Employment and Social Development Canada (Re), 2022 OIC 33

Date: 2022-07-11
OIC file number: 5819-04288
Institution file number: A-2016-02113/JL

Summary

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.

Complaint

[1]      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 (legal advice and litigation privilege), and subsection 24(1) (disclosure restricted by another law) of the Access to Information Act.

Investigation

[2]      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.

Subsection 19(1): personal information

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

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

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

[5]      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.

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

Does the information meet the requirements of the exemption?

[7]      I find that most of the information withheld by ESDC pursuant to subsection 19(1) is about  identifiable individuals and does not fall under one of the exceptions to the definition of personal information in the Privacy Act. More specifically, I find that information related to the proposed candidates, vendor contacts and leave details meets the requirements of the exemption.

[8]      Furthermore, I note that ESDC withheld information related to how its employees performed their work. I find that the decision to withhold this information is consistent with the following two courts’ decisions.

[9]      In Dagg v. Canada (Minister of Finance) 1997 CanLII 358 (SCC), [1997] 2 SCR 403, the court stated:

[I]nformation relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is “personal information”. Generally speaking, information relating to the position, function or responsibilities of an individual will consist of the kind of information disclosed in a job description.

[10]    In Canada (Information Commissioner) v. Canada (Solicitor General) 1988 3 F.C. 551 (Fed. T.D.) at 557, the court explained:

There is no indication that qualitative evaluations of an employee’s performance were ever intended to be made public. Indeed, it would be most unjust if the details of an employee’s job performance were considered public information simply because that person is in the employ of the government.

[11]    Accordingly, I find that the withheld information related to how ESDC employees perform their work does constitute personal information.

[12]    On the other hand, the successful consultant’s identity was disclosed within the records, since the information relates to work she performed for ESDC under contract and therefore, her name could not be protected. The successful consultant’s CV, however, was fully withheld.

[13]    Having reviewed the information withheld within the CV of the successful consultant, I find that some information does not meet the requirements of subsection 19(1). More specifically, the following information falls under the list of exceptions to the definition of personal information: the third party header (including publicly available contact information for the third party), the professional summary (apart from the two first bullets) and the entire professional experience section (which consists of descriptions of work done for the government as either an employee or contractor).

[14]    Prior to issuing an order in respect of the information in question, I consulted the Office of the Privacy Commissioner (OPC) in accordance with section 36.2 of the Act. The OPC agreed with my assessment, indicating: “the contents of the consultant’s CV that describe the consultant’s experience in jobs with the federal government fall under the exceptions [to the definition of personal information] at subsections 3(j) and 3(k) of the Privacy Act”.  Accordingly, this information should have been released.

[15]    In summary, I find that ESDC has demonstrated that most of the information it withheld meets the requirements of subsection 19(1). This is with the exception of the information related to the position, function and responsibilities of the successful candidate while as an employee or under contract for a government institution. I find that the latter is not personal information because it falls under the exception to the definition of personal information found at subsection 3(j) and (k) of the Privacy Act.

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

[16]    For the information that meets the requirements of subsection 19(1), ESDC was required to reasonably exercise its discretion under subsection 19(2) to decide whether to disclose the information when one or more of the circumstances described in subsection 19(2) existed when it responded to the access request.

[17]    Under paragraph 19(2)(a), ESDC was required to determine whether consent was provided by making reasonable efforts to seek consent from the individuals whose personal information appears in the records. The OIC questioned ESDC as to what reasonable efforts it made to seek consent, and where it did not seek consent, why ESDC did not consider it reasonable to seek such consent. While I accept ESDC’s explanation as to why it did not feel that it would be appropriate to seek consent from one individual, ESDC did not provide any explanation as to why it did not make efforts to seek consent from the other individuals (proposed candidates, third-party contacts, candidate’s references, ESDC employees). Consequently, with the exception of the one individual, I must conclude that ESDC did not show that it had determined if the circumstances set out in paragraph 19(2)(a) existed, which prevented it from exercising discretion where appropriate.

[18]    Under paragraph 19(2)(b), ESDC’s discretion would have been triggered if any of the personal information was publicly available. The OIC questioned whether ESDC had properly turned its mind to whether the personal information was publicly available at the time it processed the request. ESDC demonstrated through evidence and its representations that it considered whether the personal information within the records was publicly available, and excised discretion under paragraph 19(2)(b) in order to disclose the publicly available information. I conclude that the circumstances set out in subsection 19(2)(b) existed when the ESDC responded to the access request, and that ESDC exercised its discretion to disclose this information, where it was aware of it being publicly available. Consequently, the exercise of discretion by ESDC was reasonable.

[19]    I note that during the course of the investigation, the OIC identified additional publicly available personal information which was either not publicly available at the time of the response or where ESDC was not aware that it was publicly available. Nonetheless, ESDC has  confirmed that it agrees to disclose this information now. 

[20]    Discretion is also triggered under paragraph 19(2)(c) when the disclosure would be in accordance with section 8 of the Privacy Act. ESDC was asked whether it had considered subparagraph 8(2)(m)(i) of the Privacy Act, which would allow ESDC to disclose personal information if the “public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure”.

[21]    Based on ESDC’s representations, I find that those competing interests were considered as well as all relevant factors when it decided not to disclose the information. I conclude that the circumstances set out in paragraph 19(2)(c) did not exist when ESDC responded to the access request as the head of ESDC was not of the opinion that the public interest in disclosure would outweigh any invasion of privacy. Consequently, there is no need to examine the issue of discretion under paragraph 19(2)(c).

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

[22]    Paragraph 20(1)(c) requires institutions to refuse to release 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.

[23]    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.

[24]    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.

[25]    When these requirements are met, and the third party to whom the information relates consents to its disclosure, institutions must then reasonably exercise their discretion to decide whether to release the information.

[26]    Institutions must also reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances 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.

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

[28]    ESDC withheld the following information related to the third parties:

• Hourly rate
• The names of and details related to the the candidates put forward for the position
• Company name and contact information for questions from bidders
• Comments in the evaluation grid
• Number of hours in the initial contract and additional hours added
• Days per week worked by the successful resource
• Maximum value of contract amendments
• Reference to a third party contract in briefing notes

[29]    The names of and details related to the candidates put forward for the position were withheld concurrently under subsection 19(1). Since I accepted ESDC’s application of subsection 19(1) to this information, there is no need to review the application of paragraph 20(1)(c) to the same information.

[30]    Pursuant to paragraph 35(2)(c), the third parties identified by ESDC as having an interest in the information withheld under paragraph 20(1)(c) were given an opportunity to submit representations. Only three of the nine third parties provided representations during the investigation: LRO Staffing, Altis Professional Recruitment and MaxSys Staffing & Consulting. Neither LRO Staffing nor Altis Professional Recruitment opposed disclosure of the information at issue. MaxSys Staffing & Consulting opposed disclosure of the comments in the evaluation grid.

[31]    Adirondack Information Management Inc., upon receiving notice of my intention to order disclosure of the information related to its joint venture (Adirondack Information Management, The AIM Group Inc. JV), confirmed on behalf of the joint venture that it had no issue with disclosure of the information at issue.

[32]    No representations from third parties were received supporting the application of paragraph 20(1)(c) to:

• Number of hours in the initial contract and additional hours added
• Days per week worked by the successful resource
• Maximum value of contract amendments
• Reference to a third party contract in briefing notes

[33]    This information appears to relate to details of the contract, and it is not clear how disclosure of this information could be expected to prejudice the competitive position of a third party. Since the number of weeks of the contract and hours per week was given to all potential bidders in the THS Request for Availability Form, the assumed number of hours included in the initial contract would have been available to the majority of competitors. I remain unconvinced that disclosure could reasonably result in material financial loss or harm to the competitive position of a third party.

[34]    Given that the call-up was issued in August 2015 and awarded in September 2015, and the access request was made in March 2017, ESDC needed to demonstrate that the prejudice was likely at the time the information was requested.

[35]    This exemption requires a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible. (See Merck Frosst Canada Ltd. v. Canada (Health), paras. 197, 206). I find that the third parties’ representations are insufficient to satisfy the requirements for exemption pursuant to paragraph 20(1)(c). What ESDC and the third parties have provided is speculation, with very little detail and no direct link between disclosure and a reasonable expectation of harm.

[36]    ESDC and the third parties which were consulted showed that the hourly rate meets the requirements of paragraph 20(1)(c). However, neither ESDC nor the third parties have showed that the remaining information at issue meets the requirements of that paragraph. No evidence has been provided to demonstrate that there was a reasonable expectation that prejudice could occur upon disclosure of this information. I find that the records at issue, apart from the hourly rates, do not meet the requirements of the exemption.

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

[37]    Paragraph 21(1)(b) allows institutions to refuse to release accounts of consultations or deliberations in which government employees, Ministers or members of a Minister’s staff took part.

[38]    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.

[39]    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.

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

[41]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to release 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 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?

[42]    ESDC showed in its representations that the information withheld on pages 161-162, 173, 184-186, 1364, 1368, 1528, 1541 and 1557 meets the requirements for exemption pursuant to paragraph 21(1)(b).

[43]    ESDC provided no representations that demonstrate how the information on pages 179, 1529 and 1549 of the records meets the requirements of the exemption.

[44]    Additionally, I find that the information on pages 178 and 184 is factual. Accordingly, this information does not meet the requirements of paragraph 21(1)(b).

[45]    ESDC did not show that the information withheld under paragraph 21(1)(b) on pages 178-179, 184, 1529 and 1549 constitutes accounts of consultations or deliberations. Consequently, I conclude that the information withheld on those pages does not meet the requirements of paragraph 21(1)(b).

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

[46]    Under paragraph 21(1)(b), ESDC was required to reasonably exercise its discretion to decide whether to release the information on pages 161-162, 173, 184-186, 1364, 1368, 1528, 1541 and 1557. In doing so, ESDC had to consider all the relevant factors for and against disclosure.

[47]    ESDC provided representations as to the factors it considered in exercising discretion with respect to the information on these pages.

[48]    Where ESDC has demonstrated that the withheld information meets the requirements of paragraph 21(1)(b), I conclude that ESDC considered all relevant factors when it decided not to disclose the information. Consequently, the exercise of discretion by ESDC with respect to this information was reasonable.

Section 23: legal advice privilege

[49]    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.

[50]    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.

[51]    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?

[52]    Based on the representations received from ESDC, I conclude that the information meets the requirements of section 23. The records relate to communications between a lawyer and his/her client seeking and giving legal advice which the parties intended to remain confidential.

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

[53]    Since the information meets the requirements of section 23, ESDC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, ESDC had to consider all the relevant factors for and against disclosure.

[54]    ESDC indicated that it consulted with its legal services on the application of section 23, and took this advice and other relevant factors into consideration.

[55]    I am satisfied that ESDC considered all relevant factors when it decided not to disclose the information withheld under section 23. Consequently, the exercise of discretion by ESDC was reasonable.

Subsection 24(1): disclosure restricted by another law

[56]    Subsection 24(1) requires institutions to refuse to release 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?

[57]    ESDC relied on section 241 of the Income Tax Act, a Schedule II provision, to withhold supplier business numbers.

[58]    Section 241 of the Income Tax Act containsa general prohibition of the disclosure of taxpayer information, subject to certain limited exceptions.

[59]    ESDC indicated that the business numbers were not publicly available, and it acted based on guidance sought from the Canada Revenue Agency regarding the applicability of subsection 24(1) to this type of information.

[60]    The term taxpayer information is defined at subsection 241(10) of the Income Tax Act as information of any kind and in any form relating to an identifiable taxpayer which is obtained by or on behalf of the Minister of National Revenue for the purposes of the Income Tax Act, or prepared from such information.

[61]    ESDC showed that section 241 of the Income Tax Act restricts the disclosure of the information at issue. Consequently, I conclude that the information meets the requirements of subsection 24(1).

Result

[62]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Employment and Social Development to:

1. Disclose all of the information withheld under subsection 19(1) that relates to the position, function and responsibilities of the successful consultant while as an employee or under contract for a government institution. Specifically, the third-party header, the professional summary and entire professional experience section in the withheld CV;
2. Determine whether the circumstance described in paragraph 19(2)(a) exists by making reasonable efforts to seek the consent to release the personal information from the individuals to whom the information relates (except where I already accepted ESDC’s explanation for not seeking consent from one particular individual) and; for those individuals who consent, reasonably exercise discretion to decide whether to release their personal information.
3. Disclose all of the information withheld under paragraph 20(1)(c), apart from the hourly rates and the names of and details related to the candidates put forward for the position currently also withheld under subsection 19(1) (pending the result of the implementation order #2 above);
4. Disclose all of the information withheld pursuant to paragraph 21(1)(b) on pages 178-179,  1529 and 1549 of the records, and the factual information withheld pursuant to paragraph 21(1)(b) on page 184.

On June 2, 2022, I issued my initial report to the Minister of Employment and Social Development setting out my order.

On June 30, 2022, the Director, Access to Information and Privacy gave me notice that ESDC would be implementing my order.

I have provided Altis Professional Recruitment, LRO Staffing, MaxSys Staffing and Consulting, Adirondack Information Management, The AIM Group Inc. JV and the Privacy Commissioner of Canada with this report.

Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. When they do not, third parties and the Privacy Commissioner may apply for a review within the next 10 business days. The person who 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, this order takes effect on the 46th business day after the date of this report.