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Environment and Climate Change Canada (Re), 2022 OIC 64

Date: 2022-12-22
OIC file number: 5820-02762
Institution file number: A-2018-01570/WL

Summary

The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under subsections 16(2) (facilitating the commission of an offence) and 19(1) (personal information), and paragraphs 20(1)(b) (confidential third‐party financial, commercial, scientific or technical information), 21(1)(a) (advice or recommendations) and 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act. This was in response to an access request for information concerning the Roberts Bank Terminal 2 Project, specifically relating to biofilm and shorebirds. The complaint falls within paragraph 30(1)(a) of the Act.

The application of subsections 16(2) and 19(1) to withhold the records at issue was removed from the scope of the complaint.

ECCC showed that the records, with the exception of a scientific manuscript, met all the requirements of paragraphs 21(1)(a) or 21(1)(b), though there were inconsistencies in disclosure.

During the investigation, ECCC decided to no longer oppose disclosure of the manuscript that had been withheld under paragraphs 20(1)(b), 21(1)(a) and 21(1)(b). The third party did not respond to the Office of the Information Commissioner’s requests for representations.

The Information Commissioner ordered that ECCC disclose the manuscript. The Commissioner also ordered ECCC to correct the inconsistencies in disclosure.

ECCC gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly withheld information under subsections 16(2) (facilitating the commission of an offence) and 19(1) (personal information), and paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 21(1)(a) (advice or recommendations) and 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act. This was in response to an access request for information concerning the Roberts Bank Terminal 2 Project, specifically relating to biofilm and shorebirds. 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 any records relating to air quality, as well as any records withheld under subsections 16(2) or 19(1).

Investigation

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

[4]      The OIC sought representations from Peter Schnurr on behalf of the authors of a draft scientific paper (“the manuscript”) on June 3, 2022 under the terms of paragraph 35(2)(c). Peter Schnurr did not respond.

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

[5]      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).

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.

[6]      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 disclose the information.

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

[8]      However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) to refuse to disclose 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?

[9]      ECCC relied on paragraph 20(1)(b), in conjunction with paragraphs 21(1)(a) and 21(1)(b), to withhold the entirety of the manuscript (pages 6409 to 6441), as well as the manuscript’s file name in an email (page 6408).

[10]    With regard to the first criterion, it is unclear how the file name withheld on page 6408, as well as the manuscript’s titles, references, acknowledgements and captions consist of financial, commercial, scientific or technical information. While I accept that the body of the manuscript and the figures are scientific information, so as to satisfy the first criteria of paragraph 20(1)(b), I am not persuaded that the other criteria needed for the exemption to apply are met.

[11]    Regarding the second criterion, in order for paragraph 20(1)(b) to be applied, the record must be confidential. In Air Atonabee Limited v. Canada (1989), 27 F.T.R. 194 (F.C.T.D.), the Federal Court outlined three specific sub‐criteria, each of which must be met, for the information to be considered confidential:

  • the information is not otherwise available from public sources;
  • the information originates and is communicated in a reasonable expectation of confidence that it will not be disclosed; and
  • the relationship between the government and the third party is not contrary to the public interest and will be fostered for public benefit by keeping the information confidential. (see also: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133).

[12]    In the present instance, the final manuscript appears to have been published prior to the processing of the access request. At least some of the withheld information is therefore available from sources accessible by the public.

[13]    In the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada stated that information that has been published is not confidential, and that the precise organization and ordering of sections of a document, or the choice of the format in which to present the information does not preclude disclosure. Accordingly, any information present in both the draft and published versions would appear to not meet the criteria for objective confidentiality.

[14]    It is not apparent that the information originated or was communicated in a reasonable expectation of confidence that it would not be disclosed. It is clear that the authors, in composing the manuscript, envisioned that it would be published. Additionally, the acknowledgements indicate that funding was provided by ECCC and the Natural Sciences and Engineering Research Council of Canada. Funding agreements can influence the confidentiality or lack thereof of information created pursuant to the agreements, by either preventing the disclosure of the information, or enabling its disclosure. Based on this, it is unclear how the information at issue can be said to have originated and/or been communicated in a reasonable expectation of confidence that it would not be disclosed.

[15]    While a relationship between ECCC and scientific researchers appears to be in the public interest, it is unclear how it will be fostered by keeping the information confidential. Given the above, I cannot conclude that the withheld information is objectively confidential within the meaning of the three sub-criteria from the Air Atonabee decision.

[16]    Turning to the third criterion of paragraph 20(1)(b) – that the third party supplied the information to a government institution – the case law under the Act has repeatedly distinguished between information supplied by a third party and independent observations made based on information that has been supplied (see, for example: Merck Frosst v. Canada (Minister of Health), 2012 SCC 3, at paras. 152-158; Hibernia Management and Development Company Ltd. v. Canada – Newfoundland and Labrador Offshore Petroleum Board and the Information Commissioner of Canada, 2012 FC 417).

[17]    Two of the manuscript’s authors are employees of ECCC, and it appears, based on the acknowledgements section, that several additional government employees participated in collecting samples. The Act defines a third party as any person, group of persons or organization other than the person that made the request or a government institution.

[18]    In the absence of the identification of information within the manuscript that was supplied by scientists external to ECCC, I am of the view that the third criterion needed to demonstrate the application of paragraph 20(1)(b) is not met.

[19]    Turning to the final requirement of paragraph 20(1)(b), no representations were received to demonstrate that the authors have consistently treated the withheld information as confidential, especially given that the vast majority of the information in the draft was also included in the final, published version.

[20]    ECCC indicated that upon further review, it had no objections to the release of pages 6408 to 6441.

[21]    Neither ECCC nor the third party showed that the information meets all four criteria for the exemption. Consequently, I conclude that the information does not meet the requirements of paragraph 20(1)(b).

Paragraphs 21(1)(a) and 21(1)(b): advice or recommendations, and accounts of consultations or deliberations

[22]    Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

[23]    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.

[24]    Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

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

  • The information is an account—that is, a report or a description.
  • The account is of consultations or deliberations.
  • At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

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

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

[28]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) and 21(1)(b) to refuse to disclose 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?

[29]    Paragraphs 21(1)(a) and 21(1)(b) were applied, alone or concurrently, to withhold discussions and notes relating to the Roberts Bank Terminal 2 Project.

[30]    Paragraphs 21(1)(a) and 21(1)(b) were also applied concurrently with paragraph 20(1)(b) to withhold the entirety of a scientific manuscript and the manuscript’s file name on pages 6408 to 6441. I am not convinced that this particular information falls within the categories of advice and recommendations, or consultations and deliberations, given it consists primarily of factual scientific information, and there is no suggested course of action or exchange of ideas. In its representations, ECCC conceded that upon further review, the manuscript and its file name could be released.

[31]    The remaining information meets the criteria for one or both of the exemptions, as it consists of advice or recommendations created by ECCC, or is an account of consultations or deliberations involving ECCC employees. The records were created less than 20 years before the access request was made.

[32]    Consequently, I conclude that the information, except on pages 6408 to 6441, meets the requirements of paragraphs 21(1)(a) and/or 21(1)(b).

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

[33]    Since the information meets the requirements of paragraphs 21(1)(a) and/or 21(1)(b), ECCC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, ECCC had to consider all the relevant factors for and against disclosure.

[34]    ECCC does not have to provide a detailed analysis of each factor it considered and explain how it weighed one against the other. However, a blanket declaration that it had exercised its discretion and considered all relevant factors is not sufficient.

[35]    An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation will be sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.

[36]    ECCC explained which factors it took into consideration when making its decision, and also provided representations to explain how certain factors were weighed against others.

[37]    Information was released on some pages that was withheld on other pages. ECCC acknowledged that due to the large number of pages, inconsistencies did arise, and it agreed that the information should be released in a consistent manner.

[38]    I conclude that ECCC considered all relevant factors when it decided not to disclose the information. Consequently, the exercise of discretion by ECCC was reasonable.

Result

[39]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Environment and Climate Change to:

  • Disclose all of the withheld information on pages 6408 to 6441;
  • Correct the inconsistencies in disclosure, including pages 374/399, 447/1882, 1878/7154 and 4874/6216.

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

On November 22, 2022, I issued my initial report to the Minister, setting out my orders.

On December 16, 2022, the Associate Deputy Minister gave me notice that ECCC 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 this deadline, this order takes effect on the 36th business day after the date of this report.

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