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Canadian Institutes of Health Research (Re), 2023 OIC 22

Date: 2023-08-01
OIC file number: 5822-00322
Institution file number: A-2021-0022

Summary

The complainant alleged that the Canadian Institutes of Health Research (CIHR) had improperly withheld information under subsections 18(a) (government trade secrets or government financial, commercial, scientific or technical information), 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act. This was in response to an access request for documents regarding a named individual’s role on the Pfizer Lyme Disease Advisory Board and their research project on Lyme Disease. The complaint falls within paragraph 30(1)(a) of the Act.

Neither the institution nor the third party demonstrated that the information within the scope of the complaint met all of the requirements for exemption pursuant to paragraph 20(1)(b); in particular, the information is not financial, commercial, scientific or technical.

The complaint is well founded.

The Information Commissioner ordered that that the CIHR disclose the information at issue.

The CIHR gave notice to the Commissioner that it would implement the order.

Complaint

[1]     The complainant alleged that the Canadian Institutes of Health Research (CIHR) had improperly withheld information under subsections 18(a) (government trade secrets or government financial, commercial, scientific or technical information), 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act. This was in response to an access request for documents regarding a named individual’s role on the Pfizer Lyme Disease Advisory Board and their research project on Lyme Disease.

[2]     During the course of the investigation, the complainant narrowed the scope of their request to three specific sections of the records that were withheld under paragraph 20(1)(b), and decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate exemptions to withhold the remaining information. Accordingly, the remaining information at issue is:

  1. Pages 173-174: Under section 3.3.3 of the research proposal, a description of a seed grant program;
  2. Page 183: Information pertaining to a sentinel site in Lunen berg, Nova Scotia;
  3. Page 189: Arm “D” of a graphic outlining the proposed Canadian Lyme Disease Research Network (CLyDRN) Governance structure.

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]     The OIC sought representations from the third party, the Nominated Principal Investigator (NPI), via Queen’s University, which stated that it had no concerns with the disclosure of the information at issue. It indicated that it would defer to the CIHR’s judgement with regard to the disclosure of the information.

[5]     On February 13, 2023, the OIC requested representations from the CIHR under paragraph 35(2)(b) of the Act, concerning the application of paragraph 20(1)(b). On March 15, 2023, the CIHR responded that it had reviewed the portions of the records at issue and conceded that the threshold for paragraph 20(1)(b) had not been met. The CIHR indicated that it is prepared to release the information at issue on pages 173, 174, 183 and 189 and provided no representations in support of the ongoing application of exemptions to withhold the information at issue.

[6]     As required by section 36.3, I notified the NPI of my intention to order the CIHR to disclose the information at issue in its entirety, providing the NPI with a last chance to make representations. The NPI did not respond.

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

[7]     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).

[8]     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?

[9]     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.

[10]     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,” in paragraph 20(1)(b), “…. should be given their ordinary dictionary meanings.”

[11]     I am not convinced that any of the information at issue is financial, commercial, scientific or technical information, as the terms are commonly understood, and no representations have been provided concerning this criterion. The withheld information describes aspects of a proposed research network, the CLyDRN. Although the research network would facilitate scientific research related to Lyme disease, the information in the proposal is not, itself, scientific in nature.

[12]     The Oxford Dictionary defines the term "commercial" as "concerned with or engaged in commerce — making or intended to make a profit."

[13]     The CLyDRN is a national research network that supports and coordinates multidisciplinary research activities related to Lyme Disease in Canada. The network is funded by the CIHR and by donations through the Lyme Disease Research Trust Fund. I am not satisfied that the CLyDRN, nor the information relating to its seed grant program, its sentinel site or its governance structure, has any commercial aspect. As such, I am not satisfied that this first criterion has been met. As a result, I do not need to assess whether the information meets the requirements of the remaining criteria for paragraph 20(1)(b) to apply.

[14]     I conclude that none of the information meets the requirements for exemption under paragraph 20(1)(b).

Result

[15]     The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President of the Canadian Institutes of Health Research to disclose the following information:

  1. Pages 173-174: Under section 3.3.3 of the research proposal, a description of a seed grant program;
  2. Page 183: Information pertaining to a sentinel site in Lunenberg, Nova Scotia;
  3. Page 189: Arm “D” of a graphic outlining the proposed Canadian Lyme Disease Research Network (CLyDRN) Governance structure.

On May 29, 2023, I issued my initial report to the President of the Canadian Institutes of Health Research setting out my order.

On June 28, 2023, the CIHR confirmed that it would implement my order.

I have provided the Nominated Principal Investigator 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.

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