Canadian privacy & access decisions

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

The complainant alleged that the Privy Council Office (PCO) failed to conduct a reasonable search for records related to minutes of the Joint Intelligence Committee from November 1, 1957, to December 31, 1958. The Information Commissioner found that PCO did not initially conduct a reasonable search. During the investigation, PCO agreed to conduct a new search, which resulted in the retrieval of additional responsive records. PCO also indicated that it was consulting with Global Affairs Canada and the Department of National Defence regarding the processing of these records. The Commissioner ordered PCO to complete the retrieval and processing of all responsive records, provide access to them, and issue a supplementary response. PCO notified the Commissioner that it would implement the order and subsequently issued a supplementary response. The complaint was found to be well founded.

• Whether the Privy Council Office conducted a reasonable search for records under paragraph 30(1)(a) of the Access to Information Act

The complainant alleged that Shared Services Canada (SSC) took an unreasonable extension of time to respond to an access request for records related to solicitation documents, approvals, and decisions from January 1, 2020, to April 8, 2024. SSC initially took a 750-day extension, citing a large volume of records (estimated at 15,000 pages) and difficulties with new ATIP Express software. The Information Commissioner found SSC's benchmark of processing 500 pages per month to be unreasonable and disagreed with factoring in anticipated software delays. The Commissioner acknowledged the challenges with the new software but emphasized that technology issues should not unduly affect requesters' access rights. The Commissioner concluded that the extension was unreasonable, leading to a deemed refusal of access. SSC subsequently agreed to provide interim releases every three months and a complete response by September 30, 2025. The complaint was found to be well founded.

• Whether the extension of time taken under s.9(1)(a) was for a reasonable period
• Whether the institution's processing benchmark of 500 pages per month was reasonable
• Whether anticipated delays due to new ATIP Express software should factor into the length of an extension
• Whether the institution was deemed to have refused access under s.10(3)

The complainant alleged that the Privy Council Office (PCO) failed to conduct a reasonable search for records related to the creation of the Intelligence Coordinator position between September 1984 and February 1985, specifically mentioning a 'Memorandum for the Intelligence Coordinator' dated November 27, 1984. Initially, PCO did not provide documentation of its search efforts, leading the OIC to conclude that a reasonable search had not been demonstrated. Following the OIC's intervention, PCO conducted secondary searches, identifying 187 additional pages of responsive records. PCO committed to reviewing these records and providing a supplementary response to the access request. The Information Commissioner found the complaint to be well-founded and ordered PCO to complete the retrieval and processing of all responsive records and issue a supplementary response by December 10, 2024. PCO subsequently notified the Commissioner that it would implement the order.

• Whether the institution conducted a reasonable search for records responsive to the access request

The complainant alleged that the Privy Council Office (PCO) failed to conduct a reasonable search for records related to a review of the Canadian intelligence program by the Intelligence Advisory Committee (IAC) for the Cabinet Committee for Security and Intelligence (CCSI) between January 1972 and June 1975. The investigation found that PCO's initial search was inadequate, as Offices of Primary Interest did not retrieve all relevant records. The complainant specifically identified several missing documents and references to unreleased annexes within the records provided. Following the Office of the Information Commissioner's (OIC) intervention, PCO conducted a secondary search, which identified an additional 265 pages of responsive records. Although the OIC was satisfied with the subsequent search, the complaint was deemed well founded due to the initial failure. The Commissioner ordered PCO to complete the retrieval and processing of all additional records and provide a supplementary response by March 18, 2025, which PCO agreed to implement.

• Whether the Privy Council Office conducted a reasonable search for records responsive to the access request
• Whether specific requested records were omitted from the initial response
• Whether referenced annexes and supporting papers were missing from the initial release

A federal institution sought the Information Commissioner's approval to decline to act on an access request, arguing it constituted an abuse of the right to make a request under subsection 6.1(1) of the Access to Information Act. The institution claimed the request, for emails and chat messages from a specific office over a two-month period, was too broad and would result in over 75,800 pages, taking an estimated 12.6 years to process. It argued this would severely disrupt its operations, particularly a small office with limited resources, and hinder its ATIP office's ability to respond to other requests. The requester disputed the institution's capacity estimates and argued that exclusions and duplicates would significantly reduce the volume. The Commissioner found that the institution did not provide sufficient evidence to demonstrate that acting on the request would overburden its operations or hinder other requesters' rights, noting that the institution's ATIP processing capacity seemed understated and that no evidence of backlog was provided. Consequently, the Commissioner denied the institution's application.

• Whether the access request constitutes an abuse of the right to make a request under s.6.1(1) ATIA
• Whether the estimated volume of records would overburden the institution
• Whether the institution's efforts to assist the requester were sufficient
• Whether processing the request would severely impact the OPI's ability to advance its mandate
• Whether processing the request would cause undue strain on the ATIP office and hinder other requesters' rights of access
• Whether the institution's estimated processing capacity was accurate

A federal institution applied to the Information Commissioner under subsection 6.1(1) of the Access to Information Act, seeking approval to decline to act on 597 access requests. The institution argued that these requests constituted an abuse of the right to make a request and were vexatious. The Commissioner found that the institution successfully demonstrated that 550 of the 597 requests were indeed an abuse of the right to make a request. Consequently, the Commissioner granted approval for the institution to decline to act on these 550 requests. However, the institution failed to prove that the remaining 47 requests were vexatious or an abuse of the right. Therefore, the Commissioner did not grant approval for the institution to decline to act on those 47 requests. The application was partially granted.

• Whether 597 access requests constituted an abuse of the right to make a request under s.6.1(1) ATIA
• Whether 597 access requests were vexatious under s.6.1(1) ATIA

The complainant alleged that Canadian Heritage (PCH) failed to conduct reasonable searches for records in response to thirteen access requests concerning lobbying communications from 2020 and 2021. While the Offices of Primary Interest (OPIs) that were tasked conducted adequate searches, the Information Commissioner found that PCH did not task all relevant OPIs that were likely to hold responsive records. Specifically, the Corporate Secretariat and the Digital and Creative Marketplace Frameworks OPI were not consistently tasked despite being identified as likely holders of records related to ministerial staff and specific employees, respectively. The Commissioner concluded that PCH did not conduct reasonable searches for records. Consequently, the Commissioner ordered PCH to task the appropriate OPIs, conduct new searches, and provide access to any additional responsive records.

• Whether Canadian Heritage conducted reasonable searches for records in response to multiple access requests
• Whether all Offices of Primary Interest (OPIs) likely to hold relevant records were tasked with searching