Canadian privacy & access decisions

An individual complained that Transport Canada collected his personal information for the "Incentives for Zero-Emission Vehicles Program" (iZEV) without a publicly available Personal Information Bank (PIB) description, as required by the Privacy Act. Transport Canada launched the iZEV program in May 2019 but did not submit a PIB description to the Treasury Board Secretariat (TBS) for approval until 19 months later. The OPC found that both Transport Canada and TBS contributed to the contravention, as TBS failed to approve and publish the PIB description in a timely manner. Although Transport Canada eventually published the PIB, TBS declined to implement the OPC's recommendations for service standards, citing complexity, but outlined internal process improvements. The OPC acknowledged TBS's efforts to address the backlog.

• Whether Transport Canada failed to ensure personal information collected for the iZEV program was included in a publicly available PIB description as required by section 10 of the Privacy Act
• Whether Transport Canada obtained TBS approval for a new PIB before implementing the iZEV program as required by subsection 71(4) of the Privacy Act and the TBS Directive on Privacy Impact Assessment
• Whether TBS fulfilled its responsibility under section 11 of the Privacy Act to ensure timely publication of PIB descriptions
• Whether the lack of a timely PIB approval process by TBS impacts the operability of the PIB regime under the Privacy Act

Twenty complainants, current or former federal government employees, alleged that the Treasury Board of Canada Secretariat (TBS) improperly disclosed their personal information. TBS mistakenly sent two emails to 400 applicants for the Severe Phoenix Impacts program using the 'cc' field instead of 'bcc', revealing email addresses (some with names) and the fact they had filed a claim for Phoenix-related damages. The OPC found that the disclosure was not authorized under the Privacy Act, making the complaints well-founded. While TBS acknowledged the error, it initially deemed the breach non-material, a conclusion the OPC disagreed with, emphasizing the importance of contextual factors in assessing harm. TBS agreed to implement two of the OPC's three recommendations, but not the one concerning incorporating the findings on materiality into its policy instruments. The OPC concluded the complaints were well-founded and conditionally resolved in part, expressing ongoing concern about TBS's assessment of breach materiality.

• Whether the disclosure of personal information via email was authorized under the Privacy Act
• Whether the privacy breach was 'material' in nature according to TBS's guidelines
• Whether TBS's assessment of the breach's materiality was appropriate
• Whether the context of the personal information disclosed should be considered when assessing the risk of injury or harm

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsection 15(1) of the Access to Information Act, concerning records of the Intelligence Advisory Committee from 1989-1995. These records pertained to migration trends and global developments. The Office of the Information Commissioner (OIC) found that the Canadian Government had previously disclosed similar records and that the information reflected public and Parliamentary debate, leading the OIC to conclude that disclosure would not harm national security or international relations. Consequently, the OIC determined that the requirements for exemption under subsection 15(1) were not met. As a result of the OIC's intervention, LAC disclosed the records in their entirety on January 20, 2023. The complainant expressed satisfaction with this disclosure.

• Whether s.15(1) ATIA (national security and international relations) was properly applied to records of the Intelligence Advisory Committee, 1989-1995
• Whether disclosure of the records would cause harm to national security or international relations

An institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act to decline to act on an access request, arguing it was vexatious and an abuse of the right to make a request. The request sought all emails, text messages, and digital files from three Human Resources employees from the start of their employment. The Commissioner found that the institution had fulfilled its duty to assist the requester by attempting to clarify the overly broad request and explaining the significant burden it would impose. Despite these efforts, the requester refused to narrow the scope, stating the broadness was intentional to uncover potential misconduct. The Commissioner concluded that the request constituted an abuse of the right of access due to its excessive breadth, the undue burden it placed on the institution, and its potential to impede the rights of other requesters. Consequently, the Commissioner granted the institution's application.

• Whether the access request was an abuse of the right to make a request under s.6.1(1) ATIA
• Whether the institution fulfilled its duty to assist obligations under s.4(2.1) ATIA
• Whether the access request was vexatious under s.6.1(1) ATIA

The complainant alleged that Home Depot disclosed his personal information to Meta (formerly Facebook) without his knowledge and consent. Home Depot was sending in-store customers' hashed email addresses and purchase details to Meta via an "Offline Conversions" tool when customers requested an e-receipt. This data allowed Meta to measure ad effectiveness and use the information for its own business purposes, including targeted advertising. The OPC found that Home Depot failed to obtain valid consent, as its privacy statement was not readily available or sufficiently clear, and customers would not reasonably expect such disclosure. Home Depot discontinued the use of the tool in October 2022 in response to OPC recommendations. The complaint was deemed well-founded and resolved.

• Whether Home Depot obtained valid consent for disclosing customer personal information to Meta
• Whether the disclosure of personal information to Meta constituted a processing activity not requiring additional consent
• Whether Home Depot's Privacy Statement and Meta's Privacy Policy were sufficient to obtain meaningful implied consent
• Whether express opt-in consent was required for the disclosure of customer information to Meta
• Whether the information disclosed was sensitive
• Whether the disclosure was within the reasonable expectations of the individual
• Whether the ability to withdraw consent after the fact was sufficient

The complainant alleged that Transport Canada improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act. The request sought information related to applications and Minimum Safe Manning (MSM) Documents for the passenger ship, Queen of Cumberland. During the investigation, the complainant removed the s.19(1) aspect from the complaint. The OIC found that Transport Canada and the third party (BC Ferries) failed to demonstrate that all requirements for the s.20(1)(b) exemption were met. Specifically, the OIC was not convinced that all information was financial, commercial, scientific, or technical, nor that it was consistently treated as confidential or supplied by the third party. Consequently, the Commissioner ordered Transport Canada to disclose the information withheld under paragraph 20(1)(b). Transport Canada indicated it would likely comply with the order.

• Whether the information is financial, commercial, scientific or technical under s.20(1)(b)
• Whether the information is confidential under s.20(1)(b)
• Whether the information was supplied to a government institution by a third party under s.20(1)(b)
• Whether the third party has consistently treated the information as confidential under s.20(1)(b)
• Whether the relationship between the government and the third party is fostered for public benefit by the confidential communication