Canadian privacy & access decisions

The complainant alleged that Employment and Social Development Canada (ESDC) improperly withheld information under subsections 19(1), 20(1)(b), and section 23 of the Access to Information Act, related to an Occupational Health and Safety Tribunal decision concerning a Canadian National Railway (CN Rail) employee's death. The Commissioner found that ESDC and CN Rail did not demonstrate that all requirements for paragraph 20(1)(b) were met, particularly regarding confidentiality and whether the information was truly commercial or technical. While ESDC met the requirements for subsection 19(1) and section 23, the Commissioner determined that ESDC failed to reasonably exercise its discretion to decide whether to disclose the information, especially for publicly available personal information. Consequently, the Commissioner ordered ESDC to disclose the information withheld under paragraph 20(1)(b) and to re-exercise its discretion for information withheld under subsection 19(1) and section 23, considering all relevant factors for and against disclosure. ESDC agreed to implement the order.

• Whether s.19(1) personal information exemption was properly applied
• Whether the institution reasonably exercised its discretion under s.19(2) for personal information
• Whether the information is financial, commercial, scientific or technical under s.20(1)(b)
• Whether the information is confidential under s.20(1)(b)
• Whether the third party supplied the information to a government institution under s.20(1)(b)
• Whether the third party consistently treated the information as confidential under s.20(1)(b)
• Whether s.23 solicitor-client privilege exemption was properly applied
• Whether the institution reasonably exercised its discretion for s.23 solicitor-client privileged information

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsections 13(1) and 15(1) of the Access to Information Act concerning submarine operations in the Arctic. LAC initially released some information but maintained that the remaining records were justifiably withheld. The Information Commissioner found that LAC failed to demonstrate that the information was obtained in confidence, as required by subsection 13(1), lacking evidence of an expectation of confidentiality. Furthermore, the Commissioner determined that LAC did not provide convincing evidence that the disclosure of the information, much of which was historical and publicly available, could reasonably be expected to harm national security or defence, as required by subsection 15(1). Consequently, the Commissioner concluded that the complaint was well founded and recommended full disclosure. However, LAC notified the Commissioner that it would not implement the recommendation.

• Whether the information was obtained in confidence from a specified government body under s.13(1) ATIA
• Whether there was a reasonable expectation of harm to national security or defence from disclosure under s.15(1) ATIA
• Whether the institution reasonably exercised its discretion under s.13(2) ATIA
• Whether the institution reasonably exercised its discretion under s.15(1) ATIA

The complainant alleged that Indigenous Services Canada (ISC) failed to conduct a reasonable search for records related to the National Priority Ranking Framework, the Priority Framework for Water and Wastewater Projects, and long-term First Nations Infrastructure Investment Plans, including internal correspondence, from 2014 onwards. The investigation revealed that the Offices of Primary Interest (OPIs) initially tasked with the search might not have been the most appropriate ones, and that additional OPIs likely held responsive records. ISC was unable to provide concrete details about the search parameters or sufficient documentation of their efforts. The Commissioner concluded that ISC did not conduct a reasonable search. Consequently, the Commissioner ordered ISC to conduct a new, expanded search and provide a new response to the complainant, either granting access to any additional records found or explaining why no such records were located.

• Whether Indigenous Services Canada conducted a reasonable search for records in response to the access request

The complainant alleged that Canada Post failed to conduct a reasonable search for records containing their name in response to an access request. The investigation by the Office of the Information Commissioner (OIC) found that Canada Post had not demonstrated that all relevant Offices of Primary Interest (OPIs) were tasked or that those tasked produced all relevant records. The OIC noted the absence of certain record types, such as personnel files, overtime sheets, and day logs, which the complainant identified as missing or incomplete. Canada Post could not provide sufficient explanation for these omissions, nor for why only one work location was tasked when the complainant worked at several. The Commissioner concluded that Canada Post did not conduct a reasonable search. Consequently, the complaint was found to be well founded, and Canada Post was ordered to conduct a more thorough search and process any newly identified records.

• Whether Canada Post conducted a reasonable search for records
• Whether all relevant Offices of Primary Interest (OPIs) were tasked
• Whether all relevant records under the OPIs' control were produced

The complainant alleged that Fisheries and Oceans Canada (DFO) improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act. The requested records were medical certificates provided by Marineland for the export of five beluga whales. During the investigation, the complainant withdrew the allegation regarding subsection 19(1), removing it from the scope of the complaint. The Commissioner found that DFO and Marineland failed to demonstrate that the information met all the requirements of paragraph 20(1)(b), specifically that the information was confidential and consistently treated as such. Consequently, the Commissioner ordered DFO to disclose the records in their entirety, excluding any information previously withheld under subsection 19(1). DFO agreed to implement the order.

• Whether paragraph 20(1)(b) applied to the medical certificates
• Whether the information was financial, commercial, scientific or technical
• Whether the information was confidential
• Whether the third party consistently treated the information as confidential
• Whether the information was available from sources otherwise accessible by the public
• Whether the information originated and was communicated with a reasonable expectation of non-disclosure
• Whether the information was communicated in a fiduciary relationship or one not contrary to the public interest

The complainant alleged that Library and Archives Canada (LAC) took an unreasonable extension of time to respond to an access request for records related to "Project Anecdote." LAC claimed a 1,095-day extension under paragraphs 9(1)(a) and (b) of the Access to Information Act, setting the response deadline to June 20, 2025. During the investigation, LAC demonstrated that its calculation for the extension was logical and supportable, and that providing the records sooner would unreasonably interfere with its operations. LAC also showed that necessary consultations could not be completed within 30 days. The Office of the Information Commissioner concluded that LAC met all the requirements for the extension under paragraphs 9(1)(a) and (b). Consequently, the extension was deemed valid, and the complaint was found to be not well founded.

• Whether the 1,095-day extension of time taken by Library and Archives Canada was reasonable under s.9(1) of the Access to Information Act
• Whether the calculation of the time extension was sufficiently logical and supportable under s.9(1)(a) and (b)
• Whether providing access within a materially lesser period would unreasonably interfere with operations under s.9(1)(a)
• Whether consultations could reasonably be completed within 30 days under s.9(1)(b)

The complainant alleged that the Department of Justice Canada (Justice) failed to conduct a reasonable search for a 2009 workplace report prepared by a consultant. Justice tasked its Ontario Regional Office and the Deputy Minister’s Office, both of which reported no responsive records, citing a five-year retention period for such documents, which had expired seven years prior to the request. The OIC investigated whether Justice was required to contact the consultant directly to fulfill the request. Justice maintained that it was not reasonable to expect them to task the consultant, as the business need for the report was time-limited, copies should no longer be with the contractor, and the matter was no longer active. The OIC concluded that Justice conducted a reasonable search based on its internal efforts and retention policies. The complaint was therefore deemed not well founded.

• Whether the Department of Justice Canada conducted a reasonable search for records
• Whether the institution was required to contact a consultant directly to conduct a reasonable search
• Whether the institution's application of its record retention policy was appropriate in determining search scope

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) improperly withheld records under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. The request sought records from the 1850s to 1980 related to land ownership, sale, reversion, or return on the Bruce/Saugeen Peninsula. CIRNAC initially claimed solicitor-client privilege but later conceded it did not apply, then reversed course to maintain section 23 based on litigation privilege, citing ongoing court cases. The Information Commissioner found that CIRNAC failed to establish that the records were subject to litigation privilege, specifically that they were produced or gathered for the dominant purpose of the cited litigation. The Commissioner recommended full disclosure of the records. CIRNAC refused to implement the recommendation, asserting the information remained protected by litigation privilege. The complaint was found to be well founded.

• Whether the records were subject to solicitor-client privilege under s.23 ATIA
• Whether the records were subject to litigation privilege under s.23 ATIA
• Whether the records were produced or gathered for the dominant purpose of litigation

The complainant alleged that the Privy Council Office (PCO) improperly withheld information under subsections 15(1) (national security, defence) and 19(1) (personal information) of the Access to Information Act concerning historical Canadian intelligence assessments. The OIC found that PCO was justified in withholding information under subsection 19(1). However, PCO failed to demonstrate how the release of distribution markings, names of former Communications Security Establishment (CSE) employees, a distribution list of allies, information on nuclear development programs, and technology transfer details would cause a reasonable expectation of harm under subsection 15(1). The Commissioner noted that similar information had been previously released by PCO and other institutions, discrediting PCO's claims of harm. Furthermore, the Commissioner was not satisfied that PCO properly exercised its discretion in deciding against disclosure. The complaint was found to be well founded, and PCO was ordered to disclose the records in their entirety, but PCO indicated it would not implement the order.

• Whether s.19(1) personal information exemption was properly applied
• Whether s.15(1) national security, defence exemption was properly applied to distribution markings
• Whether s.15(1) national security, defence exemption was properly applied to names of CSE employees
• Whether s.15(1) national security, defence exemption was properly applied to a distribution list of allies
• Whether s.15(1) national security, defence exemption was properly applied to information on nuclear development programs
• Whether s.15(1) national security, defence exemption was properly applied to information on technology transfer
• Whether s.15(1) national security, defence exemption was properly applied to information on a region-based working group
• Whether PCO reasonably exercised its discretion to disclose information under s.15(1)

The complainant alleged that the Canada Mortgage and Housing Corporation (CMHC) improperly withheld information in response to an access request for final versions of documents. CMHC initially claimed exemptions under paragraphs 18(a), 18(b), 19(1), 20(1)(b), 21(1)(a), 21(1)(b), and section 23 of the Access to Information Act. During the investigation, the scope of the complaint was narrowed, and CMHC voluntarily disclosed some information previously withheld under paragraphs 18(a), 18(b), 21(1)(a), and 21(1)(b). The remaining information was withheld under paragraph 20(1)(b), concerning third-party financial, commercial, scientific, or technical information. The Information Commissioner found that CMHC and the third parties (TD Bank Financial Group and Andrew Kalotay Associates, Inc.) failed to demonstrate that the information met the requirements of paragraph 20(1)(b), as the third parties did not provide representations and CMHC could not show that all conditions for the exemption were met. Consequently, the Commissioner ordered CMHC to disclose all information withheld under paragraph 20(1)(b). CMHC agreed to implement the order.

• Whether s.18(a) ATIA (government trade secrets, government financial, commercial, scientific or technical information) was properly applied
• Whether s.18(b) ATIA (competitive position of government institutions, negotiations by government institutions) was properly applied
• Whether s.19(1) ATIA (personal information) was properly applied
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied
• 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 third party supplied the information to a government institution under s.20(1)(b) ATIA
• Whether the third party has consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied
• Whether s.23 ATIA (solicitor-client privilege) was properly applied

The Office of the Privacy Commissioner of Canada (OPC) investigated a complaint regarding erroneous quarantine notifications sent by the ArriveCAN application to approximately 10,200 Apple device users. These notifications, issued between June 28 and July 20, 2022, incorrectly instructed fully vaccinated travellers to quarantine due to a defect in ArriveCAN version 3.0. The OPC found that the Canada Border Services Agency (CBSA) failed to take all reasonable steps to ensure the accuracy of personal information used for an administrative purpose, as required by subsection 6(2) of the Privacy Act. Specifically, the OPC identified shortcomings in rigorous pre-release testing, effective human intervention, and timely correction and recourse for affected individuals. The CBSA disagreed with the finding and refused to implement the OPC's recommendation to correct the inaccurate "quarantine_exempted" value in its database. Consequently, the complaint was found to be well-founded and unresolved.

• Whether the Canada Border Services Agency (CBSA) took all reasonable steps to ensure that personal information used for an administrative decision was as accurate as possible under subsection 6(2) of the Privacy Act.
• Whether the "quarantine_exempted" data field constituted personal information used for an administrative purpose by the CBSA.
• Whether the CBSA conducted rigorous pre-release testing for issues that could lead to the highest negative impacts on individual users.
• Whether the CBSA ensured effective human intervention with respect to high-impact decisions on individuals.
• Whether the CBSA provided effective and timely correction and recourse for individuals affected by inaccurate information.

The Office of the Privacy Commissioner (OPC) investigated 18 complaints regarding the collection, use, and disclosure of vaccination information by Transport Canada, VIA Rail, and CATSA for domestic air and rail travel mandates between November 2021 and June 2022. Complainants alleged unlawful privacy violations and unreasonable limitations on mobility. The OPC found that the collection of vaccination information by CATSA and VIA Rail was directly related to their operating programs and activities, specifically administering Ministerial Orders for transportation safety. Furthermore, the uses and disclosures of personal information by CATSA and VIA Rail, and the centralized collection and use by Transport Canada, complied with sections 4, 7, and 8 of the Privacy Act. While necessity and proportionality are not direct legal requirements of the Privacy Act, the OPC assessed these principles and found the collections were overall necessary and proportional. However, the OPC identified concerns with the broad scope of the Orders' objectives and Transport Canada's limited documentation of less privacy-invasive alternatives. Consequently, the complaints were deemed not well-founded, but Transport Canada accepted recommendations for future similar measures to better define objectives and document alternative assessments. This report highlights the need to better reflect necessity and proportionality in public sector privacy law.

• Whether the vaccination information collected by CATSA and VIA Rail was directly related to their operating programs or activities, as required by section 4 of the Privacy Act
• Whether the uses or disclosures of personal information by CATSA and VIA Rail were compliant with sections 4, 7, and 8 of the Privacy Act
• Whether the centralized collection and use of personal information by Transport Canada was compliant with sections 4, 7, and 8 of the Privacy Act
• Whether the collection of information was demonstrably necessary to meet a specific need
• Whether the collection of information was likely to be effective in meeting that need
• Whether there were less privacy-intrusive ways of achieving the same end
• Whether the loss of privacy was proportional to the need

The Office of the Privacy Commissioner of Canada (OPC) investigated complaints regarding the collection, use, retention, and disclosure of personal information, including vaccination status, by the Public Health Agency of Canada (PHAC) and Canada Border Services Agency (CBSA) under Emergency Orders for entry into Canada during the COVID-19 pandemic. Complainants argued the measures were unlawful, unnecessary, and disproportionate. The OPC found that the collection of personal information was directly related to an operating program or activity of PHAC and CBSA, and its use and disclosure were for the purpose collected or consistent with it, or authorized by an Act of Parliament. The OPC also determined that the retention and disposal of information complied with the Privacy Act and related regulations. While necessity and proportionality are not explicit requirements of the Privacy Act, the OPC assessed these principles and found the collection overall to be necessary and proportional. However, the OPC identified gaps in PHAC's assessment and documentation of less privacy-intrusive alternatives and clarity of objectives in the final six months of the Orders. All complaints alleging contraventions of the Privacy Act were found to be not well-founded.

• Whether the personal information collected was directly related to an operating program or activity of PHAC and CBSA (s.4 Privacy Act)
• Whether the personal information was used or disclosed for the purpose for which it was compiled/obtained, or in accordance with an Act of Parliament (s.7, s.8 Privacy Act)
• Whether the personal information was disposed of in accordance with the Privacy Regulations and the Directive on Privacy Practices (s.6(3) Privacy Act)
• Whether the collection of personal information under the Emergency Orders was necessary
• Whether the collection of personal information under the Emergency Orders was effective
• Whether there were less privacy-intrusive ways of achieving the same end
• Whether the loss of privacy was proportional to the need

A former refugee complained that the Canadian Border Services Agency (CBSA) contravened his privacy rights by using commercial genetic genealogy (FamilyTreeDNA) to determine his nationality for deportation. He alleged lack of legal authority, unnecessary collection, invalid consent, deceptive practices, inadequate disclosure limitation, and insufficient Personal Information Bank (PIB) description. The Office of the Privacy Commissioner (OPC) found that while the collection was directly related to CBSA's program, the agency contravened section 5 of the Privacy Act by failing to obtain valid, informed authorization for indirect collection from FTDNA. CBSA also contravened section 8 by making incidental disclosures of the complainant's personal information to other FTDNA users, failing to monitor account settings, and not using a pseudonym. Furthermore, the CBSA's PIB descriptions were non-compliant with section 11, as they did not adequately describe the collection of genetic profiles of other FTDNA users. The OPC made several recommendations, which CBSA committed to implement for most parts, but two accounts remained open at the time of the report, leading to an ongoing, unresolved contravention. Consequently, the complaint was found well-founded in part and conditionally resolved in part.

• Whether CBSA's collection of genetic genealogy information was directly related to an operating program or activity under s.4 of the Privacy Act
• Whether CBSA collected unnecessary information under s.4 of the Privacy Act
• Whether CBSA obtained valid authorization from the complainant for the indirect collection of his personal information from FTDNA under s.5(1) of the Privacy Act
• Whether the complainant's consent for indirect collection was voluntary and not given under duress
• Whether the complainant was adequately informed about FTDNA's terms and his rights as a DNA donor for valid authorization
• Whether CBSA acted deceptively in its collection via FTDNA
• Whether the incidental indirect collection of genetic profile information of hundreds of other individuals contravened s.5(1) of the Privacy Act
• Whether CBSA's incidental disclosures of the complainant's personal information contravened s.8 of the Privacy Act
• Whether allowing potential disclosure of the complainant's personal information to other law enforcement bodies (via "law enforcement matching" opt-in) contravened s.8 of the Privacy Act
• Whether the disclosure of ancillary personal information (ethnicity) to genetic matches contravened s.8 of the Privacy Act
• Whether the disclosure of the complainant's identity to genetic matches (failure to use a pseudonym) contravened s.8 of the Privacy Act
• Whether CBSA's Personal Information Bank (PIB) descriptions complied with the transparency obligations under s.11 of the Privacy Act
• Whether the PIB adequately described the collection of biometric information for individuals subject to removal orders
• Whether the PIB adequately described the collection of genetic profiles of other FTDNA users (relatives of individuals subject to removal orders)

A complaint was filed against Correctional Service Canada (CSC) by the spouse of an employee, alleging inappropriate collection and disclosure of personal information from their public Facebook page. The information was collected by an assistant warden to investigate the employee's use of 'other leave with pay (699)' during the COVID-19 pandemic. The OPC found that significant portions of the collected information were not directly related to an operating program or activity of CSC, thus contravening Section 4 of the Privacy Act. The OPC also noted that the exclusion for publicly available information under subsection 69(2) of the Privacy Act applies only to use and disclosure, not collection. CSC subsequently deleted the collected screenshots and committed to developing guidance for managers on collecting information in a labour relations context. The complainant also raised concerns about CSC's internal complaint process, which CSC acknowledged was mishandled.

• Whether the collection of personal information from a public Facebook page was directly related to an operating program or activity of CSC under Section 4 of the Privacy Act
• Whether the exclusion for publicly available information under subsection 69(2) of the Privacy Act applies to the collection of personal information
• Whether the subsequent disclosure of the collected information was appropriate
• Whether CSC's internal process for handling privacy complaints from the public was adequate