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Employment and Social Development Canada (Re), 2023 OIC 20

Date: 2023-07-20
OIC file number: 5820-00509
Institution file number: A-2019-00328

Summary

The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and section 23 (solicitor-client privilege) of the Access to Information Act (the Act) in response to an access request for information related to an Occupational Health and Safety Tribunal decision related to the death of a Canadian National Railway (CN Rail) employee. The complaint falls within paragraph 30(1)(a) of the Act.

The institution and third party did not demonstrate that all of the requirements of paragraph 20(1)(b) were met.

ESDC showed that it met all the requirements of subsection 19(1) and section 23. However, ESDC did not demonstrate that it reasonably exercised its discretion to decide whether to disclose the information.

The Information Commissioner ordered ESDC to disclose the information withheld under paragraph 20(1)(b) and exercise its discretion to decide whether to disclose the information withheld under subsection 19(1) and section 23, taking into account all relevant factors for and against disclosure.

ESDC gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1]         The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and section 23 (solicitor-client privilege) of the Access to Information Act (the Act) in response to an access request for information related to an Occupational Health and Safety Tribunal decision related to the death of a Canadian National Railway (CN Rail) employee. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

[2]         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.

Subsection 19(1): personal information

[3]         Subsection 19(1) requires institutions to refuse to disclose personal information.

[4]         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).

[5]         When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

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

[6]         When one or more of these circumstances exist, subsection 19(2) of the Act requires them to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[7]         The records at issue are an Investigation and Analysis report of the accidental death of a CN employee in 2013 and related documentation.

[8]         ESDC applied subsection 19(1) to withhold personal information about identifiable individuals such as details about the deceased and the extent of their injuries, names of non-government employees/PIN numbers, home addresses and personal telephone numbers. I accept that this information is about individuals and that there is a serious possibility that disclosing the information would identify these individuals. I also accept that 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.

[9]         I therefore conclude that the information meets the requirements for exemption pursuant to subsection 19(1).

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

[10]         Since the information meets the requirements of subsection 19(1), ESDC 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.

[11]         ESDC confirmed that the circumstances set out in paragraph 19(2) did not exist at the time the request was processed, as consent to disclose was not provided. I agree that consent was not provided, nor would it have been reasonable for ESDC to seek consent from the individuals. I also agree that disclosure of the information would not have been consistent with section 8 of the Privacy Act.

[12]     That said, I note that some of the personal information is withheld in the records despite being publicly available.

[13]     In light of the above, I conclude that the circumstances set out in paragraph 19(2)(b) existed when ESDC responded to the access request. Consequently, ESDC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, ESDC had to consider all the relevant factors for and against disclosure.

[14]     ESDC did not provide any information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information, when that information is publicly available. Consequently, I must conclude that ESDC did not show that it had reasonably exercised its discretion pursuant to paragraph 19(2)(b).

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

[15]     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).

[16]     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.

[17]     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.

[18]     In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances exist:

  • disclosure of the information would be in the public interest; and
  • the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

Does the information meet the requirements of the exemption?

[19]     The Office of the Information Commissioner (OIC) sought representations from both CN Rail and ESDC pursuant to section 35 of the Act. CN Rail maintained that paragraph 20(1)(b) was properly applied but failed to provide representations that would convince me that the information meets the requirements for exemption.

[20]     ESDC provided preliminary representations but did not respond to the OIC’s request for representations with respect to the application of paragraph 20(1)(b) of the Act to withhold the information at issue.

[21]     In response to the OIC’s notice pursuant to 36.3(1) of the Act, CN Rail reiterated its position, opposing the disclosure of additional information, however no additional representations were provided.

[22]     ESDC relied on paragraph 20(1)(b) to exempt information such as time tables, site maps/drawings, train/assignment numbers, witness statements, training materials, interview notes and pictures, locomotive event recorder downloads and site examination photos.

[23]     I accept that some of the withheld information relates to third-party-specific procedures, equipment and processes, making it technical information meeting the first requirement of the exemption.

[24]     I am not convinced that other portions, such as train/assignment numbers, titles of charts/work orders, locomotive event recorder downloads, images from the accident site and certain information in witness statements constitute commercial or technical information. CN disagrees. Rather, they assert that train/assignment numbers, charts and work orders are the basis of CN’s commercial rail operations.

[25]     It should be noted that the fact that operations have a commercial purpose does not render all information related to those operations commercial information, within the ordinary meaning of that term. Such a broad interpretation was rejected in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board) et al., 2006 FCA 157 at para. 69, where the Federal Court of Appeal explained:

[T]    he word “commercial” connotes information which in itself pertains to trade (or commerce). It does not follow that merely because NAV CANADA is in the business of providing air navigation services for a fee, the data or information collected during an air flight may be characterized as “commercial”.

[26]     The information at issue does not appear to pertain to trade or commerce. Instead, the records involve regulatory inspectors’ observations and findings regarding a fatality. As a result, I conclude that train/assignment numbers, titles of charts/work orders, locomotive event recorder downloads, images from the accident site and certain information in witness statements does not constitute financial, commercial, scientific or technical information.

[27]     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 the 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]     F.C.J. No. 453). [SJ1]     [CF2]    

[28]     I am not convinced that the information is not available from sources otherwise accessible by the public or that the information was communicated in a reasonable expectation of confidence that it would not be disclosed. The Occupational Health and Safety Tribunal Canada hears cases in the same way as any other administrative tribunal. It follows the open court principle, which establishes that all documents filed in evidence at a hearing and on which the Appeals Officer based his or her decision must be accessible to the public to ensure the transparency of the Tribunal process, unless the decision-maker issues a confidentiality order, which is not the case here.

[29]     CN Rail asserts that the investigation report and the confidential CN information and documents were not made public. That said, the Tribunal confirmed that these records, which include the documents at issue in this complaint, can be consulted by visiting the Tribunal’s offices. The only information that would be withheld in this case is personal identifiers such as social insurance numbers, dates of birth, addresses, etc. and I already agree that this information is properly withheld pursuant to subsection 19(1). Therefore, the information at issue, covered by paragraph 20(1)(b), is available from sources otherwise accessible by the public.

[30]     To the extent that the records at issue contain information that was communicated by CN Rail, it does not appear that CN Rail had a reasonable expectation that such information would be kept confidential. It appears that disclosure was mandatory under the Canada Labour Code, and it is unclear how CN Rail could have a reasonable expectation of confidentiality in the context of the proceeding before the Occupational Health and Safety Tribunal. CN Rail for their part also disagree with this conclusion. They assert that they were complying with a specific obligation set out in the Canada Labour Code, a violation of which would constitute a serious offence.

[31]     CN Rail submitted that confidentiality is provided for under the Canada Labour Code. However, subsections 144(5) and (5.01) of the Canada Labour Code would appear to reduce any reasonable expectation of confidentiality of information obtained as a result of activities carried out in section 141. These provisions permit the publication or disclosure of such information if the Head of Compliance and Enforcement is satisfied that this publication or disclosure would be in the interest of occupational safety or the public interest.

[32]     The quasi-constitutionality of the Act requires that rights are to be interpreted broadly and exceptions to that right should be narrow and specific, as such, the rights to access are interpreted generously, while the exceptions to these rights must be understood strictly. Rather than government information being kept secret, except for what the government wants to disclose, the principle of the Act is that all government information is open to the public unless an exemption exists. Subsection 24(1) of the Act requires institutions to refuse to release information the disclosure of which is restricted by a provision set out in Schedule II of the Act. In the present instance, the Schedule II provision relates to section 144(3) of the Canada Labour Code. Section 144(3) of the Canada Labour Code contains a prohibition of the disclosure of information obtained in the work place through inspections, which relate to secret processes or trade secrets. The OIC did not receive any representations to suggest that the information at issue consists of trade secrets or secret processes as required by section 144(3). As a result, I cannot conclude that the information at issue is confidential pursuant to the Canada Labour Code, as asserted by CN Rail.

[33]     Finally, I am not convinced that the information was communicated within the context of a relationship fostered for public benefit by the communication’s confidentiality. The information pertains to matters of rail safety, frequently involving significant potential risks to employees, the public and the environment. In light of this, the public benefit would seem to be fostered by the information’s disclosure, as opposed to confidentiality over the information that has been withheld. Furthermore, to the extent that information was provided by CN Rail, it would appear to have been done within the regulatory context of CN Rail’s legal obligations to report railway occurrences to government authorities under section 5(1)(a) of the Transportation Safety Board Regulations, where a person is killed. Had CN Rail failed to provide such information to government authorities, as a regulated entity, this failure may have resulted in further issues for it.

[34]     As a result, it has not been established that the second requirement of paragraph 20(1)(b), that the information be confidential, is met.

[35]     Turning to the third requirement of paragraph 20(1)(b), I accept that some of the withheld information was provided by CN Rail, meeting the requirement of the exemption. However, I do not accept that information such as Figures 2.33 and 2.34 on page 67, portions of pages 630-635, 641, 643, 648,650 and, photos on pages 796-822, 824-825, 828 were provided by CN Rail.

[36]     Finally, turning to the final requirement of paragraph 20(1)(b), based on the representations CN Rail has provided, I accept that the third party has consistently treated this information as confidential.

[37]     In light of all of the above, I conclude that none of the information at issue meets the requirements for exemption pursuant to paragraph 20(1)(b).

Section 23: solicitor-client privilege

[38]     Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client.

[39]     To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

  • The information consists of communication between a lawyer or notary and his or her client.
  • That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
  • The parties intend the communication and advice to remain confidential.

[40]     When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[41]     ESDC relied on section 23 to exempt information contained in an e-mail on page 545. The information at issue relates to legal advice.

[42]     I accept that the communication of the information relates directly to advice which had been provided by legal services to its client.

[43]     I further accept that the parties intended the legal advice to remain confidential.

[44]     Consequently, I conclude that the information meets the requirements of section 23.

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

[45]     Since the information meets the requirements of section 23, ESDC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, ESDC has to consider all the relevant factors for and against disclosure.

[46]     ESDC did not provide any information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information. Consequently, I must conclude that ESDC did not show that it had reasonably exercised its discretion.

Result

[47]     The complaint is well founded.

Orders

Under subsection 36.1(1) of the Act, I order the Minister of Employment and Social Development to:

  1. Exercise its discretion regarding the release of publicly available information pursuant to paragraph 19(2)(b).
  2. Disclose all information currently withheld under paragraph 20(1)(b);
  3. Exercise its discretion to decide whether to disclose the information withheld under section 23, taking into account all relevant factors for and against disclosure.

On June 1, 2023, I issued my initial report to Employment and Social Development Canada setting out my orders.

On June 29, 2023, the Manager of Access to Information and Privacy Operations gave me notice that they would be implementing the order.

I have provided CN Rail 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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