Canadian privacy & access decisions

The complainant alleged that Trans Mountain Corporation (TMC) improperly responded to an access request by invoking subsection 10(2) of the Access to Information Act, neither confirming nor denying the existence of records, and stating that if records existed, they would be withheld under subsection 16(2). The OIC found that TMC failed to demonstrate that the existence or absence of records itself warranted withholding, especially since TMC had previously confirmed the existence of similar records in response to a nearly identical request. The Commissioner also determined that TMC did not show how all responsive records, if they existed, could reasonably be expected to facilitate the commission of an offence under subsection 16(2). Consequently, the Commissioner concluded that TMC's reliance on subsection 10(2) was not justified. The complaint was found to be well founded, and TMC was ordered to provide a new response confirming or denying the existence of records and, if records exist, to provide access unless a specific exemption applies.

• Whether the institution met the requirements for invoking subsection 10(2) of the ATIA
• Whether the existence or absence of records itself is information that warrants being withheld under the Act
• Whether, if responsive records existed, they could reasonably be exempted under specific provisions of the Act
• Whether the institution's reliance on subsection 10(2) was a reasonable exercise of discretion
• Whether disclosure of records could reasonably be expected to facilitate the commission of an offence under subsection 16(2)

The complainant alleged that the Royal Canadian Mounted Police (RCMP) failed to conduct a reasonable search for records in response to an access request. The request sought the total annual amount paid by the RCMP due to sexual harassment/assault from 2009 to 2020. The RCMP disclosed information related to two publicly known class action settlements but stated it could not identify other relevant payments from its general ledger due to confidentiality and the ledger's design, which does not detail the nature of settlement claims. The investigation confirmed that the RCMP's general ledger does not capture the specific nature of settlement payments, making it impossible to identify those related to sexual harassment/assault. Furthermore, the RCMP did not maintain a comprehensive list of such payments, and creating one would require an unreasonable review of thousands of files. The Information Commissioner concluded that the RCMP conducted a reasonable search by disclosing the only information it could reasonably compile.

• Whether the institution conducted a reasonable search for records under the Access to Information Act

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information related to the Roberts Bank Terminal 2 Project, specifically concerning biofilm and shorebirds, under several exemptions of the Access to Information Act. The complaint initially included exemptions s.16(2) and s.19(1), but these were later removed from the scope of the investigation. The OIC found that ECCC had appropriately applied s.21(1)(a) and s.21(1)(b) to most of the withheld records, as they constituted advice, recommendations, or accounts of consultations. However, ECCC's application of s.20(1)(b), s.21(1)(a), and s.21(1)(b) to a scientific manuscript was deemed improper, as the manuscript was found not to be confidential and ECCC later agreed to its disclosure. The Commissioner also noted inconsistencies in ECCC's disclosure practices. The complaint was found to be well founded, and ECCC was ordered to disclose the manuscript and correct the inconsistencies.

• Whether s.16(2) ATIA (facilitating the commission of an offence) was properly applied (removed from scope)
• Whether s.19(1) ATIA (personal information) was properly applied (removed from scope)
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to the scientific manuscript
• Whether the scientific manuscript was 'financial, commercial, scientific or technical' information under s.20(1)(b)
• Whether the scientific manuscript was 'confidential' under s.20(1)(b) (Air Atonabee test)
• Whether the information in the scientific manuscript was supplied by a third party under s.20(1)(b)
• Whether the third party consistently treated the information in the scientific manuscript as confidential under s.20(1)(b)
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to the scientific manuscript
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to the scientific manuscript
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to other records
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to other records
• Whether ECCC reasonably exercised its discretion to disclose information under s.21(1)(a) and s.21(1)(b)
• Whether there were inconsistencies in ECCC's disclosure of information

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