Impact Assessment Agency of Canada (Re), 2025 OIC 36

Date: 2025-06-27
OIC file number: 5822-00319
Access request number: A-2020-00058

Summary

The complainant alleged that the Impact Assessment Agency of Canada (IAAC) had improperly withheld information under the following provisions of the Access to Information Act:

subsection 13(1) (confidential information from government bodies);
section 14 (federal-provincial affairs);
paragraph 16(1)(c) (conduct of investigations);
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);
paragraph 21(1)(b) (accounts of consultations or deliberations);
paragraph 21(1)(c) (positions or plans developed for negotiations);
paragraph 21(1)(d) (plans related to personnel management or administration);
section 23 (solicitor-client and litigation privilege);
subsection 24(1) (disclosure restricted by another law); and
paragraph 68(a) (material published or available for purchase).

This was in response to an access request for information related to IAAC’s 2020-2021 inspection plan. 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 certain information. IAAC did not provide any information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information.

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

Complaint

[1] The complainant alleged that the Impact Assessment Agency of Canada (IAAC) had improperly withheld information under the following provisions of the Access to Information Act:

subsection 13(1) (confidential information from government bodies);
section 14 (federal-provincial affairs);
paragraph 16(1)(c) (conduct of investigations);
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);
paragraph 21(1)(b) (accounts of consultations or deliberations);
paragraph 21(1)(c) (positions or plans developed for negotiations);
paragraph 21(1)(d) (plans related to personnel management or administration);
section 23 (solicitor-client and litigation privilege);
subsection 24(1) (disclosure restricted by another law); and
paragraph 68(a) (material published or available for purchase).

[2] This was in response to an access request for information related to IAAC’s 2020-2021 inspection plan, including the list of inspections conducted, the list of annual reports reviewed, the enforcement actions taken and all briefing materials related to the C&E Program from January 2020 to June 2021. 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 the withholding of passwords under subsection 16(2) and the application of subsection 19(1).

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] On May 1, 2024, IAAC disclosed additional information, which it had withheld under section 14, paragraph 16(1)(c), paragraph 20(1)(b), paragraph 20(1)(c) and paragraph 21(1)(a) when it responded to the access request. In some cases, IAAC could not support the application of the exemptions to this information and in other cases it decided to release the information based on the passage of time.

[6] During the investigation, IAAC decided to no longer rely on subsection 13(1) to withhold information. IAAC indicated that it would continue to withhold the same information under subsection 21(1) instead of subsection 13(1).

[7] Pursuant to paragraph 35(2)(c), the OIC sought representations from the three third parties IAAC identified as the ones it would have consulted if it had intended to disclose the information withheld under subsection 20(1): Artemis Gold Inc. (Artemis Gold), the Interlake Reserves Tribal Council (IRTC) and Nemaska Lithium (Nemaska). Nemaska responded to the OIC’s request but declined to provide representations. Artemis Gold and IRTC both made representations, which were shared with IAAC.

[8] Pursuant to section 36.3, the OIC provided notice to the three third parties of my intended order as it relates to information withheld under subsection 20(1). Nemaska again indicated that it was declining to make representations. IRTC did not respond to the notice. Artemis Gold provided additional representations, which I have considered.

[9] I have also considered the representations received from IAAC and the complainant in coming to my conclusions.

Section 14: federal-provincial affairs

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

[11] 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.

[12] 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?

[13] IAAC continues to withhold information under section 14 on page 20 of the records.

[14] IAAC did not make any representations as to the harm that could result from disclosure or how harm to federal-provincial relations is reasonably possible. Instead, IAAC indicated in its final representations that this information should be released, but has not yet done so.

[15] I conclude that the information does not meet the requirements of section 14.

Paragraph 16(1)(c): conduct of investigations

[16] Paragraph 16(1)(c) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm federal or provincial law enforcement or the conduct of investigations (for example, information about the existence of an investigation that would reveal the identity of a confidential source or that was obtained during an investigation, as set out in subparagraphs 16(1)(c)(i) to (iii)).

[17] To claim this exemption with regard to the enforcement of federal or provincial laws, institutions must show the following:

Disclosing the information could harm the enforcement of any law of Canada or a province.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[18] To claim this exemption with regard to the conduct of investigations, institutions must show the following:

disclosing the information could harm the conduct of lawful investigations—that is, investigations that are within the authority of an institution and are one of the following:
- being conducted to administer or enforce an Act of Parliament or authorized under such an Act; or
- of the types described in Schedule II of the Access to Information Regulations.

[19] 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?

[20] IAAC applied paragraph 16(1)(c) on pages 23, 35-39, 228-229, 589-595, 730-739, 743, 745, 748-749, 752, 759-765, 775, 783-785, 787-788, 791-793, 799-808, 835, 839, 842, 845-846, 1024-1026, 1125-1127, 1157, 1161-1166, 1206, 1215, 1217, 1285-1286, 1288-1289, 1293-1296, 1316, 1364-1365, 1373, 1492-1493, 1590, 1603-1610, 1662-1671, 1718-1728 and 1700-1701, in many cases concurrently with other exemptions.

[21] IAAC only provided representations on the application of paragraph 16(1)(c) to information relating to a complaint made against another third party. IAAC indicated it applied this exemption in order to protect the identity of the party that made the complaint, as this was a confidential source of information. The party who made the complaint to IAAC indicated that it does not oppose disclosure of the information related to it. As such, I am not convinced that disclosure would amount to revealing the identity of a confidential source.

[22] For information not relating to the complaint, IAAC did not identify how disclosure could harm the enforcement of any law or the conduct of any investigations, nor did it provide any representations as to how disclosure could reasonably be expected to result in any such harm.

[23] Although IAAC indicated that the exemption is no longer justified on certain pages, it has not yet released this information.

[24] I conclude that the information does not meet the requirements of paragraph 16(1)(c).

Subsection 16(2): facilitating the commission of an offence

[25] Subsection 16(2) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to facilitate the commission of an offence.

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

Disclosing the information (for example, information on criminal methods or techniques, or technical details of weapons, as set out in paragraphs 16(2)(a) to (c)) could facilitate the commission of an offence.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[27] 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?

[28] IAAC continues to rely on subsection 16(2) to withhold: URLs pointing to internal documents and budgetary numbers.

[29] IAAC has indicated that it is willing to release the first part of the URLs, but not the full URL. IAAC stated that there is no valid reason for the complainant to need access to this information. With respect, the burden is on IAAC to show that the information is exempt from disclosure. What use the complainant has for the information is not relevant to whether the requirements of the exemption are met.

[30] IAAC failed to establish that the disclosure of any portions of the URLs or budgetary numbers could facilitate the commission of an offence, much less establish that such a harm could reasonably be expected to occur. I conclude that this information does not meet the requirements of subsection 16(2).

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

[31] 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).

[32] 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.

[33] 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.

[34] 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.

[35] However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) 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?

[36] IAAC withheld extensive information under paragraph 20(1)(b), in some cases concurrently with paragraphs 16(1)(c), 20(1)(c), 21(1)(a), 21(1)(b) and subsection 24(1).

[37] The first requirement of the exemption is that the withheld information is financial, commercial, scientific or technical in nature. In the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada stated that that the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings.

[38] According to dictionary definitions, the word commercial means “concerned with or engaged in commerce”, “making or intended to make a profit.” The Cambridge University Press defines technical information as “needing special knowledge relating to a particular subject or job to understand”.

[39] Regarding information related to Artemis Gold, I find only some of the information meets this first requirement. Details of Artemis Gold’s plans and the potential impact of delays on Artemis Gold constitute financial, commercial and technical information meeting this requirement (found, for example, on pages 325, 331-332, 336, 344, 348, 371 and 374-378). Although Artemis Gold indicated that its “legal interpretation of its regulatory requirements” is its commercially sensitive information, I find such information does not fall within the common definition of commercial information. The balance of the information pertaining to Artemis Gold, which includes details of the government approval process, consultations with First Nations and general administrative details about meetings and discussions related to Artemis Gold, has also not been shown to meet this first requirement.

[40] Turning to the information related to IRTC, although IAAC has indicated this information is technical in nature, the parties did not demonstrate that any particular expertise is required to understand it. It was therefore not established that any of the information pertaining to IRTC qualifies for exemption under paragraph 20(1)(b).

[41] With respect to Nemaska’s information, I accept that the information is all commercial and/or technical in nature and as such it meets the first requirement of the exemption.

[42] The second requirement of paragraph 20(1)(b) is 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).

[43] Some of the information related to Artemis Gold became publicly available after IAAC responded to the access request, however, such information does not appear to have been publicly available at the time the request was processed. Most of the information remaining at issue is more detailed than the types of information made available by IAAC as a result of its investigations or enforcement actions, and I found no evidence this information was public at the time IAAC processed the request.

[44] The information related to IRTC is not publicly available.

[45] The 2020 Nemaska annual report under discussion in the emails on pages 1770-1771 is publicly available here: https://iaac-aeic.gc.ca/050/documents/p80021/143037F.pdf. Since the report was public at the time the request was made, withheld information that appears within the report does not meet the second requirement of the exemption. The following information does not meet this requirement:

The dates Nemaska released certain reports;
The construction, care and maintenance status;
The availability of a specific agreement; and
Descriptions of where certain information can be found within the report.

[46] Turning to the second condition of objective confidentiality, it would seem, based on the records, that Artemis Gold was aware at the time IAAC processed the request that certain information would need to be made public before IAAC came to a final decision. As such, I am not convinced that Artemis Gold could have reasonably expected that IAAC would hold such information in confidence. Those details were made public in December 2022 (https://iaac-aeic.gc.ca/050/documents/p80017/145722E.pdf).

[47] Neither IRTC nor Nemaska made representations supporting that these third parties had a reasonable expectation that the information they provided to IAAC would be held in confidence by IAAC.

[48] For information pertaining to Artemis Gold’s plans and the potential impact of delays on Artemis Gold, based on the representations received, I find that the relationship between IAAC and Artemis Gold is fostered for the public benefit by confidential communication of such information.

[49] With respect to information pertaining to Nemaska on pages 1770-1771, I am not convinced that the relationship between IAAC and Nemaska is fostered for the public benefit by confidential communication of this information. The parties failed to establish how this requirement is met.

[50] I come to the preliminary conclusion that only a limited amount of information, related to Artemis Gold, meets the second requirement of the exemption.

[51] Turning to the third requirement of paragraph 20(1)(b), I accept that some of the withheld information was supplied by the third parties or disclosure would reveal information supplied by the third parties. In the case of IAAC’s letters, meeting minutes, and internal communications, however, I find that severance should be possible to release information that was not supplied by the third parties. In the case of references to information missing from annual reports, such information was created by IAAC and therefore does not meet this requirement.

[52] Based on the representations made by Artemis Gold to IAAC during the processing of the request, I accept that Artemis Gold had consistently treated the withheld information as confidential at the time the request was processed. IRTC and Nemaska, however, have not demonstrated that they have consistently treated the withheld information as confidential.

[53] I conclude that only the commercial, technical or scientific information supplied by Artemis Gold to IAAC in confidence meets the requirements of paragraph 20(1)(b). Such information appears on pages 336-337, 344, 346, 356, 366, 374-378, 384-388, 408 and 455-459. I conclude that the remaining information withheld under paragraph 20(1)(b) does not meet the requirements of this exemption.

Paragraph 20(1)(c): financial impact on a third party

[54] Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[55] To claim this exemption with regard to financial impact on a third party, institutions must show the following:

Disclosing the information could result in material financial loss or gain to the third party.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[56] To claim this exemption with regard to competitive position, institutions must show the following:

Disclosing the information could injure the competitive position of the third party.
There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

[57] 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.

[58] 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.

[59] However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) 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?

[60] IAAC applied paragraph 20(1)(c) concurrently with paragraph 20(1)(b), and in some cases concurrently with paragraphs 16(1)(c), 21(1)(a), 21(1)(c) and subsection 24(1), to withhold certain information related to Artemis Gold, IRTC and Nemaska.

[61] Artemis Gold indicated that disclosure of the records related to it could reveal Artemis Gold’s development strategy or impact the ability of Artemis Gold to secure capital financing.

[62] Turning to IRTC’s information, IRTC indicated that it does not expect any harm to result from disclosure of the information related to it. IAAC’s representations regarding the prospective harm of disclosing the information pertaining to IRTC were entirely speculative. IAAC failed to explain how disclosure of this information could either result in material financial loss or gain to IRTC or another third party, or injure IRTC’s competitive position. IAAC also failed to explain how such an injury could reasonably be expected to occur.

[63] Finally, with respect to information pertaining to Nemaska, IAAC has indicated that disclosure could result in material loss for Nemaska. Neither Nemaska nor IAAC established how any injury described in paragraph 20(1)(c) could occur, much less that such a harm could reasonably be expected to result from disclosure of information pertaining to Nemaska.

[64] For paragraph 20(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[65] Artemis Gold’s representations fall short of demonstrating a clear link between disclosure and the identified harm. The parties have not demonstrated that disclosure in this context could be the direct cause of any harm. Additionally, some of the information IAAC contends could be damaging was made public by IAAC in its December 2022 project analysis, and Artemis Gold has not pointed to any harm resulting from this information having been made public.

[66] Neither IAAC nor the third parties have provided representations and evidence beyond speculation which demonstrates that disclosing the withheld information could reasonably be expected to result in the harms identified.

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

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

[68] Since IAAC was of the view that the information meets the requirements of paragraphs 20(1)(b) and (c), it was required to reasonably exercise its discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when the two circumstances described in subsection 20(6) existed when it responded to the access request.

[69] Given the nature of the request, relating to inspections and enforcement actions from an agency mandated to ensure the environment is protected, much of the information withheld by IAAC relates to matters of environmental concern. Where I have found that some of the information pertaining to Artemis Gold meets the requirements of paragraphs 20(1)(b) and (c), some of the withheld information relates to potential environmental impacts of the project and measures to mitigate those impacts. As such, I find that IAAC should have turned its mind to whether its discretion was triggered under subsection 20(6).

[70] IAAC did not provide any representations to indicate that it had considered whether the circumstances set out in subsection 20(6) existed when it responded to the access request. I must conclude that IAAC did not show that it had determined whether those circumstances existed, which prevented it from exercising its discretion when appropriate.

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

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

[72] 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.

[73] 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.

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

[75] 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?

[76] IAAC applied paragraph 21(1)(a) extensively, in many cases concurrently with paragraphs 21(1)(b) or 21(1)(c). The records were created within 20 years of the access request being made.

[77] In many cases, I accept that the information consists of advice and recommendations exchanged between public servants.

[78] In some cases, the exemption was applied to factual information or general identifying information (for example, definitions, portions of drafts that are identical to final versions, title pages, email headers, signature blocks of public servants) that is severable from information meeting the requirements of the exemption (pages 64-65, 155, 290, 293, 297, 302, 326-335, 341-344, 352-354, 368-370, 400, 404-406, 410-420, 432-437, 445-463, 589-595, 622-633, 752, 883-884, 889-911, 946-947, 950, 985-987, 1157 and 1335).

[79] In addition, the reference to IRTC on page 834 does not meet the requirements of this exemption, as it simply references an email but none of the content of that email. IAAC has agreed to release this information but has not yet done so.

[80] IAAC made no representations as to how factual and general identifying information meets the requirements of paragraph 21(1)(a) or why severance of such information would not have been reasonably possible.

[81] I conclude that the information does not meets the requirements of paragraph 21(1)(a), other than where it clearly consists of advice or recommendations developed by or for a government institution or minister.

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

[82] 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.

[83] 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.

[84] 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.

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

[86] 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?

[87] IAAC applied paragraph 21(1)(b) extensively to withhold information, often concurrently with paragraphs 21(1)(a) and/or 21(1)(c). The records were created within 20 years of the access request being made.

[88] I accept that much of the information consists of accounts of consultations or deliberations involving at least one public servant.

[89] On pages 68 and 70, however, IAAC agreed with the OIC that this information does not meet the requirements of the exemption and IAAC indicated it is willing to release it, but has not yet done so.

[90] Additionally, many pages were fully withheld. IAAC did not provide any representations supporting how these pages in their entirety meet the requirements of the exemption or why no severance is reasonably possible where they contain factual and general identifying information, and I find such information does not meet the requirements of paragraph 21(1)(b).

[91] I conclude that the information meets the requirements of paragraph 21(1)(b), other than the bullet points on pages 68 and 70 and the factual and general identifying information on pages 72-74, 82-84, 95-97, 155, 326-335, 341-343, 352, 354, 368-370, 400, 404-406, 410-417, 432-437, 443, 445-455, 461-463, 523-525, 531-533, 589, 622-624, 630-632, 745, 752, 883-884, 889-908, 911, 923, 926, 946-947, 950, 962, 964, 986-987, 1157 and 1590.

Paragraph 21(1)(c): positions or plans developed for negotiations

[92] Paragraph 21(1)(c) allows institutions to refuse to disclose positions or plans developed for negotiations by or on behalf of the Government of Canada.

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

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

The information consists of positions or plans developed for negotiations or related considerations.
The negotiations were, are being or will be carried on by or on behalf of the Government of Canada.

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

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

[97] Apart from the name of the third party withheld on page 834, which IAAC has conceded does not meet the requirements of the exemption, the information withheld under paragraph 21(1)(c) mostly meets the requirements of this or a concurrently claimed exemption.

[98] In some cases, the exemption was applied to factual information or general identifying information (for example, portions of drafts that are identical to final versions, title pages, definitions, email headers, signature blocks of public servants) that is severable from information meeting the requirements of the exemption (pages 72-80, 82-90, 95-103, 155, 589-595, 883-884 and 1157).

[99] I conclude that the information meets the requirements of paragraph 21(1)(c) or another exemption, apart from the name of the third party on page 834 and the factual and general identifying information on the pages listed above.

Paragraph 21(1)(d): plans related to personnel management or administration

[100] Paragraph 21(1)(d) allows institutions to refuse to disclose plans related to institutions’ personnel management or administration when these plans have yet to be put into operation.

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

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

The information consists of plans.
These plans relate to the institution’s personnel management or administration.
These plans have not yet been put into operation.

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

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

[105] IAAC applied paragraph 21(1)(d) on pages 1222 and 1251-1252 to withhold a list of staffing priorities. These records were created less than 20 years before the access request was made.

[106] Based on IAAC’s representations, I accept that this information constitutes plans for personnel management that had not yet been put into place.

[107] I conclude that the information meets the requirements of paragraph 21(1)(d).

Section 23: solicitor-client and litigation privilege

[108] 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.

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

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

[110] 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.

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

[112] 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?

[113] I accept that IAAC generally applied section 23 to solicitor-client privileged information meeting the requirements of the exemption.

[114] IAAC did not, however, demonstrate how the records withheld on pages 523-533 and 589-595 meet the requirements of the exemption. IAAC indicated that it is willing to cease reliance on section 23 on these pages, but has not released this information.

[115] I conclude that the information meets the requirements of section 23, apart from the information withheld on pages 523-533 and 589-595.

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

[116] Since IAAC was of the view that the information meets the requirements of paragraph 21(1)(a), paragraph 21(1)(b), paragraph 21(1)(c), paragraph 21(1)(d) and section 23, it was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, IAAC had to consider all the relevant factors for and against disclosure.

[117] 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.

[118] IAAC did not provide any information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information. I must conclude that IAAC did not show that it had reasonably exercised its discretion.

[119] I also found that some of the information is publicly available. It is unclear when this information was made public, but any such public information should have been considered by IAAC when it exercised its discretion. The withheld memorandum of understanding on pages 95-102, drafts of which were fully withheld as well, would appear to be public.

[120] IAAC’s re-exercising of discretion should take into account all relevant factors, including the information that is now publicly available.

Subsection 24(1): disclosure restricted by another law

[121] Subsection 24(1) requires institutions to refuse to disclose information the disclosure of which is restricted by a provision set out in Schedule II of the Access to Information Act.

Does the information meet the requirements of the exemption?

[122] IAAC applied subsection 24(1) on pages 748-749, 761-765 and 799-803. IAAC indicated that this information pertains to traditional indigenous knowledge provided in confidence and is therefore withheld pursuant to subsection 30(1) of the Impact Assessment Act.

[123] Section 30 of the Impact Assessment Act is a Schedule II provision. Subsection 30(1) restricts the disclosure of records the disclosure of which IAAC is satisfied “would cause specific, direct and substantial harm to a person or Indigenous group”. Such information can only be disclosed with the authorization of the person or indigenous group.

[124] IAAC indicated that the information was withheld to protect IRTC. IRTC’s representations indicate that it does not object to disclosure of the information related to it. I am not convinced that disclosure would cause specific, direct and substantial harm to IRTC, especially in light of IRTC’s representations. IAAC provided no representations on how the exemption applies in light of IRTC’s representations.

[125] I conclude that the information does not meet the requirements of subsection 30(1) of the Impact Assessment Act, therefore cannot be withheld under subsection 24(1).

Paragraph 68(a): material published or available for purchase

[126] Under section 68, the right to access records under Part 1 of the Access to Information Act does not apply to the following:

published material, other than material proactively disclosed under Part 2 of the Access to Information Act; and
material for sale to the public.

Does the information meet the requirements of the exclusion?

[127] IAAC excluded some information under paragraph 68(a) and provided the complainant with a URL linking to the public information. I accept that this information is published online.

[128] I conclude that the information meets the requirements of paragraph 68(a).

Outcome

[129] The complaint is well founded.

Orders

I order the President of IAAC to do the following:

Disclose the information withheld under section 14 on page 20;
Disclose the information withheld under paragraph 20(1)(b), except where the information related to Artemis Gold meets the requirements of this exemption (on pages 336-337, 344, 346, 356, 366, 374-378, 384-388, 408, 434 and 455-459) or where I have found the requirements of another exemption are met for the same information;
Disclose the information withheld under paragraph 20(1)(c), except where I have found the requirements of another exemption are met for the same information;
Determine whether the circumstance described in subsection 20(6) exists by considering whether 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 and; if that is the case, reasonably exercise discretion to decide whether to release the third-party information for public health or public safety reasons, or to protect the environment;
Disclose the information withheld under paragraph 21(1)(a) on pages 16, 64-65, 155, 228-229, 290, 293, 297, 302, 326-335, 341-344, 352-354, 368-370, 400, 404-406, 410-420, 432-437, 445-463, 589-595, 622-633, 752, 834, 883-884, 889-911, 946-947, 950, 985-987, 1157, 1293-1296, 1335, 1365 and 1373, other than where it clearly consists of advice or recommendations developed by or for a government institution or minister;
Disclose the information withheld under paragraph 21(1)(b) on pages 68, 70, 72-74, 82-84, 95-97, 155, 326-335, 341-343, 352, 354, 368-370, 400, 404-406, 410-417, 432-437, 443, 445-455, 461-463, 523-525, 531-533, 589, 622-624, 630-632, 745, 752, 883-884, 889-908, 911, 923, 926, 946-947, 950, 962, 964, 986-987, 1157 and 1590, other than where it clearly consists of accounts of consultations or deliberations involving at least one public servant;
Disclose the information withheld under paragraph 21(1)(c) on page 72-80, 82-90, 95-103, 155, 589-595, 834, 883-884 and 1157;
Disclose the information withheld under section 23 on pages 523-533 and 589-595, except where I have found the requirements of another exemption are met for the same information;
Re-exercise his discretion to decide whether to release the information I have found meets the requirements of paragraph 21(1)(a), paragraph 21(1)(b), paragraph 21(1)(c), paragraph 21(1)(d);
Re-exercise his discretion to decide whether to release the information I have found meets the requirements of section 23; and
Disclose the information withheld under subsection 24(1), except where I have found the requirements of another exemption are met for the same information.

Initial report and notice from institution

On May 6, 2025, I issued my initial report to the President setting out my orders.

On June 24, 2025, IAAC’s Access to Information and Privacy Coordinator gave me notice that IAAC would be implementing the orders in full.

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 and 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 Artemis Gold, IRTC and Nemaska.