Decisions

The complainant alleged that Public Services and Procurement Canada (PSPC) had not conducted a reasonable search for records in response to an access request under the Access to Information Act. The request was for specific records related to a contract for decommissioning and demolition services at the Health Protection Building that was awarded to a subcontractor. The allegation falls under paragraph 30(1)(a) of the Act.

PSPC did not acknowledge control over some of the requested records, however, the Information Commissioner found that the records, if they exist, were under PSPC’s control. Additionally, PSPC did not demonstrate that it had conducted a reasonable search for responsive records.

The Commissioner ordered that PSPC seek assistance and copies of records from a third party, provide a new response to the complainant and give the complainant access to any additional records it located. PSPC gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

The complainant alleged that the extension of time Library and Archives Canada (LAC) took under subsection 9(1) of the Access to Information Act to respond to an access request is unreasonable. The request was for Royal Canadian Mounted Police records on Communist Party of Canada activity and activists in Kitchener-Waterloo, Ontario, from 1970 to 1984.The allegation falls under paragraph 30(1)(c) of the Act.

LAC claimed an extension under paragraph 9(1)(a) for 80 days and 730 days under paragraph 9(1)(b). The Commissioner found the latter extension, which LAC took to consult the Canadian Security Intelligence Service (CSIS) on 4,985 pages of records, to be unreasonable. LAC could not show it had made a serious effort to assess how long the extension should be, relying instead on CSIS’s estimate of two (2) years as the time it would need to review the records and provide its recommendations on disclosure.

The Commissioner also found that there has been a significant disclosure of Canadian intelligence surveillance of Communist activities and affiliations throughout the 1970s and that the records are now approximately 50 years old. This led the Commissioner to question, as she had in her 2022 report on her systemic investigation into LAC’s consultation practices and other matters, LAC’s position that it must consult institutions on all security and intelligence-related records—thus, jeopardizing LAC’s ability to provide timely access.

Since the Commissioner concluded that the 810-day extension of time was unreasonable, and because LAC had not responded to the access request by the time the 80-day extension expired, the Commissioner ordered that LAC provide a complete response to the request no later than 60 business days following the date of her final report.

She also recommended that LAC include in its next semi-annual report on its progress addressing issues raised in the systemic investigation specific updates on improved timelines for consultations with other institutions.

LAC gave notice to the Commissioner that it would not be implementing the order but indicated that it would include an update on consultation timelines in its next progress report.

The complaint is well founded.

The complainant alleged that the extension of time the Department of Justice Canada (Justice) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for all records pertaining to the booking and subsequent cancellation of Professor Alice Sullivan's International Women's Day 2024 presentation to Department of Justice staff.

The allegation falls under paragraph 30(1)(c) of the Act.

Justice claimed an extension under paragraph 9(1)(a) for 292 days which the investigation determined to be unreasonable. Justice also claimed 90 days under paragraph 9(1)(b) but failed to respond within this time frame. As a result, Justice was deemed to have refused access to the requested records under subsection 10(3). The investigation also found that Justice based the time extension on a page count that did not truly reflect the number of records responsive to the request because it failed to properly identify duplicates and non relevant records.

The Information Commissioner ordered that Justice provide a complete response to the access request no later than 36 business days following the date of the final report.

Justice gave notice to the Commissioner that it would be implementing the order and would respond to the access request within the ordered time frame.

The complaint is well founded.

The complainant alleged that the extension of time Library and Archives Canada (LAC) took under subsection 9(1) of the Access to Information Act to respond to an access request is unreasonable. The request is for RG146: Vol. 4050 1 01/05/70 04/28/72 Vol. 4050 2 04/29/72 07/15/84 Vol. 4050 3 07/16/84 11/13/84 Vol. 4051 1 05/19/60 07/31/68 Vol. 4051 2 08/01/68 01/31/71 Vol. 4051 3 02/01/71 05/25/73 Vol. 4051 4 05/26/73 11/03/82 Vol. 4052 5 11/04/82 07/15/84 Vol. 4052 6 07/16/84 11/15/84. The allegation falls under paragraph 30(1)(c) of the Act.

LAC claimed an extension of time under paragraph 9(1)(b) for 639 days to consult the Canadian Security Intelligence Service (CSIS) on 974 pages of records. The Commissioner found the extension, on less than 1000 pages of records, to be unreasonable. LAC could not show it had made a serious effort to assess how long the extension should be, relying instead on CSIS’s estimate of 18 to 24 months as the time it would need to review the 974 pages of records and provide its recommendations on disclosure.

This led the Commissioner to question, as she had in her 2022 report on her systemic investigation into LAC’s consultation practices and other matters, LAC’s position that it must consult institutions on all security and intelligence-related records—thus, jeopardizing LAC’s ability to provide timely access.

Since the Commissioner concluded that the 639-day extension of time was unreasonable, the Commissioner ordered that LAC provide a complete response to the request no later than 60 business days following the date of her final report.

She also recommended that LAC include in its next semi-annual report on its progress addressing issues raised in the systemic investigation specific updates on improved timelines for consultations with other institutions.

LAC gave notice to the Commissioner that it would not be implementing the order but indicated that it would include an update on consultation timelines in its next progress report.

The complaint is well founded.

The complainant alleged that Public Services and Procurement Canada (PSPC) refused to process a request made under the Access to Information Act. The request was for all the emails of a named employee. The allegation falls under paragraph 30(1)(a) of the Act. PSPC failed to demonstrate that the access request did not meet the requirements of section 6 and was not, therefore, a request. In particular, PSPC failed to show how an experienced institutional employee would be unable to locate with a reasonable effort the emails of a single employee, even though the complainant had not specified a subject matter and/or timeframe for the emails. The Information Commissioner ordered that PSPC provide a complete response to the access request. The Commissioner also recommended, since there turned out to be 50,000 pages of emails, that PSPC ensure its employees receive training and support on information management responsibilities and procedures. Doing so, would help PSPC improve its record classification, organization and retrieval processes, and, as result, respond more efficiently to requests. PSPC gave notice to the Commissioner that it would be implementing the order and recommendation. The complaint is well founded.

The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under multiple sections of the Access to Information Act, including:

• Section 14: federal-provincial affairs;
• Subsection 19(1): personal information;
• Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information;
• Paragraph 20(1)(c): financial impact on a third party;
• Paragraph 21(1)(a): advice or recommendations; and
• Paragraph 21(1)(b): accounts of consultations or deliberations.

This was in response to a request for the recovery strategy for the whitebark pine. The allegation falls under paragraph 30(1)(a) of the Act.

The parties did not demonstrate that the requirements of the applied exemptions were met for the third-party information. ECCC did not show that it had made reasonable efforts to seek consent under paragraph 19(2)(a) nor did ECCC sever factual information it withheld under paragraphs 21(1)(a) and 21(1)(b).

The Information Commissioner ordered that ECCC disclose certain information where the parties had not demonstrated that the requirements of the exemptions were met. ECCC gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

The complainant alleged that the Canada Border Services Agency (CBSA) had improperly withheld information under subsection 16(2) (facilitating the commission of an offence) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request. The request was for assessments of cybersecurity and data breach risks associated with the ArriveCAN application. The allegation falls under paragraph 30(1)(a) of the Act.

During the investigation, CBSA disclosed portions of the assessments it had withheld under subsection 16(2) and paragraph 20(1)(d). CBSA continued to withhold other information under subsection 16(2) and also decided to exempt information under subsection 19(1) (personal information).

The Information Commissioner concluded that some of the information CBSA continued to withhold did not meet the requirements of subsection 16(2). She also concluded that CBSA did not determine, as is required when information meets the requirements of subsection 19(1), whether circumstances existed that would mean it would have to exercise its discretion to decide whether to disclose this information.

The complaint is well founded.

The Commissioner issued an initial report with her intended orders. In response, CBSA provided additional representations in support of its application of subsection 16(2) and disclosed more records. The complainant indicated they were satisfied with the information. Therefore, no order was necessary.

The Commissioner reminded CBSA that receiving an initial report is not an opportunity to present new information or new representations on the outcome of the complaint. Institutions are required to give their best and full representations during the investigation. When the initial report is issued, the investigation is complete and the Commissioner has made her decision on the outcome of the complaint.

The complainant alleged that the Canadian Broadcasting Corporation (CBC) had improperly withheld information under section 17 (safety of individuals) and subsection 19(1) (personal information) of the Access to Information Act in response to an access request. The request was for all communications between specific CBC and Twitter employees since January 1, 2018, which was prior to Twitter becoming X. The allegation falls under paragraph 30(1)(a) of the Act. During the investigation, the CBC disclosed some of the information it had withheld under subsection 19(1) and section 17 but also applied subsection 16(2) (facilitating the commission of an offence) to some of the remaining information withheld under section 17. The Commissioner concluded that this information did not meet the requirements of either subsection 16(2) or section 17. The CBC argued that disclosing the name and contact information of a member of its information security team would facilitate the commission of an offence by making it possible for hackers to access CBC computer systems. However, the CBC did not show how disclosing the information would reasonably be expected to lead to this result. In addition, the employee’s name and contact information were already available on LinkedIn and elsewhere online. The CBC also withheld the names and Twitter handles of several CBC journalists who were the subject of online posts the CBC had identified as instances of harassment and requested to be taken down, although it disclosed the content of the posts themselves during the investigation. The CBC argued that also disclosing the identifying information of journalists who were calling out online harassment could lead to these individuals’ being subject to retaliatory online attacks, resulting in psychological harm. The Commissioner found that the threats to individuals’ safety envisioned under section 17 could include psychological harm. Nonetheless, she concluded that, in this case, the CBC neither showed that the harm went beyond distress nor addressed the reasonable expectation of the harm occurring if the information were disclosed. The Commissioner ordered the CBC to disclose the information withheld under subsection 16(2) and section 17. The CBC gave notice to the Commissioner that it would implement the order. The complaint is well founded.

The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under subsection 16(2) (facilitating the commission of an offence), subsection 19(1) (personal information), paragraph 20(1)(d) (negotiations by a third party), paragraph 21(1)(a) (advice or recommendations), paragraph 21(1)(b) (accounts of consultations or deliberations) and section 23 (solicitor-client and litigation privilege) of the Access to Information Act in response to an access request. The request was for records related to Taseko Mines Limited’s (Taseko) New Prosperity Project from July 2012 to March 2014. The allegation falls under paragraph 30(1)(a) of the Act.

The parties did not demonstrate that the requirements of paragraphs 20(1)(d), 21(1)(a), 21(1)(b) or section 23 were met for certain information. Where the requirements of discretionary exemptions were met, ECCC demonstrated that it had reasonably exercised its discretion.

The Information Commissioner ordered that ECCC disclose certain information where the parties had not demonstrated that the requirements of paragraphs 20(1)(d), 21(1)(a), 21(1)(b) or section 23 were met. ECCC gave notice to the Commissioner that it would comply with the order.

The complaint is well founded.

The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under section 23 (solicitor-client and litigation privilege) of the Access to Information Act in response to an access request. The request was for all records related to the negotiation of the 1991 lease between Bourque, Pierre et Fils and the government for the Louis St-Laurent Building. The allegation falls under paragraph 30(1)(a) of the Act.

PSPC applied section 23 in a blanket manner, withholding the entirety of the 96,781 pages of records, citing both grounds of section 23: solicitor-client privilege and litigation privilege. Although some of the information meets the requirements of solicitor-client privilege, PSPC did not demonstrate that any information met the requirements under litigation privilege.

The Information Commissioner ordered that PSPC disclose certain and reconsider its discretion under section 23 where the requirements of solicitor-client privilege were met. PSPC gave notice to the Commissioner that it would comply with the order.

The complaint is well founded.