Atlantic Canada Opportunities Agency (Re), 2022 OIC 61
Date: 2022-10-05
OIC file number: 5820-03832
Institution file number: A-2020-00034
Summary
The complainant alleged that the Atlantic Canada Opportunities Agency (ACOA) had improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for records related to a grant made to the Organisation for Economic Co-operation and Development (OECD) in March 2020. This complaint falls within paragraph 30(1)(a) of the Act.
No representations were provided by either the OECD or ACOA in support of the application of either exemption to the information at issue.
The Information Commissioner ordered ACOA to disclose the records in their entirety. ACOA gave notice to the Commissioner that it would implement the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that the Atlantic Canada Opportunities Agency (ACOA) had improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for records related to a grant made to the Organisation for Economic Co-operation and Development (OECD) in March 2020. This complaint falls within paragraph 30(1)(a) of the Act.
Investigation
[2] When an institution withholds information related to a third party, the third party and/or the institution bears the burden of showing that refusing to grant access is justified.
Paragraph 20(1)(b): confidential third‐party financial, commercial, scientific or technical information
[3] 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).
[4] 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.
[5] When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to release the information.
Does the information meet the requirements of the exemption?
[6] ACOA applied paragraph 20(1)(b) on pages 4 and 6 of the records to withhold information about the OECD’s operating expenses, ACOA’s contribution to those expenses and a statement regarding the OECD. The Office of the Information Commissioner (OIC) sought representations from the OECD, which authorized the disclosure of the requested records provided they contain no erroneous information as to the statement regarding the OECD.
[7] ACOA, in its representations, confirmed the accuracy of the information. Neither party provided any representations supporting the application of paragraph 20(1)(b).
[8] With regard to the first requirement, I accept that much of the information at issue constitutes financial information, with the exception of comments about the OECD and a general description of the organization.
[9] The second criterion of paragraph 20(1)(b), of confidentiality, requires that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:
- The information must not be available from sources otherwise accessible by the public.
- It must originate and be communicated with a reasonable expectation that it will not be disclosed.
- It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see: Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157, para. 72).
[10] No evidence was provided to demonstrate that the information at issue is confidential by an objective standard, in the sense of being communicated with a reasonable expectation that it will not be disclosed.
[11] As found by the Federal Court of Appeal, “when a would‐be contractor sets out to win a government contract through a confidential bidding process, he or she cannot expect that the monetary terms, if the bid succeeds, will remain confidential.” (Canada (Minister of Public Works and Government Services) v. The Hi‐Rise Group Inc., 2004 FCA 99, para. 37). This casts doubt on the argument that any of the financial information on page 4 was communicated in a reasonable expectation of confidence that it would not be disclosed.
[12] In addition, portions of the information appear to be publicly available on the OECD’s website, which casts doubt on whether it was communicated in a reasonable expectation of confidence that it would not be disclosed.
[13] Furthermore, I am not convinced that keeping this information confidential would foster the relationship between ACOA and the OECD for public benefit. The information pertains to a project with considerable public funding. It is generally in the public interest to disclose information related to the spending of public funds, in the interest of accountability.
[14] Turning to the third requirement of paragraph 20(1)(b), I accept that the OECD’s operating costs were supplied to ACOA by the OECD. I also accept that the release of ACOA’s contribution to the operating expenses would reveal the amounts of OECD’s operating costs given that the rate of assistance has been released.
[15] However, I do not accept that the statements on page 6 about the OECD, were supplied by the OECD to ACOA. These appear to be independent observations and evaluations by ACOA based on public information, rather than information supplied in confidence by the OECD to ACOA. (see Canada (Transport) v. Air Transat A.T. Inc., 2019 FCA 286, para. 76).
[16] With respect to the final requirement, no representations have been provided to demonstrate that the OECD has consistently treated the withheld information as confidential.
[17] More generally, the OECD’s agreement to the disclosure of the requested records, provided that they do not contain any erroneous information as to the statement, appears to indicate that as of now, the OECD has not consistently treated the information at issue as confidential. (see Bombardier Inc. v. Canada (Attorney General), 2019 FC 207, para. 79). In response to the OIC’s Notice, issued pursuant to section 36.3, the OECD stated that the financial figures on page 4 and the statement on page 6 are incorrect. The OECD requested that a disclaimer reflecting this be included with the disclosed record.
[18] In light of the above, I conclude that the information does not meet the requirements of paragraph 20(1)(b).
Paragraph 20(1)(d): negotiations by a third party
[19] Paragraph 20(1)(d) requires institutions to refuse to release information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).
[20] To claim this exemption, institutions must show the following:
- A third party is or will be conducting contractual or other negotiations.
- Disclosing the information could interfere with those negotiations.
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[21] When these requirements are met, and the third party to whom the information relates consents to its disclosure, institutions must then reasonably exercise their discretion to decide whether to release the information.
Does the information meet the requirements of the exemption?
[22] Paragraph 20(1)(d) requires evidence showing how disclosing the exempted information would disrupt any planned or ongoing negotiations by the OECD and how likely this disruption would be. No such evidence has been provided.
[23] Interference, in the context of paragraph 20(1)(d), has been interpreted by the Courts to mean obstruction. (see Canadian Broadcasting Corp. v. National Capital Commission, [1998] FCJ No 676 (QL)).
[24] There must be a clear and direct connection between disclosure of the information at issue, and a risk of harm well beyond the merely possible (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197 and 206).
[25] The information at issue (statement on page 6) has not been demonstrated to meet the aforementioned test.
[26] In light of the above, I conclude that the information does not meet the requirements of paragraph 20(1)(d).
Result
[27] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the President of ACOA to disclose the records in their entirety.
The President of the ACOA must abide by the terms of subsection 37(4) when disclosing any records in response to my order.
On August 8, 2022, I issued my initial report to the President of ACOA setting out my order.
On August 30, 2022, the President of ACOA gave me notice that he would be implementing my order. The President further noted that he would confirm with the OECD whether qualifications regarding the records initially withheld should accompany the disclosure.
I have provided the OECD 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.