Canadian privacy & access decisions

The complainant alleged that the Immigration and Refugee Board of Canada (IRB) took an unreasonable extension of time to respond to an access request for records related to an updated 'Weighing Evidence' document. The IRB claimed a 1,295-day extension under paragraph 9(1)(a) of the Access to Information Act, which would have delayed the response until March 31, 2025. While the Commissioner accepted that the request involved a large volume of records and that responding within 30 days would interfere with operations, she found the length of the extension unreasonable. The IRB's calculation of timeframes for review, particularly the 160 weeks for an analyst and the sequential review process, was not justified given the institution's ATIP resources and the nature of the records. Consequently, the Commissioner found the extension invalid, deeming the IRB to have refused access. The complaint was well founded, and the Commissioner ordered the IRB to process the records by April 18, 2023.

• Whether the institution properly notified the complainant of the extension of time
• Whether the request was for a large volume of records or necessitated a search through a large volume of records
• Whether responding to the request within 30 days would unreasonably interfere with the institution's operations
• Whether the length of the time extension claimed under paragraph 9(1)(a) was reasonable
• Whether the 160-week timeframe for an analyst's preliminary review was justified
• Whether the 10 weeks for ATI Management's review and 10 weeks for final approval were justified
• Whether the 3 additional weeks for miscellaneous delays were justified
• Whether the institution established why processing steps must be taken sequentially without overlap
• Whether the institution was deemed to have refused access under subsection 10(3) due to an invalid extension

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsection 15(1) of the Access to Information Act, concerning historical documents related to the defence of the Arctic region. LAC initially made a partial disclosure and later a supplementary disclosure during the investigation, but continued to withhold the majority of the information, citing national security implications. The OIC found that LAC failed to demonstrate how the release of the information, much of which was historical, publicly available, or related to cancelled programs and defunct entities (like the USSR), would reasonably be expected to harm national security or defence. The Commissioner concluded that LAC did not meet the requirements of the exemption, as the alleged harm was not probable but merely a possibility. The complaint was found to be well founded, and LAC agreed to disclose the records in their entirety.

• Whether the disclosure of historical documents regarding Arctic defence could reasonably be expected to harm national security or defence under s.15(1) ATIA
• Whether the institution demonstrated a reasonable expectation of harm, beyond a mere possibility
• Whether the public availability of similar information negated the harm claim
• Whether the historical nature of the information (e.g., cancelled programs, defunct states) impacted the harm claim
• Whether the institution reasonably exercised its discretion to withhold the information

The complainant alleged that the Office of the Auditor General of Canada (OAG) improperly determined that witness statements and documentation supporting a harassment investigation final report were not under its control, thus denying access. The OIC investigated whether the records, though not in the OAG's physical possession, were under its control according to the Supreme Court's interpretation of the Access to Information Act. The OIC considered several factors, including whether the records related to an institutional matter, if the OAG had a legally enforceable right to access them, and if communication of their content required OAG authorization. The OIC found that the records were indeed under the OAG's control. Consequently, the OAG retrieved and processed the records, issuing an interim release to the complainant, who expressed satisfaction. The complaint was found to be well founded.

• Whether records not in physical possession of the institution are under its control
• Whether the records relate to an institutional matter
• Whether the institution has a legally enforceable right of access to the records
• Whether the communication of the content of the records requires the authorization of an officer or employee of an institution
• Whether the institution relied on the records when preparing other government records
• Whether a senior official of the institution should reasonably expect to obtain a copy of the records upon request

The complainant alleged that the Federal Economic Development Agency for Southern Ontario (FedDev Ontario) improperly withheld information under subsections 19(1), 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The request sought information related to funding applications from The Corporation of the Town of Niagara-on-the-Lake. During the investigation, the complainant narrowed the scope, no longer requiring investigation into s.19(1) or specific financial columns for non-funded third parties. The OIC sought representations from FedDev Ontario and relevant third parties, but neither provided evidence to support the applied exemptions. The Commissioner found that the institution failed to demonstrate that the information met the requirements for confidentiality, that it was 'supplied' by a third party, or that disclosure would cause a reasonable expectation of harm to financial interests or negotiations. Consequently, the complaint was found to be well founded, and FedDev Ontario was ordered to disclose the withheld information.

• Whether s.19(1) personal information exemption was properly applied
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied
• Whether the information was financial, commercial, scientific or technical
• Whether the information was confidential
• Whether the information was supplied by a third party
• Whether the third party consistently treated the information as confidential
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied
• Whether disclosure could result in material financial loss or gain to the third party
• Whether there was a reasonable expectation of harm under s.20(1)(c)
• Whether s.20(1)(d) interference with contractual or other negotiations of a third party exemption was properly applied
• Whether a third party is or will be conducting contractual or other negotiations
• Whether disclosure could interfere with those negotiations
• Whether there was a reasonable expectation of harm under s.20(1)(d)

The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to conduct a reasonable search for records related to pay equity for unionized CSIS employees. The request sought communications between CSIS and other federal government departments and agencies on this topic. CSIS initially searched its Human Resource Compensation Branch but refused to search its Departmental Legal Services Unit (DLSU), arguing that DLSU records were under the control of the Department of Justice, not CSIS. The Office of the Information Commissioner found that CSIS's refusal to task its DLSU was premature and that records physically located with the DLSU could still be under CSIS's control, especially given the solicitor-client relationship and the subject matter relating directly to CSIS's mandate. The Commissioner concluded that CSIS failed to conduct a reasonable search by not retrieving and reviewing these records to determine control. The complaint was found to be well founded, and the Commissioner recommended that CSIS retrieve, review, and respond to the records from its DLSU, but CSIS declined to implement the recommendations.

• Whether CSIS conducted a reasonable search for records
• Whether records physically located with CSIS's Departmental Legal Services Unit (DLSU) are under the control of CSIS
• Whether CSIS's refusal to task its DLSU for records constitutes a failure to conduct a reasonable search

A truck driver complained that Trimac Transportation Services Inc. (Trimac) installed a dash camera in his vehicle that continuously recorded audio and video without his consent, particularly concerned with audio recording. The OPC investigated two main issues: the appropriateness of the audio recording functionality and whether employee consent was required. The OPC found that Trimac's continuous audio recording, even when drivers were off-duty, was disproportionately privacy-intrusive, despite legitimate business needs. Trimac also initially failed to be transparent about the disciplinary purposes of the system, meaning it could not rely on the employment relationship exception to consent. Trimac agreed to implement recommendations to limit audio recording to on-duty hours and restrict access to recorded clips, and has since clarified the system's disciplinary uses to employees. The OPC found the audio recording issue well-founded and conditionally resolved, and the consent issue well-founded and resolved.

• Whether road safety, asset protection, and employee performance management are appropriate purposes for the continuous collection of in-cabin audio via the System, including when drivers are off-duty and not driving, under subsection 5(3) of PIPEDA.
• Whether the collection of sensitive personal information (in-cabin audio) was justified given the legitimate need, effectiveness, less privacy-invasive means, and proportionality.
• Whether employee consent was required for the collection of personal information via the System, specifically whether Trimac could rely on the exception to consent under subsection 7.3 of PIPEDA.
• Whether Trimac was sufficiently transparent about the disciplinary purposes of its dash camera system to rely on the subsection 7.3 exception to consent.