Canadian privacy & access decisions

The complainant alleged that Employment and Social Development Canada (ESDC) improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party information) of the Access to Information Act. The request was for fatality investigation reports from rail industry employers. The Information Commissioner found that while much of the withheld information was personal information under s.19(1), some was not about identifiable individuals and should be disclosed. Regarding third-party information, the Commissioner determined that neither ESDC nor the third parties provided sufficient justification for withholding all information under paragraphs 20(1)(b) or 20(1)(c). The Commissioner ordered ESDC to disclose information not about identifiable individuals, re-exercise discretion regarding publicly available personal information, disclose information not meeting the requirements of paragraph 20(1)(b), and re-exercise discretion under subsection 20(5) for information related to a third party that consented to disclosure. ESDC agreed to implement the order. The complaint was found to be well founded.

• Whether information withheld under s.19(1) was truly about identifiable individuals
• Whether ESDC adequately considered if personal information was publicly available under s.19(2)(b)
• Whether ESDC adequately considered public interest in disclosure under s.19(2)(c) in relation to s.8 of the Privacy Act
• Whether information met the definition of financial, commercial, scientific or technical information under s.20(1)(b)
• Whether information was confidential by an objective standard under s.20(1)(b)
• Whether information was consistently treated as confidential by third parties under s.20(1)(b)
• Whether ESDC reasonably exercised discretion under s.20(5) when a third party consented to disclosure
• Whether ESDC reasonably exercised discretion under s.20(6) for public health or safety reasons
• Whether disclosure could reasonably be expected to have a material financial impact or injure competitive position under s.20(1)(c)
• Whether ESDC properly applied severance under s.25

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