Agriculture and Agri-Food Canada (Re), 2023 OIC 21

Date: 2023-08-08
OIC file number: 5821-03240
Institution file number: A-2021-00001

Summary

The complainant alleged that Agriculture and Agri-Food Canada (AAFC) had improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request for communications with the National Farm Animal Care Council (NFACC) regarding the Five-Year Review Summary Report and the proposed amendments to the Code of Practice for the Care and Handling of Pigs. The complaint falls within paragraph 30(1)(a) of the Act.

During the course of the investigation, the AAFC disclosed portions of records initially withheld pursuant to subsection 19(1) and paragraph 20(1)(b).

The Information Commissioner was satisfied that the information that remained withheld under subsection 19(1) met the criteria of the exemption. The AAFC reasonably exercised its discretion to decide not to release the information.

Neither the institution nor the third party demonstrated that the information met the requirements for exemption pursuant to paragraph 20(1)(b).

The complaint is well founded.

The Commissioner ordered the AAFC to disclose all information withheld under paragraph 20(1)(b), unless it qualifies for exemption pursuant to subsection 19(1) or is outside the scope of the request, as outlined in the report.

The institution gave notice to the Commissioner that it would not follow the order, in light of new information regarding the impacts releasing the information would have, and that it would be applying to the Federal Court pursuant to subsection 41(2) of the Act.

Complaint

[1] The complainant alleged that Agriculture and Agri-Food Canada (AAFC) had improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request for communications with the National Farm Animal Care Council (NFACC) regarding the Five-Year Review Summary Report and the proposed amendments to the Code of Practice for the Care and Handling of Pigs. The complaint falls within paragraph 30(1)(a) of the Act.

[2] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the brief redactions pertaining to two third parties on page 8 of the records. The complainant also decided it was no longer necessary to investigate references to NFACC issues outside the scope of the request’s subject matter (the Code of Practice), such as the information on pages 7 and 20.

Investigation

[3] When an institution withholds information related to a third party, the third party and/or the institution bear the burden of showing that refusing to grant access is justified.

[4] During the course of the investigation, the AAFC disclosed portions of records initially withheld pursuant to subsection 19(1) and paragraph 20(1)(b).

[5] In response to the OIC’s notice pursuant to 36.3, the NFACC submitted that the records (emails) in question should not be disclosed because they are not under the control of the government and are not caught by the disclosure provisions of the Act.

Control of records

[6] The Act provides requesters with a right of access to records that are under the control of government institutions. While the Act does not define “control,” the Supreme Court of Canada held that the term should be interpreted broadly and liberally to provide a meaningful right of access. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.)

[7] When records are not under the control of the institution, they do not fall within the scope of the Act. Therefore, institutions are not required to give access to them.

Are the records under the control of the institution?

[8] The NFACC asserts that the AAFC employee, who acted as a representative of the AAFC on the Board and as an ex-officio member of the Executive, was privy to the Executive meetings and communications as a member of the Executive, not as an employee of the AAFC. The NFACC does acknowledge that the employee was eligible for his position on the Executive by virtue of his employment with AAFC; however, they state he was not expected to share Executive-level information with the AAFC and was not authorized to share the information at issue.

[9] While the NFACC asserts that the records at issue are not under the control of the AAFC, I note that the AAFC treated the records as being under its control. This is demonstrated by the fact that the AAFC processed the records under the Act, disclosing portions of the records while withholding other portions based on the exemptions in sections 19 and 20 of the Act.

[10] The records include email communications sent and received by an AAFC employee who held a position on the NFACC Board and Executive, as a representative of the AAFC. Since the records in question were processed under the Act by the AAFC, it is clear that the AAFC concluded that it had control over these records. As the converse was not established during the investigation, it was determined that the matter did not need to be further addressed and I went on to consider the application of exemptions.

Subsection 19(1): personal information

[11] Subsection 19(1) requires institutions to refuse to release personal information.

[12] 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).

[13] When these requirements are met, institutions must then consider whether the following circumstances exist:

The person to whom the information relates consents to its release.
The information is publicly available.
Disclosure of the information would be consistent with section 8 of the Privacy Act.

[14] When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[15] The information that remains withheld includes the names and email addresses of individuals participating in email communication as senders or recipients, or individuals being discussed in the email communications.

[16] I accept that the names and contact information of NFACC members qualifies as personal information under subsection 19(1). This information is about identifiable individuals and there is a serious possibility that releasing the information in question would identify those individuals. The names and email addresses of private individuals also do not fall under the exceptions set out in paragraphs 3(j) to 3(m) of the Privacy Act.

[17] On pages 4 and 5, two of the comments relating to a government employee are of a personal nature. I accept that these statements also fall within the scope of the exemption.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[18] Since the information at issue meets the requirements of subsection 19(1), the AAFC 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.

[19] With respect to the names and contact information of the NFACC Executive members, the NFACC explained that the Executive members are not published on the website or otherwise publicly available.

[20] With respect to the comments concerning an AAFC employee, there is no evidence that this information is publicly available or that the employee consented to the release of their personal information.

[21] Furthermore, there is no evidence to suggest that the disclosure of the personal information withheld under subsection 19(1) would be consistent with section 8 of the Privacy Act.

[22] I conclude that the circumstances set out in subsection 19(2) did not exist when the AAFC responded to the access request. Consequently, there is no need to examine the issue of discretion.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[23] Paragraph 20(1)(b) requires institutions to refuse to release confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

[24] To claim this exemption, institutions must show the following:

The information is financial, commercial, scientific or technical.
The information is confidential.
The third party supplied the information to a government institution.
The third party has consistently treated the information as confidential.

Does the information meet the requirements of the exemption?

[25] Paragraph 20(1)(b) requires representations from the parties resisting disclosure that demonstrate all four requirements of the exemption are met for the specific information being withheld.

[26] During the investigation, the NFACC provided representations under paragraph 35(2)(c) of the Act. Of note, the NFACC agreed that the information in the records is not financial, commercial, scientific or technical in nature, as the terms are commonly understood. However, they emphasized the confidentiality of the information and provided additional details of their confidentiality policies for members of the Executive and the Code Development Process. They explained that, as the AAFC representative is a member of the Executive Committee, they had a reasonable expectation of confidentiality in their communications. In response to the OIC’s notice pursuant to section 36.3, the NFACC reiterated its representations concerning the confidentiality of the information at issue, and also provided representations with respect to control, mentioned above.

[27] With respect to the first criteria, that the information be “financial”, “commercial”, “scientific” or “technical”, the Supreme Court of Canada in Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3, para. 139, stated the terms “financial”, “commercial”, “scientific” or “technical” information, in paragraph 20(1)(b), “…. should be given their ordinary dictionary meanings.”

[28] I am not convinced that any of the information at issue is financial, commercial, scientific or technical information, as the terms are commonly understood; as stated above, the third party agrees with me. Although the subject matter relates to amendments to a technical code for the care and handling of pigs, the records in question are not themselves technical or scientific in nature. The records also do not contain any financial information. Lastly, the records do not contain any commercial information. As the information does not meet one of the four requirements, I do not need to review the other three.

[29] Consequently, I conclude that the information does not meet all of the requirements for exemption under paragraph 20(1)(b), specifically, the information at issue is not financial, commercial, scientific or technical.

Result

[30] The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Agriculture and Agri-Food to disclose all information withheld under paragraph 20(1)(b), unless it qualifies for exemption pursuant to subsection 19(1) or is outside the scope of the request, as outlined in my report.

On June 1, 2023, I issued my initial report to the Minister of Agriculture and Agri-Food setting out my order.

On July 25, 2023, the Director, Access to Information and Privacy, gave notice that the Minister of Agriculture and Agri-Food does not plan to implement my order. New information regarding the impacts releasing the information would have, which were not provided to the OIC during the course of the investigation, were received by the AAFC and as a result, the AAFC will be applying to the Federal Court pursuant to subsection 41(2) of the Act.

I have provided the NFACC with this report.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review within 35 business days after the date of this report. When they do not, third parties may apply for a review within the next 10 business days. The person who applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, this order takes effect on the 46th business day after the date of this report.