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Canada Mortgage and Housing Corporation (Re), 2023 OIC 13

Date: 2023-06-01
OIC file number: 5820-00898
Institution file number: AF-2019-00045 / JMH

Summary

The complainant alleged that the Canada Mortgage and Housing Corporation (CMHC) had improperly withheld information under paragraph 18(a) (government trade secrets, government financial, commercial, scientific or technical information), paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 21(1)(a) (advice or recommendations), paragraph 21(1)(b) (accounts of consultations or deliberations) and section 23 (solicitor-client privilege) of the Access to Information Act. This was in response to an access request for final versions of documents mentioned in the response to a previous access request. The complaint falls within paragraph 30(1)(a) of the Act.

The scope of the complaint was reduced to remove subsection 19(1), section 23 and instances where paragraph 20(1)(b) was applied to withhold certain third-party information.

During the investigation, CMHC disclosed some information it had withheld under paragraphs 18(a), 18(b), 21(1)(a) and 21(1)(b). CMHC showed that it met all of the requirements of these exemptions where it maintained them.

The third parties did not provide any representations and CMHC could not show that it met all the requirements of paragraph 20(1)(b).

The Information Commissioner ordered that CMHC disclose all information at issue withheld under paragraph 20(1)(b).

CMHC gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Canada Mortgage and Housing Corporation (CMHC) had improperly withheld information under paragraph 18(a) (government trade secrets, government financial, commercial, scientific or technical information), paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 21(1)(a) (advice or recommendations), paragraph 21(1)(b) (accounts of consultations or deliberations) and section 23 (solicitor-client privilege) of the Access to Information Act. This was in response to an access request for final versions of documents mentioned in the response to a previous access request. 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 application of subsection 19(1) or section 23, and instances where paragraph 20(1)(b) was applied to third-party financial information, third party names, or information that could reveal the identities of third parties.

Investigation

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

[4]      On October 19, 2022, CMHC disclosed additional information, which it had withheld under paragraphs 18(a), 18(b), 20(1)(b), 21(1)(a) and 21(1)(b) when it responded to the access request. CMHC indicated that this information was disclosed due to the passage of time.

[5]      CMHC continued to withhold the remaining information under paragraphs 18(a), 18(b), 20(1)(b) and 21(1)(a), but no information remains withheld under paragraph 21(1)(b).

[6]      During the investigation, CHMC decided to no longer rely on paragraphs 18(a), 18(b) and 21(1)(a) to withhold information, indicating it intended to release this information in full. On April 14, 2023, in response to my initial report, CMHC disclosed all information it had withheld under paragraphs 18(a), 18(b) and 21(1)(a) and some of the information it had withheld under paragraph 20(1)(b) when it responded to the access request. CMHC continued to withhold the remaining information at issue under paragraph 20(1)(b).

[7]      Where CHMC continues to withhold under paragraph 20(1)(b), my reasons below explain why I do not agree that this exemption was appropriately applied. This information should also be released.

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

[8]      Paragraph 20(1)(b) requires institutions to refuse to disclose 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).

[9]      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?

[10]      The third-party information remaining within the scope of the investigation relates to TD Bank Financial Group (TD) and Andrew Kalotay Associates, Inc. (AKA). The OIC sought representations from both third parties pursuant to paragraph 35(2)(c), however, neither third party responded to the OIC’s request. I also notified TD and AKA, as required by subsection 36.3, of my intention to order the CMHC to disclose records that might contain material or information described in paragraph 20(1)(b) and again received no representations from them.

[11]      The information related to TD and AKA, although in some cases related to financial and commercial matters, does not clearly fit within the common definitions of financial, commercial, scientific or technical information, so as to meet the first requirement of the exemption. The OIC asked TD and AKA to identify information that specifically fits within these categories and explain how the information is of this nature, however, neither of them responded. I conclude that none of the withheld information meets the first requirement of the exemption.

[12]      The second requirement of paragraph 20(1)(b) is 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 content of the record is not available from sources otherwise accessible to the public or obtainable by observation or independent study by a member of the public acting on their own;
  • the information originates and is communicated in a reasonable expectation of confidence that it will not be disclosed; and
  • the information, whether provided by law or supplied voluntarily, be communicated in a relationship between government and the third party that is either a fiduciary relationship or one that is not contrary to the public interest, and that will be fostered for the public benefit by confidential communication. (see Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 27 FTR 194 (F.C.T.D.); see also: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133).

[13]      I accept that the information at issue is not publicly available. The OIC questioned, however, whether the information originates and is communicated in a reasonable expectation of confidence that it will not be disclosed. Where the information relates to TD, TD and CMHC have not provided sufficient context for me to determine whether this requirement is met. For the information related to AKA, given that the withheld information appears to be advice provided by AKA to CMHC for a fee, it is unclear why there would be an expectation that the information paid for with government funds would be held in confidence by CMHC.

[14]      The OIC questioned whether the relationship between CMHC and AKA is fostered for the public benefit by confidential communication. CMHC paid AKA for advice, and the OIC questioned whether AKA would be less likely to seek similar contracts with CMHC in future, should the information at issue be disclosed. If not, the public benefit would seem to lie in access to this information, rather than confidential communication of it.

[15]      Although I accept that most of the information at issue was supplied to CMHC by TD and AKA, so as to meet the third requirement of the exemption, I am not satisfied that all of the information within the records originated from outside of CMHC. Some of the content of the questions asked by TD to CMHC would appear to originate from CMHC where TD is looking for clarification. Additionally, to the extent that information within the records was background given to AKA by CMHC, it would not meet the third requirement of the exemption.

[16]      The OIC received no representations that confirm that TD or AKA have consistently treated the information at issue as confidential.

[17]      During the investigation, CMHC indicated it is willing to disclose the information related to AKA but not the information related to TD. CMHC did not, however, provide any representations as to how the requirements of the exemption are met for the information related to TD.

[18]      Based on the representations provided during the course of the investigation, I am unable to conclude that the information that CMHC continues to withhold meets the requirements of paragraph 20(1)(b).

Result

[19]      The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President of the Canada Mortgage and Housing Corporation to disclose all information at issue withheld under paragraph 20(1)(b).

In light of the most recent supplementary disclosure made by CMHC, ordering CMHC to disclose information withheld under paragraphs 18(a), 18(b) and 21(1)(a) is no longer necessary.

The President must abide by the terms of subsection 37(4) when disclosing any records in response to my orders.

On March 29, 2023, I issued my initial report to the President of the Canada Mortgage and Housing Corporation setting out my order.

On April 27, 2023, CMHC’s ATIP Coordinator gave me notice that CMHC would be implementing my order.

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 and 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 36th business day after the date of this report.

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