Canadian privacy & access decisions

The Information Commissioner initiated a systemic investigation into Library and Archives Canada's (LAC) persistent delays in responding to access requests, prompted by a history of non-compliance with legislative deadlines. The investigation found that LAC failed to meet its obligation to provide timely access, with almost 80% of requests completed after the statutory deadlines in 2020-21. Key contributing factors identified were the backlog from suspending ATIP operations during the pandemic, problematic consultation practices with other institutions, inadequate infrastructure for processing classified records, the absence of a government-wide declassification program, and insufficient ATIP funding and resources. The Commissioner concluded the complaint was well-founded and issued ten recommendations to the Minister of Canadian Heritage to address these systemic issues. However, the Commissioner found the Minister's responses largely lacked urgency and concrete commitments, leading to concerns about the sufficiency of proposed measures. The Commissioner also tabled a special report to Parliament highlighting broader challenges in the access to information system.

• Whether Library and Archives Canada (LAC) met its obligation to provide timely access to records under subsection 4(2.1) and section 7 of the ATIA
• Whether LAC's suspension of ATIP operations during the early months of the pandemic contributed to delays and non-compliance
• Whether LAC's practices regarding consultations with other institutions were consistent with paragraph 9(1)(b) of the ATIA and the Interim Directive
• Whether LAC's lack of adequate infrastructure for digitizing, reviewing, and consulting on Secret and Top Secret records contributed to processing delays
• Whether the absence of a mandatory government-wide declassification program contributed to delays in processing classified records
• Whether the lack of adequate funding for LAC's ATIP office to support new programs introduced by other institutions contributed to its inability to provide timely access
• Whether the ATIP and Litigation Response Division's large workload, vacant positions, and staff instability contributed to delays in responding to access requests

The complainant alleged that Parks Canada improperly withheld portions of a draft feasibility study under subsections 19(1), 20(1)(c), and 20(1)(d) of the Access to Information Act. During the investigation, the complainant narrowed the scope, and Parks Canada changed its reliance to subsection 20(1)(b). The Commissioner found that Parks Canada and the third party did not demonstrate that all the withheld information met the requirements of subsection 20(1)(b), particularly where some information was publicly available or where they no longer opposed disclosure. While some information was found to be legitimately confidential financial/commercial data, other parts were not. Consequently, the Commissioner ordered Parks Canada to disclose specific information that did not meet the exemption criteria. Parks Canada agreed to implement the order, leading to a well-founded complaint.

• Whether s.19(1) personal information was properly withheld
• Whether s.20(1)(c) financial impact on third party was properly withheld
• Whether s.20(1)(d) negotiations by a third party was properly withheld
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information applied
• Whether the information was financial, commercial, scientific or technical
• Whether the information was confidential (not publicly available, expectation of confidence, fostering relationship)
• Whether the information was supplied by a third party to a government institution
• Whether the third party consistently treated the information as confidential