Decisions

The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under subsections 16(2) (facilitating the commission of an offence) and 19(1) (personal information), and paragraphs 20(1)(b) (confidential third‐party financial, commercial, scientific or technical information), 21(1)(a) (advice or recommendations) and 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act. This was in response to an access request for information concerning the Roberts Bank Terminal 2 Project, specifically relating to biofilm and shorebirds. The complaint falls within paragraph 30(1)(a) of the Act.

The application of subsections 16(2) and 19(1) to withhold the records at issue was removed from the scope of the complaint.

ECCC showed that the records, with the exception of a scientific manuscript, met all the requirements of paragraphs 21(1)(a) or 21(1)(b), though there were inconsistencies in disclosure.

During the investigation, ECCC decided to no longer oppose disclosure of the manuscript that had been withheld under paragraphs 20(1)(b), 21(1)(a) and 21(1)(b). The third party did not respond to the Office of the Information Commissioner’s requests for representations.

The Information Commissioner ordered that ECCC disclose the manuscript. The Commissioner also ordered ECCC to correct the inconsistencies in disclosure.

ECCC gave notice that it would implement the order.

The complaint is well founded.

The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information under subsection 16(2) (facilitating the commission of an offence) and 19(1) (personal information), paragraphs 21(1)(a) (advice and recommendations), 21(1)(b) (accounts of consultations or deliberations), section 23 (solicitor client and litigation privilege), and excluded information under subsection 69(1) (cabinet confidences) of the Access to Information Act in response to a request for records related to the Alternate Independent Process (AIP) for St-Anne’s Residential School hearings for a specific time period. The complaint falls within paragraph 30(1)(a) of the Act. Justice could not show that it met all the requirements of section 23, whether solicitor-client or litigation privilege, in regards to several records consisting of communications that took place beyond the scope of solicitor-client relationship. More particularly, Justice did not establish the existence of common interest privilege with regard to different parties to litigation despite its claims of a sui generis relationship between parties established under the Indian Residential Schools Settlement Agreement (IRSSA).The Information Commissioner recommended that the Minister of Justice disclose all of the information withheld pursuant to section 23 which does not meet the requirements of the exemption, including but not limited to, exchanges between Justice and other parties to the litigation. Justice gave notice to the Commissioner that it maintains the application of section 23, but that it undertakes to review the records at issue to determine what information could be disclosed in the context of the overall application of the Act. The complaint is well founded.