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Trans Mountain Corporation (Re), 2025 OIC 37

Date: 2025-07-07
OIC file number: 5822-03263
Access request number: ATIA.01.0003.2022

Summary

The complainant alleged that the Trans Mountain Corporation (TMC) had improperly withheld information under many provisions of the Access to Information Act in response to an access request. The request was for records related to the initial application and approval of the Trans Mountain Pipeline in the early 1950s. The allegation falls under paragraph 30(1)(a) of the Act. During the investigation, the complainant reduced the scope of the request and excluded subsection 19(1) (personal information) from the scope of the investigation. TMC failed to identify which specific information within the records was withheld and did not establish how any of the withheld content met the criteria for exemption under the Act. Furthermore, TMC did not demonstrate that providing the complainant with a copy of the records would be unreasonable under subsection 8(1) of the Regulations. The Information Commissioner ordered TMC disclose the Records at Issue to the complainant by a specified deadline. TMC gave notice to the Commissioner that it would implement the order. The complaint is well founded.

Complaint

[1]        The complainant alleged that the Trans Mountain Corporation (TMC) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

  • paragraph 18(a) (government trade secrets, government financial, commercial, scientific or technical information);
  • paragraph 18(b) (competitive position of government institutions, negotiations by government institutions);
  • paragraph 18(d) (government financial interests, government of Canada’s ability to manage the economy, undue benefit to an individual);
  • paragraph 20(1)(a) (third-party trade secrets);
  • paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
  • paragraph 20(1)(c) (financial impact on a third-party);
  • paragraph 20(1)(d) (negotiations by a third-party);
  • subsection 16(2) (facilitating the commission of an offence);
  • subsection 19(1) (personal information); and
  • section 17 (safety of individuals).

[2]        The access request was for:

“…records related to the initial application and approval of the Trans Mountain Pipeline in the early 1950s”, including “…applications to the Board of Transport Commissioners and supporting documentation, transcripts from government hearings, evidence submitted, reports (such as feasibility, economic or environmental assessments), internal company correspondence, and correspondence with the Government of Canada”

[3]        During the investigation, the complainant indicated that it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate TMC’s refusal to disclose “technical information”, “...such as drawings, explanations of technical principles, operating instructions, manual of instructions, maintenance guide, parts list, etc.”

[4]        The request was therefore narrowed to target the following information, with the exception of technical information contained therein:

  1. Applications to the Board of Transport Commissioners. Including supporting documentation, transcripts from government hearings, evidence submitted, reports including feasibility studies, economic studies, and environmental assessments;
  2. All information related to the spur line from Sumas, British Columbia that was approved by the Board of Transport Commissioners and built in 1953;
  3. Any internal correspondence within TMC, or correspondence between TMC and other government departments or other companies related to the financing, economics, or environmental impacts of the pipeline; and
  4. Any correspondence which includes discussion of impacts on First Nations or reserve lands from the period identified. (hereafter, “the Records at Issue”)

[5]        The complainant further indicated that it was not necessary for the OIC to investigate TMC’s reliance on subsection 19(1) (personal information) to withhold portions of the Records at Issue. The investigation is therefore also limited to TMC’s refusal to disclose the Records at Issue, other than information withheld under subsection 19(1) (hereafter, the “Information at Issue”).

[6]        As the complainant’s allegations concern TMC’s refusal to disclose the Information at Issue, it falls under paragraph 30(1)(a) of the Act.

Investigation

The Right of Access Under the Act

[7]        The Act provides a right of access to records under the control of a government institution, unless the institution is authorized to refuse to disclose information under a specific provision(s) of Part 1 of the Act. It follows that the right of access may only be limited by the exemptions set out in sections 13 to 24 and the exclusions set out in section 68 to 69.1.

[8]        When an institution refuses to disclose information, it bears the burden of showing that the Act authorizes them to do so. All portions of records that do not contain information that warrants exemption and can reasonably be severed must be disclosed (section 25).

Exemptions:

[9]        TMC responded to the access request by refusing to disclose all portions of the Records at Issue based on paragraphs 18(a), (b) and (d), 20(1)(a), (b), (c) and (d), subsections 16(2) and 19(1), and section 17. TMC, however, conceded during the investigation that not all portions of the Records at Issue warrant redaction under the exemptions claimed.

[10]      Unfortunately, TMC failed to identify what information within the Records at Issue it maintains should be withheld. It also failed to provide the OIC with a copy of the Records at Issue when asked.

[11]      Regarding the application of exemptions, TMC, in response to the OIC’s initial request for representations, referred to the need to redact “sensitive information” and/or “sensitive content” “in compliance with the Act. More recently, when asked to cogently explain how any portions of the requested records qualify for exemption, TMC asserted that: access will be provided in alignment with “standard ATIP procedures, including the application of exemptions under section 19 (personal information) and section 17 (safety of individuals), as necessary”.

[12]      Thus, as section 19 is no longer within the scope of the complaint, the only exemption provision that TMC has continued to expressly raise as a basis for refusing access, which remains relevant to the investigation, is section 17.  TMC has not established that this exemption applies.

[13]      Section 17 allows an institution to refuse to disclose information that, if disclosed, could reasonably be expected to threaten an individual’s safety. To claim this exemption, the institution must show the following:

  • Disclosing the information could threaten the safety or health of an individual.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

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

[15]      In the present instance, TMC has not shown that the disclosure of any portion of the Records at Issue, which are more than 70 years old, could threaten the safety of an individual, much less that such an injury could reasonable be expected to occur. I conclude the Records at Issue does not meet the requirements of section 17.

[16]      If, notwithstanding TMC’s most recent representations, TMC maintains that any portions of the Records at Issue warrant redaction under paragraphs 18(a), (b), (d), 20(1)(a), (b), (c), (d) and / or subsection 16(2), TMC has equally failed to establish:

  • how any information within the Records at Issue satisfies the requirements of such an exemption(s); and
  • in the case of discretionary exemptions, that discretion was reasonably exercised based on a consideration of all relevant factors.

     

[17]      Based on the above, TMC was not authorized to refuse to disclose any of the Information at Issue.

Subsidiary issue raised by TMC: Subsection 12(1) of the Act / Subsection 8(1) of the Regulations

[18]      During the investigation TMC raised a subsidiary issue, namely, whether TMC can refuse to provide the complainant with a copy of the Records at Issue based on subsection 8(1) of the Regulations. For reasons set out below, the answer to this question is “no”.

[19]      Subsection 12(1) of the Act provides that a person who is given access to a record or a part thereof shall, subject to the regulations:

  • be given an opportunity to examine the record or part thereof; or
  • be given a copy thereof.

[20]      In turn, subsection 8(1) of the Regulations specifies that where a person is given access to a record or part thereof, the head of the institution may require that the person be given an opportunity to examine the record or part thereof, rather than being provided a copy, if,

  1. the record or part thereof is so lengthy that reproduction of the record or part thereof would unreasonably interfere with the operations of the institution; or
  2. the record or part thereof is in a form that does not readily lend itself to reproduction.

[21]      In the present instance, TMC has not established that conditions described in paragraphs 8(1)(a) or (b) of the Regulations permit TMC to require that the complainant be given an opportunity to examine the record or part thereof onsite, rather than a copy thereof.

TMC did not establish that the Records at Issue are so lengthy that reproduction would unreasonably interfere with TMC’s operations:

[22]      TMC provided no information regarding the volume of the Records at Issue since being informed in May of 2024 that the request excluded all technical information. Nor did TMC provide information regarding the time needed to reproduce the Records at Issue, or the basis upon which that time was estimated.

[23]      During the investigation, TMC conflated the efforts and costs needed to scan, review and redact the responsive records, with the time and efforts needed for the records to be reproduced. It also asserted without basis that I was somehow seeking to compel TMC “…to acquire specific software tools”, so as to deliver records “in a particular medium”. More specifically, TMC referenced the costs associated with investing in redaction or case management software, while also asserting that: the volume of the records, which were not produced by TMC when asked,  “…renders the redaction workflow unmanageable” / would impose an unreasonable burden on the Corporation’s operations; and “[p]rocessing the records manually would…likely take years to complete”.

[24]      To be clear, the manner by which a government institution ultimately provides access to requested records does not negate its obligation to provide full access, subject only to applicable exceptions (exemptions and exclusions) set out in the Act itself. Providing a requester with a right to examine a record onsite instead of providing a copy therefore still requires the disclosure of all information save for any portions of the records that the institution has established warrant exemption under the Act.

[25]      Thus, the time needed to reproduce a record is distinct from whatever time, efforts and costs might be needed for an institution to review, redact and / or otherwise render records accessible. Whenever such latter steps are needed, they will be required regardless of whether access is given by way of a copy of the record or a right to examine records onsite. In turn, these steps are irrelevant to whether an institution is justified in refusing to provide a copy of a record under paragraph 8(1)(a) of the Regulations.

[26]      In the present instance, TMC failed to establish that the Records at Issue are so lengthy that their reproduction would unreasonably interfere with TMC’s operations. Accordingly, it cannot rely on paragraph 8(1)(a) of the Regulations as a basis for refusing to provide the complainant with a copy of the Information at Issue.

TMC did not establish that the record or part thereof is in a form that does not readily lend itself to reproduction:

[27]      As understood from TMC’s representations, the Records at Issue are in paper format and contained in boxes. TMC offered no cogent explanation during the investigation of why, as such, they are not in a form that can readily be reproduced.

[28]      Instead TMC’s representations on this issue were again focussed on the time and costs associated with reviewing and redacting the records -- neither of which are relevant to the applicability of paragraph 8(1)(b) of the Regulations.

[29]      As explained above, if severance were in fact required this would still need to be done prior to providing the requester with a right to examine records on-site. TMC’s assertions that the records require severance therefore in no way explains how the form of the records does not readily lend itself to reproduction. Indeed, to the contrary, if severance were in fact required it is far from clear how, as a practical matter, it would be possible for TMC to provide access without reproducing a severed version of the Records at Issue in some way.

[30]      In the present instance, TMC failed to establish that the Records at Issue are in a form that does not readily lend itself to reproduction. Accordingly, it also cannot rely on paragraph 8(1)(b) as a basis for refusing to provide the complainant with a copy of the Information at Issue.

Other:

[31]      Beyond the above, TMC asserted, among other things, that the Act does not require an institution to provide access in the format preferred by the requester and “the right of access is to the information, to the record in its original form”. In the present instance, however, it has been TMC, not the complainant, who has claimed that the Records at Issue must be provided onsite in its original form, without justification under subsection 8(1).

[32]      Finally, there is no merit to TMC’s further submission that it should be absolved of its obligations to respond to the request under the Act because another government institution, the Canada Energy Regulator (CER), is currently addressing a similar request.

Outcome

[33]      The complaint is well founded.

  • TMC has not established that it is authorized to refuse to disclose any portions of the Information at Issue.
  • TMC has also not established that it is justified in refusing to provide a copy of the Information at Issue to the complainant.

Orders

I order the President and CEO of TMC to:

  1. Disclose all the Information at Issue to the complainant by September 1st, 2025
  2. Give access by providing to the complainant a copy of all the Information at Issue by September 1st, 2025

Initial report and notice from institution

On June 3, 2025, I issued my initial report to the President and CEO of TMC setting out my orders.

On July 2, 2025, TMC’s Vice President of Legal and General Counsel gave me notice that he would be implementing the orders by issuing a full disclosure of the Information at Issue on, or before, the deadline of September 1, 2025.

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.

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