Decisions

The complainant alleged that Crown‐Indigenous Relations and Northern Affairs Canada (CIRNAC) had improperly withheld information under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act. The request was for records related to the ownership, sale, reversion or return of lands on or around the Bruce/Saugeen Peninsula, dating from the 1850s to 1980.

The investigation determined that CIRNAC exempted all of the responsive records in their entirety under section 23.

While CIRNAC acknowledged that the information was not subject to solicitor-client privilege, CIRNAC claimed that the records at issue may be subject to litigation privilege and cited several ongoing matters in the Federal Court of Canada as evidence of this.

The Information Commissioner concluded that CIRNAC fell well short of establishing that the records at issue are subject to litigation privilege. Moreover, CIRNAC failed to demonstrate that any of the records at issue were produced or gathered for the dominant purpose of the cited litigation or related litigation.

The Commissioner recommended that the Minister of Crown-Indigenous Relations disclose the records in their entirety.

CIRNAC gave notice to the Commissioner that it would not be implementing the recommendation.

The complaint is well founded.

The complainant alleged that the Department of Justice Canada (Justice) did not conduct a reasonable search in response to an access request under the Access to Information Act for documents related to a 2009 Ontario Regional Office workplace-based report compiled or prepared by a consultant. The complaint falls within paragraph 30(1)(a) of the Act.

Justice tasked the Regional Office and the Deputy Minister’s Office, both of which found no responsive records. The retention period for this kind of record is five years, and the request was made seven years past the disposition date. Justice concluded that, if the records did previously exist, they would have been destroyed.

Given the wording of the request, the OIC pursued the question of whether Justice would have been required to contact the consultant directly in order to conduct a reasonable search. Justice maintained its position that it would not have been reasonable to expect ATIP to task the consultant directly for the 2009 Report because: the business need was time limited due to the specific circumstances of the work conducted; copies of the records held or created under that contract should no longer be in the possession of any contractor; and the matter related to that contract was no longer active.

Accordingly, the OIC concludes that Justice conducted a reasonable search for records in response to the access request.

The complaint is not well founded.

The complainant alleged that the Privy Council Office (PCO) had improperly withheld information under subsection 15(1) (national security, defence) and 19(1) (personal information) of the Access to Information Act in response to an access request for historical Canadian intelligence assessments records contained in specific files. The complaint falls within paragraph 30(1)(a) of the Act. PCO showed that it met all the requirements of subsection 19(1). However, PCO could not show that it met all of the requirements of subsection 15(1), in particular, how the release of the subject information would harm national security and/or the defence of Canada. The Information Commissioner ordered PCO to disclose the records in their entirety. PCO gave notice to the Information Commissioner that it would not be implementing the order.

The complaint is well founded.