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)