Environment and Climate Change Canada (Re), 2025 OIC 13

Date: 2025-02-27
OIC file number: 5819-02883
Access request number: A-2016-00627

Summary

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.

Complaint

[1] 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.

[2] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the withholding of conference call codes, URLs pointing to internal government documents, signatures, mentions of vacation/leave and information about projects unrelated to Taseko. Therefore, no information withheld under subsection 16(2) remains within the scope of the complaint.

Investigation

[3] When an institution withholds information that includes information related to third parties, the third parties and/or the institution bears the burden of showing that refusing to grant access is justified.

[4] Pursuant to paragraph 35(2)(c), the OIC sought representations from the three third parties whose information remains within the scope of the complaint: Stswecem’c Xgat’tem First Nation (Stswecem’c Xgat’tem), the Esk’etemc First Nation (Esk’etemc) and the Tŝilhqot’in National Government (TNG). No representations were received from the Stswecem’c Xgat’tem or Esk’etemc. TNG responded that it takes no position on the disclosure of the documents within the consultation package.

Subsection 19(1): personal information

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

[6] 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).

[7] 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.

[8] 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?

[9] Most of the information withheld by ECCC under subsection 19(1) is no longer within the scope of the complaint. The information remaining at issue is all the personal information of identifiable individuals and is not an exception to the definition of personal information.

[10] I conclude that the information meets the requirements of subsection 19(1).

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

[11] Since ECCC was of the view that the information meets the requirements of subsection 19(1), it 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.

[12] Under paragraph 19(2)(a), ECCC was required to determine whether consent was provided by making reasonable efforts to seek consent from the individuals whose personal information appears in the records. ECCC confirmed that it did seek consent in some cases, but that it did not obtain any such consent. Where it did not seek consent, ECCC indicated that it did not consider it reasonable to seek such consent given the large volume of information. I find that ECCC’s position on seeking further consent is a reasonable one under the circumstances.

[13] Under paragraph 19(2)(b), ECCC’s discretion would have been triggered if any of the personal information was publicly available. I do not find the information to be publicly available.

[14] Discretion is also triggered under paragraph 19(2)(c) when the disclosure would be in accordance with section 8 of the Privacy Act. I have no reason to believe that discretion was triggered under paragraph 19(2)(c).

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

Paragraph 20(1)(d): negotiations by a third party

[16] Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

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

A third party is or will be conducting contractual or other negotiations.
Disclosing the information could interfere with those negotiations.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[18] When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

[19] In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) exist:

disclosure of the information would be in the public interest; and
the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

[20] However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(d) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[21] ECCC withheld information related to the Stswecem’c Xgat’tem, the Esk’etemc and TNG.

[22] ECCC indicated that the third parties and ECCC identified relevant negotiations that were foreseeable at the time the access request was processed (July 2016 to December 2019). I accept that this was the case.

[23] I note that although the Stswecem’c Xgat’tem did not respond to my request for representations, it did make representations to ECCC during the processing of the request, which I have considered.

[24] Interference, in the context of paragraph 20(1)(d), has been interpreted in the Courts as meaning “obstruction” – as indicated by the corresponding word for interference in the French version, “entraver”. (see Blood Band v. Canada (Minister of Indian Affairs and Northern Development), 2003 FC 1397, para. 49; Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.), paras. 24-25).

[25] Neither ECCC nor the third parties have provided representations indicating how disclosure could reasonably be expected to result in interference with any relevant negotiations, or how such harm is likely to occur. The representations provided by the parties are entirely speculative in nature. Moreover, neither ECCC nor the third parties have indicated how the alleged interference would be directly connected to disclosure of information in response to this request, rather than information already made publicly available by the third parties or the federal review panel.

[26] ECCC indicated in its representations that it applied paragraph 20(1)(d) to certain information based on recommendations it received from another government department: the Canadian Environmental Impact Agency, now the Impact Assessment Agency of Canada (IAAC). I remind ECCC that, since consultations with other institutions are not mandatory, ECCC must be prepared to support its application of exemptions without input from the consulted institution. It was ECCC’s responsibility to seek input from IAAC, if it felt that IAAC’s input was needed to inform ECCC’s position for the purposes of responding to my final request for representations.

[27] I conclude that the information does not meet the requirements of paragraph 20(1)(d).

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

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

[29] 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.

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.

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

[31] 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?

[32] ECCC applied paragraph 21(1)(a) extensively to the records, always concurrently with paragraph 21(1)(b) and in some cases concurrently with section 23.

[33] I accept that the records were all created within 20 years of the access request being made, the records do not contain the reasons for any decisions affecting the rights of a person, and the records are not reports prepared by consultants or advisers outside of government.

[34] I also accept that a substantial amount of information within the records is either advice or recommendations.

[35] ECCC has indicated that it will disclose certain information it withheld under paragraph 21(1)(a) where the information is public or appears within final versions of submissions and where disclosure would not reveal the substance of any advice or recommendation, including:

Information in administrative emails, names of attachments and the topics under discussion where the name or topic does not reveal the content of any advice or recommendations (for example, pages 10431-10433, 10517, 10589 and 10663);
Certain information taken from public sources; and
Portions of submissions to the Federal Review Panel that appear in the final versions.

[36] I am not satisfied, however, that ECCC has supported that all other information withheld under paragraph 21(1)(a) meets the requirements of the exemption. ECCC has not addressed its application of the exemption to information that is factual in nature and would appear to be severable from the information meeting the requirements of the exemption. I provided ECCC with a non-exhaustive list of examples where I find this to be the case where information was withheld on pages 9964-9966, 9969, 9974, 9977-9981, 9984, 10061-10062, 10263-10266, 10432, 10557, 10567-10585, 11127-11128, 11137, 11960-11969, 12201-12202 and 12207-12212.

[37] I conclude that some of the withheld information does not meet the requirements of paragraph 21(1)(a), specifically where the information is public, appears within final versions or is factual information that can reasonably be severed and released.

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

[38] Since ECCC was of the view that the information meets the requirements of paragraph 21(1)(a), it was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, ECCC had to consider all the relevant factors for and against disclosure.

[39] An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation will be sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.

[40] ECCC provided detailed representations as to the factors it considered in exercising its discretion, which include, among other factors:

The sensitivity of the information;
The nature of the information;
The expectation of confidentiality when the information was created;
The potential for litigation and the resulting injury;
The purpose of the exemption; and
Natural justice.

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

Paragraph 21(1)(b): accounts of consultations or deliberations

[42] Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

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

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

The information is an account—that is, a report or a description.
The account is of consultations or deliberations.
At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

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

[46] However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) 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?

[47] ECCC applied paragraph 21(1)(b) extensively to the records, concurrently with paragraph 21(1)(a) in all cases and in some cases concurrently with section 23.

[48] I accept that the records were all created within 20 years of the access request being made, the records do not contain the reasons for any decisions affecting the rights of a person, and the records are not reports prepared by consultants or advisers outside of government.

[49] I also accept that a substantial amount of information within the records constitutes accounts of consultations and/or deliberations involving federal public servants.

[50] ECCC has indicated that it will disclose certain information it withheld under paragraph 21(1)(b) where the information is public or appears within final versions of submissions and where disclosure would not reveal the substance of any consultation or deliberation, including:

Information in administrative emails, names of attachments and the topics under discussion where the name or topic does not reveal the content of any advice or recommendations (for example, pages 10431-10433, 10517, 10589 and 10663);
Certain information taken from public sources; and
Portions of submissions to the Federal Review Panel that appear in the final versions.

[51] I am not satisfied, however, that ECCC has supported that all other information withheld under paragraph 21(1)(b) meets the requirements of the exemption. ECCC has not addressed its application of the exemption to information that is factual in nature and would appear to be severable from the information meeting the requirements of the exemption. I provided ECCC with a non-exhaustive list of examples where I find this to be the case where information was withheld on pages 9964-9966, 9969, 9974, 9977-9981, 9984, 10061-10062, 10263-10266, 10432, 10557, 10567-10585, 11127-11128, 11137, 11960-11969, 12201-12202 and 12207-12212.

[52] I conclude that some of the withheld information does not meet the requirements of paragraph 21(1)(b), specifically where the information is public, appears within final versions or is factual information that can reasonably be severed and released.

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

[53] Since ECCC was of the view that the information meets the requirements of paragraph 21(1)(b), it was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, ECCC had to consider all the relevant factors for and against disclosure.

[54] ECCC provided detailed representations as to the factors it considered in exercising its discretion, which include, among other factors:

The sensitivity of the information;
The nature of the information;
The expectation of confidentiality when the information was created;
The potential for litigation and the resulting injury;
The purpose of the exemption; and
Natural justice.

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

Section 23: solicitor-client and litigation privilege

[56] 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.

[57] 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.

[58] The parties intend the communication and advice to remain confidential.

To claim this exemption with regard to litigation, institutions must show the following:

The information was prepared or gathered for the dominant purpose of litigation.
The litigation either is in progress or is reasonably expected to occur.

[59] Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

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?

[60] ECCC fully withheld extensive information under section 23.

[61] I accept that some of the withheld information does consist of communications between ECCC and its lawyers and these communications are directly related to the seeking and giving of legal advice. I find this to be the case where this type of information was withheld under section 23 on pages 9881, 9924, 10824, 10826, 10900, 10974, 11044, 11176-11241, 11300-11371, 11388, 11392-11462, 11466-11488, 12218-12280, 12284-12355, 12554-12555, 12915, 14985, 16895, 19104, 19114, 19371, 19443-19444, 19492, 19927-19928, 20389, 20422, 20525, 21143, 22165, 22446, 22685-22687, 22690, 22697, 22731-22742, 22752-22755 and 22761-22764.

[62] I noted the ECCC maintains that pages 11869-11870 contain solicitor-client information, but I find this not to be the case. This email chain is distributing information related to a judicial finding, rather than providing legal advice.

[63] Although ECCC applied litigation privilege to certain information, it has indicated it is now inclined to remove this exemption, as there is no relevant ongoing litigation. I do not find that ECCC has supported that any of the records were prepared or gathered for the dominant purpose of litigation.

[64] I conclude that the records do not meet the requirements of section 23, other than where the information consists of an exchange of legal advice between ECCC and its lawyers as on the pages listed above.

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

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

[66] ECCC provided detailed representations as to the factors it considered in exercising its discretion, which include, among other factors:

The sensitivity of the information;
The nature of the information;
The expectation of confidentiality when the information was created;
The potential for litigation and the resulting injury;
The purpose of the exemption; and
Natural justice.

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

Outcome

[68] The complaint is well founded.

Orders

I order the Minister of Environment to do the following:

Disclose the information withheld under paragraph 20(1)(d), other than where I have found that it meets the requirements of another exemption;
Disclose the information withheld under paragraphs 21(1)(a) and 21(1)(b) where the information is public, appears within final versions, or is factual information that can reasonably be severed and released, other than where I have found that it meets the requirements of another exemption; and
Disclose the information withheld under section 23, other than where the information is an exchange of legal advice between ECCC and its lawyers or I have found that it meets the requirements of another exemption.

Initial report and notice from institution

On January 20, 2025, I issued my initial report to the Minister of Environment setting out my orders.

On February 13, 2025, ECCC’s Acting Director, Access to Information and Privacy gave me notice that ECCC would be implementing the orders. ECCC indicated that work has already begun on removing exemptions from the records.

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, third parties 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 Tŝilhqot’in National Government.