Decisions

The complainant alleged that Health Canada had improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act. This wasin response to an access request for two versions of a non-clinical overview of the Novavax SARS CoV-2 rS vaccine. This complaint falls within paragraph 30(1)(a) of the Act.

Paragraph 20(1)(b) was applied to withhold two versions of a non-clinical overview of Novavax’s COVID-19 Vaccine which had been supplied to Heath Canada for the purpose of seeking Canadian marketing authorization.

The OIC is satisfied that the information qualifies for exemption as it is confidential third-party financial, commercial, scientific or technical information. Furthermore, the OIC concludes that the circumstances set out in subsections 20(5) and 20(6), which would require Health Canada to reasonably exercise its discretion to decide whether to release the information, did not exist when Health Canada responded to the access request.

The complaint is not well founded.

The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly excluded information pursuant to paragraph 68(a) (material available for purchase) of the Access to Information Act. This was in response to an access request for real-time and archived weather radar data. The complaint falls within paragraph 30(1)(a) of the Act.

ECCC showed that the information was available for purchase through a cost-recovery system. As a result, the Act does not apply.

The complaint is not well founded.

The Information Commissioner determined that a complaint was inadmissible as it did not meet the requirements of section 31 of the Access to Information Act.

Under section 31, requesters “shall” submit their complaint within a prescribed time limit. “Shall” means “must”—that is, it is mandatory for requesters to submit their complaints on or before the 60-day time limit.

The prescribed time limit to submit complaints is 60 days after one of the following:

• the day requesters receive a notice under section 7 that the institution refuses to grant access to part or all of the requested records
• the day requesters obtain access to part or all of the requested records
• in any other case, the day requesters become aware that grounds for complaint exist.

The Act does not allow the Information Commissioner to investigate complaints submitted to her after the 60-day time limit. Nor does the Act give the Commissioner the power to extend this time limit.

In the present instance, the complainant received the response from the institution by email but indicated that they had inadvertently deleted this email from their inbox before they had had the opportunity to review it.

It is the complainant’s view that they became aware of the grounds of complaint when they found the email and reviewed the content of the institution’s response and that the period for calculating the 60-day time limit to submit the complaint should start from that date.

However, it is clear from section 31 that Parliament wanted the period in which to submit a complaint to run from the day after the day the requester receives the response to their access request (a notice under section 7 or obtaining access to part or all of the requested records).

The words “in any other case” in section 31 refer to any situation other than receiving a response. Therefore, “in any other case” does not apply to the period Parliament prescribed as starting from when the requester receives the response. In addition, these words do not indicate that the prescribed period for submitting a complaint after a response is received can be extended.

If “in any other case” were interpreted as applying to the period that begins when requesters receive a response to their access and to the period that begins when they become aware that grounds for complaint exist, Parliament’s express references elsewhere in section 31 to the day requesters receive a notice under section 7 or receive records would not make sense.

The period for submitting the complaint began on the day after the response from the institution was received, not from the day the complainant found the deleted email.

Accordingly, the Information Commissioner did not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.

The complainant alleged that Transport Canada had improperly withheld information under subsection 19(1) (personal information) and paragraphs 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act. This was in response to an access request for specific types of records related to a Boeing 737 MAX aircraft system (Maneuvering Characteristics Augmentation System (MCAS)). The complaint falls within paragraph 30(1)(a) of the Act.

Personal information withheld under subsection 19(1) was removed from the scope of the complaint.

Transport Canada withheld the responsive records in full under paragraphs 20(1)(a), (b) and (c) concurrently.

The institution and third party did not demonstrate that the requirements of paragraph 20(1)(a) were met, that all of the information is confidential financial, commercial, scientific or technical information meeting the requirements of paragraph 20(1)(b) or that general and innocuous information met the requirements of paragraph 20(1)(c).

The Information Commissioner ordered that Transport Canada disclose specific information at issue and re-exercise discretion under subsection 20(6).

Transport Canada gave notice that it would disclose specific pages in accordance with the order.

The complaint is well founded.