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Environment and Climate Change Canada (Re), 2021 OIC 25

Date: 2021-09-08
OIC file number: 3217-00276
Institution file number: A-2016-01822

Summary

The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), paragraph 21(1)(a) (advice or recommendations) and paragraph 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act in response to an access request for records related to a Request for Proposals (RFP).

The investigation revealed that ECCC did not exercise its discretion under subsection 19(2) to disclose publicly available personal information and seek consent from the individuals to disclose their personal information, where appropriate.

Where ECCC had withheld the evaluators’ comments on bid evaluation grids under both paragraphs 21(1)(a) and 21(1)(b), ECCC showed that the requirements for paragraph 21(1)(a) were met, and that discretion was appropriately considered, taking into account the specialized nature of the field, and the small number of competitors.

ECCC and the third party were able to show that the requirements for paragraphs 20(1)(b) and 20(1)(c) were met for specific sensitive content of the Response to the RFP, disclosure of which could indeed harm the third party’s competitive position in the market.

At the same time, the parties could not show that certain withheld financial and commercial information met all of the requirements of paragraphs 20(1)(b) and 20(1)(c), as absolute confidentiality is unreasonable when public funds are being spent, and some of the withheld information was publicly available.

ECCC gave notice to the Commissioner that it would follow her recommendations.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), paragraph 21(1)(a) (advice or recommendations) and paragraph 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act in response to an access request for records related to a Request for Proposals (RFP) Solicitation No. 5000023662, which sought proposals to perform a study related to lead ammunition and alternatives.

Investigation

[2]      During the Office to the Information Commissioner (OIC)’s investigation, a third party, ToxEcology Environmental Consulting Ltd (ToxEcology), was consulted. ToxEcology made representations that the information withheld pursuant to paragraphs 20(1)(b) and 20(1)(c) should remain withheld.

Subsection 19(1): personal information

[3]      Subsection 19(1) requires institutions to refuse to release 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 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.

[6]      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?

[7]      ECCC has relied on subsection 19(1) to withhold personal information found within the winning bidder (ToxEcology)’s emails and its Response to the RFP document.

[8]      Although pages 145 and 146 of the responsive records were withheld under subsection 19(1), I conclude that these two pages do not contain any information that meets the requirements of subsection 19(1).

[9]      I accept that the remaining information withheld under subsection 19(1) is about an individual and that releasing the information would identify that individual. In addition, I am satisfied that the information does not fall under any of the exceptions of the Privacy Act.

Is disclosure warranted under subsection 19(2)?

[10]    Under subsection 19(2), ECCC was required to exercise its discretion to decide whether to release the remaining information when one or more of the circumstances set out in that subsection existed.

[11]    As regards to the circumstances that may trigger the discretion to release, in the present instance, the investigation revealed that the name and contact information for ToxEcology’s Principal, redacted from the responsive records on pages 50-51, is publicly available on ToxEcology’s website.

[12]    In support of their refusal to disclose the name and contact information for ToxEcology’s Principal and the names and personal information of its employees, ECCC considered that ToxEcology opposed the release of any personal information related to its employees.

[13]    I find that that the lack of consent of ToxEcology is not a relevant factor, since ECCC ought to have made reasonable efforts to obtain the consent from the individuals in question, which it did not.

[14]    In light of the above, I am not satisfied that ECCC has reasonably exercised its discretion when it decided not to release the information.

[15]    I note that ECCC has recently confirmed that it is now willing to disclose the above publicly available information, as permitted by paragraph 19(2)(b).

Paragraph 21(1)(a) : advice or recommendations

[16]    Paragraph 21(1)(a) allows institutions to refuse to release advice or recommendations developed by or for a government institution or a Minister.

[17]    To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

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

  • The information is advice or recommendations.
  • The information was created by or for a government institution or Minister.

[19]    When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

[20]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to release the following:

  • records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
  • reports prepared by consultants or advisers who were not officers or employees of an institution or members of a Minister’s staff at the time.

Does the information meet the requirements of the exemption?

[21]    ECCC withheld the evaluators’ comments on bid evaluation grids for each of the bidding companies.

[22]    These comments are information from government employees at ECCC, which includes a review of the proposals received in response to an RFP. I find that the evaluators’ assessments meet the test for exemption under paragraph 21(1)(a) in that they constitute:

  • The recommendation put forward by the evaluators in making a decision on which proposal best meets the technical criteria; and
  • The evaluators are Federal public servants working for ECCC.

[23]    In light of the above, I conclude that the information meets the requirements of the exemption.

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

[24]    Under paragraph 21(1)(a), ECCC was required to reasonably exercise its discretion to decide whether to release the information. In doing so, ECCC had to consider all the relevant factors for and against disclosure.

[25]    In their representations, ECCC stated that, due to the specialized nature of the field, and the small number of competitors, releasing this information could provide stakeholders with privileged information that would reveal the strengths and weaknesses of their competitors. ECCC also took into consideration that there is a mechanism in place allowing bidders to obtain feedback on the assessment of their proposals.

[26]    I am satisfied that ECCC considered all relevant factors and conclude that it reasonably exercised its discretion when it decided not to release the information.

[27]    Since the information meets the requirements of this exemption, it is not necessary to examine the paragraph 21(1)(b) exemption that ECCC applied concurrently to the same information.

Paragraph 20(1)(c): financial impact on a third party

[28]    Paragraph 20(1)(c) requires institutions to refuse to release information that, if disclosed, could reasonably be expected to have a substantial financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[29]    To claim this exemption with regard to financial impact on a third party, institutions must show the following:

  • Disclosing the information could result in material financial loss or gain to the third party.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[30]    To claim this exemption with regard to competitive position, institutions must show the following:

  • Disclosing the information could injure the competitive position of the third party.
  • There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

[31]    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.

[32]    Institutions must also 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.

[33]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to release information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[34]    ECCC has relied on paragraph 20(1)(c) to withhold:

  • The evaluators’ comments in the evaluation of ToxEcology’s proposal.
  • The total amount of the lowest bid and ToxEcology’s per diem rate in a summary report.
  • The entirety of ToxEcology’s Response to the RFP.
  • Evaluators’ comments

[35]    As mentioned above, having found the evaluators’ comments to be exempt from disclosure under paragraph 21(1)(a), I will not examine the application of paragraph 20(1)(c) to the same information.

  • Amount of the lowest bid and per diem rate

[36]    The amount of the lowest bid can be calculated using the information disclosed in the table. The per diem rate is publicly available on the Public Services and Procurement Canada website.

[37]    In the absence of any representations or evidence to the contrary, I conclude that the per diem rate and amount of the lowest bid withheld on page 1 of the records does not meet the test for exemption pursuant to paragraph 20(1)(c), as there can be no reasonable expectation of harm where the information is already publicly available (see: Bombardier Inc. v. Canada (Attorney General), 2019 FC 207, paras. 21, 125-126).

  • Response to the RFP

[38]    With respect to the Response to the RFP, in its representations, ToxEcology makes a strong case for the possible damage that could result from disclosure of certain parts of the Response in question.

[39]    ToxEcology’s representations assert that revealing this information would give its competitors a significant advantage in a very small and specialized field. These assertions are supported by the small margin by which this contract was won, and the fact that only two bidders submitted proposals.

[40]    ECCC agreed that the type of information identified by ToxEcology should be withheld under paragraph 20(1)(c), as disclosure could cause harm to the competitive position of ToxEcology given the highly specialised and competitive nature of the field.

[41]    Based on the representations received, I accept that the disclosure of the specific portions of the Response to the RFP identified by ToxEcology as sensitive could indeed harm their competitive position in the market.

[42]    In its representations, ECCC identified other parts of the Response to the RFP that could be disclosed, as disclosure would not result in the harm described above.

[43]    I come to the conclusion that, the parts of the records identified by ECCC, which it does not consider sensitive, do not qualify for the exemption. This is because no evidence has been provided by ToxEcology or ECCC to demonstrate that there is a reasonable expectation that prejudice could occur upon disclosure of this type of information.

[44]    ToxEcology also submitted that none of the information from the Response to the RFP was in the public domain, arguing that it should therefore not be disclosed. However, I note most of the information on page 104 is publicly available on ToxEcology’s own website.

[45]    Therefore, even if ECCC did not identify any information on page 104 for disclosure, I am not convinced that ECCC was justified in withholding that information, as no representations have been provided to demonstrate how disclosing the publicly available information would result in any harm to ToxEcology.

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

[46]    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).

[47]    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.

[48]    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.

[49]    Institutions must also 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.

[50]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) to refuse to release information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[51]    ECCC has relied on paragraph 20(1)(b) to withhold:

  • The total amount of the lowest bid and the ToxEcology’s per diem rate in a summary report.
  • The entirety of the ToxEcology’s Response to the RFP.

[52]    According to the Federal Court (Air Atonabee Ltd. V. Canada (Minister of Transport) (1989), 27 C.P.R (3d) 180 (Fed T.D) at 197)), exemption from disclosure pursuant to paragraph 20(1)(b) requires that the information in question meet the following criteria for confidentiality:

(1) The information contained in the record is not available from other sources in the public domain or obtainable by observation or independent study by a member of the public acting on his or her own;

(2) the circumstances in which the information originates and is communicated give rise to a reasonable expectation that it will not be disclosed;

(3) the information, whether provided by law or supplied voluntarily, is communicated to the government within a relationship that is either fiduciary or not contrary to the public interest and that will be fostered for the public benefit by confidential communication.

[53]    The Federal Court’s findings in Canada Post Corp. v. Canada (Minister of Public Works and Government Services), 2004 FC 270 at paragraph 40 do not support the bid response being withheld in its entirety pursuant to paragraph 20(1)(b), as there can be no real expectation of confidentiality when public funds are being spent:

The public policy rationale underlying the Act is that the disclosure of information provided to a government institution is the rule not the exception. The tendering process for government contracts is subject to the Act. A potential bidder for a government contract knows, or should know, when submitting documents as part of the bidding process that there is no general expectation that such documents will remain fully insulated from the government's obligation to disclose, as part of its accountability for the expenditure of public funds. In this context, the Applicant's claim that it held an "expectation" that its records would be held in confidence, based on the disputed letter, is unreasonable.

[54]    The withheld per diem rate of ToxEcology is publicly available on the Public Services and Procurement Canada website. The amount of the lowest bid, also withheld, can be calculated using the information disclosed in the table.

[55]    In light of the above, I come to conclusion that the per diem rate and amount of the lowest bid withheld on page 1 of the records, does not meet the test for exemption pursuant to paragraph 20(1)(b), as it is not confidential information.

[56]    I accept that the Response to the RFP is commercial information that was supplied to ECCC by ToxEcology, and that ToxEcology has consistently treated parts of the information as confidential, based on the representations received to date. However, I conclude that parts of the Response to the RFP do not meet the test for exemption pursuant to paragraph 20(1)(b), as some of the information does not meet the criterion of confidentiality. More specifically:

  • some of the information was made public by ToxEcology;
  • there could be no reasonable expectation that the entirety of the Response to the RFP would not be disclosed; and
  • the information was not communicated to the government within a relationship that was either fiduciary or not contrary to the public interest.

[57]    In light of the above, I find that ECCC has not justified withholding all of the information in the Response to the RFP, as some of it does not meet the requirements for the confidentiality criterion under the paragraph 20(1)(b) exemption.

Result

[58]    The complaint is well founded.

Recommendations

I recommend that the Deputy Minister of Environment and Climate Change:

  • Exercise her discretion pursuant to subsection 19(2) with respect to the publicly available personal information on pages 50-51 of the records with a view to disclose that information;
  • Disclose the per diem rate and amount of the lowest bid, withheld on page 1 of the records;
  • Disclose parts of the Response to the RFP, as outlined in ECCC’s proposed release package submitted in response to my initial report;
  • Ensure that the exemptions stamped to the records within the release package are accurate for all pages;
  • Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).

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

On July 15, 2021, I issued my initial report to the Minister of Environment and Climate Change setting out my recommendations.

On August 19, 2021, the Deputy Minister of Environment and Climate Change gave me notice that she would be implementing my recommendations.

I have provided ToxEcology Environmental Consulting Ltd with this report.

Section 41 of the Act provides a right to any person, excepting institutions, who receives this report to apply to the Federal Court for a review. Complainants 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.

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