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Vancouver Fraser Port Authority (Re), 2026 OIC 51

Date: 2026-07-02
OIC file number: 5823-01769
Access request number: 52100-20-003-2023

Summary

The complainant alleged that the Vancouver Fraser Port Authority (VFPA) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

  • subsection 19(1) (personal information);
  • section 23 (solicitor-client and litigation privilege);
  • subsection 16(2) (facilitating the commission of an offence);
  • paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
  • paragraph 21(1)(a) (advice or recommendations);
  • paragraph 21(1)(b) (accounts of consultations or deliberations); and
  • paragraph 21(1)(c) (positions or plans developed for negotiations).

The complainant also alleged that VFPA did not conduct a reasonable search for records in response to the access request. The request was for records related to a marine water incident on April 30, 2021, at Garry Point Park in Richmond, British Columbia, involving the ship SM Tianjin. The allegations fall under paragraph 30(1)(a) of the Act. VFPA could not show that it met all the requirements of these exemptions – in particular, it did not demonstrate that some of the information was personal information, or advice or recommendations. The Information Commissioner ordered VFPA to disclose information on pages, 38, 88, 1439, 1522, 3731, 3738, 3739 and 3743, 3748, 3776 (after the first sentence) and 3783 (except the seventh and last sentence) no later than 36 business days after the date of the final report. VFPA gave notice to the Commissioner that it would implement the order. The complaint is well founded.

Complaint

[1]The complainant alleged that the Vancouver Fraser Port Authority (VFPA) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

  • subsection 19(1) (personal information);
  • section 23 (solicitor-client and litigation privilege);
  • subsection 16(2) (facilitating the commission of an offence);
  • paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
  • paragraph 21(1)(a) (advice or recommendations);
  • paragraph 21(1)(b) (accounts of consultations or deliberations); and
  • paragraph 21(1)(c) (positions or plans developed for negotiations).

[2]The complainant also alleged that VFPA did not conduct a reasonable search for records in response to the access request.

[3]The allegations fall under paragraph 30(1)(a) of the Act.

[4]The request was for records related to a marine water incident on April 30, 2021, at Garry Point Park in Richmond, British Columbia, involving the ship SM Tianjin.

[5]During the investigation, the complainant decided it was not necessary for the Office of the Information Commissioner (OIC) to examine the application of paragraph 16(2)(c) to withhold personal identification numbers and/or passwords, subsection 19(1) to withhold contact information of individuals, and paragraph 20(1)(b) to withhold third party information.

[6]The OIC also confirmed that paragraph 21(1)(c) was not applied to withhold any information within the records. The investigation therefore focused on the remaining information withheld under subsection 19(1), paragraphs 21(1)(a) and 21(1)(b), and section 23, as well as whether VFPA had conducted a reasonable search for records.

Investigation

[7]When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

[8]On March 30, 2026, VFPA disclosed links to a Google working group which it had withheld under subsection 19(1) on pages 15, 1492, 3679 and 3682, and the title of a document which it had withheld under paragraph 21(1)(a) on page 1466 when it responded to the access request. VFPA continued to withhold the remaining information under subsection 19(1), paragraph 21(1)(a), paragraph 21(1)(b) and section 23.

[9]The following analysis relates to the information that remains withheld.

Subsection 19(1): personal information

[10]Subsection 19(1) requires institutions to refuse to disclose personal information.

[11]To claim this exemption, institutions must show the following:

  • The information is about an individual—that is, a human being, not a corporation.
  • There is a serious possibility that disclosing the information would identify that individual.
  • The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[12]When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

  • The person to whom the information relates consents to its disclosure.
  • The information is publicly available.
  • Disclosure of the information would be consistent with section 8 of the Privacy Act.

[13]When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[14]Subsection 19(1) was applied concurrently with paragraph 21(1)(a) to withhold part of pages 3738, 3739 and 3743.

[15]The information on pages 12, 14, 16 (information in “from/to” fields), 1523, 1524 (name), 3782 and 3783 (information in “from/cc” fields) contains personal information about an identifiable individual.

[16]However, the information on pages 3738, 3739 and 3743 does not meet the requirements of the exemption. For the purposes of section 19 of the Access to Information Act, personal information does not include information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including the personal opinions or views of the individual given in the course of employment.

[17]In accordance with section 36.2 of the Act, the Office of the Information Commissioner (OIC) consulted the Office of the Privacy Commissioner (OPC) in respect of the information on pages 3738, 3739 and 3743. The OPC agreed that this information does not constitute personal information as it speaks to the functions of the individual as an employee of VFPA and is therefore subject to the exception of paragraph 3(j) of the Privacy Act.

[18]I conclude that the information on pages, 3738, 3739 and 3743 does not meet the requirements of the exemption.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[19]Since some of the information meets the requirements of subsection 19(1), specifically, information on pages 12, 14, 16 (information in “from/to” fields), 1523, 1524 (name), 3782 and 3783 (information in “from/cc” fields), VFPA was required to reasonably exercise its discretion under subsection 19(2) to decide whether to disclose the information when one or more of the circumstances described in subsection 19(2) existed when it responded to the access request.

[20]VFPA indicated that it did not receive consent to release the information, determined that the information was not publicly available, and that disclosure would not have been in line with subsection 8(2) of the Privacy Act.

[21]I conclude that the circumstances set out in subsection 19(2) did not exist when VFPA responded to the access request. There is no need to examine the issue of discretion.

Paragraph 21(1)(a): advice or recommendations

[22]Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

[23]To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

[24]To claim this exemption, institutions must then show the following:

  • The information is advice or recommendations.
  • The information was developed by or for a government institution or minister.

[25]When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[26]However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the following:

  • records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
  • reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[27]VFPA relied on paragraph 21(1)(a) to withhold information on pages 38, 88, 1439, 1488, 1499, 1500, 1522, 3731, 3738, 3739, 3743, 3748, 3776, and 3783. Paragraph 21(1)(b) was applied concurrently to withhold the information on page 1499.

[28]The records were created less than 20 years before the access request was made.

[29]Paragraph 21(1)(a) exempts from disclosure information that is advice or recommendations developed by or for a government institution or minister. In the absence of a statutory definition of “advice” in the Access to Information Act, its everyday meaning applies: an opinion, view or judgment based on the knowledge, training and experience of an individual or individuals expressed to assist the recipient in deciding whether to act and, if so, how. The term “recommendations” is also not defined in the Act. Among various definitions of the term in the Shorter Oxford Dictionary, the following describes its meaning: “the action of recommending a person or thing as worthy or desirable.”

[30]Advice can be developed for a government institution, that is, from outside sources, such as individuals, organizations and corporations. However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the advice or recommendations that are contained in a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared.

[31]The information on pages 38 and 88 does not meet the requirements of the exemption, as is it is in a report prepared for the institution and thus would fall under the exception to the exemption set out in subsection 21(2).

[32]As well, information on pages 3731, 3738-3739, 3743, 3748 and 3776 (all information after the first sentence), 1439 and 1522 does not contain advice or recommendations. With the exception of the seventh and last sentence, the information in the email on page 3783 does not contain advice or recommendations and so this information does not meet the requirements of the exemption. The information is factually related to the conclusion of the report.

[33]Some emails contain exchanges of advice or recommendations that would meet the requirements of the exemption on pages 1488, 1499-1500, and 3776 (first sentence). Since the information meets the requirements of paragraph 21(1)(a), it was not necessary to examine the concurrent application of paragraph 21(1)(b) on page 1499.

[34]I conclude that the information on page 38, 88, 1439, 1522, 3731, 3738-3739, 3743, 3748, 3776 (after the first sentence) and 3783 (except the seventh and last sentence) does not meet the requirements of the exemption.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[35]Since the information on pages 1488, 1499-1500, and 3776 (first sentence) and 3783 (seventh and last sentence) meets the requirements of paragraph 21(1)(a), VFPA was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, VFPA had to consider all the relevant factors for and against disclosure.

[36]VFPA considered the benefit of public access to the information regarding the incident but also considered that disclosing the information could harm the free and frank exchange of views to/from staff in the future, which could have a chilling effect on informed decision-making and effective governance.

[37]I conclude that VFPA considered all relevant factors when it decided not to disclose the information. The exercise of discretion by VFPA was reasonable.

Section 23: solicitor-client privilege

[38]Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[39]To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

  • The information consists of communication between a lawyer or notary and his or her client.
  • That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
  • The parties intend the communication and advice to remain confidential.

[40]When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[41]VFPA applied section 23 to withhold information on pages 1151-1437. VFPA demonstrated that the information relates to the seeking or providing of legal advice and confirmed that the communication was meant to remain confidential.

[42]The requirements of solicitor-client privilege are well established. There must be: (1) a communication between solicitor and client; (2) which entails the seeking or giving of legal advice; and (3) which is intended to be confidential by the parties (Blank v. Canada (Minister of Justice), 2006 SCC 39). The Federal Court of Appeal has further clarified that: “it is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communication in which the solicitor tenders advice; it is not confined to telling the client the law and it includes advice as to what should be done in the relevant legal context.” (Samson Indian Nation and Band v. Canada, 1995 CanLII 3602).

[43]Furthermore, the Federal Court of Appeal has explained: “Part of the continuum protected by privilege includes “matters great and small at various stages…includ[ing] advice as to what should prudently and sensibly be done in the relevant legal context” and other matters “directly related to the performance by the solicitor of his professional duty as legal advisor to the client.”” (Canada (Public Safety and Emergency Preparedness) v. Canada (Information Commissioner), 2013 FCA 104 at para 27).

[44]While the pages were fully withheld, VFPA explained why severance was not reasonable, since it would leave only isolated words or phrases with no substantive meaning.

[45]I conclude that that the information meets the requirements of the exemption.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[46]Since the information meets the requirements of section 23, VFPA was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, VFPA had to consider all the relevant factors for and against disclosure.

[47]VFPA showed that it weighed relevant factors, including public interest and its ongoing ability to seek and receive candid legal advice.

[48]I conclude that VFPA considered all relevant factors when it decided not to disclose the information. The exercise of discretion by VFPA was reasonable.

[49]VFPA was required to conduct a reasonable search for records that fall within the scope of the access request—that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[50]A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[51]This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[52]The investigation considered whether VFPA might have additional records related to the incident, given the significant public attention it received. Specifically, my office inquired about the existence of:

  • agendas, meeting minutes, or other internal planning documents
  • records of communication or information exchanged with the City of Richmond, first responders, or others who attended the scene
  • documentation of follow-up with individuals regarding the findings of the study
  • records concerning the implementation of the study’s findings and recommendations
  • witness reports or any records of individuals—other than the captain of the SM Tianjin—contacting VFPA to discuss the incident

[53]My office examined the responses of the Offices of Primary Interest (OPIs) to determine whether they had fulfilled their obligations under the Act to identify records relevant to the access request, under their control.

[54]The investigation revealed that the OPIs most likely to have records relevant to the access request under their control searched for records in the appropriate repositories. VFPA indicated these were the appropriate OPIs to task as they were central hubs for incident response and related communications. In addition, VFPA indicated that its Director of Communications was also tasked to search for records. VFPA searched repositories including folders, drives, logs, and email accounts using appropriate keywords relevant to the request.

[55]The Access to Information and Privacy unit processed the retrieved records, and the records responsive to the request were then provided to the complainant. Furthermore, there was no evidence provided during the course of the investigation, which would lead me to believe that additional records responsive to this access request exist.

[56]VFPA explained that some records classified as transitory may have been deleted once their short-term business purpose had been met. This practice aligns with VFPA’s record-retention policy, under which records are discarded unless they support official actions or decisions. Given the 22-month gap between the incident and the access request, it is reasonable to conclude that any transitory records referencing the incident would likely have been deleted before the request was received.

[57]VFPA demonstrated that the search was carried out by experienced employees with subject matter expertise, who made diligent efforts to identify and locate all records reasonably related to the request. The level of effort reflects what would be expected of any fair and sensible person tasked with locating responsive records where they are likely to be stored.

[58]I conclude that VFPA conducted a reasonable search for records in response to the access request.

Outcome

[59]The complaint is well founded because VFPA improperly withheld some information under subsection 19(1) and paragraph 21(1)(a).

Orders

I order the Chief Executive Officer (CEO) of the Vancouver Fraser Port Authority to:

  • Disclose the information withheld under subsection 19(1) on pages 3738, 3739 and 3743.
  • Disclose the information withheld under paragraph 21(1)(a) on pages 38, 88, 1439, 1522, 3731, 3738-3739, 3743, 3748, 3776 (after first sentence) and 3783 (except seventh and last sentence).
  • Provide the disclosed information no later than 36 business days after the date of the final report.

Initial report and notice from institution

On April 16, 2026, I issued my initial report to the Chief Executive Officer setting out my order.

On June 25, 2026, VFPA’s Access to Information, Privacy and Compliance Specialist gave me notice that VFPA would be implementing the order.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. The complainant and/or institution must apply for a review within 35 business days after the date of this report. When they do not, the Privacy Commissioner] may apply for a review within the next 10 business days. Whoever applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, the order(s) takes effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to the Privacy Commissioner of Canada.

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