Canadian privacy & access decisions

The complainant alleged that the Royal Canadian Mounted Police (RCMP) improperly withheld GPS tracking records for a specific RCMP vehicle for a 30-minute period on February 19, 2017, under paragraphs 16(1)(c) and 16(2) of the Access to Information Act. The RCMP argued that releasing the GPS coordinates could reveal patrol patterns, facilitate illegal activities, and endanger officers. The Information Commissioner found that the RCMP did not demonstrate how this specific, limited, and four-year-old information could reasonably be expected to cause the alleged harms. The Commissioner also noted that the RCMP failed to explain its exercise of discretion regarding disclosure. Consequently, the complaint was found to be well-founded, and the Commissioner recommended the release of the withheld GPS information.

• Whether s.16(1)(c) law enforcement harm was reasonably expected from the disclosure of specific GPS coordinates
• Whether s.16(2) facilitation of an offence was reasonably expected from the disclosure of specific GPS coordinates
• Whether the institution reasonably exercised its discretion to withhold information under s.16(1)(c)
• Whether the institution reasonably exercised its discretion to withhold information under s.16(2)

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to respond to two access to information requests within the statutory deadlines. The requests sought records related to the procurement of animals for the Prison Farm program run by CORCAN at Collins Bay and Joyceville institutions. PSPC claimed extensions for both requests, citing the volume of records and resource limitations, exacerbated by the COVID-19 pandemic. However, PSPC missed the extended deadlines, leading to a deemed refusal under subsection 10(3) of the Act. The Commissioner found that PSPC had not adequately addressed the unreasonable delay, noting that the complainant had been waiting over two years for a response. The Commissioner concluded that the complaints were well founded and ordered PSPC to provide a final response to both requests forthwith.

• Whether Public Services and Procurement Canada failed to respond to access requests within statutory deadlines
• Whether Public Services and Procurement Canada was in deemed refusal under subsection 10(3) ATIA
• Whether the extensions claimed by Public Services and Procurement Canada were valid
• Whether the delay in processing the requests was unreasonable

The complainant alleged that Immigration, Refugees and Citizenship Canada (IRCC) improperly withheld information under paragraph 16(2)(c) of the Access to Information Act in response to 64 separate access requests. The withheld information was located in the "History" field of IRCC's GCMS Information Request: Application, which IRCC initially claimed would facilitate the commission of an offence if disclosed. IRCC argued that releasing this audit trail could allow individuals to manipulate immigration programs. The OIC investigated, finding that IRCC had not established a reasonable expectation of harm beyond a mere possibility, and the causal link between disclosure and facilitating an offence was too remote. After extensive discussions, IRCC ultimately agreed to release the information in its entirety. Although the information was released, the Commissioner found the complaints to be well founded because IRCC was not justified in its initial withholding.

• Whether s.16(2)(c) ATIA (facilitating the commission of an offence) was properly applied to information in the "History" field of GCMS records
• Whether there was a reasonable expectation of harm beyond a mere possibility if the information was disclosed
• Whether a causal link existed between the disclosure of information and the facilitation of an offence

The complainant alleged that Fisheries and Oceans Canada (DFO) improperly withheld information related to piscine reovirus, heart and skeletal muscle inflammation, the Creative Salmon Company Ltd., or jaundice syndrome, claiming exemptions under paragraphs 18(c), 20(1)(b), and 20(1)(c) of the Access to Information Act. The OIC found that DFO failed to demonstrate that disclosure of the information would threaten the exclusive rights of government researchers to publish their findings first, as required by paragraph 18(c). Furthermore, neither DFO nor the third party, Creative Salmon Ltd., established that the information was confidential, supplied by the third party, or consistently treated as confidential, as required by paragraph 20(1)(b). The OIC also concluded that DFO and Creative Salmon Ltd. did not show a reasonable expectation of substantial financial loss or harm to competitive position from disclosure, as claimed under paragraph 20(1)(c). The Information Commissioner recommended full disclosure of the information, with the exception of personal information. DFO agreed to implement the recommendations, and the complaint was found to be well founded.

• Whether the information was scientific or technical
• Whether the information was obtained through research by a government employee or officer
• Whether disclosing the information could threaten the exclusive rights of government researchers to publish the results of their research first
• Whether there was a reasonable expectation of harm under s.18(c)
• Whether DFO reasonably exercised its discretion under s.18(c)
• 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 has consistently treated the information as confidential under s.20(1)(b)
• Whether DFO reasonably exercised its discretion under s.20(1)(b)
• Whether disclosing the information could result in substantial financial loss or gain to the third party under s.20(1)(c)
• Whether there is a reasonable expectation of substantial financial loss or gain under s.20(1)(c)
• Whether disclosing the information could injure the competitive position of the third party under s.20(1)(c)
• Whether there is a reasonable expectation of injury to competitive position under s.20(1)(c)
• Whether DFO reasonably exercised its discretion under s.20(1)(c)
• Whether DFO should have considered disclosure under subsection 20(6) for public health, safety, or environmental protection reasons

The complainant alleged that Environment and Climate Change Canada (ECCC) failed to conduct a reasonable search for records related to reports and assessments by the Northgate Group. The investigation revealed that ECCC had overwritten an original draft report from the contractor by saving edits directly onto it, effectively destroying a contract deliverable that should have been preserved in a corporate repository. This action meant the original draft report no longer existed and could not be retrieved, irreversibly undermining the right of access. Although ECCC identified an additional 122 pages of records during the investigation, the destruction of the key draft report was a significant issue. The Commissioner found the complaint to be well founded due to ECCC's failure to preserve a record of business value, impacting the complainant's right of access. ECCC committed to implementing the Commissioner's recommendation for improved training and record-keeping practices.

• Whether Environment and Climate Change Canada conducted a reasonable search for records
• Whether a draft report from a contractor constituted a record of business value
• Whether the destruction of the original draft report by overwriting undermined the right of access

The complainant alleged that Natural Resources Canada (NRCan) failed to conduct a reasonable search for driving data, including GPS data and driver logbook entries from its fleet vehicles, for three specific time periods. The OIC's investigation found that while NRCan's Office of Primary Interest conducted a search of corporate repositories, NRCan also had a responsibility to retrieve GPS data stored with a third-party data storage company. NRCan conceded that this data, though not in its physical possession, was under its control according to the Access to Information Act. Consequently, NRCan retrieved the GPS records and located additional logbook entries, which were subsequently provided to the complainant during the investigation. The Commissioner concluded that NRCan's initial search was not reasonable as it failed to include records under its control held by a third party. The complaint was found to be well founded.

• Whether Natural Resources Canada conducted a reasonable search for records
• Whether GPS data held by a third-party data storage company was under the control of Natural Resources Canada for the purposes of the Access to Information Act

The complainant alleged that Library and Archives Canada (LAC) failed to conduct a reasonable search for an index containing information about all military personnel who served in World War II. The investigation revealed that LAC does not possess such a comprehensive index. While LAC holds paper-based World War II personnel records, these also include personnel from other conflicts and do not contain information on reservists. Furthermore, these records have not been digitized or used to create an electronic database from which a complete list could be generated. Although LAC can respond to requests for specific individuals, the Commissioner found that the institution does not have the requested index. Therefore, the Commissioner concluded that LAC's search was reasonable given the non-existence of the requested record.

• Whether Library and Archives Canada conducted a reasonable search for an index of all military personnel who served in World War II

The complainant alleged that the Department of Justice Canada (Justice) failed to conduct a reasonable search for records related to the Asia-Pacific Economic Cooperation (APEC) conference and the Hughes Inquiry. Initially, Justice stated it could not locate any responsive records. However, during the OIC's investigation, it was discovered that Justice had not tasked the National Litigation Sector (NLS), which was identified as the most appropriate Office of Primary Interest. After being tasked, the NLS located over 40,000 pages of responsive records. The Commissioner concluded that Justice did not conduct a reasonable search and found the complaint to be well founded. The Commissioner also found Justice's estimated processing time of 55 months to be unreasonable and recommended a final response by September 4, 2023.

• Whether the Department of Justice Canada conducted a reasonable search for records
• Whether the National Litigation Sector (NLS) was appropriately tasked for the search
• Whether the institution's estimated processing time for the records was reasonable

The complainant alleged that Library and Archives Canada (LAC) failed to respond to an access request within the time limits stipulated by the Access to Information Act. LAC received a request for records concerning the LGBTQ community in the military and initially claimed a 565-day extension, which the OIC previously found to be valid. However, LAC missed this extended deadline, leading to the current complaint. The OIC found that LAC was in deemed refusal under subsection 10(3) of the Act, as it had not fully responded to the request by the extended due date. Despite having located over 9,000 pages of responsive material and providing an interim release, LAC had not completed its review or provided a final disclosure date, citing human resource issues and the COVID-19 pandemic. The Commissioner concluded that LAC had not adequately addressed the delay and ordered the institution to complete processing and respond forthwith.

• 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 is in deemed refusal pursuant to subsection 10(3) of the Access to Information Act

The complainant alleged that the Department of National Defence (DND) improperly refused to process an access request for records of misconduct by an identified individual. DND argued that the request did not meet the requirements of section 6 of the Access to Information Act, claiming it lacked sufficient detail and that processing it would violate privacy principles. The Office of the Information Commissioner (OIC) found DND's arguments unconvincing, noting that the request clearly identified the subject and specified search parameters. The OIC clarified that the potential applicability of privacy exemptions (s.19) does not invalidate a request under s.6, and that the Access to Information Act takes precedence over the Privacy Act in this context. DND subsequently conceded that the request was valid and agreed to process it as worded. The OIC concluded that the complaint was well founded.

• Whether the access request provided sufficient detail to enable an experienced employee to identify records with reasonable effort under s.6 ATIA
• Whether the request for information about another individual invalidates a request under s.6 ATIA
• Whether the potential for s.19 ATIA exemption (personal information) affects the validity of a request under s.6 ATIA
• Whether the Privacy Act's restrictions on use and disclosure of personal information authorize refusal to process a request under the Access to Information Act

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for a recording of a specific Microsoft Teams meeting and related communications. PSPC confirmed that while Microsoft Teams has recording capabilities, this function was not used for the meeting in question, and therefore no recording existed. The institution also stated that the meeting was informal and did not involve activities or decisions requiring record creation under its policies. The OIC's investigation found that PSPC tasked the appropriate program area and IT branch to search for the records, and re-tasked meeting attendees, but no responsive records were identified. The OIC concluded that PSPC took reasonable steps to identify and locate responsive records, even though none were found. Consequently, the complaint was deemed not well founded.

• Whether Public Services and Procurement Canada conducted a reasonable search for a recording of a Microsoft Teams meeting
• Whether Public Services and Procurement Canada conducted a reasonable search for communications regarding a Microsoft Teams meeting
• Whether there was an obligation for Public Services and Procurement Canada to create a record of the informal meeting

The complainant alleged that Veterans Affairs Canada (VAC) improperly withheld the names and service numbers of individuals awarded the Arctic Star under section 19(1) of the Access to Information Act. During the investigation, VAC initially released some information, acknowledging it did not meet the criteria for personal information, but continued to withhold other names and service numbers. The Information Commissioner determined that the names and service numbers fell under the exception to the definition of "personal information" in paragraph 3(j) of the Privacy Act, as they relate to an individual's position or functions as a government institution officer or employee. The Privacy Commissioner was consulted and agreed with this assessment. Consequently, the Commissioner concluded that the information did not meet the requirements for exemption under section 19(1). The complaint was found to be well founded, and VAC agreed to disclose the remaining names and service numbers.

• Whether the names and service numbers of Arctic Star recipients constitute "personal information" under s.19(1) ATIA
• Whether the information falls under the exception to the definition of "personal information" in paragraph 3(j) of the Privacy Act

The complainant alleged that Library and Archives Canada (LAC) claimed an unreasonable 29,200-day time extension to process an access request for Royal Canadian Mounted Police (RCMP) records on Project Anecdote. LAC identified 780,000 pages of paper and microfilm records, along with other media, as responsive. The Commissioner found that while the request involved a large volume of records and responding within 30 days would interfere with operations, LAC failed to demonstrate that the 29,200-day extension was reasonable. LAC did not adequately explain the link between its justifications and the extension's length, nor did it show that a shorter processing time would unreasonably interfere with operations. The Commissioner concluded that LAC's time extension was invalid, leading to a deemed refusal of access under subsection 10(3) of the Act. Despite the OIC's efforts over three years to assist LAC in establishing a reasonable timeframe, LAC did not provide a concrete plan or commitment to respond, even indicating it was not actively processing the request. The complaint was found to be well founded.

• Whether the request was for a large number of records or required searching through a large number of records under paragraph 9(1)(a)
• Whether meeting the 30-day deadline would unreasonably interfere with the institution’s operations under paragraph 9(1)(a)
• Whether the extension of time was for a reasonable period, given the circumstances, under paragraph 9(1)(a)
• Whether Library and Archives Canada was in deemed refusal pursuant to subsection 10(3) of the Access to Information Act

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