Decisions

An institution submitted an application to the Information Commissioner, under subsection 6.1(1) of the Access to Information Act, for approval to decline to act on an access to information request. The institution submitted that the request is vexatious, made in bad faith, or constitutes an abuse of the right of access. The institution further submitted that it had met its duty to assist the requester in connection with the request.

The Information Commissioner found that the application was premature, as the institution did not establish that it fulfilled its duty to assist obligations under subsection 4(2.1) of the Act.

The Commissioner denied the application.

The complainant alleged that the Canadian Security Intelligence Service (CSIS) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking records related to pay equity for unionized CSIS employees. The complaint falls within paragraph 30(1)(a) of the Act.

Despite the involvement of its Departmental Legal Services Unit (DLSU) in the pay equity issue, CSIS refused to task this area, stating that DLSU records form part of the Department of Justice’s information holdings and are therefore not under CSIS’ control.

The Office of the Information Commissioner found that records responsive to the request might be under the control of CSIS and/or both CSIS and Justice. CSIS, in refusing to task, retrieve and review requested records from its DLSU to determine the issue of control, failed to conduct a reasonable search.

The Information Commissioner recommended that CSIS retrieve and review responsive records from its DLSU, and issue a new response.

CSIS gave notice to the Commissioner it would not implement the recommendations.

The complaint is well founded.

The complainant alleged that Export Development Canada (EDC) had improperly withheld information under subsections 18.1(1) (confidential financial, commercial, scientific or technical information of EDC) and 24(1) (disclosure restricted by another law) of the Access to Information Act in response to an access request for a summary of all financial assistance provided by EDC to Canadian companies in Honduras over $50,000, from 2009 to 2019.

EDC could not show that it met all the requirements for these exemptions. In particular, EDC did not demonstrate how the information at issue, which is shared with and retained by EDC’s customers, belonged to EDC as required in subsection 18.1.. As for subsection 24(1) of the Act, EDC invoked section 24.3 (Privileged Information) of the Export Development Act but failed to demonstrate how the information was “obtained” by, rather than “created” by EDC.

The Information Commissioner ordered that EDC disclose the policy types (acronyms), policy numbers, and maximum liability amounts that had been withheld under paragraph 18.1(1) and subsection 24(1).

EDC gave notice that it would partially implement the order, disclosing the policy types (acronyms) but not the policy numbers and maximum liability amounts. To this effect, EDC indicated that it did not agree with the Information Commissioner of Canada’s interpretation of section 24.3 of the Export Development Act and indicated that it would be seeking a review by the Federal Court.

The complaint is well founded.

The complainant alleged that the Old Port of Montreal Corporation Inc. had improperly withheld information under paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), paragraph 18(d) (government financial interests), subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request for records related to the loan of objects for the exhibit “Autopsy of a Murder”.

Signatures were removed from the scope of the complaint.

The institution did not provide any representations supporting the application of the exemptions. A third party made representations related to photographs of human remains that were withheld pursuant to subsection 19(1). Given the photographs do not relate to an identifiable individual or they relate to an individual who has been deceased for more than 20 years, the Office of the Information Commissioner (OIC) found that the photographs could not be withheld pursuant to subsection 19(1). The Office of the Privacy

Commissioner agreed with the OIC’s position.

The Information Commissioner ordered the Old Port of Montreal Corporation Inc. to disclose all information at issue.

The Old Port of Montreal Corporation Inc. gave notice that it would implement the order.

The complaint is well founded

The complainant alleged that the Canadian Broadcasting Corporation (CBC) had improperly withheld information under paragraph 18(b) (competitive position or negotiations by government institutions) and subsection 19(1) (personal information) of the Access to Information Act (the Act), in response to an access request for documents about the total remuneration of the 250 highest paid unionized employees of the CBC’s French services for two fiscal years.

The CBC relied on paragraph 18(b) to withhold about 25 of the top 250 exact individual salaries requested, for each fiscal year.

The investigation revealed that there is a reasonable expectation that disclosing the information withheld under paragraph 18(b) could injure the CBC’s competitive position. In addition, the Information Commissioner is unable to conclude that the CBC did not consider all the relevant factors to withhold the information. Consequently, the exercise of discretion by the CBC was reasonable.

The complaint is not well founded.

The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information in response to an access request for information related to contract 100004587 for a bilingual Advanced Access to Information and Privacy consultant. ESDC refused to disclose portions of the requested records based on subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on a third party), paragraph 21(1)(b) (accounts of consultations or deliberations), section 23 (solicitor-client and litigation privilege), and subsection 24(1) (disclosure restricted by another law) of the Access to Information Act.

ESDC was unable to demonstrate that information in a CV, related to the position, function and responsibilities of a government employee/contractor, was properly exempt under subsection 19(1), that ESDC made reasonable efforts to seek consent to release personal information, that certain third-party information met the requirements of paragraph 20(1)(c) and that some information met the requirements of paragraph 21(1)(b).

The Information Commissioner ordered ESDC to disclose the information that she found did not meet the requirements of the exemptions and to determine whether the circumstance described in paragraph 19(2)(a) exists.

ESDC gave notice that it would implement the order.

The complaint is well founded.

The complainant alleged that Innovation, Science and Economic Development Canada (ISED) had improperly withheld information under paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request related to all investments and transfer payments approved under the Program for Strategic Industrial Projects, Strategic Aerospace and Defence Initiative, and Strategic Innovation Fund, including the Repayments to Date figures.

The scope of the complaint was narrowed to information related to twelve (12) third parties.

Several third parties and ISED provided representations in support of the exemption. However, neither the third parties nor ISED demonstrated that the information at issue met all of the requirements of the exemption.

The Information Commissioner ordered ISED to disclose all information at issue.

ISED gave notice that it would implement the order.

The complaint is well founded.

An institution submitted an application to the Information Commissioner, under subsection 6.1(1) of the Access to Information Act, for approval to decline to act on an access to information request. The institution submitted that the request is vexatious and constitutes an abuse of the right of access. The institution further submitted that it had met its duty to assist the requester in connection with the request.

The Information Commissioner found that the institution met its burden of establishing that the access request is an abuse of the right of access.  In particular, the Commissioner found that the request is part of a pattern of behaviour involving the requester’s repeated requests for substantively the same information. The Commissioner also noted that most of the information being sought has either been provided by the requester to the institution, or has already been provided to the requester by the institution. The Commissioner also found that the institution met its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act. Given the Commissioner’s conclusion, it was not necessary to further consider whether the request was also vexatious.

The application is granted.

The Information Commissioner of Canada gives notice under subsection 30(5) of the Access to Information Act that she has ceased to investigate complaint 5819-02602, pursuant to paragraph 30(4)(a). This paragraph allows the Commissioner to cease to investigate a complaint when, in her opinion, a complaint is trivial, frivolous or vexatious, or is made in bad faith.

The complainant indicated that they wanted to pursue the matter as a point of principle although the matter for which the information was sought has already been settled. The complainant’s seeming lack of interest in obtaining access to the records and their request to continue to investigate, solely on a matter of principle, makes the complaint trivial.

The complainant alleged that the Canada Revenue Agency (CRA) had improperly withheld information under subsection 24(1) (disclosure restricted by another law), paragraph 16(1)(c) (conduct of investigations) and subsection 19(1) (personal information) of the Access to Information Act in response to an access request for the Canada Emergency Wage Subsidy (CEWS) database for all recipient corporations.

In the present instance, the schedule II provision claimed by CRA is section 241 of the Income Tax Act. Section 241 contains a general prohibition of the disclosure of taxpayer information, subject to certain limited exceptions.

The Office of the Information Commissioner is satisfied that the information at issue is about identifiable taxpayers that was prepared from information obtained by CRA for the purposes of administering the Income Tax Act, and the Commissioner concluded that the information was properly withheld pursuant to subsection 24(1).

Since paragraph 16(1)(c) and subsection 19(1) of the Act were applied concurrently to the same information that was exempted pursuant to subsection 24(1), it was not necessary to determine whether refusal to disclose the same information could also be justified under paragraph 16(1)(c) and subsection 19(1).

The complaint is not well founded.