Canadian privacy & access decisions

The complainant alleged that Transport Canada failed to conduct a reasonable search for records in response to an access request concerning communications between Transport Canada and the Royal Canadian Mounted Police (RCMP) related to Class D operation with a single engine helicopter. Initially, Transport Canada located only two pages. During the OIC's investigation, Transport Canada conducted additional searches, identifying approximately 690 more responsive pages. While the institution argued that consultations with the RCMP would take at least six months, the Commissioner found that a reasonable search had ultimately been conducted. However, the Commissioner ordered Transport Canada to process these additional records and provide a new response to the complainant within 60 business days, emphasizing that the institution bears ultimate responsibility for ensuring consultations do not unduly delay access. The complaint was found to be well founded.

• Whether Transport Canada conducted a reasonable search for records
• Whether the consultation process with the RCMP unduly delayed access

The OPC investigated a complaint against Google regarding its search engine displaying outdated media articles about the Complainant's HIV status and a stayed criminal charge when their name was searched. The Complainant alleged these articles caused significant harm, including physical assault and lost employment, and sought their de-listing from name-based search results. The OPC's jurisdiction over Google's search engine under PIPEDA was affirmed by the Federal Court and Federal Court of Appeal, rejecting Google's claims of non-commercial activity and journalistic exemption. The OPC found Google did not contravene Principle 4.6 (accuracy), as its responsibility was for the search results accurately reflecting linked content, not the content itself. However, the OPC concluded that Google contravened subsection 5(3) (appropriate purposes), determining that the significant harms to the Complainant's safety and dignity outweighed the limited public interest in the articles remaining linked to their name. The OPC recommended Google de-list the articles from searches for the Complainant's name, balancing privacy rights with freedom of expression. Google declined to implement this recommendation, stating it required further court guidance on the "right to de-listing" and Charter implications. Consequently, the complaint was found well-founded and unresolved regarding subsection 5(3), and not well-founded for the accuracy issue.

• Whether PIPEDA applies to Google's search engine service as a commercial activity within the meaning of paragraph 4(1)(a) of PIPEDA
• Whether the operation of Google’s search engine service is excluded from the application of Part 1 of PIPEDA by virtue of paragraph 4(2)(c) of PIPEDA because it involves the collection, use or disclosure of personal information for journalistic, artistic or literary purposes and for no other purpose
• Whether Google is contravening Accuracy requirements under Principle 4.6 of Schedule 1 of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name
• Whether Google is contravening subsection 5(3) of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name, considering whether the purposes are appropriate in the circumstances
• Whether the accessibility of information in response to a search for the Complainant's name causes significant harm to the Complainant
• Whether the significant harm to the Complainant outweighs the public interest in the search results remaining available through Google's search engine by searching the Complainant's name
• Whether Google collected, used, or disclosed personal information without consent under Principles 4.3.4 and 4.3.8 of Schedule 1 of PIPEDA (OPC declined to address)

The complainant alleged that the Canadian Broadcasting Corporation (CBC) improperly withheld the number of paid subscribers to its Gem streaming service under section 68.1 and paragraph 18(b) of the Access to Information Act. The Commissioner found that while the information related to CBC's programming activities, it also related to its general administration, thereby engaging the exception to the section 68.1 exclusion. Consequently, section 68.1 did not apply. Regarding paragraph 18(b), the Commissioner determined that CBC failed to demonstrate a reasonable expectation of harm to its competitive position or interference with negotiations, beyond a mere possibility. The Commissioner concluded that neither exemption applied and ordered CBC to disclose the information. CBC, however, notified the Commissioner that it would not implement the order, leading to a well-founded complaint.

• Whether the information relates to CBC's journalistic, creative or programming activities under s.68.1 ATIA
• Whether the information relates to CBC's general administration, engaging the exception to s.68.1 ATIA
• Whether s.68.1 ATIA applies when information relates to both programming activities and general administration
• Whether disclosure could reasonably be expected to harm CBC's competitive position under s.18(b) ATIA
• Whether disclosure could reasonably be expected to interfere with CBC's negotiations under s.18(b) ATIA
• Whether the CRTC's non-publication of subscriber figures supports CBC's claim of harm under s.18(b) ATIA

The complainant alleged that Correctional Service Canada (CSC) improperly withheld information under subsection 19(1) (personal information) of the Access to Information Act. The request sought emails to and from the Warden at Millhaven Institution related to COVID-19 and Structured Intervention Units. The investigation confirmed that some withheld information, such as names and contact details of staff and offenders for contact tracing, performance appraisals, and criminal history, met the requirements of subsection 19(1). However, the Commissioner found that other information, including dates of last and next shifts for CX and healthcare staff, names of individuals in an email discussing performance ratings, all information on page 77, and the type of incidents in situation reports, did not meet the criteria for personal information under subsection 19(1). CSC's exercise of discretion under subsection 19(2) was deemed reasonable as the circumstances for disclosure were not met. The Commissioner ordered CSC to disclose the information that did not meet the requirements of subsection 19(1), and CSC agreed to implement the order. The complaint was found to be well founded.

• Whether names and contact information of staff and offenders for COVID-19 contact tracing constitute personal information under s.19(1) ATIA
• Whether performance appraisals constitute personal information under s.19(1) ATIA
• Whether information related to intra-regional transfers constitutes personal information under s.19(1) ATIA
• Whether names, birthdates, and FPS numbers of offenders constitute personal information under s.19(1) ATIA
• Whether details regarding an offender’s criminal history constitute personal information under s.19(1) ATIA
• Whether dates of last shift and next shift for CX and healthcare staff constitute personal information under s.19(1) ATIA
• Whether dates of last shift and next shift for MAI and unit CM staff constitute personal information under s.19(1) ATIA
• Whether names of individuals in an email discussing proposed rating changes constitute personal information under s.19(1) ATIA
• Whether information on page 77 constitutes personal information under s.19(1) ATIA
• Whether the type of incident in situation reports constitutes personal information under s.19(1) ATIA
• Whether CSC reasonably exercised its discretion under s.19(2) ATIA to disclose information

The complainant requested a land claim settlement agreement signed in 2000 between the federal government and the Squamish band. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) initially withheld information under paragraphs 20(1)(b), 20(1)(c), and section 23 of the Access to Information Act. During the investigation, CIRNAC dropped its reliance on paragraph 20(1)(b) but continued to claim paragraph 20(1)(c) and section 23. The Information Commissioner found that neither CIRNAC nor the third party (Squamish Nation) provided sufficient evidence to demonstrate a reasonable expectation of harm for paragraph 20(1)(c) or that litigation privilege applied under section 23, particularly as the litigation cited was unrelated and commenced much later than the agreement. The Commissioner ordered CIRNAC to disclose the records in their entirety. CIRNAC notified the Commissioner that it would not implement the order, citing potential adverse impacts on its relationship with the Squamish Nation and its ability to conduct confidential negotiations.

• Whether s.20(1)(b) confidential third party information applied
• Whether s.20(1)(c) financial impact on a third party was reasonably expected
• Whether s.23 solicitor-client and litigation privilege applied
• Whether the information was prepared or gathered for the dominant purpose of litigation
• Whether the cited litigation was related to the settlement agreement for the purpose of litigation privilege
• Whether litigation privilege had expired or was waived

An institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act, seeking approval to decline to act on an access request. The institution argued the request was vexatious, made to seek retribution, bully, or circumvent an investigation, citing the requester's prior communications, refusal to narrow the request, and the timing and content of the request. The access request sought all emails, Teams messages, and iMessages from three ATIP office employees over a three-day period, regardless of subject matter. The Commissioner found that the institution did not establish that the request was vexatious. The Commissioner interpreted the requester's communications as indicating an intent to file an OIC complaint, not to bully or seek retribution, and found the refusal to narrow the scope plausible given the requester's stated interest in the ATIP office's deliberations. Consequently, the Commissioner denied the institution's application.

• Whether the access request was vexatious under subsection 6.1(1) ATIA
• Whether the requester's email stating 'further action will be taken' indicated a vexatious purpose
• Whether the requester's refusal to narrow the scope of the request indicated a vexatious purpose
• Whether the requester's email stating intent to contact the Public Sector Integrity Commissioner indicated a vexatious purpose
• Whether the content of the access request (seeking emails of ATIP employees) indicated a vexatious purpose
• Whether the timing of the access request indicated a vexatious purpose
• Whether there was a conflict of interest in the institution's application

The complainant alleged that the Canada Revenue Agency (CRA) failed to conduct a reasonable search for records in response to an access request for a 13-point list of specific record categories held by a named subject matter expert. The OIC investigation found that CRA's initial search was deficient, as evidence from the complainant indicated the likely existence of additional responsive records. Following the OIC's intervention, CRA conducted additional searches and confirmed that further responsive records existed. The Commissioner concluded that the complaint was well founded because the initial search was unreasonable. The Commissioner ordered CRA to complete the retrieval and processing of all responsive records and provide a supplementary response within 60 business days, granting access unless specific exemptions applied. CRA notified the Commissioner that it would implement the order.

• Whether Canada Revenue Agency conducted a reasonable search for records under s.30(1)(a) ATIA

The complainant alleged that Canada Post improperly withheld information under subsections 19(1) and 18.1(1), and paragraphs 21(1)(a) and 21(1)(b) of the Access to Information Act, and also failed to conduct a reasonable search for records related to changes in Iqaluit's mailing service. During the investigation, Canada Post disclosed some information previously withheld under these provisions and the complainant narrowed the focus to financial information withheld under subsection 18.1(1) and the reasonable search allegation. The Commissioner found that Canada Post failed to provide sufficient evidence to justify withholding information under subsection 18.1(1), particularly regarding whether it constituted a trade secret or fell under the general administration exception of subsection 18.1(2). Furthermore, Canada Post did not provide adequate representations to demonstrate that a reasonable search for records had been conducted. Consequently, the Commissioner ordered Canada Post to disclose the information on pages 175-182 and to conduct a new search for responsive records. Canada Post notified the Commissioner that it would implement the order.

• Whether s.19(1) personal information was properly withheld
• Whether s.18.1(1) trade secrets of Canada Post were properly withheld
• Whether s.18.1(1) confidential financial, commercial, scientific or technical information of Canada Post was properly withheld
• Whether s.21(1)(a) advice or recommendations were properly withheld
• Whether s.21(1)(b) accounts of consultations or deliberations were properly withheld
• Whether the information on pages 175-182 constitutes a trade secret under s.18.1(1)
• Whether the information on pages 175-182 constitutes financial, commercial, scientific or technical information under s.18.1(1)
• Whether the information on pages 175-182 relates to the general administration of Canada Post under s.18.1(2)
• Whether Canada Post conducted a reasonable search for records

The complainant alleged that the Canada Revenue Agency (CRA) failed to conduct a reasonable search for records in response to an access request for correspondence between a named subject matter expert and specific parties on 10 topics. The OIC investigation found that CRA's initial search was deficient, as the complainant provided evidence suggesting additional records should exist. Although CRA provided explanations for some missing records, the OIC concluded that the initial search was not reasonable. Consequently, CRA conducted a second search and confirmed the existence of further responsive records. The Commissioner ordered CRA to complete the retrieval and processing of all responsive records and provide a new response within 60 business days. The complaint was found to be well founded, and CRA agreed to implement the order.

• Whether Canada Revenue Agency conducted a reasonable search for records in response to the access request

The complainant alleged that the Privy Council Office (PCO) failed to respond to an access request within the extended timeframe, constituting a deemed refusal under the Access to Information Act. The request sought all IAC assessments concerning Russia and former Soviet Union countries from 1992. The Information Commissioner found that PCO's delay was unacceptable, noting that it took over a year to initiate consultations with other government departments. Furthermore, the Commissioner deemed PCO's proposed three-month internal consultation period following the receipt of external consultation responses as unjustified and unreasonable. Consequently, the Commissioner ordered PCO to provide a complete response within 60 business days and recommended a review of PCO's internal consultation and approval processes. PCO confirmed it would implement the order.

• Whether the institution responded within the extended time limits under subsection 9(1) of the Access to Information Act
• Whether the institution's processing delay was acceptable
• Whether the institution's estimated response date was reasonable
• Whether the institution's internal consultation and approval processes were efficient

The complainant alleged that Trans Mountain Corporation (TMC) improperly withheld records related to the initial application and approval of the Trans Mountain Pipeline in the early 1950s. TMC initially claimed numerous exemptions under the Access to Information Act, including sections 16(2), 17, 18(a), (b), (d), 19(1), and 20(1)(a), (b), (c), (d). During the investigation, the complainant narrowed the scope, excluding technical information and information withheld under section 19(1). The Commissioner found that TMC failed to identify specific information withheld or establish how any of the remaining claimed exemptions applied, particularly noting that the 70-year-old records did not meet the criteria for section 17 (safety of individuals). TMC also failed to justify its refusal to provide a copy of the records under subsection 8(1) of the Regulations, as it did not demonstrate that reproduction would unreasonably interfere with operations or that the records' form prevented reproduction. The Commissioner ordered TMC to disclose all the information and provide a copy to the complainant. TMC agreed to implement the order.

• Whether s.18(a) ATIA (government trade secrets, financial, commercial, scientific or technical information) applied
• Whether s.18(b) ATIA (competitive position of government institutions, negotiations by government institutions) applied
• Whether s.18(d) ATIA (government financial interests, ability to manage the economy, undue benefit) applied
• Whether s.20(1)(a) ATIA (third-party trade secrets) applied
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) applied
• Whether s.20(1)(c) ATIA (financial impact on a third-party) applied
• Whether s.20(1)(d) ATIA (negotiations by a third-party) applied
• Whether s.16(2) ATIA (facilitating the commission of an offence) applied
• Whether s.17 ATIA (safety of individuals) applied
• Whether TMC established that disclosure could threaten the safety of an individual under s.17 ATIA
• Whether TMC established that the records were so lengthy that reproduction would unreasonably interfere with operations under s.8(1)(a) of the Regulations
• Whether TMC established that the records were in a form that does not readily lend itself to reproduction under s.8(1)(b) of the Regulations
• Whether TMC was justified in refusing to provide a copy of the records rather than an opportunity to examine them

An anonymous applicant complained that the Impact Assessment Agency of Canada (IAAC) improperly withheld information related to its 2020-2021 inspection plan under various sections of the Access to Information Act. The Information Commissioner found that IAAC failed to demonstrate the reasonable expectation of harm or that the conditions for exemption were met for information withheld under sections 14 (federal-provincial affairs), 16(1)(c) (conduct of investigations), 16(2) (facilitating an offence), 20(1)(c) (financial impact on third party), and 24(1) (restricted by other law, specifically s.30(1) of the Impact Assessment Act). Claims under sections 20(1)(b) (third-party confidential information), 21(1)(a), (b), and (c) (advice, consultations, negotiations), and 23 (solicitor-client privilege) were partially upheld, with factual or general identifying information deemed disclosable. The Commissioner also determined that IAAC failed to consider its obligation to exercise discretion regarding disclosure under sections 20(6), 21, and 23. However, information withheld under section 21(1)(d) (personnel management plans) and section 68(a) (published material) was found to be properly exempted or excluded. Consequently, the complaint was well-founded, and IAAC was ordered to disclose the improperly withheld information and re-exercise its discretion for other parts.

• Whether the information met the requirements of s.13(1) ATIA
• Whether the information met the requirements of s.14 ATIA
• Whether the information met the requirements of s.16(1)(c) ATIA
• Whether the information met the requirements of s.16(2) ATIA
• Whether the information met the requirements of s.19(1) ATIA
• Whether the information was financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information was objectively confidential under s.20(1)(b) ATIA (not publicly available)
• Whether the information was objectively confidential under s.20(1)(b) ATIA (reasonable expectation of non-disclosure)
• Whether the relationship was fostered for public benefit by confidential communication under s.20(1)(b) ATIA
• Whether the information was supplied by a third party under s.20(1)(b) ATIA
• Whether the information was consistently treated as confidential by the third party under s.20(1)(b) ATIA
• Whether the disclosure of information could reasonably be expected to cause material financial impact or harm competitive position under s.20(1)(c) ATIA
• Whether IAAC reasonably exercised its discretion under s.20(6) ATIA
• Whether the information constituted advice or recommendations under s.21(1)(a) ATIA
• Whether factual or general identifying information was severable from advice or recommendations under s.21(1)(a) ATIA
• Whether the information constituted accounts of consultations or deliberations under s.21(1)(b) ATIA
• Whether factual or general identifying information was severable from accounts of consultations or deliberations under s.21(1)(b) ATIA
• Whether the information constituted positions or plans developed for negotiations under s.21(1)(c) ATIA
• Whether factual or general identifying information was severable from positions or plans developed for negotiations under s.21(1)(c) ATIA
• Whether the information constituted plans related to personnel management or administration not yet in operation under s.21(1)(d) ATIA
• Whether the information was subject to solicitor-client or litigation privilege under s.23 ATIA
• Whether IAAC reasonably exercised its discretion under s.21 ATIA and s.23 ATIA
• Whether the disclosure of information was restricted by s.30(1) of the Impact Assessment Act, thereby falling under s.24(1) ATIA
• Whether the information was published or available for purchase under s.68(a) ATIA

The complainant alleged that Canada Post improperly withheld information under subsections 19(1), 18.1(1), and paragraph 20(1)(b) of the Access to Information Act. The request sought a health and safety strategy report and related invoicing from DuPont Sustainable (DSS). The OIC found that Canada Post failed to demonstrate that the information withheld under paragraph 20(1)(b) met the requirements for confidentiality, third-party supply, or consistent confidential treatment. Similarly, for subsection 18.1(1), Canada Post did not show that the information constituted a trade secret or confidential financial/commercial information belonging to it, or that it was consistently treated as confidential. However, the OIC upheld the application of subsection 19(1) for personal contact information. The Information Commissioner ordered Canada Post to disclose the information improperly withheld under paragraph 20(1)(b) and subsection 18.1(1). Canada Post agreed to implement the order, and the complaint was found to be well founded.

• Whether s.19(1) ATIA (personal information) was properly applied to contact details
• Whether the information was about an individual
• Whether there was a serious possibility of identification
• Whether the information fell under exceptions to 'personal information' in the Privacy Act
• Whether s.19(2) ATIA circumstances (consent, public availability, consistency with Privacy Act s.8) existed
• Whether Canada Post reasonably exercised its discretion under s.19(2) ATIA
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to invoice details
• Whether the information was financial, commercial, scientific or technical
• Whether the information was objectively confidential (not publicly available)
• Whether the information was objectively confidential (reasonable expectation of confidence)
• Whether the information was objectively confidential (relationship fostered for public benefit)
• Whether the information was supplied by a third party to a government institution
• Whether the third party consistently treated the information as confidential
• Whether s.18.1(1) ATIA (trade secrets or confidential financial, commercial, scientific or technical information of Canada Post) was properly applied to invoice and presentation content
• Whether the information constituted a 'trade secret'
• Whether the information was financial, commercial, scientific or technical information belonging to Canada Post
• Whether Canada Post consistently treated the information as confidential
• Whether s.18.1(2) ATIA (general administration exclusion) applied

The complainant alleged that Health Canada failed to respond to an access request within the statutory time limits. The request sought records from specific dates related to parliamentary proceedings concerning the Public Health Agency of Canada and the National Microbiology Laboratory. Health Canada received the request and extended the response period by 210 days, but failed to respond by the extended deadline, leading to a deemed refusal under subsection 10(3) of the Act. The investigation revealed that Health Canada had completed processing the request but then put the response on hold, citing ongoing investigations into the National Microbiology Laboratory incident. The Information Commissioner found that the Act does not authorize an institution to 'pause' a response pending an investigation, emphasizing that concerns about sensitive information should be addressed through the timely application of exemptions. Although the Commissioner initially intended to order a response, Health Canada subsequently provided one, rendering the order unnecessary. The complaint was found to be well founded.

• Whether Health Canada responded to the access request within the statutory time limits or extended period
• Whether Health Canada's decision to 'pause' the response to an access request pending an investigation is authorized under the Access to Information Act
• Whether a deemed refusal occurred under subsection 10(3) of the Act

The complainant alleged that Transport Canada failed to respond to an access request within the 30-day statutory period for records related to an Issue Paper on Human External Cargo via Helicopter. The investigation revealed that Transport Canada's Office of Primary Interest (OPI), Safety and Security, missed the initial tasking request for records, causing significant delays. Transport Canada was deemed to have refused access under subsection 10(3) of the Act due to its failure to respond within the statutory timeframe. The Information Commissioner ordered Transport Canada to provide a complete response to the access request. Although Transport Canada later advised the complainant that responsive records were being processed under a separate request, the Commissioner determined this did not constitute a "complete response" as it did not provide actual access or a denial with reasons. The Commissioner also recommended that the Minister of Transport develop processes to ensure timely record provision by OPIs and establish performance indicators for senior officials regarding delays. The complaint was found to be well founded.

• Whether Transport Canada responded to the access request within the 30-day period under section 7 of the ATIA
• Whether Transport Canada's referral to another access request constituted a complete response
• Whether the delay by the Office of Primary Interest (OPI) was acceptable