Canadian privacy & access decisions

The complainant alleged that Employment and Social Development Canada (ESDC) improperly withheld information related to Canadian universities' engagement in the Federal Contractors Program. The withheld information was claimed under sections related to personal information, confidential third-party commercial information, and disclosure restricted by another law. The Information Commissioner found the complaint to be well-founded, determining that ESDC had not adequately demonstrated that all withheld information met the exemption criteria or that it had properly exercised its discretion. As a result, the Commissioner ordered ESDC to disclose the information at issue, and ESDC indicated it would implement the order.

• Whether information withheld under subsection 19(1) (personal information) was about identifiable individuals and whether discretion was properly exercised.
• Whether a completed Employment Equity Achievement Awards Application Form met the requirements for exemption under paragraph 20(1)(b) (confidential third-party commercial information).
• Whether information withheld under subsection 24(1) (disclosure restricted by another law) was properly withheld (this was removed from scope).
• Whether the institution properly severed non-exempt information from exempt information.

The complainant alleged that Trans Mountain Corporation (TMC) improperly responded to an access request by invoking section 10(2) of the Access to Information Act, refusing to confirm or deny the existence of records, and indicating that any responsive records would be withheld under section 16(2) (facilitating the commission of an offence). The Information Commissioner found that TMC failed to demonstrate that the existence of records itself warranted withholding, especially since TMC had previously acknowledged similar records. Furthermore, TMC did not sufficiently establish that any responsive records would meet the criteria for exemption under section 16(2).

• Proper application of section 10(2) (neither confirm nor deny existence of records)
• Whether the existence or absence of records can itself be information warranting withholding under the Act
• Whether records could reasonably be expected to facilitate the commission of an offence under section 16(2)
• TMC's inconsistent responses and blanket policy regarding record disclosure

The complainant alleged that the Royal Canadian Mounted Police (RCMP) did not conduct a reasonable search for records detailing annual amounts paid due to sexual harassment or assault from 2009 to 2020. The RCMP explained that its general ledger does not record the nature of settlement claims, and they do not maintain a separate list of such payments. Therefore, the RCMP could only identify and disclose information related to publicly known class action settlements. The Information Commissioner was satisfied that the RCMP conducted a reasonable search given these limitations.

• Whether the RCMP conducted a reasonable search for records.
• The ability of the RCMP to search its general ledger for specific types of claims.
• The existence of alternative methods for the RCMP to identify and locate responsive records.

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information related to the Roberts Bank Terminal 2 Project under several sections of the Access to Information Act, including those related to facilitating offences, personal information, third-party commercial information, and advice or deliberations. ECCC initially withheld records under these exemptions, including a scientific manuscript. During the investigation, ECCC agreed to release the manuscript and some other withheld information. The Information Commissioner found the complaint well-founded, ordering ECCC to disclose the manuscript and correct inconsistencies in disclosure.

• Applicability of exemption for facilitating the commission of an offence (s. 16(2) ATIA)
• Applicability of exemption for personal information (s. 19(1) ATIA)
• Applicability of exemption for confidential third-party scientific information (s. 20(1)(b) ATIA)
• Applicability of exemptions for advice and deliberations (ss. 21(1)(a) and 21(1)(b) ATIA)

The complainant alleged that the Department of Justice Canada improperly withheld records related to the Alternate Independent Process for St-Anne’s Residential School hearings. The records were claimed to be exempt under various sections of the Access to Information Act, including solicitor-client and litigation privilege (section 23). The Information Commissioner found that the Department did not adequately establish solicitor-client or litigation privilege for many of the withheld records, particularly those communicated outside the scope of the solicitor-client relationship or involving parties without sufficiently common interests. The Commissioner recommended the disclosure of information not meeting the exemption criteria.

• Applicability of solicitor-client privilege
• Applicability of litigation privilege
• Demonstration of common interest privilege
• Reasonable exercise of discretion to withhold records