Environment and Climate Change Canada (Re), 2025 OIC 17

Date: 2025-03-13
OIC file number: 5822-07348
Access request number: A-2021-00635

Summary

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.

Complaint

[1] The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under the following sections of the Access to Information Act:

Subsection 13(1): confidential information from government bodies;
Section 14: federal-provincial affairs;
Subsection 16(2): facilitating the commission of an offence;
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.

[2] 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.

[3] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate:

information withheld at pages 1 to 1228 of the responsive records;
information withheld under subsection 16(2), except on pages 1613, 1614, 1621 to 1623, 1629, 1631 to 1633, 1635, 2324, and 2325;
information withheld under subsection 19(1), except on pages 2309 and 2310; and
information withheld under paragraphs 20(1)(b) or 20(1)(c), except where paragraph 20(1)(b) was also applied on pages 2309, 2310, 3835, 3839, 3967 to 3989, 4021, and 4022.

Investigation

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

[5] During the investigation, ECCC decided to no longer rely on subsections 13(1) and 16(2) to withhold information, but maintained that the information meets the requirements of other invoked exemptions.

Subsection 19(1): personal information

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

[7] 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).

[8] 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.

[9] 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?

[10] ECCC withheld the name and contact information of an individual under subsection 19(1) on pages 2309 and 2310. This individual submitted comments to ECCC regarding the review of the whitebark pine recovery strategy. ECCC withheld these comments concurrently under paragraph 20(1)(b).

[11] The name and contact information are personal information, and the individual would be identifiable if this information were disclosed. This information does not fall under any of the exceptions to the definition of personal information, since this person was not a public servant or government contractor.

[12] ECCC provided representations regarding the risk of identification of this individual if the comments were released. ECCC asserted that, given the small number of individuals with such in-depth knowledge on this topic, there is a serious risk that someone in the same field could identify the individual who submitted the comments based on the comments alone. The OIC found evidence that the number of non-government employees with this type of specialized knowledge is quite small. Given the evidence, I find that ECCC’s position is supported because there is a serious possibility that the individual could be identified through disclosure of this information.

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

[14] Since I have found that this information meets the requirements of subsection 19(1), there is no need to determine whether the same information can also be withheld pursuant to paragraph 20(1)(b).

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

[15] 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.

[16] 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 indicated that it did not seek consent, as it did not consider it reasonable to seek such consent given the information relates to personal views and opinions of a specialized scientific nature. I respectfully disagree with ECCC’s position that seeking consent would not be reasonable on this basis. Given the information is scientific, rather than solely personal in nature, and since it relates to only one individual whose contact information ECCC readily had, I am not convinced seeking consent would not have been reasonable with respect to this information.

[17] I conclude that ECCC did not make reasonable efforts to seek consent, which prevented it from exercising its discretion when appropriate.

[18] With regard to paragraph 19(2)(b), an institution must take reasonable steps to discern whether personal information is publicly available. There is, however, no obligation for an institution to search every possible source (Information Commissioner v. Canada (Natural Resources), 2014 FC 917, at para.55). Based on the evidence and representations before me, I am satisfied that the information at issue is not publicly available.

[19] Finally, discretion is also triggered under paragraph 19(2)(c) when the disclosure of the personal information would be in accordance with section 8 of the Privacy Act. In the present instance, I find that disclosure would not be consistent with section 8 of the Privacy Act.

[20] As such, I find that ECCC’s discretion was not triggered under paragraphs 19(2)(b) or 19(2)(c), therefore there is no need to examine the issue of discretion under these provisions.

[21] However, ECCC did not make reasonable efforts to determine whether its discretion was triggered under paragraph 19(2)(a), which prevented it from exercising its discretion when appropriate.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[22] Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

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

The information is financial, commercial, scientific or technical.
The information is confidential.
The third party supplied the information to a government institution.
The third party has consistently treated the information as confidential.

[24] 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.

Does the information meet the requirements of the exemption?

[25] ECCC fully withheld communications related to Kelt Exploration Ltd (Kelt Exploration) pursuant to paragraph 20(1)(b) where such information remains at issue on pages 3967 to 3971, 3976 to 3983, 3989, 4021 and 4022. The OIC sought representations from Kelt Exploration pursuant to paragraph 35(2)(c) but the third party did not respond.

[26] Neither ECCC nor Kelt Exploration demonstrated that any specific portions of the information on pages 3967 to 3971, 3976 to 3983, 3989, 4021 and 4022 contain financial, commercial, scientific or technical information. Rather, these communications relate to an administrative error.

[27] With respect to the second requirement, that the information is objectively confidential, the information must be assessed against three conditions:

The information must not be available from sources otherwise accessible by the public.
It must originate and be communicated with a reasonable expectation that it will not be disclosed.
It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see: Air Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453).

[28] Although some of the communications contain publicly available information, such as information from a publicly available database, the fact that Kelt Exploration was discussing these matters with ECCC does not appear to be public. Given the context of the communication, I accept that the information was communicated with a reasonable expectation of confidentiality and that confidential communication of this information is not contrary to the public interest. Consequently, the second requirement of the exemption is met.

[29] Given that the records at issue contain information supplied both by ECCC and Kelt Exploration, I am not convinced that the third requirement, that the information was supplied by a third party, is met where the information originated from ECCC and does not reveal the substance of information supplied by Kelt Exploration.

[30] Turning to the final requirement, I have received no evidence supporting that Kelt Exploration has consistently treated the withheld information as confidential.

[31] I conclude that the information does not meet the requirements of paragraph 20(1)(b), as none of the information meets all four of the requirements of the exemption.

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

[32] 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.

[33] 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.

[34] 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.

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

[36] 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 exemptions?

[37] ECCC withheld significant portions of information under paragraph 21(1)(b), in many cases concurrently with other exemptions.

[38] On pages 3835 and 3839, ECCC withheld portions of email correspondence between ECCC employees and a third party. I am satisfied that the email chain constitutes a written account. The email from the third party to ECCC constitutes a consultation, in which an individual was seeking information from ECCC. The other emails constitute related deliberations among ECCC employees. The consultations and deliberations all include at least one employee of the federal government and were created less than 20 years before the access request was made. As such, I accept that the information on pages 3835 and 3839 meets the requirements of paragraph 21(1)(b).

[39] With respect to the balance of the information withheld under this exemption, much of the withheld information is email discussions involving ECCC employees. As such, I accept that some of this information does constitute accounts of consultations or deliberations meeting all requirements of paragraph 21(1)(b).

[40] While the courts have acknowledged that a wide range of records generated by government institutions’ internal processes will meet the requirements of paragraph 21(1)(b), “consultations” and “deliberations” must nonetheless be given their proper interpretation. The Treasury Board of Canada Secretariat Access to Information Manual specifies that consultation is defined as “the action of consulting or taking counsel together: deliberation, conference” and deliberation as “the action of deliberating (to deliberate: to weigh in mind; to consider carefully with a view to a decision; to think over); careful consideration with a view to a decision”. As such, only information describing the consultations undertaken, the deliberations held, the advice provided or the exchange of views leading to a particular decision qualifies as an account under paragraph 21(1)(b). Documents containing information of a factual or statistical nature or providing an explanation of the background to a current policy or legislative provision do not fall within the exemption.

[41] For example, in Canada (Information Commissioner) v. Toronto Port Authority, 2016 FC 683, the Federal Court determined that information which did not “identify a problem, purport to analyse or consider an issue, canvass solutions or contain a recommendation” did not meet the requirements of paragraph 21(1)(b).

[42] I find some of the withheld information to be factual in nature. ECCC indicated that it does not find any of the withheld information to be “merely factual”. However, ECCC has failed to demonstrate this to be true of all of the information. Where information is factual in nature and can be severed from accounts of consultations or deliberations, the requirements of the exemption are not met (examples of such information were found on pages 2321, 2322, 2324-2325, 2373, 2384-2385, 2515-2517, 2947, 3093, 3749, 3753, 3762, 3788 and 3791).

[43] I conclude that some of the information does not meet the requirements of paragraph 21(1)(b), where the information is factual in nature and does not reveal the substance of any consultation or deliberation.

[44] Since some information meets the requirements of paragraph 21(1)(b), I did not examine the other exemptions ECCC applied to withhold the same information.

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

[45] Since some of the information meets the requirements of paragraph 21(1)(b), ECCC 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.

[46] 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.

[47] ECCC indicated that it considered the following factors, among others, in exercising its discretion to withhold information under paragraph 21(1)(b):

The sensitivity of the information;
The views of the relevant Offices of Primary Interest (OPI);
The passage of time;
The public interest in disclosure;
As this project is ongoing, internal processes relating to it are sensitive;
Once the internal cooperation processes related to updating the recovery strategy are complete, it will be re-posted as proposed for public consultation and comment on the SAR Public Registry;
The impact of disclosure on the frankness of future internal consultations and deliberations;
Good faith; and
The principles of natural justice.

[48] ECCC seems to have given significant weight to the views of its subject matter experts in coming to its decision.

[49] I note that some records, for example pages 4058 to 4063, seem to originate from Parks Canada, and Parks Canada indicated it had no issue with disclosure. ECCC failed to provide details as to whether it considered this relevant factor in deciding to withhold these pages.

[50] I conclude that ECCC did not consider all relevant factors when it decided not to disclose the information Parks Canada indicated could be disclosed. The exercise of discretion by ECCC was not reasonable with respect to this information.

[51] For the balance of the information, I conclude that ECCC considered all relevant factors when it decided not to disclose the information. The exercise of discretion by ECCC was reasonable with respect to the balance of the information.

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

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

[53] 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.

[54] 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.

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

[56] 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 exemptions?

[57] ECCC applied paragraph 21(1)(a) to portions of the records, concurrently with paragraph 21(1)(b) in all cases.

[58] With respect to the factual information that ECCC withheld under paragraph 21(1)(a), as detailed in my analysis of paragraph 21(1)(b), I find that ECCC has not established how disclosing this information would reveal the substance of any advice or recommendations, or why this information is not reasonably severable from any advice or recommendations.

[59] I conclude that some of the information does not meet the requirements of paragraph 21(1)(a), where the information is factual in nature and does not reveal the substance of any advice or recommendations.

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

[60] 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.

[61] ECCC indicated that it considered the following factors in exercising its discretion to withhold information:

The sensitivity of the information;
The views of the relevant OPI;
The passage of time;
The public interest in disclosure;
The impact of disclosure on the candidness of future advice or recommendations;
Good faith; and
The principles of natural justice.

[62] These factors do seem to be relevant. 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 14: federal-provincial affairs

[63] Section 14 allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the conduct of federal-provincial affairs.

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

Disclosing the information could harm the Government of Canada’s conduct of federal-provincial affairs (for example, information on federal-provincial consultations or deliberations, or Government of Canada strategy or tactics related to the conduct of federal-provincial affairs, as set out in paragraphs 14(a) and (b)).
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

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

Does the information meet the requirements of the exemption?

[66] ECCC withheld information remaining at issue on pages 2455, 2457, 2947, 3010 to 3013, 3072, 3074, 3075, 3078 and 3079 under section 14, in all cases concurrently with other exemptions. During the investigation, ECCC also invoked section 14 to withhold information on pages 3014 to 3017.

[67] Since I have found that the information on pages 2455, 2457 and 3014 to 3017 meets the requirements of paragraph 21(1)(b), which was applied concurrently with section 14, an analysis of whether the requirements of section 14 are met for this information was unnecessary.

[68] I am not convinced that the information on page 2947 meets the requirements of section 14. ECCC’s representations do not address how disclosing the simple exchange of mostly factual information could reasonably be expected to result in any harm to federal-provincial affairs.

[69] I accept that the balance of the information relates to a sensitive exchange between ECCC and the province of British Columbia. ECCC made representations supporting that the province expected this information to be held in confidence. I am satisfied that releasing the information on pages 3010 to 3013, 3072, 3074, 3075, 3078 and 3079 could reasonably be expected to damage the trust between British Columbia and the federal government.

[70] I conclude that the information on pages 3010 to 3013, 3072, 3074, 3075, 3078 and 3079 meets the requirements of section 14, but that the information on page 2947 does not.

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

[71] Since some of the information meets the requirements of section 14, ECCC 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.

[72] ECCC indicated that it considered the following factors in exercising its discretion to withhold information:

The sensitivity of the information;
The views of the relevant OPI;
The passage of time;
The public interest in disclosure;
The impact of disclosure ECCC’s ability to discuss these issues with its provincial colleagues;
Good faith; and
The principles of natural justice.

[73] These factors do seem to be relevant. 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

[74] The complaint is well founded.

Order

I order the Minister of Environment to do the following:

Seek consent from the individual whose information was withheld on pages 2309 and 2310 to release their information. If consent is provided, reasonably exercise discretion pursuant to paragraph 19(2)(a);
Disclose the information withheld under paragraph 20(1)(b) on pages 3967 to 3971, 3976 to 3983, 3989, 4021 and 4022;
Disclose the information withheld under paragraphs 21(1)(a) and 21(1)(b) where the information is factual in nature and does not reveal the substance of any advice, recommendation, consultation or deliberation;
Disclose the information withheld under section 14 on page 2947; and
Re-exercise discretion to decide whether to disclose the information Parks Canada indicated could be disclosed but which ECCC withheld under paragraph 21(1)(b), taking into account all relevant factors for and against disclosure.

Initial report and notice from institution

On February 3, 2025, I issued my initial report to the Minister of Environment setting out my orders.

On February 28, 2025, ECCC’s Director, Access to Information and Privacy gave me notice that ECCC would be implementing the orders. ECCC’s Director indicated that ECCC had already taken steps towards implementing the order, including seeking consent under paragraph 19(2)(a), and laid out the steps ECCC will take to implement each part of the order. I note that ECCC has indicated it will consult with the province of British Columbia to confirm that section 14 does not apply to the information on page 2947.

I remind the Minister that if he does not intend to fully implement my order by disclosing the information withheld under section 14 on page 2947, he must apply to the Federal Court for a review within the time limit set out in subsection 41(2) of the Act.

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. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.