Canadian privacy & access decisions

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information under several sections of the Access to Information Act related to a Request for Proposals (RFP). The OIC found that ECCC failed to properly exercise its discretion under subsection 19(2) regarding publicly available personal information and did not seek consent from individuals where appropriate. While ECCC's application of paragraph 21(1)(a) for evaluators' comments was upheld due to the specialized field and small number of competitors, the Commissioner found that certain financial and commercial information withheld under paragraphs 20(1)(b) and 20(1)(c) did not meet the exemption criteria, particularly where information was publicly available or absolute confidentiality was unreasonable for public funds. The complaint was found to be well founded, and ECCC agreed to implement the Commissioner's recommendations to disclose the identified information.

• Whether s.19(1) personal information exemption was properly applied
• Whether ECCC reasonably exercised discretion under s.19(2) for publicly available personal information
• Whether s.21(1)(a) advice or recommendations exemption was properly applied to evaluators' comments
• Whether ECCC reasonably exercised discretion under s.21(1)(a)
• Whether s.21(1)(b) accounts of consultations or deliberations exemption was properly applied
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to evaluators' comments
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to the lowest bid amount and per diem rate
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to the Response to the RFP
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied to the lowest bid amount and per diem rate
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied to the Response to the RFP
• Whether the information met the confidentiality criteria under s.20(1)(b)

The complainant alleged that Employment and Social Development Canada (ESDC) improperly refused to process an access request, claiming the records were outside its control. The request sought records related to a named employee, including dates of leave, job grade, letters of offer, and salary history. ESDC argued that because the records contained personal information of an individual other than the complainant, they were not under its control. The Office of the Information Commissioner (OIC) found that while the records were indeed personal information of a third party, they were nonetheless under ESDC's control as they related to institutional operations, employment purposes, and statutory requirements. Consequently, ESDC agreed to process the request and has since issued a response to the complainant. The OIC concluded that the complaint was well founded.

• Whether records containing personal information of a third party are "under the control" of the institution
• Whether the institution properly tasked Offices of Primary Interest to search for records
• Whether the records relate to institutional operations
• Whether the records are intended for employment-related purposes
• Whether the records fulfill a statutory requirement imposed on the institution

An institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act to decline to act on two access requests, arguing they were vexatious, made in bad faith, and an abuse of the right of access. The institution also claimed it had fulfilled its duty to assist the requester. The Commissioner found that the institution did not provide sufficient evidence to establish that the requests were vexatious, made in bad faith, or an abuse of the right of access. Specifically, the Commissioner found no evidence of duplication, improper motive, or undue burden. Furthermore, the Commissioner determined that the institution failed to demonstrate it had met its duty to assist obligations before seeking approval to decline the requests. Consequently, the Commissioner denied the institution's application, requiring it to process the access requests.

• Whether the requests were vexatious under s.6.1(1) ATIA
• Whether the requests were made in bad faith under s.6.1(1) ATIA
• Whether the requests constituted an abuse of the right of access under s.6.1(1) ATIA
• Whether the institution fulfilled its duty to assist obligations under s.4(2.1) ATIA

The Office of the Information Commissioner (OIC) received a complaint alleging that a federal institution failed to provide records in French in response to an access request. During the OIC's investigation, the institution translated the requested documents into French and provided them to the complainant. As the complainant subsequently received the documents in their preferred official language, the OIC determined that continuing the investigation was unnecessary. Consequently, the Information Commissioner ceased the investigation under paragraph 30(4)(b) of the Access to Information Act, which permits ceasing an investigation when it is no longer required due to the circumstances.

• Whether the institution failed to provide records in French
• Whether continuing the investigation was unnecessary under paragraph 30(4)(b) of the ATIA

The complainant alleged that Correctional Service Canada (CSC) improperly withheld information under subsection 19(1) of the Access to Information Act, concerning an inmate's carceral file. The OIC investigation found that CSC had not retrieved or processed the records before applying the exemption, thus failing to properly exercise its jurisdiction. CSC argued that carceral files are inherently personal information and that retrieving them posed a privacy threat. The Commissioner determined that without reviewing the records, CSC could not legitimately claim the information met the criteria for personal information under s.19(1) or properly consider the discretionary release provisions of s.19(2). CSC subsequently reversed its position and agreed to retrieve and process the records. The complaint was found to be well founded, and CSC committed to implementing the Commissioner's recommendations.

• Whether Correctional Service Canada properly applied s.19(1) ATIA without retrieving or processing the records
• Whether the information met the criteria for personal information under s.19(1) ATIA without a review of the records
• Whether Correctional Service Canada properly exercised its discretion under s.19(2) ATIA without reviewing the records
• Whether Correctional Service Canada met its obligations under s.25 ATIA regarding severance

The Office of the Privacy Commissioner of Canada (OPC) investigated the Royal Canadian Mounted Police (RCMP)'s use of facial recognition technology from Clearview AI. The OPC found that the RCMP contravened Section 4 of the Privacy Act by collecting personal information from Clearview AI, as Clearview AI itself had collected this information unlawfully under PIPEDA and provincial privacy laws. The investigation revealed serious and systemic gaps in the RCMP's policies and systems for tracking, identifying, assessing, and controlling novel collections of personal information. Although the RCMP disagreed with the finding of contravention, it committed to implementing the OPC's recommendations for systemic changes, improved training, and robust controls. The OPC concluded that the matter was well-founded and conditionally resolved, pending the full implementation of these recommendations.

• Whether the RCMP's collection of personal information from Clearview AI was directly related to an operating program or activity under Section 4 of the Privacy Act.
• Whether a government institution can collect personal information from a third party that collected the information unlawfully.
• Whether the RCMP had adequate controls to prevent future similar contraventions when collecting novel personal information.
• Whether the RCMP had sufficient knowledge of its obligations under the Privacy Act and common law regarding personal information collection.
• Whether the RCMP had adequate awareness and tracking systems for novel personal information collections.
• Whether the RCMP had processes to identify potential compliance issues before undertaking novel collections.
• Whether the RCMP had processes to complete timely assessments (like PIAs) when warranted.
• Whether the RCMP had effective controls on collection, including policies and monitoring for unauthorized collections.
• Whether the RCMP's use of Clearview AI constituted a justifiable exercise of police powers under common law (Waterfield test).

The complainant alleged that Transport Canada improperly withheld information related to mediation services provided by the Canadian Institute for Conflict Resolution (CICR) under paragraph 20(1)(b) of the Access to Information Act. Transport Canada initially applied the exemption to various details on CICR's invoices. During the investigation, the complainant withdrew the allegation regarding subsection 19(1) and Transport Canada conceded that several categories of information, such as the description of services and total amount, should not have been withheld. However, Transport Canada maintained that the hourly rate and number of hours billed were properly exempt. The Information Commissioner agreed that the hourly rate and number of hours billed met the criteria for exemption under paragraph 20(1)(b) as confidential commercial information consistently treated as such. Conversely, the Commissioner found that the description of services, dates of services, subtotal of charges, taxes, total amount, and amount paid did not meet all the requirements of paragraph 20(1)(b), either because they were not financial/commercial/scientific/technical, not objectively confidential, or not supplied by the third party. The complaint was found to be well founded, and Transport Canada was ordered to disclose the remaining redacted information.

• Whether the description of services billed is financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether the dates of services are financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether the subtotal of charges is confidential under s.20(1)(b) ATIA
• Whether the amount of taxes applied is confidential under s.20(1)(b) ATIA
• Whether the "total amount" is confidential under s.20(1)(b) ATIA
• Whether the "amount paid" was supplied by the third party under s.20(1)(b) ATIA
• Whether the hourly rate of the third party is confidential financial/commercial information consistently treated as such under s.20(1)(b) ATIA
• Whether the number of hours billed is confidential financial/commercial information consistently treated as such under s.20(1)(b) ATIA

The complainant alleged that Health Canada failed to respond to an access request for information about implantable medical devices within the statutory time limits. Health Canada initially claimed a 90-day time extension under paragraphs 9(1)(a) and 9(1)(c) of the ATIA, but failed to respond by the extended due date, leading to a deemed refusal under subsection 10(3). The institution had consulted nine third parties, one of whom filed a judicial review application under section 44, which Health Canada argued prevented the release of any records. During the OIC's investigation, the third party withdrew its application. Health Canada then indicated that further consultations were needed due to intertwined information and the passage of time. The Information Commissioner found the complaint to be well founded and recommended that Health Canada provide a final response to the complainant by a specified date. The Minister of Health agreed to implement this recommendation.

• Whether Health Canada responded to the access request within the time limits set out in the Access to Information Act
• Whether Health Canada's time extension under paragraphs 9(1)(a) and 9(1)(c) was valid
• Whether Health Canada was in deemed refusal under subsection 10(3) of the ATIA
• Whether a third-party judicial review application under section 44 justified the delay in processing the entire request

The Office of the Information Commissioner (OIC) ceased an investigation into a complaint alleging that a federal institution failed to conduct a reasonable search for records created in the 1990s. The OIC invoked paragraph 30(4)(b) of the Access to Information Act, which permits ceasing an investigation if it is unnecessary, such as when the matter has already been investigated. The OIC had previously investigated and issued a final report on an identical complaint regarding the same institution and type of records. The complainant was given an opportunity to provide representations on why the investigation should continue but did not respond. As no new evidence was presented to differentiate this complaint from the prior one, the OIC concluded that continuing the investigation was unnecessary.

• Whether the investigation was unnecessary under paragraph 30(4)(b) of the Access to Information Act because the matter had already been the subject of an investigation or final report

The complainant alleged that Library and Archives Canada (LAC) failed to respond to an access request within the time limits set out in the Access to Information Act. LAC took a 425-day extension but did not meet the extended deadline, leading to a deemed refusal. The investigation revealed that the delay was partly due to a lengthy consultation with the Canadian Security Intelligence Service (CSIS) and LAC's lack of infrastructure to process Top Secret classified records. Despite CSIS not agreeing to downgrade the classification, the Information Commissioner found that the lack of appropriate infrastructure was not a valid justification for LAC's failure to meet its obligations. The Commissioner recommended that the Minister of Canadian Heritage find an interim solution for the request and implement a permanent solution for handling classified records. The Minister confirmed that LAC responded to the request by redacting records by hand and is working towards digital processing capability. The complaint was found to be well founded.

• Whether Library and Archives Canada responded to the access request within the time limits set out in the Access to Information Act
• Whether Library and Archives Canada was in deemed refusal pursuant to subsection 10(3) of the Act
• Whether the lack of infrastructure to process Top Secret records is a valid justification for delay

The complainant alleged that Employment and Social Development Canada (ESDC) improperly stated it could not process an access request for emails to and from a named employee, containing specific keywords. ESDC argued the emails were not under its control, despite being on its servers, because they were personal and lacked business value. The Office of the Information Commissioner (OIC) investigated whether the records were "under the control" of ESDC, considering factors such as institutional purpose, relation to ESDC's mandate, and integration with other records. The OIC found the emails were entirely personal, had no institutional purpose, and ESDC had no authority to regulate their use or disposition. Therefore, the OIC concluded the emails were not under ESDC's control and not subject to the Access to Information Act. The complaint was deemed not well founded.

• Whether the requested emails were "under the control" of Employment and Social Development Canada (ESDC) as per the Access to Information Act
• Whether the contents of the emails related to an institutional matter and involved ESDC's mandate, obligations, functions, and operations
• Whether the emails were created to fulfill any ESDC officer's or employee's duties or functions and/or were intended for any employment-related purpose
• Whether the emails were created to fulfill a statutory requirement imposed on ESDC
• Whether ESDC relied on the emails when preparing government records
• Whether ESDC had any authority with regard to the use or disposition of the emails
• Whether communicating the contents of the emails required the authorization of an ESDC officer or employee
• Whether the emails were integrated with other ESDC records

This report is a compliance monitoring review by the Office of the Privacy Commissioner (OPC) of Statistics Canada's (StatCan) redesigned Financial Transactions Project and Credit Agency Data Project. It follows an earlier OPC investigation that found no contraventions of the Privacy Act but identified significant privacy concerns, leading to recommendations for StatCan to incorporate necessity and proportionality principles. The OPC assessed StatCan's progress, noting reductions in data collection and the implementation of privacy-enhancing measures like a data ethics secretariat and an external ethics body. However, the OPC found that the redesigned project plans still lacked sufficient specificity in describing public goals, failed to demonstrate effectiveness, and did not adequately analyze privacy impacts in context. The OPC concluded that while progress was made, "more work needs to be done" to fully meet its assessment criteria for necessity and proportionality. Consequently, the OPC issued four new recommendations, including describing public goals with greater precision, revisiting effectiveness, analyzing privacy in context, and resubmitting the plans for further review before final implementation. The outcome is classified as well-founded-conditionally-resolved, reflecting partial implementation and the need for further action.

• Whether the redesigned Financial Transactions Project and Credit Agency Data Project met the principles of necessity and proportionality.
• Whether the public goals of the projects were described with a level of specificity and precision commensurate with privacy impacts.
• Whether the effectiveness of the projects was demonstrated.
• Whether privacy impacts were given sufficient analysis in context, considering risk of harm to individuals and broad-based harms.
• Whether StatCan's Necessity and Proportionality Framework aligned with OPC's assessment criteria.
• Whether less privacy-intrusive alternatives were adequately considered and compared.