two versions of a non-clinical overview of the Novavax SARS CoV-2 rS vaccine. Health Canada applied paragraph 20(1)(b) to withhold the information, arguing it was confidential third-party scientific or technical information. The OIC found that the information met all criteria for exemption under paragraph 20(1)(b), including being scientific/technical, confidential, supplied by a third party, and consistently treated as confidential. The OIC also concluded that the circumstances requiring Health Canada to exercise discretion under subsections 20(5) or 20(6) did not exist, as Novavax did not consent to disclosure and the public interest in disclosure did not clearly outweigh potential harm to Novavax at the time of the decision. Consequently, the complaint was deemed not well founded.

• 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 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 the institution reasonably exercised its discretion to disclose under s.20(5) ATIA
• Whether the institution reasonably exercised its discretion to disclose under s.20(6) ATIA
• Whether s.20(1)(c) ATIA applies to the information

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly excluded real-time and archived weather radar data under paragraph 68(a) of the Access to Information Act, claiming it was material available for purchase. ECCC stated that access to this weather data is provided as a cost-recovered service due to the costs involved in retrieval and preparation. The Commissioner found that the archived weather data was indeed available for purchase through a cost-recovery system, with various pricing tiers depending on the data package and region. Consequently, the Commissioner concluded that the Act does not apply to this information. The complaint was therefore deemed not well founded.

• Whether real-time weather radar data falls within the scope of an access request
• Whether archived weather radar data is material available for purchase under paragraph 68(a) of the Access to Information Act

The complainant filed a complaint with the Office of the Information Commissioner (OIC) regarding an access request. The institution had responded to the access request by email, but the complainant inadvertently deleted the email before reviewing its contents. The complainant argued that the 60-day time limit for filing a complaint under section 31 of the Access to Information Act (ATIA) should begin from the date they became aware of the grounds for complaint, which was when they recovered and reviewed the deleted email. The OIC determined that the complaint was inadmissible because it was submitted outside the mandatory 60-day timeframe. The Commissioner clarified that the 60-day period begins the day after the requester receives the institution's response, not when they become aware of the grounds for complaint due to their own actions. The OIC concluded that the ATIA does not grant the Commissioner the power to extend this statutory time limit.

• Whether the complaint was filed within the 60-day time limit prescribed by section 31 of the ATIA
• Interpretation of 'in any other case' in section 31 of the ATIA regarding the start of the complaint period
• Whether the Information Commissioner has the power to extend the 60-day time limit for filing a complaint

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)