Canadian privacy & access decisions

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information from the "Nazi war criminals in Canada: The historical and policy setting from the 1940s to the present – prepared for the commission of inquiry on war criminals by Alti Rodal: September 1986" (the Rodal report) under subsections 13(1), 15(1), 16(1)(c), and section 23 of the Access to Information Act. During the investigation, LAC provided a supplementary response, disclosing most of the previously withheld information and ceasing reliance on 16(1)(c) and 23. The OIC found that LAC had properly applied subsection 13(1) to certain information, as it was obtained in confidence from a foreign government that did not consent to its release. The OIC also found that LAC properly applied subsection 15(1) to other information, including RCMP file numbers, as its disclosure could reasonably be expected to harm international affairs. The Commissioner concluded that LAC's exercise of discretion regarding the remaining withheld information was reasonable, having considered all relevant factors. However, because LAC initially withheld information improperly, the complaint was found to be well founded.

• Whether information was properly withheld under s.13(1) ATIA (confidential information from government bodies)
• Whether the information was obtained from a recognized government body
• Whether the information was obtained in confidence
• Whether the government body consented to release or made the information public
• Whether discretion was reasonably exercised under s.13(2) ATIA
• Whether information was properly withheld under s.15(1) ATIA (international affairs, defence)
• Whether disclosure could reasonably be expected to harm the conduct of international affairs, defence, or national security
• Whether discretion was reasonably exercised under s.15(1) ATIA
• Whether s.16(1)(c) ATIA (law enforcement or conduct of investigations) applied
• Whether s.23 ATIA (legal advice and litigation privilege) applied
• Whether past accidental disclosure of RCMP file numbers negated the application of s.15(1) ATIA

The complainant alleged that Health Canada improperly withheld information under paragraphs 20(1)(b), 20(1)(c), and 21(1)(b) of the Access to Information Act in response to a request for records related to Tetra Tech, including peer reviewer comments. The OIC found that Health Canada failed to demonstrate that the information withheld under paragraph 20(1)(b) was objectively confidential or entirely supplied by the third party, as some information was publicly available or originated from Health Canada itself. Regarding paragraph 20(1)(c), the OIC concluded that neither Health Canada nor Tetra Tech demonstrated a reasonable expectation of competitive harm from disclosure. However, the OIC upheld the application of paragraph 21(1)(b) for certain internal consultations and found Health Canada's exercise of discretion to be reasonable for this exemption. Consequently, the Commissioner ordered Health Canada to disclose the information improperly withheld under paragraph 20(1)(b). Health Canada agreed to implement the order.

• Whether the information withheld under s.20(1)(b) was financial, commercial, scientific or technical
• Whether the information withheld under s.20(1)(b) was objectively confidential
• Whether the information withheld under s.20(1)(b) was supplied by a third party to a government institution
• Whether the third party consistently treated the information withheld under s.20(1)(b) as confidential
• Whether disclosure of information could reasonably be expected to have a material financial impact on a third party under s.20(1)(c)
• Whether disclosure of information could reasonably be expected to injure the competitive position of a third party under s.20(1)(c)
• Whether the information withheld under s.21(1)(b) constituted accounts of consultations or deliberations
• Whether Health Canada reasonably exercised its discretion not to disclose information under s.21(1)(b)