Canadian privacy & access decisions

An anonymous applicant complained that Transport Canada improperly withheld information from rail workplace fatality investigation reports under sections 19(1), 20(1)(b), and 20(1)(c) of the Access to Information Act. The Commissioner found that while some information was properly withheld as personal information under section 19(1), Transport Canada failed to reasonably exercise its discretion regarding publicly available personal information. For section 20(1)(b), most of the withheld information did not meet the requirements for confidentiality or being "supplied by" a third party, with only specific financial and technical details qualifying. The Commissioner rejected the application of section 20(1)(c), finding that the institution and third parties did not demonstrate a clear and direct connection between disclosure and a reasonable expectation of harm. Furthermore, a third party's claim under section 23 for solicitor-client and litigation privilege was also rejected due to insufficient evidence. Consequently, the complaint was well-founded, and Transport Canada was ordered to disclose most of the withheld information.

• Whether the withheld information constituted "personal information" under subsection 19(1) ATIA
• Whether Transport Canada reasonably exercised its discretion under subsection 19(2)(b) ATIA regarding publicly available personal information
• Whether the withheld information was "financial, commercial, scientific or technical" under paragraph 20(1)(b) ATIA
• Whether the withheld information was "confidential" under paragraph 20(1)(b) ATIA
• Whether the withheld information was "supplied by a third party" under paragraph 20(1)(b) ATIA
• Whether the third party "consistently treated the information as confidential" under paragraph 20(1)(b) ATIA
• Whether disclosure of the information could reasonably be expected to result in "material financial loss or gain" or "prejudice to the competitive position" of a third party under paragraph 20(1)(c) ATIA
• Whether the withheld information was subject to "solicitor-client privilege" under section 23 ATIA
• Whether the withheld information was subject to "litigation privilege" under section 23 ATIA

The complainant alleged that Health Canada improperly withheld information under subsection 19(1) and paragraph 20(1)(c) of the Access to Information Act concerning documents about the impact of campfires on air quality. During the investigation, the complainant withdrew the allegation regarding subsection 19(1). Health Canada had withheld names of third parties and short texts about them under paragraph 20(1)(c), claiming potential financial impact on third parties. The third parties, Canadian Automobile Association (CAA) and Canadian Institute of Planners (CIP), were invited to make representations. The CAA opposed disclosure, citing "future risk" from misinformation, but provided no evidence of specific harm. The CIP stated disclosure would not cause it harm. The Commissioner found that the information did not meet the requirements of paragraph 20(1)(c) as there was no clear and direct connection between disclosure and a risk of harm beyond mere possibility. Health Canada agreed to disclose the information following an order from the Commissioner. The complaint was found to be well founded, and Health Canada was ordered to disclose the information.

• Whether s.19(1) ATIA (personal information) was properly applied
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied
• Whether disclosure could result in material financial loss or gain to the third party with a reasonable expectation of harm
• Whether disclosure could injure the competitive position of the third party with a reasonable expectation of prejudice
• Whether the third parties provided sufficient evidence to demonstrate a reasonable expectation of harm under s.20(1)(c)

The complainant alleged that Transport Canada improperly withheld information from a Final Report of an investigation into an accidental death at a Canadian Pacific Railway Company (CP) yard. Transport Canada initially withheld information under paragraphs 16(1)(c), 19(1), and 20(1)(b) of the Access to Information Act. CP also asserted additional exemptions under paragraphs 20(1)(c), section 23, and subsection 24(1). The Information Commissioner found that Transport Canada did not meet the burden for withholding an incident number under 16(1)(c). For 19(1), the Commissioner found that while much of the witness statement information was personal and posed a serious re-identification risk, factual information could be severed and disclosed. Regarding 20(1)(b), the Commissioner determined that some technical and commercial information met the exemption criteria, but other information, particularly safety-related content, did not meet the confidentiality requirement. The Commissioner rejected CP's additional exemption claims under 20(1)(c), 23, and 24(1) due to insufficient evidence. The complaint was found to be well founded, and Transport Canada was ordered to disclose specific information.

• Whether s.16(1)(c) law enforcement or investigation harm was reasonably expected for the incident number
• Whether information was personal information under s.19(1)
• Whether factual information could be severed from personal information under s.19(1)
• Whether there was a serious risk of re-identification for personal information under s.19(1)
• Whether Transport Canada reasonably exercised discretion under s.19(2)
• Whether information was financial, commercial, scientific or technical under s.20(1)(b)
• Whether information was confidential under s.20(1)(b)
• Whether information was supplied by a third party under s.20(1)(b)
• Whether the third party consistently treated information as confidential under s.20(1)(b)
• Whether Transport Canada reasonably exercised discretion under s.20(6)
• Whether s.20(1)(c) financial impact or competitive harm was reasonably expected
• Whether information was subject to solicitor-client privilege under s.23
• Whether information was subject to litigation privilege under s.23
• Whether information was restricted by another law under s.24(1) (Canada Labour Code s.144(3))

The complainant alleged that the Royal Canadian Mounted Police (RCMP) improperly withheld information related to applications for legal funding at public expense, including records concerning British Columbia's Braidwood Commission on the death of Robert Dziekanski. The RCMP claimed various exemptions under the Access to Information Act. The Information Commissioner found that the RCMP improperly withheld information under paragraphs 13(1)(a) and (c), section 14, subsection 15(1), and section 23, specifically rejecting the RCMP's claims of solicitor-client, litigation, and common interest privilege for certain letters. The Commissioner also concluded that the RCMP failed to take reasonable steps to seek consent from the B.C. government for information qualifying under subsection 13(1), as required by subsection 13(2). However, the Commissioner upheld the application of subsection 19(1) and paragraph 21(1)(a) for other information, finding the RCMP's exercise of discretion reasonable in those instances. Consequently, the complaint was found to be well founded. The Commissioner ordered the RCMP to disclose the improperly withheld information and to seek consent from the B.C. government for other records before exercising discretion on their release. The RCMP gave notice that it would not fully implement these orders.

• Whether the information met the requirements of subsection 19(1) ATIA
• Whether the RCMP reasonably exercised its discretion under subsection 19(2) ATIA
• Whether the information met the requirements of section 23 ATIA regarding solicitor-client privilege
• Whether the information met the requirements of section 23 ATIA regarding litigation privilege
• Whether common interest privilege applied to letters from legal counsel to the Braidwood Commission
• Whether the RCMP reasonably exercised its discretion under section 23 ATIA
• Whether the information met the requirements of paragraph 13(1)(a) ATIA
• Whether the information met the requirements of paragraph 13(1)(c) ATIA
• Whether the information met the requirements of paragraph 13(1)(d) ATIA
• Whether the RCMP reasonably exercised its discretion to seek consent under subsection 13(2) ATIA
• Whether the information met the requirements of section 14 ATIA
• Whether the information met the requirements of subsection 15(1) ATIA
• Whether the information met the requirements of paragraph 21(1)(a) ATIA
• Whether the RCMP reasonably exercised its discretion under paragraph 21(1)(a) ATIA

The complainant alleged that the Canada Revenue Agency (CRA) improperly withheld employee timesheet information under subsection 19(1) of the Access to Information Act. The request was for timesheets from April 19 to May 3, 2023, a period coinciding with a labour strike. The OIC accepted that User ID and PRI, if disclosed, would reveal an employee's choice to participate in or cross a picket line, thus constituting personal information not related to their position or function. However, for the remaining timesheet data (Date, Att/Abs type, Att/Abs text, Company, Status, Hours), the OIC found CRA's argument for withholding to be speculative and lacking concrete evidence that disclosure would lead to identification, especially given the large number of employees and various reasons for absence. The OIC concluded that this remaining information did not meet the requirements of subsection 19(1). The Commissioner ordered CRA to disclose the information that did not meet the requirements of subsection 19(1). CRA gave notice that it would partially implement the order, intending to withhold information associated with leave codes used by fewer than 10 employees.

• Whether User ID and PRI on timesheets constitute personal information under s.19(1) ATIA
• Whether the release of User ID and PRI would reveal an employee's personal choice regarding strike participation, thus not falling under the s.3(j) Privacy Act exception
• Whether the remaining timesheet information (Date, Att/Abs type, Att/Abs text, Company, Status, Hours) constitutes personal information under s.19(1) ATIA
• Whether there is a serious possibility that disclosing the remaining timesheet information would lead to the identification of individuals
• Whether CRA's evidence for identification was speculative or concrete
• Whether CRA reasonably exercised its discretion under s.19(2) ATIA for information meeting s.19(1) requirements

The complainant alleged that the Port Alberni Port Authority (PAPA) improperly withheld information under several exemptions of the Access to Information Act, specifically paragraphs 18(a), 18(b), 20(1)(b), 20(1)(c), and subsection 19(1), related to the lease of equipment. The complainant also alleged that PAPA failed to conduct a reasonable search for records. The investigation focused on the application of paragraph 20(1)(c) to specific rental rate amounts on two pages and the reasonable search allegation. The Commissioner found that PAPA could not demonstrate that the disclosure of the rental rates would reasonably be expected to cause material financial impact or harm the competitive position of the third party. However, the Commissioner was satisfied that PAPA conducted a reasonable search for records. Consequently, the complaint was found to be well founded regarding the exemption claim, and PAPA was ordered to disclose the redacted information.

• Whether s.18(a) ATIA (government financial, commercial, scientific or technical information) was properly applied
• Whether s.18(b) ATIA (competitive position of government institutions or negotiations by government institutions) was properly applied
• Whether s.19(1) ATIA (personal information) was properly applied
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied
• Whether s.20(1)(c) ATIA (financial impact on a third party) was properly applied to rental rate amounts on pages 54 and 55
• Whether disclosure of rental rates could result in material financial loss or gain to the third party
• Whether there is a reasonable expectation of harm to the third party's financial impact or competitive position
• Whether Port Alberni Port Authority conducted a reasonable search for records

The complainant alleged that the National Research Council Canada (NRC) improperly withheld information under sections 20(1)(d), 21(1)(a), 21(1)(c), and 23 of the Access to Information Act. The request concerned records related to negotiations with the Professional Institute of the Public Service of Canada (PIPSC) regarding overtime conversion. The OIC found that the NRC failed to demonstrate that the requirements for exemptions under paragraphs 20(1)(d), 21(1)(a), and 21(1)(c) were met for all the withheld information. Specifically, the OIC determined that the NRC could not establish a reasonable expectation of interference with negotiations for the information withheld under 20(1)(d), and that the NRC did not reasonably exercise its discretion for some information under 21(1)(a). However, the OIC upheld the application of section 23 for solicitor-client privilege. The Commissioner ordered the NRC to disclose certain information originally withheld under paragraphs 20(1)(d), 21(1)(a), and 21(1)(c). The NRC agreed to implement the order, and the complaint was found to be well founded.

• Whether s.20(1)(d) contractual or other negotiations exemption was properly applied
• Whether disclosure of information could reasonably be expected to interfere with third-party negotiations under s.20(1)(d)
• Whether the institution met the requirements for s.20(1)(d)
• Whether s.21(1)(a) advice or recommendations exemption was properly applied
• Whether the information constituted advice or recommendations developed by or for a government institution or minister under s.21(1)(a)
• Whether the institution reasonably exercised its discretion to disclose information under s.21(1)(a)
• Whether s.21(1)(c) positions or plans developed for negotiations exemption was properly applied
• Whether the information consisted of positions or plans developed for negotiations by or on behalf of the Government of Canada under s.21(1)(c)
• Whether s.23 solicitor-client privilege exemption was properly applied
• Whether the information constituted confidential legal advice under s.23
• Whether the institution reasonably exercised its discretion to disclose information under s.23

An unnamed federal institution sought the Information Commissioner's approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act. The request, received in November 2020, was exceptionally broad, seeking all tenders, solicitations, and related communications specifying OEM brand names from 2011 to 2020, with an estimated 8 million pages of records. The institution argued that processing such a volume would constitute an abuse of the right of access, overburden its operational units and ATIP office, and severely impact other requesters' rights. Despite the institution's efforts to assist the requester in narrowing the scope, the requester refused, citing a desire to protect their identity and ensure comprehensive coverage. The Commissioner found that the institution plausibly established the request as an abuse of the right of access due to the immense burden it would impose, estimating 30 to 230 years for processing. The Commissioner also concluded that the institution had met its duty to assist the requester. Consequently, the Commissioner granted the institution's application to decline to act on the request, emphasizing that while the application was delayed, the abuse of the right of access was too significant to deny it on timeliness grounds.

• Whether the access request constitutes an abuse of the right to make a request under subsection 6.1(1) of the Access to Information Act
• Whether the volume and complexity of the requested records would overburden the institution's Offices of Primary Interest (OPIs)
• Whether the volume and complexity of the requested records would overburden the institution's Access to Information and Privacy (ATIP) office
• Whether processing the access request would negatively impact the right of access of other requesters
• Whether the institution made every reasonable effort to assist the requester in connection with their request, as required by subsection 4(2.1) of the Access to Information Act
• Whether the requester's stated reasons for the broad scope of the request (to protect identity and ensure comprehensive coverage) were justified
• Whether the delay in the institution's submission of the application to decline to act should lead to its refusal

The complainant alleged that Fisheries and Oceans Canada (DFO) improperly withheld information under paragraph 20(1)(b) of the Access to Information Act. The request sought data analyzed in the Sea Lice Science Response Report (2022/045) from January to June 2022. DFO initially withheld the information, citing confidentiality, but later conceded that much of the data, including temperature and salinity data, could be disclosed. The Information Commissioner found that neither DFO nor the third parties demonstrated that the information met all the requirements of paragraph 20(1)(b), specifically regarding objective confidentiality and whether all information was supplied by a third party. One third party also raised section 26, but the Commissioner found it did not apply as the 90-day publication timeline had passed. The Commissioner ordered DFO to fully disclose the records, and DFO agreed to comply.

• 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
• Whether the information was supplied by a third party under s.20(1)(b) ATIA
• Whether the third party consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether the information would be published by a government institution within 90 days under s.26 ATIA

The Office of the Privacy Commissioner (OPC) investigated complaints against the NSIRA Secretariat regarding its access to sensitive polygraph records during a review of the Communications Security Establishment's (CSE) Internal Security Program. Complainants questioned whether the collection of personal information complied with section 4 of the Privacy Act and if the Secretariat met its Personal Information Bank (PIB) obligations under section 10. The OPC found that while some un-redacted elements in security screening files posed a re-identification risk, the polygraph recordings themselves were sufficiently anonymized. Given NSIRA's broad mandate and right of access, the OPC concluded the collection issue was not well-founded. However, the Secretariat's delay in requesting approval for PIB changes was found well-founded, though resolved by subsequent submission. The OPC recommended the Secretariat prioritize PIB approvals and publish its Info Source page for transparency. The Secretariat committed to these actions.

• Whether the NSIRA Secretariat's collection of personal information (polygraph records) complied with section 4 of the Privacy Act.
• Whether the anonymization measures applied to polygraph records were sufficient to prevent re-identification.
• Whether the NSIRA Secretariat's viewing of personal information, even if not recorded, constituted a 'collection' under section 4.
• Whether the NSIRA Secretariat met its obligations under section 10 of the Privacy Act regarding Personal Information Banks (PIBs).
• Whether the NSIRA Secretariat's request for PIB approval was timely.
• Whether the NSIRA Secretariat published its Info Source page as required by TBS policy.

The complainant alleged that Correctional Service Canada (CSC) improperly withheld information from the institutional file of a named inmate, claiming numerous exemptions under the Access to Information Act. CSC withheld over 11,000 pages, disclosing only 149 in full, primarily citing subsection 19(1) for personal information. The Commissioner found that the records contained detailed, intimate, and sensitive personal information about the inmate and other individuals, satisfying the requirements of subsection 19(1). CSC demonstrated that it made reasonable efforts to seek consent from the named inmate but not from others, providing valid reasons for the latter. The Commissioner also found that CSC was not obligated to undertake extensive searches to determine if the information was publicly available given its nature and volume. Furthermore, CSC's delegated authority considered the public interest in disclosure but concluded it did not clearly outweigh the invasion of privacy, providing a transparent explanation. The Commissioner concluded that none of the circumstances under subsection 19(2) for discretionary disclosure were met, and therefore, CSC was not required to exercise discretion. Consequently, the complaint was not well founded.

• Whether the information withheld by CSC constitutes personal information under subsection 19(1) ATIA
• Whether the information is about an individual
• Whether disclosing the information would identify that individual
• Whether the information falls under an exception to the definition of 'personal information' in the Privacy Act
• Whether CSC made reasonable efforts to seek consent for disclosure under paragraph 19(2)(a) ATIA
• Whether the information was publicly available under paragraph 19(2)(b) ATIA
• Whether the public interest in disclosure clearly outweighed the invasion of privacy under paragraph 19(2)(c) ATIA, as per section 8 of the Privacy Act
• Whether the open court principle applies to CSC or the Parole Board
• Whether the complainant was deprived of their section 2(b) Charter rights

The complainant alleged that Indigenous Services Canada (ISC) failed to conduct a reasonable search for records related to housing space accommodation guides, space criteria, and occupancy rates for Indigenous communities from 1960 to 1990. Initially, ISC stated no responsive records existed and suggested the complainant contact their archives. The Office of the Information Commissioner (OIC) questioned this approach, leading ISC to conduct further searches. These subsequent searches, after initial nil results, eventually identified approximately 24,000 pages of potentially relevant records. With the complainant's agreement, the scope of the request was narrowed, resulting in 800 pages of responsive records. The OIC concluded that ISC did not conduct a reasonable search at the time it first processed the request. The Commissioner ordered ISC to complete the retrieval and processing of all responsive records, provide an interim release within 36 business days, and a final response within 60 business days.

• Whether Indigenous Services Canada conducted a reasonable search for records responsive to the access request

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)

The complainant alleged that the Impact Assessment Agency of Canada (IAAC) improperly withheld information under paragraphs 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act, concerning the Ksi Lisims LNG project. The complaint was later limited to specific pages, with page 57 also including a s.19(1) claim. The Commissioner found that the IAAC properly withheld personal information on page 57 under s.19(1), as no circumstances for disclosure under s.19(2) existed. For page 67, the Commissioner upheld the application of s.20(1)(c) for proprietary information but found the IAAC failed to exercise its discretion under s.20(6). However, the Commissioner rejected the application of s.20(1)(b), s.20(1)(c), and s.20(1)(d) for pages 62, 63, 65, and 73, determining the information was either publicly available or did not meet the exemption criteria for harm or confidentiality. Consequently, the complaint was found well-founded. The IAAC was ordered to disclose information on pages 62, 63, 65, and 73, and to properly exercise discretion for page 67.

• Whether the information on page 57 constituted personal information under s.19(1) ATIA
• Whether the circumstances for disclosure under s.19(2) ATIA existed for page 57
• Whether the IAAC reasonably exercised its discretion under s.19(2) ATIA for page 57
• Whether the information on page 67 could reasonably be expected to have a material financial impact on a third party or harm its competitive position under s.20(1)(c) ATIA
• Whether the information on pages 62, 63, 65, and 73 could reasonably be expected to have a material financial impact on a third party or harm its competitive position under s.20(1)(c) ATIA
• Whether the IAAC failed to consider the circumstances and exercise discretion under s.20(6) ATIA for page 67
• Whether the information on pages 62, 63, 65, and 73 was confidential financial, commercial, scientific or technical information provided by a third party under s.20(1)(b) ATIA
• Whether the information on pages 62, 63, 65, and 73 could reasonably be expected to interfere with contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether the information on page 62 was publicly available
• Whether the information on pages 63, 65, and 73 was publicly available or its essence already disclosed