Employment and Social Development Canada (Re), 2023 OIC 35

Date: 2023-08-18
OIC file number: 5821-02740
Institution file number: A-2020-00281

Summary

The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information under paragraph 16(1)(c) (conduct of investigations), subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act. This was in response to an access request for rail industry workplace fatality investigation reports completed by ESDC between 2000 and 2020. The complaint falls within paragraph 30(1)(a) of the Act.

The Information Commissioner found that a significant amount of the withheld information met the requirements of subsection 19(1), as it was information about the victims, witnesses and other individuals involved, but found that certain information was not about identifiable individuals or was about individuals who had been deceased for more than 20 years.

The Office of the Information Commissioner sought representations from three third parties. With respect to the third-party information, neither ESDC nor the third parties provided sufficient representations to support that most of the withheld third-party information met the requirements of paragraph 20(1)(b) or that any of the information met the requirements of paragraph 20(1)(c).

The complaint is well founded.

The Information Commissioner ordered ESDC to disclose information it had not shown to meet the requirements of the exemptions, consider whether its discretion was triggered where it had not yet done so, and re-exercise its discretion where it had not demonstrated that discretion was reasonably exercised.

ESDC gave notice that it would implement the order.

Complaint

[1]      The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information under paragraph 16(1)(c) (conduct of investigations), subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act. This was in response to an access request for rail industry workplace fatality investigation reports completed by ESDC between 2000 and 2020. The complaint falls within paragraph 30(1)(a) of the Act.

[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.

[3]      The OIC sought representations from three third parties pursuant to paragraph 35(2)(c): Canadian National Railway Company (CN), Canadian Pacific Railway Company (CP) and the City of Ottawa. While CN and CP responded, the City of Ottawa did not provide representations pursuant to paragraph 35(2)(c) of the Act.

[4]      As required by section 36.3, the OIC notified all three third parties of my intention to order ESDC to disclose some of the information at issue. CN was the only third party to respond.

Paragraph 16(1)(c): conduct of investigations

[5]      Paragraph 16(1)(c) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm federal or provincial law enforcement or the conduct of investigations (for example, information about the existence of an investigation that would reveal the identity of a confidential source or that was obtained during an investigation, as set out in subparagraphs 16(1)(c)(i) to (iii)).

[6]      To claim this exemption with regard to the enforcement of federal or provincial laws, institutions must show the following:

• Disclosing the information could harm the enforcement of any law of Canada or a province.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[7]      To claim this exemption with regard to the conduct of investigations, institutions must show the following:

• disclosing the information could harm the conduct of lawful investigations—that is, investigations that are within the authority of an institution and are one of the following:
  • being conducted to administer or enforce an Act of Parliament or authorized under such an Act; or
  • of the types described in Schedule II of the Access to Information Regulations.

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

Does the information meet the requirements of the exemption?

[9]      As with other injury tests, for paragraph 16(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206). In the present case, ESDC applied paragraph 16(1)(c) to withhold photographs taken during investigations.

[10]    Based on the information provided by ESDC, it appears none of the investigations associated with the photographs were ongoing at the time the response was provided, nor do the photographs appear to reveal any investigative techniques. The OIC questioned how there is a reasonable expectation, beyond speculation, that disclosure would directly harm investigations or the enforcement of any law. ESDC did not identify any such harm in its representations, and therefore could not demonstrate that there was a reasonable expectation that such harm could result from disclosure.

[11]    I conclude that the information does not meet the requirements of paragraph 16(1)(c). Consequently, there is no need to examine whether ESDC reasonably exercised its discretion to decide whether to disclose the information.

Subsection 19(1): personal information

[12]    Subsection 19(1) requires institutions to refuse to disclose personal information.

[13]    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).

[14]    When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

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

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

Does the information meet the requirements of the exemption?

[16]    I accept that the requested records contain a significant amount of personal information about identifiable individuals, since information about an individual’s death falls clearly within the definition of information about that individual, and that the reports contain other information that has been consistently found to be about individuals, such as witness statements. The OIC questioned, however, whether all of the information withheld pursuant to subsection 19(1) meets the requirements of the exemption.

[17]    One of the individuals appeared to have died more than 20 years prior to the date of the response to the request, and ESDC confirmed this to be the case. Consequently, this individual’s personal information falls under the exception to the definition of “personal information” set out in paragraph 3(m) of the Privacy Act. Such information is only exempt pursuant to subsection 19(1) when it is found to also be the personal information of another individual, such as in an eye witness account or where disclosure would reveal personal information about the victim’s surviving family.

[18]    Where information such as report titles have been withheld, the OIC questioned how this is the personal information of an identifiable individual. ESDC’s explanation in response to the OIC’s request for representations, that disclosure of this information could result in personal information being pieced together, fails to provide any specific details as to how ESDC determined that there was a serious risk of re-identification with respect to this information. Consequently, I find that ESDC has not demonstrated that a proper analysis was performed in order to determine whether this information is about an identifiable individual.

[19]    Pursuant to paragraph 35(2)(d), the OIC consulted the Office of the Privacy Commissioner (OPC). The OPC agreed with my assessment as laid out above and advised that ESDC should proceed with care when determining to which individual(s) information relates and whether there is a serious risk of re-identification. The OPC raised the following points for consideration:

[20]    I conclude that some of the withheld information does not meet the requirements of subsection 19(1), where the individual to whom the information relates is not identifiable, or where the information relates solely to an individual whose death occurred more than 20 years before the request was processed.

Was the institution’s discretion triggered and, if so, did the institution reasonably exercise its discretion to decide whether to disclose the information?

[21]    Since some of the information 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.

[22]    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. Since some families are interested in obtaining these reports, as evidenced by the access requests they may make to obtain them, some families may also be willing to consent to disclosure of the information relating to the deceased. The OIC questioned whether ESDC made reasonable efforts to seek consent, and where it did not seek consent, why ESDC did not consider it reasonable to seek such consent. In light of the information before me, I am satisfied that seeking consent would not have been reasonable.

[23]    I conclude that the circumstances set out in paragraph 19(2)(a) did not exist when ESDC responded to the access request. Consequently, there is no need to examine the issue of discretion under paragraph 19(2)(a).

[24]    Under paragraph 19(2)(b), ESDC’s discretion would have been triggered if the personal information was publicly available. The OIC asked ESDC if it turned its mind to whether the personal information was publicly available at the time it processed the request, as the OIC found some of the personal information to be available online.

[25]    In its representations, ESDC indicated that it is aware that some information related to the fatalities in question is public, but ESDC asserted that the public information is not the same as the information within the records. I disagree that there is no overlap between the publicly available information and the information at issue. Where an individual’s death is publicly linked to a third-party workplace incident, it seems evident that ESDC’s discretion would be triggered to disclose that it investigated that individual’s death, as it would only reveal what is publicly available (that an individual’s death occurred at work) and that ESDC was carrying out its mandate of investigating such fatalities.

[26]    ESDC also indicated that, should its discretion be triggered, it could reasonably exercise its discretion in order to withhold publicly available information. It did not, however, indicate what factors it considered that would favour the non-disclosure of any public information. ESDC did not provide sufficient information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information where its discretion was triggered pursuant to paragraph 19(2)(b). Consequently, I must conclude that ESDC did not show that it had reasonably exercised its discretion.

[27]    Discretion is also triggered under paragraph 19(2)(c) when the disclosure would be in accordance with section 8 of the Privacy Act. Given that the records relate to workplace fatalities, the OIC questioned whether ESDC 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”. ESDC indicated that it had considered whether any public interest existed, but felt that in most cases it did not, as the deaths were either deemed not to be work related or accidental. Where ESDC did consider there could be a public interest in disclosure, ESDC did not find it outweighed the invasion of privacy that would have resulted from disclosure, as safety related details were already released to the media and disclosure would not further the public interest. ESDC’s assertion that any details of public safety interest are already in the public domain is inconsistent with what I have found to be in the public domain, and ESDC has not pointed to any specific examples of such instances where the public interest is already served by what has been made public.

[28]    ESDC did not show that it adequately considered to what extent the public interest would be served by disclosing the information, and therefore has not demonstrated that it properly weighed the public interest against the invasion of the individual’s privacy. Consequently, I must conclude that ESDC did not show that it had determined whether the circumstance set out in paragraph 19(2)(c) existed, which prevented it from exercising its discretion when appropriate.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[29]    Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

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

• The information is financial, commercial, scientific or technical.
• The information is confidential.
• The third party supplied the information to a government institution.
• The third party has consistently treated the information as confidential.

[31]    When these requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) 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.

Does the information meet the requirements of the exemption?

[32]    I accept that some of the withheld information relates to third-party-specific procedures, equipment and processes, making some of it commercial or technical information meeting the first requirement of the exemption. Although in its representations to ESDC, CP identified “summaries of events, information on CP specific procedures and a photograph” as being commercial or technical information, neither ESDC nor the third parties provided me with sufficient representations to determine to what extent the withheld information is commercial or technical in nature. Fatality incidents would not seem to be an integral part of these companies’ commercial operations. The OIC questioned to what extent the records reveal third party methods or how the third parties conduct their operations, so as to make the information fall under the ordinary meanings of commercial or technical information. Some information in particular does not clearly fit within the common definitions of financial, commercial, scientific or technical information.

[33]    It should be noted that the fact that operations have a commercial purpose, does not render all information related to those operations commercial information, within the ordinary meaning of that term. Such a broad interpretation was rejected in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board) et al., 2006 FCA 157 at para. 69, where the Federal Court of Appeal explained:

[34]    The information at issue does not pertain to trade or commerce. Instead, the records involve regulatory inspectors’ observations and findings regarding fatalities. This is not commercial information and does not become commercial information simply because it somehow relates to an entity’s commercial operations.

[35]    I am also not convinced that the bulk of the redacted information (consisting of ESDC inspectors’ summaries, notes and conclusions) constitutes technical information, within the ordinary meaning of that term. While it may be that small portions of the information at issue could fit this criterion, no such portions were specifically identified by the third parties or ESDC. Additionally, those portions would only be capable of being withheld under paragraph 20(1)(b) if all other requirements of the exemption are met.

[36]    I find that the information does not meet the first requirement of the exemption where the information does not relate to third-party-specific training, procedures, equipment or processes.

[37]    The second requirement of paragraph 20(1)(b) is that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:

• the content of the record is not available from sources otherwise accessible to the public or obtainable by observation or independent study by a member of the public acting on their own;
• the information originates and is communicated in a reasonable expectation of confidence that it will not be disclosed; and
• the information, whether provided by law or supplied voluntarily, be communicated in a relationship between government and the third party that is either a fiduciary relationship or one that is not contrary to the public interest, and that will be fostered for the public benefit by confidential communication. (see Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 27 FTR 194 (F.C.T.D.).

[38]    Details of the deaths of some of the employees have been made public to a certain extent, as mentioned in the analysis of the associated personal information. As a result, I am not convinced that the conditions for objective confidentiality can be met where disclosure would only reveal already public information.

[39]    To the extent that the withheld information was made publicly available through Court proceedings, as some of it would seem to have been, I am not convinced that this information is objectively confidential. Consequently, any such information does not meet the requirements for exemption pursuant to paragraph 20(1)(b).

[40]    I am also not convinced that any of the information at issue originated and was communicated with a reasonable expectation that it would not be disclosed. The records at issue were created and communicated within the context of ESDC’s mandate under the Canada Labour Code of investigating the deaths of employees that occurred in the work place or while the employee was working.

[41]    In its representations to ESDC, CN submitted that confidentiality is provided for under the Canada Labour Code. Although subsection 144(3) of the Canada Labour Code is listed under Schedule II and would allow ESDC to invoke subsection 24(1) of the Access to Information Act to withhold secret processes and trade secrets, ESDC did not invoke subsection 24(1) at the time it processed the request, and did not claim it in response to my representations request. Nor did CN provide ESDC or the OIC with representations as to how the withheld information constitutes secret processes or trade secrets. Consequently, I conclude that the information at issue here is not confidential by virtue of the Canada Labour Code. If Parliament had intended section 144 of the Canada Labour Code to protect the confidentiality of all information gathered by ESDC during investigations, the OIC would expect Schedule II of the Access to Information Act to include more than the explicit protection for trade secrets or secret processes.

[42]    Subsections 144(5) and (5.01) of the Canada Labour Code would appear to reduce any reasonable expectation of confidentiality of information obtained as a result of activities carried out in section 141. These provisions permit the publication or disclosure of such information if the Head is satisfied that this publication or disclosure would be in the interest of occupational health and safety or the public interest. I am not satisfied that all of the information was communicated within the context of a relationship between the third party and ESDC that would be fostered for public benefit by the communication’s confidentiality. Some of the information pertains to matters of safety. In light of this, the relationship would seem to be fostered for public benefit by the information’s disclosure, as opposed to confidentiality over the information that has been withheld.

[43]    Based on the above, it has not been established that the second requirement of paragraph 20(1)(b) is met for all but highly confidential information the disclosure of which would damage the relationship between the third parties and government contrary to the public interest. For example, the public interest would not appear to be served by disclosure of the details of a company’s processes or trainings that were not found to be linked to the employee’s cause of death.

[44]    Turning to the third requirement of paragraph 20(1)(b), I find that most of the information at issue was not supplied to a government institution by a third party. While the records may have been prepared with the benefit of observations made of third-party operations and, in some instances, with the benefit of information provided by third parties, that is not sufficient to render the information at issue supplied by those third parties. The case law under paragraph 20(1)(b) has repeatedly distinguished between information supplied by a third party and independent observations made based on information that has been supplied (see, for example: Merck Frosst v. Canada (Minister of Health), 2012 SCC 3, at paras. 152‐158; Canada (Transport) v. Air Transat A.T. Inc., 2019 FCA 286, paras. 71-81).

[45]    The portions of the records at issue that could be considered supplied by third parties are limited to information that emanated directly from those third parties without any added assessment, observation or commentary from ESDC officials, such as direct quotes from or copies of a third party’s internal documents. The bulk of the information does not consist of this type of information. Accordingly, with few exceptions, the third requirement of paragraph 20(1)(b) is not met.

[46]    Turning to the final requirement of paragraph 20(1)(b), based on the representations CN and CP provided to ESDC, it generally appears that these third parties have consistently treated this information as confidential. Given that no representations were received from the City of Ottawa, I cannot assume that it has consistently treated the information related to it as confidential.

[47]    I conclude that most of the withheld information does not meet all of the requirements of paragraph 20(1)(b). More specifically, I accept that the requirements of paragraph 20(1)(b) are met only where:

• the information emanated directly from CN or CP, without any added assessment, observation or commentary from ESDC officials;
• disclosure would reveal details of third-party-specific training, procedures, equipment or processes;
• the information is not publicly available; and
• disclosure would not be in the public interest for health and safety reasons.

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

[48]    Paragraph 20(1)(c) requires institutions to refuse to disclose 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.

[49]    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.

[50]    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.

[51]    When these requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclosure the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) 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.

Does the information meet the requirements of the exemption?

[52]    For paragraph 20(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[53]    In the present instance, CN has asserted that disclosure of the investigator’s determinations as to the cause of a fatality could be interpreted as assigning legal responsibility or even criminal guilt to CN. CP has indicated that the information at issue “may be used by competitors to the disadvantage and harm of CP, and general opinions of the investigators have possible legal implications” which could result in harm under 20(1)(c). Given the age of most of these reports, it seems unlikely that the reports themselves could reasonably be interpreted this way, as charges would likely have been brought against the third parties by this point, if this was the case. Additionally, the Courts have been skeptical of arguments relating to public misunderstanding, because it could undermine the fundamental purpose of access to information legislation – which is to give the public access to information so that the public may evaluate the information, and not to protect the public from the information (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 224). I find that the arguments made by the third parties are entirely speculative in nature.

[54]    The OIC also questioned whether ESDC could include an explanatory note, given the findings of the Federal Court in Concord Premium Meats Ltd. v. Canada (Food Inspection Agency), 2020 FC 1166 at paras. 122, 126-127. Although ESDC did not address this in its representations, I am not convinced that the potential harm to the third parties that is envisioned could not be prevented by the addition of such an explanatory note. For example, an explanatory note could clarify that the content of the reports are the general opinions of the investigators and should not be interpreted as findings of liability.

[55]    Finally, no explanation has been offered as to how disclosure could reasonably be expected to result in either a material financial loss or gain, or injury to a third party’s competitive position. Therefore, ESDC and the third parties have not demonstrated a clear and direct connection between disclosure of the information at issue, and a risk of harm within the meaning of paragraph 20(1)(c) that is well beyond the merely possible or speculative.

[56]    I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Was the institution’s discretion triggered and, if so, did the institution reasonably exercise its discretion to decide whether to disclose the information?

[57]    Since ESDC was of the view that the information meets the requirements of paragraphs 20(1)(b) and (c), it was required to reasonably exercise its discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when the two circumstances described in subsection 20(6) existed when it responded to the access request.

[58]    Given that some of the records relate to potentially preventable workplace fatalities, and that section 44 of the Railway Safety Act opens the door for railways to be somewhat self-policing, some portions of the records do appear to be relevant to public safety.

[59]    The OIC questioned whether ESDC turned its mind to the matter of public interest in disclosure and weighed the public interest against any financial impact on the third parties, any prejudice to their competitive positions, or any interference with their contractual or other negotiations.

[60]    ESDC indicated that it had considered whether any public interest existed, but felt that in most cases it did not, as the deaths were either deemed not to be work related or accidental. Where ESDC did consider there could be a public interest in disclosure, ESDC did not find it outweighed the potential impact disclosure could have on the third parties, as safety related details were already released to the media and disclosure would not further the public interest. ESDC’s assertion that any details of public safety interest are already in the public domain are inconsistent with what I have found to be in the public domain, and ESDC has not pointed to any specific examples of such instances where the public interest is already served by what has been made public. ESDC has also failed to identify any material harm to the third parties that would be likely to occur if the information were disclosed.

[61]    ESDC did not show that it adequately considered to what extent the public interest would be served by disclosing the information, nor has it demonstrated that the third-parties’ interests could be harmed by disclosure. Consequently, I must conclude that ESDC did not show that it had determined whether the circumstances described in subsection 20(6) existed, which prevented it from exercising its discretion when appropriate.

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

[62]    Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

[63]    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.

[64]    To claim this exemption, institutions must 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.

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

Does the information meet the requirements of the exemption?

[66]    ESDC applied paragraph 21(1)(b) on page 74 of the responsive records. I accept that the reference to a proposed course of action meets the requirements of the exemption, as it is an account of deliberations between ESDC employees and was created less than 20 years before the request was made.

[67]    I conclude that the information does meet the requirements of paragraph 21(1)(b).

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

[68]    Since the information meets the requirements of paragraph 21(1)(b), 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.

[69]    ESDC did not provide any information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information. Consequently, I must conclude that ESDC did not show that it had reasonably exercised its discretion.

Section 25: severance

[70]    Section 25 applies notwithstanding any other provision in the Access to Information Act. It requires institutions to disclose any part of a record that does not contain exempt information under the Act, and which can reasonably be severed from exempt information on the record. This is an extension of the principle that necessary exceptions to access should be limited and specific.

[71]    I note that ESDC withheld records related to CN in their entirety, while applying severance to the same type of records related to CP and the City of Ottawa. Given this discrepancy, and also because the records were created by ESDC (thus containing information that would not appear to meet the requirements of any third-party exemption), it appears that further severance should have been possible.

[72]    Consequently, I find that ESDC failed to adhere to section 25 in exempting the entirety of records related to CN. Accordingly, I ask that ESDC engage in a severance exercise in accordance with section 25, and the guidance provided on this section by the majority of the Supreme Court in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 229-238.

Result

[73]    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 information withheld under paragraph 16(1)(c) where it is not applied to personal information that cannot be severed from the information withheld under paragraph 16(1)(c);
2. Disclose the personal information of the individual who died more than 20 years prior to the date of the request, where I have not found the information to also be the personal information of others and where I have not found the requirements of paragraph 21(1)(b) to be met;
3. Where the information withheld under subsection 19(1) is not prima facie personal information, conduct an assessment of the risk of re-identification of the individual(s) to whom the information relates, and; where ESDC finds there is no serious risk of re-identification and I have not found another exemption to be validly applied, disclose this information;
4. Re-exercise discretion with respect to publicly available information, pursuant to paragraph 19(2)(b);
5. Determine whether the circumstance described in paragraph 19(2)(c) exists by considering all relevant public safety interests weighed against the invasion to the individuals’ privacy and, where ESDC finds the public interest to outweigh the invasion of privacy, reasonably exercise discretion to decide whether to release their personal information;
6. Disclose all information withheld under paragraph 20(1)(b) not meeting the requirements of the exemption, as outlined in my initial report, where I have not found another exemption to be validly applied;
7. Disclose all information withheld under paragraph 20(1)(c) where I have not found another exemption to be validly applied;
8. Determine whether the circumstance described in subsection 20(6) exists by considering all relevant public safety interests weighed against any financial impact on the third party, any prejudice to the third party’s competitive position, or any interference with its contractual or other negotiations and, where ESDC finds the public interest to outweigh the potential harm to a third party, reasonably exercise discretion to decide whether to release the third-party information; and
9. Exercise discretion with respect to the information withheld pursuant to paragraph 21(1)(b).

On July 5, 2023, I issued my initial report to the Minister of Employment and Social Development setting out my order.

On August 8, 2023, ESDC gave me notice that ESDC would be implementing my order.

I have provided CN, CP and the Privacy Commissioner of Canada with this report.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They 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.