Canadian privacy & access decisions

The complainant challenged the Department of Justice Canada's (Justice) decision to withhold an entire Memorandum of Understanding (MOU) for legal services under section 23 of the Access to Information Act. Justice claimed the entire MOU was protected by solicitor-client privilege. The Commissioner found that Justice failed to demonstrate that general identifying information, such as the title and signature blocks, fell under this privilege. Furthermore, the Commissioner determined that Justice had waived its solicitor-client privilege over certain information within the MOU. Consequently, the Commissioner concluded that the complaint was well founded and recommended the release of part of the record. Justice indicated its intention to implement this recommendation.

• Whether the entire Memorandum of Understanding (MOU) was protected by solicitor-client privilege under s.23 ATIA
• Whether general identifying information (title, signature blocks) in the MOU was protected by solicitor-client privilege
• Whether solicitor-client privilege had been waived over any information in the MOU

The complainant alleged that National Defence (DND) failed to respond to an access to information request within the statutory time limits. DND argued that the request did not meet the requirements of section 6 of the Access to Information Act, which stipulates that a request must be for a record under the control of a government institution. The OIC investigated whether DND's decision not to process the request was justified. The Commissioner found that DND had made numerous attempts to clarify the request with the applicant, but the applicant did not provide the necessary clarification to enable DND to identify the records sought. Consequently, the Commissioner concluded that DND was not obligated to process a request that did not adequately describe the records. The complaint was therefore deemed not well-founded.

• Whether the access request met the requirements of section 6 of the Access to Information Act
• Whether National Defence was justified in not processing the request due to lack of clarity
• Whether National Defence failed to respond within the statutory time limits

The complainant challenged the Canadian Human Rights Commission's (CHRC) decision to withhold information under subsections 19(1) (personal information), section 22 (testing/auditing procedures), and section 23 (solicitor-client privilege) of the Access to Information Act. During the investigation, the CHRC agreed to release all information previously withheld under section 22 and some under section 23. The OIC found that while some information met the requirements for personal information under s.19(1), specific file numbers did not, as their disclosure would not identify an individual. Regarding solicitor-client privilege, the OIC found that certain draft investigation reports were not shown to have received legal review or advice, thus not meeting the exemption's criteria. The Commissioner recommended the disclosure of the file numbers and the draft investigation reports. The CHRC agreed to the recommendations and released the additional information.

• Whether s.19(1) personal information exemption applies to personal contact information of government employees, leave information, and names of CHRC complainants
• Whether s.19(1) personal information exemption applies to file numbers
• Whether the institution reasonably exercised discretion under s.19(2) for applicable personal information
• Whether s.22 testing/auditing procedures exemption applies
• Whether s.23 solicitor-client privilege exemption applies to communications between client and counsel for legal advice
• Whether s.23 solicitor-client privilege exemption applies to draft investigation reports
• Whether the institution reasonably exercised discretion under s.23 for applicable solicitor-client privileged information

The Royal Canadian Mounted Police (RCMP) failed to respond to an access to information request for over two years, leading to a deemed refusal under the Access to Information Act. During the investigation, the RCMP provided insufficient information regarding the records or the processing of the request to establish a reasonable response date. Due to the continued lack of response, the Information Commissioner found the complaint to be well-founded. The Commissioner ordered the RCMP to respond to the access request within 10 business days from the effective date of the order. However, the RCMP ultimately responded to the request before the order officially came into effect.

• Whether the institution failed to respond to an access request within the statutory time limits (deemed refusal)
• Whether the institution provided sufficient information to justify the delay

The complainant alleged that the Royal Canadian Mounted Police (RCMP) failed to respond to an access to information request within the statutory time limits. The request, submitted on July 3, 2018, had a due date of August 2, 2018. The RCMP was deemed to have refused access under subsection 10(3) of the Act as it did not respond or take an extension. Despite multiple requests from the OIC for information regarding the delay and a proposed disclosure date, the RCMP provided no rationale for the delay, only citing high volume and resource pressures. The OIC found that the responsive records were not voluminous or complex and had been in the RCMP's possession since July 2018. An initial report with an intended order was sent to the Minister, but before the order could be issued, the RCMP released the records. Consequently, the complaint was found to be well-founded, but no order was issued as the records were released.

• Whether the institution responded to the access request within the statutory time limits
• Whether the institution was deemed to have refused access under subsection 10(3) of the Act
• Whether the institution provided adequate rationale for the delay in responding
• Whether the institution provided a reasonable disclosure date

A federal institution applied to the Information Commissioner for approval to decline to act on an access request, alleging it was vexatious, an abuse of the right of access, and made in bad faith. The institution claimed the request was vague, repetitive, involved abusive language from the requester, and raised safety concerns. The Commissioner found the request sufficiently clear and noted no evidence of prior disclosure for repetitive claims. The Commissioner also determined that the provided examples did not establish abusive language or a link between safety concerns and the access request. Regarding abuse of right, the institution cited an increase in requests and processing time due to the requester, but failed to show how this diminished other requesters' rights or impacted its other duties. Finally, the Commissioner found no evidence of bad faith, stating that pursuing legal remedies, even for an alleged unjust dismissal, does not equate to bad faith in making an access request. The Commissioner also noted the institution did not demonstrate it fulfilled its duty to assist the requester. Consequently, the application was denied, and the institution was ordered to process the request.

• Whether the access request was vexatious due to vagueness
• Whether the access request was vexatious due to repetitiveness
• Whether the access request was vexatious due to abusive language from the requester
• Whether the access request was vexatious due to safety concerns
• Whether the access request amounted to an abuse of the right to make a request for records
• Whether the access request was made in bad faith
• Whether the institution fulfilled its duty to assist the requester under subsection 4(2.1) ATIA

This document describes a systemic investigation initiated by former Information Commissioner Suzanne Legault on March 27, 2013, and concluded on February 28, 2018. The investigation was prompted by a complaint from the Environmental Law Clinic at the University of Victoria and Democracy Watch. The focus of the investigation was on 'Access to scientists' within several federal institutions, including the Canadian Food Inspection Agency, Environment Canada, Fisheries and Oceans, the National Research Council, and Natural Resources Canada. The decision type is classified as a systemic investigation, indicating a broader review of practices rather than a single access request complaint. The specific details of the findings and recommendations are not provided in this excerpt, but the investigation's scope suggests an examination of how these institutions handle information related to scientific activities and personnel.

• Systemic investigation into 'Access to scientists' practices across multiple federal institutions

In 2015-2016, the Commissioner conducted a systemic investigation into Parks Canada's approach to processing access to information requests. The investigation highlighted the importance of collaboration between institutions and the Commissioner to achieve positive systemic changes for access rights. This case illustrated how an institution's engagement during an investigation could lead to improvements in its access to information practices. The Commissioner's findings focused on the institution's overall approach rather than specific exemptions or individual complaints. The outcome emphasized the benefits of leadership and cooperation in addressing systemic issues related to access to information.

• Parks Canada's approach to processing access requests
• Systemic issues in access to information practices

The complainant requested access to the Firearms Registry database from the Royal Canadian Mounted Police (RCMP) on March 27, 2012, prior to the enactment of the Ending the Long-gun Registry Act. The complainant alleged that the RCMP provided an incomplete response, failed to justify the incompleteness, and obstructed the right of access by destroying responsive records. The investigation focused on whether the RCMP's actions, particularly the destruction of records, constituted an obstruction of the right of access under section 67.1 of the Access to Information Act. The Commissioner examined the circumstances surrounding the destruction of the Long-gun Registry data. The Commissioner found that the destruction of the records was carried out in accordance with a valid legislative process and did not constitute an obstruction of the right of access.

• Whether the information provided was incomplete
• Whether the RCMP justified the incomplete response
• Whether the destruction of responsive records by the RCMP obstructed the right of access under section 67.1 of the Act

The Information Commissioner initiated a systemic investigation under section 39 of the Access to Information Act into Public Works and Government Services Canada (PWGSC). The investigation focused on the processing of eight access to information or consultation requests received by PWGSC between July 22, 2008, and January 19, 2010. The primary concern was the possibility of interference in the processing of these requests. This report, titled "Interference with Access to Information: Part 2," details the Commissioner's findings regarding the alleged interference. The investigation aimed to determine if the institution's handling of these requests was appropriate or if there were instances of improper influence or obstruction.

• Whether there was interference in the processing of access to information requests at Public Works and Government Services Canada
• Whether Public Works and Government Services Canada properly processed eight specific access to information or consultation requests

In August 2012, the Information Commissioner launched a systemic investigation into the use and preservation of non-email, text-based messages on government-issued wireless devices, specifically instant messaging and PINs. This investigation was prompted by a complaint against Indian and Northern Affairs Canada (now Aboriginal Affairs and Northern Development Canada) where a complainant received an email suggesting the use of "pin" instead of email for communication. During the investigation of that complaint, it was discovered that relevant BlackBerry devices had been replaced and destroyed, leading to the permanent loss of potentially responsive information. Due to this incident and a rise in similar complaints about missing records, the Commissioner initiated a self-complaint under section 30(1)(f) of the ATIA to examine the impact of instant messaging on access to information. The investigation focused on 11 federal institutions to assess their practices regarding the retention of these types of communications.

• Impact of instant messaging on the right of access to information
• Preservation of non-email, text-based messages on government-issued wireless devices
• Retention policies and practices for instant messages and PIN communications
• Loss of records due to device replacement and destruction

The complainant alleged that a federal institution failed to respond to an access request within the statutory 30-day period or an extended period, resulting in a deemed refusal under subsection 10(3) of the Access to Information Act. The complainant submitted their complaint on January 21, 2025, arguing that the deemed refusal was 'ongoing' and therefore the 60-day time limit for complaints under section 31 should not apply from the initial awareness date. The OIC requested clarification on when the complainant first became aware of the institution's failure to respond, but the complainant maintained their 'ongoing refusal' position. The OIC determined that the complaint was inadmissible because it was not submitted within the mandatory 60-day time limit from when the complainant first became aware of the grounds for complaint. The Commissioner rejected the argument that an 'ongoing' deemed refusal continuously restarts the complaint period, citing Federal Court precedent and emphasizing that the Act does not grant the Commissioner power to extend this time limit.

• Whether the complaint was submitted within the 60-day time limit prescribed by section 31 of the Access to Information Act
• Whether an 'ongoing' deemed refusal under subsection 10(3) of the Act continuously restarts the 60-day complaint period under section 31
• Whether the Information Commissioner has the power to extend the 60-day time limit for submitting complaints

The Information Commissioner ceased investigation into seventeen complaints, finding them vexatious. The complaints alleged unreasonable time extensions taken by an institution. However, the Commissioner found that these seventeen requests sought the same information as a previous request from the same complainant, which had already been the subject of an OIC investigation where the time extension was deemed reasonable. The complainant had not pursued a Federal Court review of the previous finding. Evidence showed the institution was providing regular interim responses as committed, contrary to the complainant's assertion. The Commissioner concluded that the new complaints were an attempt to circumvent the OIC's previous findings and avoid the proper recourse mechanism of Federal Court review. Therefore, the Commissioner ceased investigation under paragraphs 30(4)(a) and (b) of the Access to Information Act.

• Whether the complaints were vexatious under s.30(4)(a) ATIA
• Whether further investigation was unnecessary under s.30(4)(b) ATIA
• Whether the new requests were substantively duplicative of a previously investigated complaint
• Whether the complainant was attempting to circumvent previous OIC findings

The complainant submitted an access to information request to a federal institution and received a response in October 2021. The institution's response included a notice informing the complainant of their right to complain to the Information Commissioner within sixty days. The complainant filed a complaint with the Office of the Information Commissioner (OIC) in January 2022, which was more than sixty days after receiving the institution's response. The OIC determined that the complaint was submitted outside the mandatory 60-day timeframe specified in section 31 of the Access to Information Act. Citing legal precedents, the Commissioner concluded that the OIC does not have the authority to extend statutory timeframes. Consequently, the complaint was rejected.

• Whether the complaint was filed within the 60-day statutory timeframe as per s.31 of the Access to Information Act
• Whether the Information Commissioner has the authority to extend the statutory timeframe for filing a complaint

A federal 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. The institution argued that it had already disclosed some of the requested information to the same requester through an informal request, and processing the formal request would be duplicative. The institution sought to limit the scope of the formal request by excluding the time period covered by the informal release. However, the Commissioner found that the institution did not adequately explain how the records would be duplicates, noting that the subject matter and type of records appeared different. The Commissioner also considered that the formal request might be seeking a present-day review of redactions applied to previously released records. Crucially, the institution failed to specify which criteria under subsection 6.1(1) (vexatious, bad faith, or abuse of right) it was relying on, nor did it provide sufficient evidence to support its claim of duplication meeting these criteria. Consequently, the Commissioner denied the application, requiring the institution to process the request.

• Whether the access request was vexatious under s.6.1(1) ATIA
• Whether the access request was made in bad faith under s.6.1(1) ATIA
• Whether the access request was an abuse of the right of access under s.6.1(1) ATIA
• Whether the institution provided sufficient evidence to support its s.6.1 application
• Whether the institution's application was complete according to OIC guidance