Canadian privacy & access decisions

The complainant alleged that the Royal Canadian Mounted Police (RCMP) failed to conduct a reasonable search for records in response to an access request. The request sought the total annual amount paid by the RCMP due to sexual harassment/assault from 2009 to 2020. The RCMP disclosed information related to two publicly known class action settlements but stated it could not identify other relevant payments from its general ledger due to confidentiality and the ledger's design, which does not detail the nature of settlement claims. The investigation confirmed that the RCMP's general ledger does not capture the specific nature of settlement payments, making it impossible to identify those related to sexual harassment/assault. Furthermore, the RCMP did not maintain a comprehensive list of such payments, and creating one would require an unreasonable review of thousands of files. The Information Commissioner concluded that the RCMP conducted a reasonable search by disclosing the only information it could reasonably compile.

• Whether the institution conducted a reasonable search for records under the Access to Information Act

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly withheld information related to the Roberts Bank Terminal 2 Project, specifically concerning biofilm and shorebirds, under several exemptions of the Access to Information Act. The complaint initially included exemptions s.16(2) and s.19(1), but these were later removed from the scope of the investigation. The OIC found that ECCC had appropriately applied s.21(1)(a) and s.21(1)(b) to most of the withheld records, as they constituted advice, recommendations, or accounts of consultations. However, ECCC's application of s.20(1)(b), s.21(1)(a), and s.21(1)(b) to a scientific manuscript was deemed improper, as the manuscript was found not to be confidential and ECCC later agreed to its disclosure. The Commissioner also noted inconsistencies in ECCC's disclosure practices. The complaint was found to be well founded, and ECCC was ordered to disclose the manuscript and correct the inconsistencies.

• Whether s.16(2) ATIA (facilitating the commission of an offence) was properly applied (removed from scope)
• Whether s.19(1) ATIA (personal information) was properly applied (removed from scope)
• Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied to the scientific manuscript
• Whether the scientific manuscript was 'financial, commercial, scientific or technical' information under s.20(1)(b)
• Whether the scientific manuscript was 'confidential' under s.20(1)(b) (Air Atonabee test)
• Whether the information in the scientific manuscript was supplied by a third party under s.20(1)(b)
• Whether the third party consistently treated the information in the scientific manuscript as confidential under s.20(1)(b)
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to the scientific manuscript
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to the scientific manuscript
• Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied to other records
• Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied to other records
• Whether ECCC reasonably exercised its discretion to disclose information under s.21(1)(a) and s.21(1)(b)
• Whether there were inconsistencies in ECCC's disclosure of information

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information under various sections of the Access to Information Act, including s.16(2), s.19(1), s.21(1)(a), s.21(1)(b), s.23, and s.69(1), related to the Alternate Independent Process for St-Anne’s Residential School hearings. During the investigation, the complainant withdrew the s.19(1) allegation. The Commissioner found that Justice appropriately applied s.16(2), s.21(1)(a), s.21(1)(b), and s.69(1). However, Justice could not demonstrate that all information withheld under s.23 (solicitor-client and litigation privilege) met the exemption's requirements, particularly regarding communications outside the direct solicitor-client relationship or where common interest privilege was not established. The Commissioner recommended disclosure of the improperly withheld s.23 information. Justice maintained its position on s.23 but committed to reviewing the records for potential disclosure. The complaint was found to be well founded.

• Whether s.16(2) facilitating the commission of an offence was properly applied
• Whether discretion was reasonably exercised for s.16(2)
• Whether s.21(1)(a) advice or recommendations was properly applied
• Whether discretion was reasonably exercised for s.21(1)(a)
• Whether s.21(1)(b) accounts of consultations or deliberations was properly applied
• Whether discretion was reasonably exercised for s.21(1)(b)
• Whether s.23 solicitor-client privilege was properly applied to all communications
• Whether s.23 litigation privilege was properly applied to all communications
• Whether common interest privilege was established for s.23 claims
• Whether discretion was reasonably exercised for s.23
• Whether s.69(1) Cabinet confidences was properly applied

The Office of the Information Commissioner (OIC) received a complaint alleging that a federal institution failed to respond within an extended timeframe for an access request and engaged in inappropriate communication. The OIC accepted the complaint regarding the delay but deemed the complaint about inappropriate communication inadmissible. The institution had, on May 2, 2022, suggested the requester abandon their request, which the requester declined on May 22, 2022. The complainant argued the 60-day period for filing a complaint about the communication started when the extended response timeframe expired on August 25, 2022. However, the OIC determined that the alleged inappropriate conduct occurred on May 2, 2022, when the institution first communicated its proposal regarding the request. Since the complaint about communication was filed after the mandatory 60-day limit from May 2, 2022, the Commissioner found it inadmissible.

• Whether the institution responded within the extended timeframe for an access request
• Whether the complaint regarding the institution's alleged inappropriate communication was submitted within the 60-day time limit under s.31 ATIA
• When the complainant became aware of the grounds for complaint regarding alleged inappropriate communication

The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under section 23 (solicitor-client privilege) of the Access to Information Act, concerning regulations under the Food and Drugs Act and related litigation. The Information Commissioner found that the withheld information did meet the requirements for solicitor-client privilege. However, LAC failed to demonstrate that it had reasonably exercised its discretion in deciding whether to disclose the information, as it did not provide evidence of considering all relevant factors for and against disclosure. The Commissioner noted that the records were nearly 90 years old and had historical significance, suggesting that exceptional circumstances might exist to warrant disclosure. Consequently, the Commissioner ordered LAC to re-exercise its discretion, taking into account all relevant factors, including the age and historical significance of the records. LAC agreed to implement the order.

• Whether the information met the requirements of s.23 ATIA (solicitor-client privilege)
• Whether the communications were between a lawyer/notary and client
• Whether the communications related to seeking or giving legal advice
• Whether the parties intended the communication to remain confidential
• Whether there was an implied waiver of solicitor-client privilege due to prior disclosure
• Whether there was a selective waiver of privilege
• Whether LAC reasonably exercised its discretion to disclose the information under s.23 ATIA
• Whether LAC considered all relevant factors for and against disclosure

The complainant alleged that Health Canada improperly withheld information under paragraphs 20(1)(b) and 20(1)(c) of the Access to Information Act. The request sought two versions of a non-clinical overview of the Novavax SARS CoV-2 rS vaccine. Health Canada applied paragraph 20(1)(b) to withhold the information, arguing it was confidential third-party scientific or technical information. The OIC found that the information met all criteria for exemption under paragraph 20(1)(b), including being scientific/technical, confidential, supplied by a third party, and consistently treated as confidential. The OIC also concluded that the circumstances requiring Health Canada to exercise discretion under subsections 20(5) or 20(6) did not exist, as Novavax did not consent to disclosure and the public interest in disclosure did not clearly outweigh potential harm to Novavax at the time of the decision. Consequently, the complaint was deemed not well founded.

• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is 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 institution reasonably exercised its discretion to disclose under s.20(5) ATIA
• Whether the institution reasonably exercised its discretion to disclose under s.20(6) ATIA
• Whether s.20(1)(c) ATIA applies to the information

The Office of the Privacy Commissioner of Canada (OPC) investigated a complaint against Immigration, Refugees and Citizenship Canada (IRCC) regarding a privacy breach involving 636 individuals seeking emergency assistance related to the situation in Afghanistan. IRCC inadvertently disclosed recipients' email addresses, and in some cases thumbnail photos, by using the "TO" field instead of "BCC" in four mass emails. This disclosure revealed that individuals had inquired about sensitive emergency measures, posing potential life-threatening risks. The OPC found that IRCC contravened section 8 of the Privacy Act by disclosing personal information without a permissible purpose. While IRCC took immediate steps to mitigate the impact on affected individuals, the OPC determined that its preventative measures were initially insufficient. IRCC subsequently revised its internal procedures, implemented a "two pairs of eyes" rule, limited recipients, introduced a secure webform, and committed to exploring further technological solutions. The OPC was satisfied with IRCC's actions and considered the matter closed.

• Whether IRCC's disclosure of personal information via mass email contravened section 8 of the Privacy Act
• Whether IRCC had sufficient administrative and procedural controls in place to prevent accidental disclosures of sensitive personal information when communicating by mass email
• Whether IRCC's measures to mitigate the impact of the incident on affected individuals were adequate
• Whether IRCC's actions to reduce the risk of recurrence of similar incidents in the future were adequate

The complainant alleged that Environment and Climate Change Canada (ECCC) improperly excluded real-time and archived weather radar data under paragraph 68(a) of the Access to Information Act, claiming it was material available for purchase. ECCC stated that access to this weather data is provided as a cost-recovered service due to the costs involved in retrieval and preparation. The Commissioner found that the archived weather data was indeed available for purchase through a cost-recovery system, with various pricing tiers depending on the data package and region. Consequently, the Commissioner concluded that the Act does not apply to this information. The complaint was therefore deemed not well founded.

• Whether real-time weather radar data falls within the scope of an access request
• Whether archived weather radar data is material available for purchase under paragraph 68(a) of the Access to Information Act

The complainant filed a complaint with the Office of the Information Commissioner (OIC) regarding an access request. The institution had responded to the access request by email, but the complainant inadvertently deleted the email before reviewing its contents. The complainant argued that the 60-day time limit for filing a complaint under section 31 of the Access to Information Act (ATIA) should begin from the date they became aware of the grounds for complaint, which was when they recovered and reviewed the deleted email. The OIC determined that the complaint was inadmissible because it was submitted outside the mandatory 60-day timeframe. The Commissioner clarified that the 60-day period begins the day after the requester receives the institution's response, not when they become aware of the grounds for complaint due to their own actions. The OIC concluded that the ATIA does not grant the Commissioner the power to extend this statutory time limit.

• Whether the complaint was filed within the 60-day time limit prescribed by section 31 of the ATIA
• Interpretation of 'in any other case' in section 31 of the ATIA regarding the start of the complaint period
• Whether the Information Commissioner has the power to extend the 60-day time limit for filing a complaint

An individual complained that the Canada Border Services Agency (CBSA) over-disclosed their personal information to the Information Commissioner (IC) when seeking approval to decline two Access to Information Act (ATIA) requests. The CBSA provided not only information related to the ATIA requests but also a sensitive labour relations report about the complainant. The CBSA argued the disclosure was a "consistent use" under paragraph 8(2)(a) of the Privacy Act, as the information was collected in the context of workplace conflict and the disclosure was to determine how to handle the complainant's requests for their personal information. The OPC found that while information related to the ATIA requests was a consistent use, the disclosure of the labour relations report was not, as its original purpose (addressing workplace conflict) was distinct from responding to ATIA requests. The OPC concluded that the CBSA contravened section 8 of the Privacy Act and recommended the CBSA develop guidance for consistent use disclosures. The CBSA disagreed with the finding and declined to implement the recommendation, leading to a "well-founded and not resolved" outcome.

• Whether the disclosure of personal information to the Information Commissioner was for a "consistent use" under paragraph 8(2)(a) of the Privacy Act
• Whether information collected for administering ATIA requests can be disclosed to the IC as a consistent use
• Whether a labour relations report, originally collected for addressing workplace conflict, can be disclosed to the IC as a consistent use in the context of ATIA requests

The complainant alleged that Transport Canada improperly withheld information related to a Boeing 737 MAX aircraft system (MCAS) under various exemptions of the Access to Information Act. Transport Canada initially withheld all records under paragraphs 20(1)(a), (b), and (c), and the third party, Boeing, also suggested the application of subsection 13(1). The Commissioner found that Transport Canada and Boeing did not demonstrate that all the withheld information met the requirements for trade secrets under paragraph 20(1)(a), nor for confidential third-party information under paragraph 20(1)(b), particularly for general or publicly available information. Similarly, the Commissioner found that the institution failed to demonstrate a reasonable expectation of harm for all information under paragraph 20(1)(c). The Commissioner also concluded that subsection 13(1) did not apply as the information was not provided in confidence. Furthermore, Transport Canada's exercise of discretion under subsection 20(6) was deemed unreasonable as it did not consider the public interest related to the Lion Air and Ethiopian Airlines crashes. The complaint was found to be well-founded, and Transport Canada was ordered to disclose specific information and re-exercise discretion.

• Whether s.19(1) personal information exemption was properly applied (removed from scope)
• Whether s.20(1)(a) trade secrets exemption was properly applied to all records
• Whether the information was secret for s.20(1)(a)
• Whether the third party intended to treat the information as secret for s.20(1)(a)
• Whether the information had industrial or commercial application for s.20(1)(a)
• Whether the third party had an interest worthy of legal protection for s.20(1)(a)
• Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied to all records
• Whether the information was financial, commercial, scientific or technical for s.20(1)(b)
• Whether the information was confidential for s.20(1)(b)
• Whether the information was supplied by a third party to a government institution for s.20(1)(b)
• Whether the third party consistently treated the information as confidential for s.20(1)(b)
• Whether s.20(1)(c) financial impact on a third party exemption was properly applied to all records
• Whether disclosure could result in material financial loss or gain to the third party for s.20(1)(c)
• Whether there was a reasonable expectation of harm for s.20(1)(c)
• Whether disclosure could injure the competitive position of the third party for s.20(1)(c)
• Whether Transport Canada reasonably exercised discretion under s.20(5) regarding disclosure with consent
• Whether Transport Canada reasonably exercised discretion under s.20(6) for public health or public safety reasons
• Whether s.13(1) confidential information from government bodies exemption was properly applied
• Whether the information was obtained in confidence from a government body for s.13(1)

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for records related to a Designated Substances Report for the Health Protection Building. PSPC provided some records but withheld others, claiming they were not under its control as they were held by a subcontractor, BGIS. The Information Commissioner investigated whether the records were under PSPC's control and whether a reasonable search was conducted. The Commissioner found that despite not having physical possession, the records were under PSPC's control due to the contractual relationship with BGIS, which included a legally enforceable right to obtain such documents. Consequently, the Commissioner concluded that PSPC had not conducted a reasonable search for these controlled records. The complaint was found to be well founded, and PSPC was ordered to retrieve and process the records. However, PSPC notified the Commissioner that it would not implement the order.

• Whether records not in physical possession of the institution are 'under the control' of the institution for the purposes of the Access to Information Act
• Whether the contents of the record relate to an institutional matter
• Whether the institution could reasonably expect to obtain a copy of the record upon request
• Whether the legal relationship between the institution and the record holder indicates control
• Whether the institution conducted a reasonable search for records under its control

The complainant alleged that the Transportation Safety Board of Canada (TSB) improperly withheld information from an Aviation Occurrence Reporting Form and photographs related to an Air Inuit incident, citing subsections 19(1), 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The OIC investigation into subsection 19(1) was discontinued at the complainant's request. The Commissioner found that TSB and the third party, Air Inuit, failed to provide sufficient evidence or representations to demonstrate that the withheld information met the requirements for confidentiality, commercial nature, potential financial impact, or interference with negotiations under paragraphs 20(1)(b), (c), and (d). Specifically, the Commissioner was not convinced the information was commercial, confidential, or that its disclosure would cause the claimed harms. Consequently, the Commissioner ordered TSB to disclose all information at issue, excluding any information previously withheld under subsection 19(1). TSB notified the Commissioner that it would implement the order.

• Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
• Whether the information is confidential under s.20(1)(b) ATIA
• Whether the third party supplied the information to a government institution under s.20(1)(b) ATIA
• Whether the third party has consistently treated the information as confidential under s.20(1)(b) ATIA
• Whether disclosure could result in material financial loss or gain to the third party under s.20(1)(c) ATIA
• Whether there is a reasonable expectation of harm under s.20(1)(c) ATIA
• Whether disclosure could injure the competitive position of the third party under s.20(1)(c) ATIA
• Whether a third party is or will be conducting contractual or other negotiations under s.20(1)(d) ATIA
• Whether disclosing the information could interfere with those negotiations under s.20(1)(d) ATIA
• Whether there is a reasonable expectation of harm under s.20(1)(d) ATIA

The complainant alleged that Natural Resources Canada (NRCan) improperly withheld information under paragraphs 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act. The request sought records related to NRCan and/or Canadian Forest Service representatives on the Board of Governors of the Maritime College of Forest Technology (MCFT). While NRCan also withheld information under subsection 19(1) and section 23, these exemptions were not at issue in the complaint. During the investigation, MCFT agreed to disclose two pieces of information that were publicly available. For the remaining information, the Commissioner found that NRCan and MCFT failed to demonstrate that the information met the confidentiality criteria or that there was a reasonable expectation of harm from disclosure, as required by the exemptions. Consequently, the Commissioner ordered NRCan to disclose the information not covered by subsection 19(1) or section 23. NRCan subsequently notified the Commissioner that it would implement the order.

• Whether the records were under the control of Natural Resources Canada
• Whether the information was financial, commercial, scientific or technical under s.20(1)(b)
• Whether the information was confidential under s.20(1)(b)
• Whether the information was supplied by a third party 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 disclosure could reasonably be expected to result in material financial loss or gain to the third party under s.20(1)(c)
• Whether disclosure could reasonably be expected to injure the competitive position of the third party under s.20(1)(c)
• Whether there was a reasonable expectation of harm under s.20(1)(c)
• Whether a third party is or will be conducting contractual or other negotiations under s.20(1)(d)
• Whether disclosure could reasonably be expected to interfere with those negotiations under s.20(1)(d)
• Whether there was a reasonable expectation of harm under s.20(1)(d)

The complainant alleged that the Atlantic Canada Opportunities Agency (ACOA) improperly withheld information related to a grant made to the Organisation for Economic Co-operation and Development (OECD) under paragraphs 20(1)(b) and 20(1)(d) of the Access to Information Act. The withheld information included details about the OECD's operating expenses, ACOA's contribution, and a statement regarding the OECD. The Office of the Information Commissioner (OIC) found that neither ACOA nor the OECD provided sufficient evidence to support the application of either exemption. Specifically, the OIC determined that the information did not meet the confidentiality requirements of paragraph 20(1)(b) and that there was no reasonable expectation of harm to negotiations under paragraph 20(1)(d). Consequently, the Commissioner ordered ACOA to disclose the records in their entirety, and ACOA agreed to implement the order.

• Whether the information constitutes confidential third-party financial, commercial, scientific or technical information under s.20(1)(b) ATIA
• Whether the information is financial, commercial, scientific or technical
• Whether the information is confidential by an objective standard
• Whether the third party supplied the information to a government institution
• Whether the third party has consistently treated the information as confidential
• Whether the information could reasonably be expected to interfere with contractual or other negotiations of a third party under s.20(1)(d) ATIA
• Whether a third party is or will be conducting contractual or other negotiations
• Whether disclosing the information could interfere with those negotiations
• Whether there is a reasonable expectation that harm could occur