Decisions

In January of 2021, the Information Commissioner initiated a systemic investigation into Library and Archives Canada’s (LAC) delayed responses to access requests. This investigation was prompted by the Office of the Information Commissioner’s (OIC) investigations conducted over a number of years, resulting in findings that LAC was not responding to access requests by the legislative deadlines, a trend that worsened during the pandemic.

The complaint is well founded since the investigation found that for the period under investigation, almost 80% of the requests completed by LAC did not comply with the timeframes set out in the Act.

In January 2022, the Minister of Canadian Heritage, as head of LAC was informed of the Commissioner’s findings. A total of ten (10) recommendations were made to the Minister and a response to the Commissioner’s recommendations was received in February 2022.

In April 2022, the Commissioner tabled a special report in Parliament pursuant to paragraph 39(1) of the Act. The special report sheds light on issues within LAC and also draws Parliament’s attention to two broader challenges facing Canada’s access to information system:

• the manner in which consultations on access requests are conducted between institutions; and
• the lack of a Government-wide framework for the declassification of records.

The complainant alleged that the Vancouver Fraser Port Authority had improperly withheld information under paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), paragraph 18(d) (government financial interests, government of Canada’s ability to manage the economy, undue benefit to an individual), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request for records related to $103 million of funding from the National Trade Corridors Fund to be provided to the Vancouver Fraser Port Authority. The complaint falls within paragraph 30(1)(a) of the Act.

The institution did not demonstrate that all information it withheld under paragraphs 18(b) and (d) met the requirements of those exemptions.

The institution and third party did not demonstrate that the requirements of paragraphs 20(1)(b) and (d) were met for any of the withheld information.

The Information Commissioner ordered the Vancouver Fraser Port Authority to disclose all information withheld under paragraphs 20(1)(b) and (d) and disclose specifc information withheld under paragraphs 18(b) and (d).

The Vancouver Fraser Port Authority gave notice that it would implement the order.

The complaint is well founded.

The complainant alleged that the 2,280-day time taken by Department of Justice Canada (Justice) to respond to a request under the Access to Information Act is unreasonable.

Justice notified the complainant that the response would require an additional 2,280 days beyond the original 30 days pursuant to paragraphs 9(1)(a) and 9(1)(b) of the Act to complete the processing of the request.

Justice did not show that it met all the requirements of paragraph 9(1)(a), in particular it did not sufficiently justify the length of the extension claimed.

The Information Commissioner ordered the Minister of Justice to provide a final response forthwith.

Justice gave notice to the Commissioner that it would comply with her order and respond to the request forthwith.

The complaint is well founded.

In January of 2021, the Information Commissioner initiated a systemic investigation into Library and Archives Canada’s (LAC) delayed responses to access requests. This investigation was prompted by the Office of the Information Commissioner’s (OIC) investigations conducted over a number of years, resulting in findings that LAC was not responding to access requests by the legislative deadlines, a trend that worsened during the pandemic.

The complaint is well founded since the investigation found that for the period under investigation, almost 80% of the requests completed by LAC did not comply with the timeframes set out in the Act.

In January 2022, the Minister of Canadian Heritage, as head of LAC was informed of the Commissioner’s findings. A total of ten (10) recommendations were made to the Minister and a response to the Commissioner’s recommendations was received in February 2022.

In April 2022, the Commissioner tabled a special report in Parliament pursuant to paragraph 39(1) of the Act. The special report sheds light on issues within LAC and also draws Parliament’s attention to two broader challenges facing Canada’s access to information system:

• the manner in which consultations on access requests are conducted between institutions; and
• the lack of a Government-wide framework for the declassification of records.

The complainant alleged that Parks Canada had improperly withheld under subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act, portions of Liricon Capital Ltd.’s (Liricon) draft feasibility study for Aerial Tram and Mount Norquay Ski Area Re-Development, dated May 18, 2018. The complaint falls within paragraph 30(1)(a) of the Act.

Personal information withheld under subsection 19(1) and information relating to Sulphur Mountain Gondola were removed from the scope of the complaint.

During the investigation, Parks Canada decided to no longer rely on paragraphs 20(1)(c) and (d) to withhold information, instead relying on paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information).

The institution and third party did not demonstrate that the requirements of paragraph 20(1)(b) were met where they no longer oppose disclosure and where certain information is publicly available.

The Information Commissioner ordered that Parks Canada disclose specific information at issue.

Parks Canada gave notice that it would implement the order.

The complaint is well founded.

The complainant alleged that Trans Mountain Corporation (TMC) had improperly withheld information under paragraphs 21(1)(a) (advice or recommendations), 21(1)(b) (accounts of consultations or deliberations) and section 26 (information to be published) of the Access to Information Act in response to an access request for documents pertaining to the Trans Mountain Project and related to specific TMC Board of Directors meetings held in 2019.

During the course of the investigation, TMC informed the OIC that it had decided to continue to withhold all of the information responsive to the request, in accordance with, not only the three exemptions mentioned above, but also the following twelve exemptions: paragraphs 13(1)(c) (confidential information from government bodies), 18(a) (government financial, commercial, scientific or technical information), 18(b) (competitive position of government institutions), 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(b.1) (third-party emergency management plans), 20(1)(c) (financial impact on a third party), 20(1)(d) (negotiations by a third party), and sections 17 (safety of individuals), 22 (testing or auditing procedures or techniques), 22.1 (draft internal audit reports and their working papers), and 23 (legal advice and litigation privilege) of the Act.

TMC failed to convince the Commissioner that it had applied the Act correctly to the entirety of the information found in the record and did not provide sufficient details for the Commissioner to decide whether it had reasonably exercised its discretion to decide not to release the information. Accordingly, the Commissioner found that further disclosure was warranted.

As a result, the Commissioner provided the President and Chief Executive Officer of TMC with her initial report setting out her intended order to disclose all information withheld under the Act.

Following receipt of the Commissioner’s intended order, the President and Chief Executive Officer of TMC gave the Commissioner notice that he would be partially implementing her order by releasing portions of the records. Thereafter, the complainant indicated to the OIC that they were satisfied with the additional information that had been released. Therefore, an order was no longer required.

The complaint is well founded.