Decisions

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

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

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

The complaint is well founded.

The complainant alleged that the Canada Border Services Agency (CBSA) did not conduct a reasonable search for records in response to an access request made under the Access to Information Act. The request was for Microsoft Teams (MS Teams) messages created between September 1, 2023, and December 6, 2023, containing a list of keywords related to ArriveCAN. The allegation falls under paragraph 30(1)(a) of the Act.

CBSA retains MS Teams messages for 30 days. However, CBSA only began processing the access request more than 30 days after it received it, due to it not being promptly entered it into its case management system. As a result, access to information officials, assuming all relevant records would have already been destroyed, did not ask program areas for records. Instead, CBSA told the complainant that no such records existed.

CBSA policy requires business-related information shared on MS Teams to be saved to corporate repositories before the 30-day mark passes. In light of questions about this during the investigation, CBSA searched these repositories and identified one relevant record, which it provided to the complainant. Regardless, the delay in asking program areas for records undoubtedly had a detrimental effect on the requester’s right of access.

The complaint is well founded.

No order was required, since CBSA disclosed the only record responsive to the access request.

The complainant alleged that Transport Canada had improperly withheld information under paragraph 16(1)(c) (law enforcement, conduct of investigations), subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for a copy of the Final Report of the Investigation and analysis of the accidental death of a named individual who died at a Canadian Pacific Railway Company (CP) railway yard. 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. Although CP asserted that additional exemptions under paragraph 20(1)(c) (financial impact on a third party), section 23 (solicitor-client and litigation privilege) and subsection 24(1) (disclosure restricted by another law) apply to the information related to CP, the third party did not met its burden of showing that the requirements of these exemptions were met.

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

The complainant alleged that the Royal Canadian Mounted Police (RCMP) had improperly withheld information in response to an access request under numerous provisions of the Access to Information Act. The request was for applications for legal funding at public expense and included information related to British Columbia’s (B.C.) Braidwood Commission on the death of Robert Dziekanski. The allegation falls under paragraph 30(1)(a) of the Act.

The Information Commissioner concluded that some information did not meet the requirements of paragraphs 13(1)(a) and (c) (confidential information from government bodies), section 14 (federal-provincial affairs), subsection 15(1) (international affairs) and section 23 (solicitor-client privilege) and ordered the RCMP to disclose it. Of note with regard to section 23 is that the RCMP was also unable to show that letters from legal counsel to the Braidwood Commission were privileged information in any regard, including common interest privilege, raised by the RCMP.

In addition, the Commissioner concluded that the RCMP had not taken reasonable steps to seek the consent of the B.C. government to disclose the information that qualified for exemption under subsection 13(1), as is required by subsection 13(2). The Commissioner ordered the RCMP to take these steps and then, if it received consent, to reasonably exercise its discretion to decide whether to disclose the information.

The RCMP gave notice to the Commissioner that it would not be fully implementing her orders.

The complaint is well founded.

The complainant alleged that Port Alberni Port Authority (PAPA) had improperly withheld information under paragraphs 18(a) (government financial, commercial, scientific or technical information) and 18(b) (competitive position of government institutions or negotiations by government institutions), subsection 19(1) (personal information), and paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request about the lease of equipment.

The complainant also alleged that PAPA had not conducted a reasonable search for records in response to that access request.

Both allegations fall under paragraph 30(1)(a) of the Act.

PAPA could not show that the information met the requirements of paragraph 20(1)(c).

PAPA showed it conducted a reasonable search for records.

The Information Commissioner ordered PAPA to disclose the redacted information.

PAPA gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

The complainant alleged that the National Research Council Canada (NRC) had improperly withheld information on specific pages under paragraphs 20(1)(d) (negotiations by a third party), 21(1)(a) (advice or recommendations), 21(1)(c) (positions or plans developed for negotiations) and section 23 (solicitor-client privilege) of the Access to Information Act in response to an access request. The request was for records pertaining to negotiations with the Professional Institute of the Public Service of Canada (PIPSC) regarding the conversion of overtime into leave following the December 2021 shutdown. The allegation falls under paragraph 30(1)(a) of the Act.

The NRC could not show that it met all the requirements of paragraph 20(1)(d), paragraph 21(1)(a) and paragraph 21(1)(c), but it did show that it met the requirements of section 23.

The Information Commissioner ordered that the NRC disclose some information originally withheld under paragraph 20(1)(d), and paragraphs 21(1)(a) and 21(1)(c).

The NRC gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

An institution submitted an application seeking the Information Commissioner’s approval to decline to act on two access requests under subsection 6.1(1) of the Access to Information Act. In the institution’s opinion, the access requests constitute an abuse of the right to make a request.

The Commissioner finds that the institution did not establish that the access requests are an abuse of the right to make a request.

The application is denied.

The complainant alleged that Fisheries and Oceans Canada (DFO) had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for data analysed in the Sea Lice Science Response Report (2022/045) from January 2022 to June 2022. The allegation falls under paragraph 30(1)(a) of the Act.

Neither DFO nor the third parties to whom the information relates could show that the information met all the requirements of this exemption, in particular the parties did not establish that the information was objectively confidential or that certain information was supplied by a third party. One third party raised a new exemption, section 26 (information to be published), but did not show that the requirements of this exemption were met either.

The Information Commissioner ordered that DFO fully disclose the records. DFO gave notice to the Commissioner that it would comply with the order. The complaint is well founded.