Canadian privacy & access decisions

The Office of the Information Commissioner (OIC) received a complaint alleging that a federal institution did not respond to an access request within an extended timeframe and raised concerns about the institution's communication conduct. The OIC accepted the complaint regarding the delay but found the complaint about inappropriate conduct inadmissible as it was filed outside the 60-day time limit. The OIC determined the time limit for the conduct complaint began on May 2, 2022, when the institution first communicated its proposed response, not when the extended response deadline passed.

• Timeliness of filing a complaint regarding alleged inappropriate communication
• Determination of when the 60-day time limit to file a complaint begins
• The impact of an institution's communication conduct on the complainant's awareness of grounds for complaint

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under section 23 (Solicitor-client privilege) of the Access to Information Act. While the information met the requirements for solicitor-client privilege, LAC did not demonstrate it had reasonably exercised its discretion to decide whether to disclose the information. The Information Commissioner ordered LAC to re-exercise its discretion, considering all relevant factors. LAC agreed to implement the order.

• Whether the withheld information met the requirements for solicitor-client privilege.
• Whether LAC reasonably exercised its discretion to disclose the information.
• Consideration of the historical significance of the records and the mandate of Library and Archives Canada in exercising discretion.

The complainant alleged that Health Canada improperly withheld information from a non-clinical overview of the Novavax COVID-19 vaccine, citing exemptions for confidential third-party financial, commercial, scientific or technical information (paragraph 20(1)(b)). The Information Commissioner of Canada (OIC) found that the information met the criteria for exemption under paragraph 20(1)(b) at the time the request was processed. The OIC also concluded that the conditions under which Health Canada would be required to exercise discretion to release the information (subsections 20(5) and 20(6)) were not met. Therefore, the complaint was found not to be well founded.

• Whether the withheld information qualifies as confidential third-party financial, commercial, scientific or technical information under paragraph 20(1)(b) of the Access to Information Act.
• Whether the conditions for exercising discretion to release information under subsections 20(5) and 20(6) of the Access to Information Act were met.

Immigration, Refugees and Citizenship Canada (IRCC) inadvertently disclosed the email addresses of 636 individuals seeking emergency assistance related to the situation in Afghanistan. These individuals were included in the "TO" field of mass emails, rather than the "BCC" field, exposing their contact information to other recipients. The Office of the Privacy Commissioner of Canada (OPC) found that IRCC contravened section 8 of the Privacy Act due to insufficient controls to prevent such disclosures and that the complaint was well-founded. While IRCC took immediate steps to mitigate the breach, the OPC emphasized the need for robust preventative measures.

• Disclosure of personal information without consent
• Adequacy of preventative measures for mass emails
• Mitigation of harm to affected individuals
• Risk of recurrence of similar breaches

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly excluded weather radar data, claiming it was available for purchase. ECCC demonstrated that both real-time and archived weather data are offered through a cost-recovery system. As the information was available for purchase, it was excluded from the application of the Access to Information Act.

• Whether the exclusion of material available for purchase under paragraph 68(a) of the ATIA was properly applied.
• Whether real-time data, which must be created after the request is made, falls under the scope of the ATIA.
• Whether the cost-recovery system for accessing weather data renders the information 'available for purchase' under section 68(a).

The Information Commissioner determined that a complaint was inadmissible because it was not filed within the 60-day time limit required by section 31 of the Access to Information Act. The complainant argued that the time limit should start from when they recovered a deleted email from the institution, but the Commissioner found that the period for submitting the complaint began the day after the institution's response was received. The Act does not grant the Commissioner the power to extend this mandatory time limit.

• Timeliness of complaint submission under section 31 of the ATIA
• Interpretation of 'in any other case' in section 31
• Commencement date for the 60-day complaint period

The Office of the Privacy Commissioner investigated a complaint where the Canada Border Services Agency (CBSA) disclosed a workplace review report containing an individual's personal information to the Information Commissioner. The OPC found that while disclosing information related to the complainant's access to information requests was a consistent use, disclosing the workplace review report was not. The CBSA contravened the Privacy Act by disclosing this report without consent and for a purpose inconsistent with its original collection.

• Whether disclosing a workplace review report to the Information Commissioner constituted a 'consistent use' under paragraph 8(2)(a) of the Privacy Act.
• The distinction between information collected for managing workplace conflict versus information collected for responding to access to information requests.
• Whether the CBSA reasonably expected the disclosure of the workplace review report.

The complainant alleged that Transport Canada improperly withheld records concerning the Boeing 737 MAX aircraft system (MCAS) under exemptions related to personal information, trade secrets, and financial impact on a third party. The Information Commissioner found that the institution and the third party (Boeing) failed to demonstrate that all withheld information met the criteria for these exemptions. The Commissioner ordered Transport Canada to disclose specific information and to re-exercise its discretion regarding disclosure for public safety reasons.

• Whether withheld information met the criteria for exemption under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information).
• Whether withheld information met the criteria for exemption under paragraph 20(1)(a) (third-party trade secrets).
• Whether withheld information met the criteria for exemption under paragraph 20(1)(c) (financial impact on a third party).
• Whether Transport Canada reasonably exercised its discretion under subsection 20(6) for disclosure in the public interest.