Final report (3215-00087): Canadian Human Rights Commission

Institution: Canadian Human Rights Commission
OIC file number: 3215-00087
Institution file number: 106-3-2014-00028
Date: April 3, 2020

Summary

The Canadian Human Rights Commission (CHRC) refused to disclose information citing subsection 19(1) – Personal information, section 22 – Testing/auditing procedures, and section 23 – Solicitor-client privilege of the Access to Information Act .

During the course of the Office of the Information Commissioner (OIC)’s investigation, the CHRC agreed to disclose all information previously withheld under section 22 of the Act and portions that were previously withheld under solicitor-client privilege. While the CHRC refused to disclose the remainder of the withheld information, it did not convince the OIC  that such information met all the requirements for severance under subsection 19(1) and section 23 of the Act.

The OIC therefore issued a report recommending that the CHRC disclose portions of the information previously withheld as personal information and portions of the information previously withheld under solicitor-client privilege. The CHRC agreed with the recommendations and released additional information.

The complaint is well-founded.

Complaint

The complainant disputes the Canadian Human Rights Commission (CHRC)’s decision to rely on subsection 19(1) – Personal information, section 22 – Testing/auditing procedures, and section 23 – Solicitor-client privilege  to withhold information under the Access to Information Act.  The responsive records consist of over 1500 pages of records related to CHRC human rights file number 20111316.

Investigation

Subsection 19(1): Personal information

Subsection 19(1) requires institutions to refuse to release personal information.

To claim this exemption, institutions must show the following:

  • The information is about an individual—that is, 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).

When these requirements are met, institutions must then consider whether the following circumstances exist:

  • The person to whom the information relates consents to its release.
  • The information is publicly available.
  • Disclosure of the information would be consistent with section 8 of the Privacy Act.

When one or more of these circumstances exist, subsection 19(2) of the Act requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

The CHRC applied this subsection to the personal contact information of government employees, as well as employees leave information and the names of CHRC complainants. I find that the information withheld meets the requirements of the exemption.

The CHRC also applied this subsection to withhold file numbers (pages 1137 and 1138 of the record). The CHRC was unable to demonstrate that these file numbers are about identifiable individuals as their disclosure would not create a serious possibility that an individual could be identified. 

As a result, I find that the file numbers withheld on pages 1137 and 1138 do not meet the requirements of the personal information exemption.

Did the institution reasonably exercise its discretion to release the information?

To the extent that the personal information exemption applies, CHRC must reasonably exercise its discretion under subsection 19(2) of the Act. I am satisfied that this was done by CHRC. 

The investigation confirms that it would not be reasonable, in the circumstances, for CHRC to attempt to contact all of the individuals named in the file in order to seek their consent to disclosure.  The investigation also confirms that the personal information as is found on the records at issue, is not publicly available.  I am also satisfied that CHRC reasonably determined that the disclosure of the remaining personal information would not be in accordance with section 8 of the Privacy Act.

Section 22: Testing/auditing procedures

During the course of the investigation, CHRC released all information that was previously withheld pursuant to section 22 of the Act.  Accordingly, I do not need to further analyze the applicability of this section.

Section 23: Solicitor-client privilege

Section 23 allows institutions to refuse to release 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 release information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

To claim this exemption with regard to legal advice, 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.

When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

The CHRC applied this section minimally to records that consist of communication between client and counsel for the purpose of obtaining or providing legal advice.  In these instances, I find that the information meets the requirements of the test for legal advice privilege.

The CHRC also applied this section to withhold versions of draft investigation reports in their entirety. While I recognize that draft reports that are reviewed by legal counsel can be subject to legal advice privilege, I am not convinced that CHRC has met its burden of proof in this investigation, in relation to versions of the particular draft reports at issue (at pages 1151-1158, 1161-1173, 1190-1197, 1199-1206, 1209-1216, 1241-1253, 1257-1269).

Specifically, I have not been provided with evidence or representations that the versions of the draft reports were in fact reviewed by legal counsel.  Even if the draft reports were reviewed by legal counsel, it is unclear whether any legal advice was in fact provided.  As a result, I find that CHRC has not demonstrated that the draft investigation reports meet the test for the solicitor-client privilege exemption.

Did the institution reasonably exercise its discretion to release the information?

To the extent that the solicitor-client privilege exemption applies, CHRC must reasonably exercise its discretion under section 23 of the Act.  I am satisfied that this was done by CHRC, with regard to all relevant factors. 

Results

Having found that the complaint is well founded, I issued a report pursuant to section 37(1) of the Act, recommending that the CHRC:

  • Disclose the file numbers withheld under subsection 19(1) of the Act;
  • Disclose the draft investigation reports withheld under section 23 of the Act.

The CHRC responded on February 12, 2020, and agreed to release all information identified in my report. I understand that a supplementary release package was prepared and sent to the complainant on February 13, 2020.

That being said, section 41 of the Act provides a right to the complainant who receives a final report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

 

Caroline Maynard
Information Commissioner of Canada

Date modified:
Submit a complaint