Canadian privacy & access decisions

The complainant alleged that the Privy Council Office (PCO) improperly withheld information under subsections 13(1) and 15(1) of the Access to Information Act in response to a request for Minutes of the Joint Intelligence Committee from 1966. During the investigation, PCO agreed to disclose most of the previously withheld information but maintained exemptions for specific categories, including names and titles of Liaison Officers, information on visits of Intelligence Community members, dissemination markings, names of Communications Security Establishment (CSE) employees, and certain intelligence report titles. The Information Commissioner found that PCO failed to demonstrate that any of the remaining withheld information met the requirements of either subsection 13(1) or 15(1), citing lack of evidence for confidentiality, public availability of similar information, and speculative harm arguments. Consequently, the Commissioner recommended full disclosure of the remaining information, except for the names of Liaison Officers which the complainant did not object to redacting. PCO notified the Commissioner that it would not implement the recommendations, stating it would disclose a high percentage but not all, and would conduct further interdepartmental consultations.

• Whether information was obtained in confidence from a government body under s.13(1) ATIA
• Whether titles of Liaison Officers from other countries were obtained in confidence
• Whether information regarding visits of Intelligence Community members from other countries was obtained in confidence
• Whether disclosure of information could reasonably be expected to harm international affairs, defence, or national security under s.15(1) ATIA
• Whether disclosure of titles of Liaison Officers from other countries could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of distribution markings of classified reports could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of names of CSE employees could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of certain intelligence report titles could reasonably be expected to cause harm under s.15(1) ATIA
• Whether PCO reasonably exercised its discretion to disclose information under s.13(2) ATIA
• Whether PCO reasonably exercised its discretion to disclose information under s.15(1) ATIA

The complainant alleged that the Privy Council Office (PCO) improperly withheld information from Minutes of the Intelligence Advisory Committee from 1981 under subsections 13(1) and 15(1) of the Access to Information Act. PCO initially claimed subsection 19(1) as well, but this was not pursued as the OIC found it was not applied to the contested information. During the investigation, PCO agreed to disclose much of the previously withheld information but maintained exemptions for specific categories, including names and titles of Liaison Officers, information on visits by foreign intelligence community members, dissemination markings of classified reports, names of Communications Security Establishment (CSE) employees, and certain intelligence report titles. The Commissioner found that PCO failed to provide sufficient evidence to support the application of either subsection 13(1) or 15(1) for the remaining withheld information, noting that similar information had been previously released by PCO and allied countries without apparent harm. The Commissioner concluded that the complaint was well founded and recommended disclosure of the information. PCO, however, notified the Commissioner that it would not implement the recommendations, citing ongoing interdepartmental declassification initiatives and the need for further consultations.

• Whether s.13(1) ATIA (confidential information from government bodies) was properly applied to titles of Liaison Officers from other countries
• Whether s.13(1) ATIA (confidential information from government bodies) was properly applied to information regarding visits of Intelligence Community members from other countries
• Whether the information was obtained from a specified government body in confidence under s.13(1) ATIA
• Whether s.15(1) ATIA (international affairs, national security, defence) was properly applied to titles of Liaison Officers from other countries
• Whether disclosure of titles of Liaison Officers could reasonably be expected to cause harm under s.15(1) ATIA
• Whether s.15(1) ATIA (international affairs, national security, defence) was properly applied to distribution markings of classified reports
• Whether disclosure of distribution markings could reasonably be expected to cause harm under s.15(1) ATIA
• Whether s.15(1) ATIA (international affairs, national security, defence) was properly applied to names of CSE employees
• Whether disclosure of names of CSE employees could reasonably be expected to cause harm under s.15(1) ATIA
• Whether s.15(1) ATIA (international affairs, national security, defence) was properly applied to certain Intelligence Report titles
• Whether disclosure of certain Intelligence Report titles could reasonably be expected to cause harm under s.15(1) ATIA
• Whether PCO's arguments for harm under s.15(1) were speculative or demonstrated a reasonable expectation of probable harm

The complainant alleged that the Privy Council Office (PCO) improperly withheld information under subsections 13(1) and 15(1) of the Access to Information Act in response to a request for historical records related to the Intelligence Advisory Committee from 1982-1983. During the investigation, PCO agreed to disclose most of the previously withheld information but maintained exemptions for specific categories. The Information Commissioner concluded that none of the remaining withheld information met the requirements of either subsection 13(1) or 15(1), citing a lack of evidence for confidentiality or reasonable expectation of harm. The Commissioner recommended full disclosure of the remaining records, with the exception of names of Liaison Officers from other allied countries, which the complainant did not object to redacting. PCO notified the Commissioner that it would not implement her recommendations, stating that while a high percentage of information would be released, certain categories would remain withheld due to ongoing interdepartmental declassification initiatives and consultations. The complaint was found to be well founded.

• Whether information was obtained in confidence for s.13(1) ATIA
• Whether titles of Liaison Officers from other countries were obtained in confidence
• Whether information regarding visits of Intelligence Community members from other countries was obtained in confidence
• Whether disclosure of information could reasonably be expected to harm international affairs, defence, or national security for s.15(1) ATIA
• Whether disclosure of titles of Liaison Officers from other countries could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of distribution markings of classified reports could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of names of Communications Security Establishment (CSE) employees could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of certain Intelligence Report titles could reasonably be expected to cause harm under s.15(1) ATIA

The complainant alleged that the Privy Council Office (PCO) improperly withheld information from Minutes of the Joint Intelligence Committee from 1963 under subsections 13(1) and 15(1) of the Access to Information Act. During the investigation, PCO agreed to disclose most of the previously withheld information, but maintained exemptions for specific categories. The Information Commissioner found that PCO failed to provide sufficient evidence that the remaining withheld information met the requirements for exemption under either subsection 13(1) or 15(1). The Commissioner concluded that publicly available information and previous disclosures by Canada and allied countries discredited PCO's arguments for harm or confidentiality. The Commissioner recommended that PCO disclose the information, with the exception of the names of Liaison Officers from other allied countries, to which the complainant did not object. PCO notified the Commissioner that it would not implement the recommendations, stating it would release a high percentage of the information after further consultations. The complaint was found to be well founded.

• Whether information was obtained in confidence from a government body under s.13(1) ATIA
• Whether titles of Liaison Officers from other countries were obtained in confidence
• Whether information regarding visits of Intelligence Community members from other countries was obtained in confidence
• Whether disclosure of information could reasonably be expected to harm international affairs, national security, or defence under s.15(1) ATIA
• Whether disclosure of titles of Liaison Officers from other countries could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of distribution markings of classified reports could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of names of CSE employees could reasonably be expected to cause harm under s.15(1) ATIA
• Whether disclosure of certain Intelligence Report titles could reasonably be expected to cause harm under s.15(1) ATIA
• Whether PCO reasonably exercised its discretion to withhold information under s.13(1) ATIA
• Whether PCO reasonably exercised its discretion to withhold information under s.15(1) ATIA

The complainant alleged that Indigenous Services Canada (ISC) improperly withheld information related to a 2000 settlement agreement between the Crown and the Squamish Nation, including maps and appendices, under paragraphs 20(1)(c), 20(1)(d), and section 23 of the Access to Information Act. The OIC investigated, seeking representations from both ISC and the Squamish Nation. Neither party provided sufficient evidence to demonstrate a clear and direct connection between the disclosure of specific information and a reasonable expectation of harm under the claimed exemptions. The Commissioner found that much of the information was already in the public domain and that the arguments for financial impact, interference with negotiations, or the application of solicitor-client/litigation privilege were speculative or unfounded. Consequently, the Commissioner ordered ISC to disclose the records in their entirety. ISC, however, notified the Commissioner that it would not implement the order, citing potential negative impacts on its relationship with the Squamish Nation and other Indigenous Peoples.

• Whether s.20(1)(c) financial impact on a third party was reasonably expected
• Whether s.20(1)(d) interference with third-party negotiations was reasonably expected
• Whether s.23 solicitor-client privilege applied to the settlement agreement
• Whether s.23 litigation privilege applied to the settlement agreement
• Whether the information was already in the public domain

The complainant alleged that Employment and Social Development Canada (ESDC) failed to respond to an access request within the statutory 30-day period and improperly requested additional clarifications. The request sought information on ESDC's work since 2014 in grants and contributions for workplace opportunities and equity, and selected funding concepts. The OIC found that the original request provided sufficient detail for an experienced employee to identify records with reasonable effort, and ESDC's repeated requests for clarification were not justified under section 6 of the Act. These interactions contributed to the delay. Since ESDC did not extend the response period, the deadline was July 3, 2023, which was missed, leading to a deemed refusal. The OIC concluded that the complaints were well founded and ordered ESDC to provide a complete response by August 30, 2024. ESDC agreed to implement the order.

• Whether Employment and Social Development Canada responded to the access request within the legislated 30-day period
• Whether Employment and Social Development Canada improperly requested additional clarifications to process the access request
• Whether the access request provided sufficient detail for an experienced employee to identify records with a reasonable effort under section 6 ATIA
• Whether Employment and Social Development Canada was justified in putting the request on hold due to clarification requests
• Whether Employment and Social Development Canada met its obligation to respond within the time limits set out in section 7 ATIA

The complainant alleged that National Defence (DND) failed to conduct a reasonable search for records in response to an access request for all finished intelligence assessments produced by J2 Director Strategic Intelligence (J2 DSI) concerning Iraq between January 1, 2000, and December 31, 2003. The OIC investigation found that DND's Offices of Primary Interest did not retrieve all relevant records during the initial search and DND failed to provide representations on the reasonableness of its search despite multiple requests. The OIC concluded that DND did not conduct a reasonable search. The OIC ordered DND to conduct a secondary search, which located three additional records. DND agreed to implement the order and provide a new response to the complainant.

• Whether National Defence conducted a reasonable search for records responsive to the access request

The complainant, as the executor of a deceased Canadian Armed Forces member's estate, requested personal information from the Department of National Defence (DND) for estate administration purposes. DND initially refused disclosure, citing that the request did not meet the criteria under paragraph 10(b) of the Privacy Regulations and withheld information under section 26 of the Privacy Act, also claiming some records were not under its control or had surpassed retention periods. The OPC found that the complainant was authorized under paragraph 10(b) to access certain information (items 4, 5, 9, and later 2, 6, 7, 8) as it was relevant to potential civil claims regarding the deceased's financial situation and alleged undue influence. The investigation concluded that DND failed to conduct an adequate search for records and improperly applied section 26 without reviewing the records. DND was also found to have improperly deferred the complainant to an informal avenue without formally processing the request. The OPC recommended DND conduct a reasonable search for the specified records and provide a new response, which DND agreed to do. The complaint was therefore found well-founded and conditionally resolved.

• Whether the complainant, as executor, was entitled to make a request on behalf of the deceased member under paragraph 10(b) of the Privacy Regulations for the purpose of administering the estate.
• Whether the complainant sufficiently articulated or substantiated the precise purposes of the information to administer the estate and how the records in question could further those purposes.
• Whether DND properly applied section 26 of the Privacy Act in refusing to disclose the requested information.
• Whether DND conducted an adequate search for the requested records.
• Whether DND improperly deferred the complainant to another avenue without formally processing a portion of the access request.
• Whether personal information of a deceased individual (less than 20 years deceased) retains the same privacy protection as a living individual.
• Whether the 'only for the purpose of such administration' clause in paragraph 10(b) of the Regulations imposes stricter requirements than 'relates to the administration of the individual’s estate' in MFIPPA.
• Whether records sought to assist in prosecuting a civil claim brought on behalf of the estate for damages recoverable by the estate relate to the administration of the estate.
• Whether records relevant to the deceased’s financial situation and allegations of fraud or theft of the deceased’s property relate to the administration of the estate.
• Whether DND's obligation to process a formal access request is relieved if other informal avenues exist.