3. Court proceedings

A fundamental principle of the Access to Information Act is that decisions on disclosure should be reviewed independently of government.

In the case of an access refusal, the Act sets out two levels of independent review. The Commissioner carries out the first review through the investigation process.

When the Commissioner concludes that a complaint is well-founded and the institution does not act upon her formal recommendation to disclose records she may, with the complainant’s consent, seek judicial review by the Federal Court of the institution’s refusal.

A complainant may also seek judicial review by the Federal Court of a government institution’s access refusal, after receiving the results of the Commissioner’s investigation.

The Act also provides a mechanism by which a “third party” (such as a company) may apply for judicial review of an institution’s decision to disclose information that the third party maintains should be withheld from a requester under the Act.

The Commissioner closely monitors all cases with potential ramifications on the right of access to information and may seek leave to participate in proceedings with potential impact on that right. This includes cases in which a third party has challenged an institution’s decision to disclose requested information.

The following summaries review ongoing cases and court decisions rendered in 2014–2015.

Ongoing cases

Commissioner-initiated proceedings

Through her investigations, the Commissioner determines, among other things, whether government institutions are entitled to refuse access to requested information based on the limited and specific exceptions to the right of access set out in the Act.

When the Commissioner finds that an exception to the right of access has not been properly applied, she informs the head of the institution that the complaint is well-founded, and formally recommends that the withheld information be disclosed. On occasions when the head of an institution does not agree to follow this recommendation, the Commissioner may, with the consent of the complainant, ask the Federal Court, under section 42 of the Act, to review the institution’s refusal to release the information.

Access to long-gun registry information and challenge to the constitutionality of the Ending the Long-gun Registry Act

On May 14, 2015, the Commissioner applied, with the consent of the complainant, to the Federal Court for a judicial review of the Minister of Public Safety’s refusal to process additional records in the long-gun registry that she had determined to be responsive to the complainant’s underlying access request. (For more information, see “Access to information: Freedom of expression and the rule of law”)

Earlier that same day, the Commissioner had tabled in Parliament a special report detailing her investigation into this complaint.

This special report was tabled shortly after the Government had introduced Bill C-59, the Economic Action Plan 2015 Act, No. 1, which included retroactive amendments to the Ending the Long-gun Registry Act (ELRA).

As amended, ELRA retroactively ousts the application of the Access to Information Act to long-gun registry records, including the Commissioner’s power to make recommendations and report on the findings of investigations relating to these records and the right to seek judicial review in Federal Court of government decisions not to disclose these records. The legislation also retroactively immunizes Crown servants from any administrative, civil or criminal proceedings with respect to the destruction of long-gun registry records or for any act or omission done in purported compliance with the Access to Information Act.

On June 22, 2015, the Commissioner and Bill Clennett, the individual who had requested the long-gun registry records and made the complaint regarding the handling by the Royal Canadian Mounted Police (RCMP) of his request, filed an application in the Ontario Superior Court of Justice challenging the amendments to ELRA enacted by Bill C-59.

This application challenges these amendments on the grounds that they unjustifiably infringe the right of freedom of expression protected in section 2(b) of the Canadian Charter of Rights and Freedoms and that, in their retroactive effects, they contravene the rule of law.

As part of the Federal Court proceedings, the Commissioner succeeded in obtaining an order from the Court directing the Minister of Public Safety and the Commissioner of Firearms (who is the Commissioner of the RCMP) to deliver the hard drive containing the remaining long-gun registry records to the Federal Court Registry. The Government of Canada complied with this order on June 23, 2015

In July 2015, the Commissioner’s Federal Court application was stayed pending the outcome of the application to the Ontario Superior Court of Justice, which is ongoing.

Withholding minutes of a public board

The Information Commissioner of Canada v. Toronto Port Authority (T-1453-14)
Background, “The Information Commissioner filed an application for judicial review in Information Commissioner of Canada v. Toronto Port Authority

In June 2014, the Commissioner initiated a judicial review of the Toronto Port Authority’s refusal to disclose portions of the minutes of a 2008 meeting of its audit committee.

The institution withheld large swaths of the minutes under sections 18 and 20, claiming that releasing the minutes would harm the organization and reveal confidential third-party information. However, the Commissioner was of the view that the information should not be withheld.

In her investigation, the Commissioner found that the institution did not exercise its discretion reasonably, since there was no indication that it had considered the facts in favour of disclosure, such as the passage of time and that much of the information was in the public domain. She was of the view that the minutes should be disclosed in their entirety. 

Before the Federal Court, the institution is also claiming that section 21 (Advice and recommendations to government) applies to the minutes. 

The court hearing will be held on October 19, 2015.

In her special report on modernizing the Act, the Commissioner recommended that section 21 be amended to limit its application to five years.

Number of individuals on Canada’s “no-fly list”

Information Commissioner of Canada v. Minister of Transport Canada (T-911-14 and T-912-14)
Background, “Injury to international affairs

In April 2014, the Commissioner applied for judicial review of Transport Canada’s refusal under section 15 of the Act to release the number of individuals named on the Specified Persons List (otherwise known as Canada’s “no-fly list”) between 2006 and 2010, and the number of Canadians on the list during the same period.

Transport Canada said that releasing these numbers could reasonably be expected to injure international affairs and the detection, prevention or suppression of subversive or hostile activities. However, the Commissioner found that the figures did not meet the criteria of section 15 and recommended that the Minister of Transport release them. The Minister declined to do so.

The court hearing will begin on January 20, 2016.

Complainant-initiated proceedings

After the Commissioner reports to the complainant the results of her investigation of an institution’s decision to refuse access to requested records, the complainant may be of the view that more information should be disclosed. A complainant is entitled to ask the Federal Court, under section 41 of the Act, to review an institution’s refusal to disclose information. A precondition for such a judicial review is that the Commissioner has completed an investigation of a refusal of access.

Missing records

3412229 Canada Inc. et al. v. Canada Revenue Agency et al. (T-902-13)
Background, “3412229 Canada Inc. et al. v. Canada Revenue Agency et al. (T-902-13)”:
See also, “Missing records at the Canada Revenue Agency”)

The Commissioner investigated the complaints initiated by seven numbered companies about the Canada Revenue Agency’s (CRA) refusal to release portions of requested records for various taxation years.

As a result of the Commissioner’s investigations, CRA disclosed additional information. However, the companies were not satisfied that they had received all the information to which they were entitled and initiated six judicial review proceedings (later consolidated into one).

Within the context of the judicial review proceedings, the companies indicated that CRA had identified additional records that were responsive to the access requests after the completion of the Commissioner’s investigations, and alleged that still more records should exist.

The Commissioner obtained leave to be added as a party to the judicial review proceedings.

The companies subsequently filed complaints with the Commissioner, alleging that there were missing records that would respond to its requests and that CRA had improperly applied exemptions to the additional records that CRA had identified in response to its requests. 

Thereafter, the companies asked (and the court agreed) that the judicial review proceedings be held in abeyance until the Commissioner finished investigating the companies’ further complaints. These investigations are ongoing.

Third-party-initiated proceedings

Section 44 of the Access to Information Act provides a mechanism by which a “third party” (such as a company) may apply for judicial review of an institution’s decision to disclose information that the third party maintains should be withheld under the Act.

Notices of any applications third parties initiate under section 44 are required to be served on the Commissioner under the Federal Courts Rules. The Commissioner reviews these notices and monitors steps in these proceedings through information available from the Federal Court Registry and, in some instances, from the parties themselves. The Commissioner may then seek leave to be added as a party in those cases in which her participation would be in the public interest.

In 2014–2015, the Commissioner sought and obtained leave to be added as a party to a number of applications for judicial review initiated under section 44, as follows.

Personnel rates for government contracts

Calian Ltd. v. Attorney General of Canada and the Information Commissioner of Canada
(T-291-14 and T-1481-14)

Calian Ltd. filed two applications for judicial review in January 2014 (later consolidated) regarding decisions by Public Works and Government Services Canada (PWGSC) to release the “personnel rates” Calian had submitted as part of a government tendering process.

Calian, the successful bidder, claimed that the rates should not be disclosed as per section 20, because they contain confidential third-party information which, if released, would cause harm to the company. Calian also claimed that PWGSC should have exercised its discretion to refuse to disclose these rates because disclosure would interfere with the government’s contractual negotiations and result in undue benefits to Calian’s competitors.

The Attorney General claimed the inclusion of a disclosure-of-information clause in the contract meant that the information must be disclosed to the requester. The Commissioner agreed with the Attorney General, arguing that the claims of harm were not sufficiently substantiated.

The hearing was held before the Federal Court in Ottawa on June 2, 2015.

In her special report on modernizing the Act, the Commissioner recommended that the mandatory exemption to protect third-party information be amended to include a two-part test. Part of this test would require, when relevant, that institutions show evidence that disclosure could reasonably be expected to significantly prejudice the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization.

Contract and tender information

Recall Total Information Management Inc. v. Minister of National Revenue (T-1273-14)
Background, “Recall Total Information Management Inc. v. Minister of National Revenue (T-1273-14) 2015 FC 848

Recall Total Information Management filed an application for judicial review in May 2014 to challenge CRA’s decision to disclose contract and tender information related to Recall and the storage of CRA’s tax files, which Recall considered ought to be exempt from disclosure under section 20.

Subsequently, the Court allowed a motion by Recall to file additional evidence. On the basis of this new evidence, CRA advised Recall, the Commissioner and the Court that it had reconsidered its original decision to release the information. CRA purported to issue a new decision, by which it would exempt from disclosure parts of records it had already decided to release. Recall filed a notice of discontinuance on the basis that CRA’s original decision on disclosure was no longer operative and was superseded by the second decision.

The Commissioner made a motion seeking a ruling on the legal significance of CRA’s second decision, taking the position that the CRA had no authority to issue a new or amended decision, as set out in Porter Airlines Inc. v. Canada (Attorney General), 2013 FC 780. On July 9, 2015, the Court allowed the Commissioner’s motion, finding that CRA’s second decision, following the Porter Airlines and other decisions, “has no force and effect.” The Court added: “Once a proceeding is initiated, it is the obligation of the Court to determine whether the exemptions to disclosure are applicable; it is not the Minister’s decision that determines the exemptions.”

The Court ordered the Minister of National Revenue to advise the requester of the position CRA would now be taking in this proceeding.

A hearing date for this matter has been set for September 21–22, 2015.

Personal information of private-sector employees (1)

Suncor Energy Inc. v. Canada–Newfoundland and Labrador Offshore Petroleum Board et al.
(T-1359-14)

Suncor Energy Inc. filed an application for judicial review in June 2014 challenging a decision by the Canada–Newfoundland and Labrador Offshore Petroleum Board to disclose records that contain the names, telephone numbers and business titles of Suncor employees, as well as other information.

Suncor alleges that the responsive records contain personal information, which is protected from disclosure under section 19. It also claims that the records contain confidential information that should be withheld under sections 20 and 24 of the Access to Information Act, which incorporates by reference section 119 of the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act.

The Commissioner takes the position that the Board reasonably exercised its discretion to disclose the personal information because the employees’ affiliation with Suncor was publicly available. She also argues that the rest of the information at issue is not confidential third-party information and therefore should not be withheld.

A hearing has been set for August 13, 2015, in St. John’s, Newfoundland and Labrador.

In her special report on modernizing the Act, the Commissioner recommended that the definition of personal information exclude workplace contact information of non-government employees.

Personal information of private sector employees (2)

Husky Oil Operations Limited v. Canada–Newfoundland and Labrador Offshore Petroleum Board et al. (T-1371-14)

Husky Oil filed an application for judicial review in June 2014 asking the Court to set aside a decision by the Canada–Newfoundland and Labrador Offshore Petroleum Board to release the names and business titles of Husky employees as well as other information that Husky alleges constitutes personal information. Husky is of the view that the information should be withheld under section 19 of the Access to Information Act, arguing that there is no publicly available information that links its employees to the requested records.

The Information Commissioner was added as a party to the proceeding on July 10, 2014. The case is ongoing.

Government grant and contribution programs

Bombardier Inc. v. Attorney General of Canada and Information Commissioner of Canada
(T-1650-14 and T-1750-14)

Bombardier Inc. filed two applications for judicial review in July 2014 of decisions made by Industry Canada to release information relating to Bombardier in the context of several grant and contribution programs. Bombardier Inc. claims that the information should be withheld under section 20 (Third-party information).

Among other things, Bombardier Inc. is asking that the Court declare the decisions to be null and void, on the grounds that Industry Canada allegedly reversed or withdrew its earlier decision about disclosure.

As a result of a motion, the two applications were consolidated and the Court is holding the consolidated application in abeyance until the Commissioner completes her investigations into the matters. Those investigations are ongoing.

In her special report on modernizing the Act, the Commissioner recommended that third-party exemptions not apply to information about grants, loans and contributions given by government institutions to third parties.

Breach of procedural fairness

Brewster Inc. v. The Minister of the Environment as the Minister for Parks Canada and the Attorney General of Canada and the Information Commissioner of Canada (T-5-15)

Brewster Inc. filed an application for judicial review in January 2015, asking the Court to set aside Parks Canada’s decision to release information related to communications about the Glacier Skywalk Development in Jasper National Park.

Brewster claims that the records contain information that should be withheld under sections 19 and 20. Brewster also alleges that Parks Canada breached its duty of procedural fairness by denying Brewster’s request for a time extension to provide comments on the possibility of disclosing the records and by rendering a decision to disclose the records at issue without providing its reasons for doing so.

The Commissioner was added as a party to this proceeding on March 27, 2015. The case is ongoing.

Discontinued cases

Third parties discontinued the following applications for judicial review under section 44 of the Access to Information Act, in which the third parties had challenged government institutions’ decisions to release information.

Simon & Nolan Entreprises Inc. v. Canadian Food Inspection Agency and the Attorney General of Canada and the Information Commissioner of Canada and Corporation Sun Media
(T-1382-14)

In June 2014, Simon & Nolan Entreprises Inc. filed an application for judicial review of a decision by the Canadian Food Inspection Agency to release information regarding inspection reports. The company claimed that the information should be withheld under section 20, since it included confidential third-party information, the disclosure of which would cause prejudice to Simon & Nolan.

The Commissioner was added as a party. Simon & Nolan discontinued the application in April 2015.

Provincial Airlines Ltd. v. the Attorney General of Canada and the Information Commissioner of Canada (T-1429-13)
Background, “Provincial Airlines Ltd. v. Attorney General of Canada and Information Commissioner of Canada (T-1429-13)

Provincial Airlines filed an application for judicial review in August 2013 asking the Court to set aside a decision by PWGSC to disclose to a requester records relating to a contract awarded to Provincial Airlines under Fisheries and Oceans Canada’s National Fisheries Aerial Surveillance Program.

Provincial Airlines discontinued the application in October 2014.

Bayer Inc. v. The Minister of Health and The Information Commissioner of Canada (T-743-14)

In March 2014, Bayer Inc. filed an application for judicial review of Health Canada’s decision to disclose information contained in an Adverse Drug Reaction report. Bayer Inc. claimed that the information should be withheld under sections 19, 20, 21 and 24.

Following the filing of its affidavits, Bayer Inc. discontinued the matter in August 2014.

Eli Lilly Canada Inc. v. The Minister of Health and The Information Commissioner of Canada
(T-1410-14 and T-1712-14)

In June and August 2014, Eli Lilly Canada Inc. filed applications for judicial review (later consolidated) of two decisions by Health Canada to disclose information found in reports filed with that institution. The Commissioner was added as a party.

Following the filing of the parties’ affidavits, Eli Lilly discontinued the proceedings in February 2015.

Decisions

The following decisions were rendered in 2014–2015 in matters related to access to information.

Commissioner-initiated proceedings

A very lengthy time extension

Information Commissioner of Canada v. Minister of National Defence, 2015 FCA 56
See “The culture of delay”.

Federal Court reference on fees

Information Commissioner of Canada v. Attorney General of Canada, 2015 FC 405
See “Removing a barrier to access: Fees and electronic records”.

The scope of personal information

Information Commissioner of Canada v. Minister of Natural Resources, 2014 FC 917
Decision
Background, “The scope of personal information

In July 2013, the Commissioner applied for judicial review of the refusal by Natural Resources Canada (NRCan) to disclose, citing section 19, basic professional information, such as the names, professional titles and business contact information, of individuals working for non-government entities, who may have received data about the complainant’s business from NRCan.

The Federal Court dismissed the Commissioner’s application on October 3, 2014.

The Court held that all information “about” an identifiable individual is “personal information” unless that information falls within one of the exceptions to the definition of “personal information” set out in section 3 of the Privacy Act. “It is hard to imagine information that could be more accurately described as “about” an individual than their name, phone number and business or professional title.” Thus, the Court held that NRCan had correctly withheld the information.

The Court went on to consider whether the information should nonetheless have been disclosed under paragraph 19(2)(b), which allows the institution to release personal information that is already publicly available. The Court concluded that, since the information was not available to NRCan prior to the application for judicial review, the information was not publicly available. Therefore, either the condition permitting disclosure under paragraph 19(2)(b) did not exist at the time NRCan refused to release the information or NRCan’s refusal was reasonable, because the information only became publicly available after the judicial review began.

The Commissioner did not appeal the Federal Court’s decision.

Limiting the application of solicitor-client privilege

Information Commissioner of Canada v. Minister of Health, 2015 FC 789
Decision
Background, “Limits of solicitor-client privilege

In November 2013, the Commissioner applied for judicial review of Health Canada’s refusal under section 23 to release portions of documents related to a proposed new drug.

The Commissioner had concluded through an investigation that Health Canada had neither shown that the information met the criteria required to demonstrate solicitor-client privilege nor properly exercised its discretion to waive privilege. The Minister of Health rejected the Commissioner’s recommendation to release the information.

In April 2015, the Federal Court found that, with one exception, the records were subject to solicitor-client privilege and therefore that Health Canada had correctly withheld them under section 23. In its ruling, the Court said that, when analyzing whether solicitor-client privilege applies, documents should be considered in the context of “a continuum of communication” between client and counsel, and not in isolation. Thus, although not all of the records were communications exchanged between a lawyer and a client, they were part of the overall privileged communication. The Court did order Health Canada to sever a portion of one record that was not covered by the privilege and release it to the requester.

The Commissioner did not appeal the Federal Court’s decision.

Complainant-initiated proceedings

Premature judicial proceeding

Lukács v. President of the Natural Sciences and Engineering Research Council of Canada, 2015 FC 267
Decision

In response to an access request for records about investigations of research misconduct, the Natural Sciences and Engineering Research Council (NSERC) informed the requester that it could neither confirm nor deny the existence of relevant records as per subsection 10(2) of the Act.

The requester complained to the Commissioner, submitting that NSERC had not, as is required by paragraph 10(1)(b), notified him of the specific provision of the Act on which a refusal could reasonably be expected to be based should the record exist.

As a result of the Commissioner’s investigation, NSERC acknowledged that records exist, but decided to refuse access to them based on subsection 19(1) (Personal information), paragraph 21(1)(b) (Accounts of deliberations and consultations) and section 23 (Solicitor-client privilege).

In October 2014, the requester filed an application for judicial review of NSERC’s refusal to disclose the records. NSERC brought a motion to strike out the proceeding, on the grounds that the application was “so clearly improper as to be bereft of any possibility of success.” The Court granted the motion, noting that NSERC was no longer refusing to confirm or deny the existence of responsive records and, therefore, there was no live issue before the Court.

The Court also noted that a judicial review is only available after the Commissioner has reported the results of her investigation to the complainant, which was not the case with respect to NSERC’s decision to refuse access based on subsection19(1), paragraph 21(1)(b) and section 23. As a result, the Court concluded that the judicial review was premature.

The requester did not appeal the Federal Court’s decision.

No unreasonable delay in the Commissioner’s investigations

Coderre et al. v. The Information Commissioner of Canada, 2015 FC 776
Decision (in French only)

A complainant and others applied to the Court on September 12, 2014, under section 18 of the Federal Courts Act, seeking an order of mandamus requiring the Commissioner to provide her reports of findings to the complainants within 30 days of the requested order being issued. On June 22, 2015, the Court dismissed the application, with costs.

The 12 complaints relate to CRA’s refusal to give access to documents regarding reassessments made between April 2, 2014, and September 8, 2014. Both at the time the application was filed and when the Court issued its decision, June 22, 2015, the Commissioner’s investigations into these complaints were not concluded.

The Court determined that the applicants had not satisfied one of the conditions required for issuing an order of mandamus against the Commissioner: The Commissioner had not failed to carry out a duty imposed by the Act, and no unreasonable delay had elapsed in investigating the applicants’ complaints; the longest was slightly more than 14-and-a-half months from the date of the complaint. The Court held that this [translation] “cannot be a delay that exceeds what the nature of the process set out in the [Act] requires prima facie.

The Court added that the Commissioner had not refused to carry out the duties imposed on her by the Act and that she had also followed the procedure and the requirements set out by the Act for conducting her investigations.

The Court also agreed with the Commissioner’s submissions that granting a writ of mandamus in the circumstances would go against Parliament’s intention and the entire scheme of the Act, given that [translation] “the Act provides a process with two independent levels to review decisions from government institutions refusing access to documents: the Commissioner is the first level and this Court intervenes only afterward…” [translation].

No reasonable cause of action

Whitty v. Office of the Information Commissioner of Canada (20154/14, Hamilton Small Claims Court)
Background, “Investigation report a pre-condition of a judicial review application

In December 2014, a plaintiff filed a statement of claim in small claims court for $25,000 in alleged damages against the Commissioner regarding an ongoing investigation. The plaintiff had previously brought an unsuccessful application for judicial review regarding this same investigation and other completed ones before the Federal Court and Federal Court of Appeal. Both courts dismissed the application and subsequent appeal, with costs.

The Commissioner brought a motion in the small claims case to strike the plaintiff’s claim for failing to disclose a reasonable cause of action and for being an abuse of the court’s process. The Court heard the Commissioner’s motion to strike on April 20, 2015, in Hamilton.

On June 22, 2015, the Deputy Judge granted the Commissioner’s motion to strike and dismissed the claim for disclosing no reasonable cause of action, for being advanced in the wrong court and for being an abuse of the court’s process. Costs were awarded to the Commissioner.

Third-party information

Contract information

Equifax Canada Co. v. Canada (Human Resources and Skills Development), 2014 FC 487
Decision
Background, “Equifax Canada Co. v. Minister of Public Works and Government Services Canada et al.(T-1003-13) and Equifax Canada Co. v. Minister of Human Resources and Skills Development et al. (T-1300-13)

Equifax Canada Co. filed two applications for judicial review in June and July 2013. The first related to a decision by PWGSC to disclose the total price paid under a contract between Equifax and the former Human Resources and Skills Development Canada (HRSDC). This contract was for credit and fraud protection services for individuals affected by HRSDC’s loss of an electronic storage device containing the personal information of 583,000 Canada Student Loan borrowers.

The second related to HRSDC’s decision to disclose portions of other contracts it had concluded with Equifax. These contracts generally pertained to the provision of credit reporting services to HRSDC by Equifax.

In both cases, Equifax claimed that the information at issue was exempt from disclosure based on subsection 20(1) (Third-party information). The Commissioner was granted leave to be added as a party, and the matters were heard together before the Federal Court in Toronto on May 13, 2014. The Court rendered its decision on May 21, 2014.

With respect to the first application, the Court was unconvinced that Equifax could claim the paragraph 20(1)(d) exemption. It noted that Equifax was essentially arguing that disclosing the contract price would make future negotiations more competitive, grounds insufficient to satisfy the requirements of paragraph 20(1)(d).

However, the Court did find that Equifax satisfied the requirements for the application of paragraph 20(1)(c). The Court considered that “by disclosing the Contract price, there is a real, objective risk that this information will give competitors a head start or “spring board” in developing competitive bids against the Applicant for future contracts for data protection services.”

The Court dismissed the second application, deciding that Equifax’s arguments did not meet the threshold for the exemption under paragraph 20(1)(c). In particular, the Court found that the information at issue was not confidential information in a business context. It also noted that Equifax had no substantial competition for government contracts and, as such, this made the potential of a reasonable expectation of probable harm, were the records disclosed, relatively remote. The Court also found that Equifax’s arguments pertaining to paragraph 20(1)(d) were speculative and therefore could not serve as a basis for justifying the application of that exemption.

Safety incident reports

Husky Oil Operations Ltd. v. Canada–Newfoundland Offshore Petroleum Board and the Information Commissioner of Canada, 2014 FC 1170
Decision
Background, “Husky Oil Operations Limited v. Canada–Newfoundland and Labrador Offshore Petroleum Board et al. (T-511-13)

In March 2013, Husky Oil asked the Court to set aside a decision by the Canada–Newfoundland and Labrador Offshore Petroleum Board to release information found in safety incident notifications and safety incident investigation reports relating to an oil rig operated by Husky Oil. The company had provided this information to the Board in compliance with the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and Regulations.

Husky Oil claimed that the information is privileged under section 119 of this law, such that it may not be disclosed as per subsection 24(1) of the Access to Information Act, which lists statutory prohibitions against disclosure.

The Commissioner was added as a party and took the position that the information should not be withheld.

The Court rendered its decision on December 19, 2014. While acknowledging that safety is a concern of the Board, and that there is a public interest in the safe operation of offshore petroleum operations, the Court weighed the business, privacy and other interests at stake against the public interest in disclosure. The Court found that subsection 119(2) establishes a privilege against disclosure, and that disclosure in this case was not required for the Board to administer and enforce the legislation. The Court also held that the public interest alone does not justify disclosure of information generated by offshore petroleum operators.

The Court allowed the application and set aside the Board’s decision to release the information.

In her special report on modernizing the Act, the Commissioner recommended that the Act include a general public interest override, applicable to all exemptions, with a requirement to consider, among other factors, environmental, health or public safety implications.