Parks Canada (Re), 2023 OIC 26
Date: 2023-09-26
OIC file number: 5822-03293
Institution file number : A-2021-00090
Summary
The complainant alleged that Parks Canada had improperly withheld information under subsection 19(1) (personal information), paragraphs 21(1)(a) (advice or recommendations), 21(1)(b) (accounts of consultations or deliberations) and 21(1)(c) (positions or plans developed for negotiations), and section 23 (litigation privilege) of the Access to Information Act. This was in response to an access request for records related to Benga Mining or the Grassy Mountain Coal Project and communications, including internal records relating to such communications, regarding Benga Mining or the Grassy Mountain Coal Project, that were exchanged between the institution and the Alberta Energy Regulator. The complaint falls within paragraph 30(1)(a) of the Act.
During the processing of their request, the complainant had expressly indicated that they were not interested in information not related to Benga Mining or the Grassy Mountain Coal Project. The Commissioner was satisfied that based on the particular facts of this case, Parks Canada was justified in not processing records, or portions thereof, which the complainant had agreed should not be considered part of the response to their request.
During the course of the investigation, Parks Canada disclosed a portion of the record initially withheld under paragraph 21(1)(a). The Information Commissioner was satisfied that the information that remained withheld under subsection 19(1), paragraph 21(1)(a) and section 23 met the criteria of the exemptions.
The complaint is well-founded.
Complaint
[1] The complainant alleged that Parks Canada had improperly withheld information under subsection 19(1) (personal information), paragraphs 21(1)(a) (advice or recommendations), 21(1)(b) (accounts of consultations or deliberations) and 21(1)(c) (positions or plans developed for negotiations), and section 23 (litigation privilege) of the Access to Information Act. This was in response to an access request for records related to Benga Mining or the Grassy Mountain Coal Project and communications, including internal records relating to such communications, regarding Benga Mining or the Grassy Mountain Coal Project, that were exchanged between the institution and the Alberta Energy Regulator.
[2] During the processing of their request, the complainant had expressly indicated that they were not interested in records, or portions of records, involving information about persons or organizations other than the Alberta Energy Regulator and/or the Benga Mining or the Grassy Mountain Coal Project. As a result, any information not involving the Alberta Energy Regulator and/or the Benga Mining or the Grassy Mountain Coal Project was removed or redacted by Parks Canada as being “not relevant” to the request. During the course of the investigation, the complainant raised concerns regarding the fact that the “not relevant” information was removed from their disclosure package.
[3] The complaint falls within paragraph 30(1)(a) of the Act.
Investigation
[4] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
[5] On July 6, 2023, due to the passage of time, Parks Canada disclosed information on page 208 of the records, which it had withheld under paragraph 21(1)(a) when it responded to the access request. Parks Canada continued to withhold the remaining information under subsection 19(1), paragraphs 21(1)(a), 21(1)(b) and 21(1)(c), and section 23.
Subsection 19(1): personal information
[6] Subsection 19(1) requires institutions to refuse to disclose personal information.
[7] 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).
[8] 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.
[9] 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?
[10] Parks Canada provided the Office of the Information Commissioner (OIC) with representations demonstrating that the exempted information is personal information about an identifiable individual, who is not the complainant, and that the information does not fall under any of the exceptions set out in the Privacy Act.
[11] I conclude that the information meets the requirements of subsection 19(1).
Is disclosure warranted under subsection 19(2)?
[12] Since the information meets the requirements of subsection 19(1), Parks Canada 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.
[13] Parks Canada provided a detailed rationale as to why the circumstances in subsection 19(2) did not exist in this case:
- It gave specific reasons why it would not have been appropriate to seek the consent of the individual to whom the personal information relates.
- It showed that the information is not publicly available.
- It demonstrated that the disclosure of the information would not be consistent with section 8 of the Privacy Act.
[14] I conclude that the circumstances set out in subsection 19(2) did not exist when Parks Canada responded to the access request. Consequently, there is no need to examine the issue of discretion.
Paragraph 21(1)(a): advice or recommendations
[15] Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.
[16] To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.
To claim this exemption, institutions must then show the following:
- The information is advice or recommendations.
- The information was developed by or for a government institution or minister.
[17] When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.
[18] However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose 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?
[19] Paragraph 21(1)(a) was applied to withhold information on pages 267, 268, 306, and 307 of the records. The withheld information consists of excerpts of presentations from two different meetings of the Impact Assessment Committee, both before and after the release of a Joint Panel Review Report, relating to the Grassy Mountain Coal Project. Some of the information was withheld concurrently under paragraphs 21(1)(b) and/or 21(1)(c).
[20] I accept that the information on pages 267-268 and 306-307 consists of advice and recommendations.
[21] Employees of multiple government departments, as well as the Impact Assessment Committee, developed and presented the advice and recommendations to the senior officials of multiple government departments who attended the committee meetings.
[22] Parks Canada demonstrated that the information constitutes advice and recommendations that were developed by and for a government institution. Furthermore, the records were created less than 20 years before the access request was made.
[23] With respect to the information found on page 208, Parks Canada continued to argue that it also met the requirements of paragraph 21(1)(a) but, agreed to release it during the investigation due to the passage of time. While page 208 has been released, I wish to indicate that Parks Canada had not presented sufficient representations to convince me that the information met the requirements for exemption under paragraph 21(1)(a) and I would have ordered its release.
[24] Consequently, I am now satisfied that the information that remains withheld meets the requirements of paragraph 21(1)(a).
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[25] Since the information on pages 267-268 and 306-307 meets the requirements of paragraph 21(1)(a), Parks Canada was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, Parks Canada had to consider all the relevant factors for and against disclosure.
[26] Parks Canada demonstrated that it considered the factors for and against the disclosure of the information, including the general purpose of the Act, specifically, transparency of the activities of government. It also considered the impact of disclosing government strategies, in particular, that releasing the information would prejudice its ability to leverage these strategies in the future. Parks Canada determined that the harm in disclosure outweighed the factors in favour of the release of information.
[27] I conclude that Parks Canada considered all relevant factors when it decided not to disclose the information. Consequently, I find that the exercise of discretion by Parks Canada was reasonable.
[28] Since the information meets the requirements of this exemption, it is not necessary to examine the application of paragraphs 21(1)(b) and 21(1)(c) to withhold the same information.
Section 23: litigation privilege
[29] Section 23 allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.
[30] To claim this exemption with regard to litigation, institutions must show the following:
- The information was prepared or gathered for the dominant purpose of litigation.
- The litigation either is in progress or is reasonably expected to occur.
[31] Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.
[32] When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[33] Parks Canada applied section 23 to withhold pages 1-47 of the records in their entirety. Parks Canada demonstrated that the records at issue were prepared for the dominant purpose of litigation. Parks Canada has demonstrated that all of the material at issue remains a subject of litigation.
[34] In light of the explanation provided, I am satisfied that the information withheld under section 23 meets the criteria for exemption.
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[35] Since the information meets the requirements of section 23, Parks Canada was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, Parks Canada had to consider all the relevant factors for and against disclosure.
[36] Parks Canada outlined that it considered the purpose of the Act, specifically transparency, in its decision. However, it determined that releasing the information would cause injury to the government’s legal positions pending the ongoing litigation. It determined that the harms of releasing the information, including the sensitivity of the information and the circumstances of the litigation, outweighed the factors in favour of the release of the information.
[37] In light of the above, I accept that Parks Canada reasonably applied its discretion by considering the reasons for and against disclosure, in its decision to withhold the information.
Not Relevant Records
[38] During the investigation, Parks Canada established that the complainant had expressly agreed that records that included information about persons or organizations other than the Alberta Energy Regulator and/or the Benga Mining or the Grassy Mountain Coal did not need to be processed. The complainant acknowledged that this was the case. Accordingly, Parks Canada redacted that type of the information from the records as “not relevant” to the complainant’s request.
[39] In reviewing the responsive records I am satisfied that the information marked as “not relevant” is information about persons or organizations other than the Alberta Energy Regulator and/or the Benga Mining or the Grassy Mountain Coal, given that Parks Canada had a written acknowledgment from the complainant that they did not want this other information, I note that it was not processed. This means that potential third parties were not consulted and exemptions were not considered as the information in question was simply removed from the response as not being relevant to the request. In light of the foregoing, it would be unfair to Parks Canada at this juncture, to alter the scope of the request that the complainant had agreed to. I also note that the complainant, when invited to provide submissions as to why in these circumstances Parks Canada ought to have processed or disclosed additional information, failed to provide any representations on this issue.
[40] I am satisfied that based on the particular facts of this case, Parks Canada was justified in not processing records, or portions thereof, which the complainant had initially and expressly agreed should not be considered part of the response to their request. Should the complainant be interested in this additional information, they have a right to submit a new request, which, Parks Canada will process in accordance with the Act.
Result
[41] The complaint is well founded.
While I find that the information found on page 208 did not meet the requirements of paragraph 21(1)(a), I note that it has already been disclosed. Accordingly, there is no longer a need for me to issue an order.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right 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.