Fisheries and Oceans Canada (Re), 2021 OIC 37

Date: 2022-01-06
OIC file number: 3218-01365
Institution file number: A-2017-01222/DSP

Summary

The complainant alleged that the Department of Fisheries and Oceans (DFO) had improperly withheld information under paragraph 20(1)(b) (Confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (Financial impact on third party) and paragraph 18(c) (Government scientific or technical information obtained from research) of the Access to Information Act in response to an access request for information related to piscine reovirus, heart and skeletal muscle inflammation, the Creative Salmon Company Ltd., or jaundice syndrome.

DFO could not show that it met all the requirements of these exemptions. Concerning paragraph 18(c), DFO failed to show that disclosure of the information could reasonably be expected to threaten the exclusive rights of government researchers to publish the results of their research first.

Concerning paragraph 20(1)(b), neither DFO nor the third party established that the information was confidential information supplied by the third party. The parties also did not establish that disclosure of the information could reasonably be expected to result in substantial financial loss or gain to the third party or be injurious to its competitive position, as per paragraph 20(1)(c).

The Information Commissioner recommended that DFO disclose the information at issue in full, with the exception of personal information withheld under subsection 19(1).

DFO gave notice to the Commissioner that it would be implementing the recommendations.

The complaint is well founded.

Complaint

[1] The complainant disputes the Department of Fisheries and Oceans’ (DFO) decision to withhold, under the Act, information in response to a request for copies of all communications, over a specified timeframe, between certain named DFO employees, the Pacific Salmon Foundation, and/or “to or from” a named DFO employee, related to piscine reovirus, heart and skeletal muscle inflammation, the Creative Salmon Company Ltd., or jaundice syndrome. DFO refused to disclose portions of the requested records based on: section 14 (Federal-provincial affairs), subsection 16(2) (Facilitating the commission of an offence), 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 third party), paragraph 21(1)(a) (Advice or recommendations), paragraph 21(1)(b) (Accounts of consultations or deliberations), section 23 (Legal advice or litigation privilege) and section 68 (Publicly available material).

[2] During the investigation, the complainant informed the Office of the Information Commissioner (OIC) that its investigation should be limited to DFO’s refusal to disclose information within a draft report and draft manuscript at pages 63-66, 69-71, 73-130, 264-266, 268-292 of the responsive records (“the information at issue”) based on paragraphs 20(1)(b) and (c) of the Act. However, following DFO’s additional claim that this information also warrants redaction under paragraph 18(c) (Government scientific or technical information obtained from research), the OIC’s investigation further considered DFO’s refusal of access based on this additional exemption. The investigation did not review DFO’s refusal to disclose personal information based on subsection 19(1).

Investigation

Paragraph 18(c): Government scientific or technical information obtained from research

[3] Paragraph 18(c) allows institutions to refuse to release scientific or technical information stemming from government research that, if disclosed, could jeopardize government researchers’ chance to publish their findings first.

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

The information is scientific or technical.
This information was obtained through research by a government employee or officer.
Disclosing the information could threaten the exclusive rights of government researchers to publish the results of their research first.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

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

Does the information meet the requirements of the exemption?

[6] DFO relied on paragraph 18(c), concurrently with paragraphs 20(1)(b) and (c), to withhold:

portions of a draft final report (“draft Final Project Report”); and
nearly the entirety of a draft manuscript, and an additional copy of certain supplemental tables and figures to that draft manuscript (“draft Manuscript”).

[7] These records were prepared pursuant to an Agreement, dating back to July of 2011, between the Crown and a third party, Creative Salmon Ltd., for a collaborative research project on the “Genomic characterization of jaundice-associated mortality events in cultured Chinook salmon” (“the Agreement”).

[8] In reviewing the information at issue and considering the representations received, I am satisfied that at least the bulk of the information is both scientific in nature and was obtained through research of a government employee, so as to satisfy the first two criteria of paragraph 18(c). I am, however, not satisfied that the remaining criteria of paragraph 18(c) are met.

[9] Although the Agreement and other records gathered during the OIC’s investigation establish that final versions of the Final Project Report and Manuscript were initially intended to be published, those records raise serious doubt as to whether there was any continued intention to publish these records by the time the access request was made to DFO. This would seem to be supported by the fact that, when initially responding to the request, DFO did not raise paragraph 18(c) as a basis for withholding the information at issue.

[10] The Agreement, which was said to expire on or before July 31, 2012, identifies the Final Project Report as a deliverable to the Agreement and further provides that “time” is “of the essence with respect to all deliverables …”. A Manuscript was then to be prepared based on the Final Project Report at the project’s end.

[11] Based on information provided by DFO, initial drafts of the Final Project Report and Manuscript were first circulated, respectively, on April 17, 2012, and April 4, 2014. Nonetheless, as of the date of DFO’s receipt of the access request, on March 22, 2018, no final version of either record had been approved.

[12] In reviewing the Agreement, including its terms regarding intellectual property, confidentiality and publication, there is no apparent restriction on the disclosure and/or publication of either the Final Project Report, Manuscript, or drafts thereof, in the absence of the Creative Salmon Ltd’s agreement or consent. Nonetheless, more than 9 years since the circulation of a first draft of the Final Project Report, and more than 7 years since the circulation of the first draft of the Manuscript, there is still no indication of any significant progress in the approval and/or publication of either record.

[13] No evidence was provided to the OIC of any continued intention to publish either a final version of the Final Project Report or Manuscript, much less any evidence supporting the contention that the disclosure of the information at issue could reasonably be expected to threaten the exclusive rights of government researchers to publish the results of their research first.

[14] The Treasury Board Secretariat’s Access to Information Manual informs institutions that in order for information to qualify for exemption under paragraph 18(c), it must establish that “….the officer or employee must be actively engaged in the research with a reasonable expectation of publication”. In the present instance, I am not convinced that this is the case.

[15] In the absence of any representations, much less representations supported by evidence, of any continued active engagement in the research for which DFO claims disclosure could deprive the officer or employee of priority of publication, DFO has not established that the third requirement of paragraph 18(c) is met. It has equally failed to establish a clear and direct connection between disclosure of the information at issue and a risk of harm that is well beyond the merely possible. (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

Had the information met the requirements of the exemption, did the institution reasonably exercise its discretion?

[16] As DFO has not established that the information at issue falls within the scope of paragraph 18(c), it was not necessary for me to further consider whether DFO reasonably exercised its discretion when refusing disclosure. I do however note that DFO made no representations regarding the discretion to disclose information falling within the scope of paragraph 18(c), much less how discretion was reasonably exercised based on a consideration of all relevant factors.

[17] Therefore, even if DFO had established that the information at issue falls within the scope of paragraph 18(c) - which it did not do - DFO would still not have established that it was or continues to be justified in refusing access under this exemption.

Paragraph 20(1)(b)

[18] 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).

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

The information is financial, commercial, scientific or technical;
The information is confidential;
The third part supplied the information to a government institution; and
The third party has consistently treated the information as confidential.

[20] When these requirements are met, and the third party to whom the information relates consents to disclosure, the institution must then reasonably exercise their discretion to decide whether to release the information.

[21] 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 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?

[22] As previously noted, DFO relied on paragraph 20(1)(b) to withhold the same information claimed to be exempted under paragraph 18(c).

[23] Based on the representations received and information gathered during the OIC’s investigation, I am not satisfied that each of the requirements of paragraph 20(1)(b) are met.

[24] While I accept that the redacted information largely consists of “scientific information”, so as to satisfy the first criteria of paragraph 20(1)(b), neither DFO nor Creative Salmon Ltd. established other criteria needed to demonstrate the applicability of this exemption.

[25] The second criteria – that the information is “confidential” – requires that the information:

not be available from sources otherwise accessible by the public;
originate and be communicated in a reasonable expectation of confidence that it will not be disclosed; and
be communicated, whether required by law or supplied gratuitously, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by a confidential communication. (Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157, para. 72).

[26] Although there is no evidence that the information redacted under paragraph 20(1)(b) is in the public domain, I am not satisfied that the information at issue originated and/or was communicated in a reasonable expectation of confidence that it would not be disclosed.

[27] In this regard, while both DFO and Creative Salmon Ltd asserted that pursuant to the Agreement, both the Final Project Report and Manuscript are to remain confidential until finalized and published, I was directed to no specific term(s) within the agreement to support this claim.

[28] For instance, while the Agreement contains a confidentiality clause which states that “technology data or other information related to the Project shall be deemed confidential…”, this clause is subject to a proviso whichstates:

…this confidentiality obligation shall not apply to the Party who owns the Intellectual Property in such Information, and in the case of DFO, this confidentiality obligation shall be subject to the access to information and privacy protection legislation, including the Access to Information and the Privacy Act.

[29] With respect to ownership of Intellectual Property, the Agreement provides, inter alia, that:

…biological material and organisms arising, acquired, and produced under the Agreement belong to the Minister;

and

…Research IP [defined as research and other activity under the Agreement and any parts of that IP] that is created, developed or produced by DFO employees in the course of their employment, or with any intellectual contribution or direction from DFO employees shall belong to Canada, under the control and administration of the Minister.

[30] In the absence of any representations or cogent explanations to the contrary, these terms suggest that the Crown’s Research Intellectual Property (IP) under the Agreement is extraordinarily broad.

[31] Meanwhile, nothing in the Agreement’s terms with respect to publication, appear to restrict either the disclosure and/or publication of a party’s own Research Intellectual Property. As for “other information produced under the Agreement”, the terms of the Agreement only provide that a party seeking to disclose and/or publish such information must first give the other party a chance to review and request that this information not be disclosed; however, any request that the information be withheld cannot exceed a period of one year.

[32] Therefore, the terms of the Agreement and evidence provided to my office only suggests that:

the draft Final Project Report and Manuscript are the intellectual property (IP) of the Canadian Government;
the confidentiality clause does not apply to this intellectual property and does not oust the applicability of the Access to Information Act; and
nothing prohibits or restricts DFO’s disclosure.

[33] Based on the above, it has not been established that the information at issue originated and was communicated in a reasonable expectation of confidence that it would not be disclosed.

[34] As previously noted, the final requirement needed to establish confidentiality by an objective standard requires that the information be communicated in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by a confidential communication. DFO merely asserted that this requirement was met. Meanwhile, the Creative Salmon Ltd. stated:

…. third parties will be dissuaded from participating in research projects such as this if their IP can be mined and released prior to publication. This would have a dulling effect on future research projects, a result that would stifle innovations and development, contrary to one of the purposes of the Act …

[35] This representation, however, was not supported by any cogent explanation of what if any of the information at issue is Creative Salmon Ltd.’s own IP and/or could facilitate the “mining” of its IP, so as to dissuade others from participating in projects of this kind.

[36] I am not satisfied that either DFO or Creative Salmon Ltd. has established that the information at issue was communicated within a relationship fostered for public benefit by maintaining confidentiality.

[37] Turning to the third criteria 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).

[38] In keeping with this case law, while the draft Final Project Report and Manuscript may have been prepared with the benefit of the Creative Salmon Ltd.’s fish samples or data, I am not satisfied that the substance of the draft Final Project Report and Manuscript is likewise information that Creative Salmon Ltd. supplied. In the absence of convincing representations, supported by cogent evidence, that clearly identifies information within the draft Final Project Report and Manuscript that was directly supplied by Creative Salmon Ltd. to DFO with no input from DFO officials, I conclude that the third criteria needed to demonstrate the application of paragraph 20(1)(b) is also not met.

[39] As for the final criteria of paragraph 20(1)(b), Creative Salmon Ltd. in its representations asserted that the information has consistently been treated as confidential. Although I have no basis for questioning this assertion, the information can only be withheld under paragraph 20(1)(b), if all other criteria previously discussed are also met.

[40] It has not been established that any of the information at issue satisfies each of the requirements of paragraph 20(1)(b). Therefore, I cannot accept that any of the information warrants being withheld under this exemption.

Paragraph 20(1)(c) - Financial impact on third party

[41] 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.

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

Disclosing the information could result in substantial 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.

[43] 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.

Does the information meet the requirements of the exemption?

[44] As previously noted, paragraph 20(1)(c) was also relied on to withhold all of the information claimed to be exempted under paragraph 18(c) and paragraph 20(1)(b).

[45] Neither DFO, nor Creative Salmon Ltd. established that there is a reasonable expectation, well beyond a mere possibility, that the disclosure of the information at issue could result in the harms alleged.

[46] DFO’s representations in support of the application of paragraph 20(1)(c) to withhold the information at issue were limited to alleged harms arising from a loss of the opportunity to publish. According to DFO: publication would benefit the creators of the study (i.e. vis à vis access to future funding from various sources based on prior publication, increased professional stature and respect engendered by scientific discovery and publication); therefore, disclosure, prior to publication, could reasonably be expected to: “…direct subsequent funding [available from various sources] away from those who create it and reward those who obtain this information and utilize the results in their work which may or may not credit those who created it.”

[47] These representations fall well short of establishing a risk of harm described in paragraph 20(1)(c). As discussed in relation to paragraph 18(c), DFO failed to establish any continued intention to publish and/or ongoing risk of compromising a right of first publication of scientific results. In turn, it cannot establish any direct and clear link between disclosure of the information at issue and a substantial financial loss or gain to Creative Salmon Ltd. arising from the loss of benefits accruing from publication, much less establish that such an injury is reasonably expected and therefore well beyond the merely possible.

[49] Like DFO’s representations, these representations fall well short of establishing the requirements of paragraph 20(1)(c). Creative Salmon Ltd. failed to offer any explanation, much less any cogent explanation supported by evidence, of how the harm alleged could reasonably be expected to occur to the point of being well beyond the merely possible.

[50] In light of the above, neither DFO nor Creative Salmon Ltd. established that disclosure of the information at issue could reasonably be expected to result in substantial financial loss or gain to Creative Salmon Ltd., or be injurious to its competitive position, so as to fall within the scope of paragraph 20(1)(c). No clear and direct connection between disclosure of the information at issue and a risk of harm that is well beyond the merely possible, was shown. (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206)

If any of the information could fall within the scope of paragraphs 20(1)(b) or (c), did the institution reasonably exercise its discretion under subsection 20(6)?

[51] Although it was not established that any of the information at issue falls within the scope of paragraphs 20(1)(b) or (c), were this not the case, in my view, DFO would have been required to consider disclosure under subsection 20(6).

[52] During the investigation, DFO dismissed the applicability of this provision, stating:

…none of the information withheld under section 20 could reasonably pertain to public health, safety or the protection of the environment. The information is scientific study of and measurements of jaundice in cultured (farmed) aquaculture salmon in a laboratory. These fish were grown and raised by [the third party], they are not wild salmon, never sold to the public and pose no threat to the environment.

[53] DFO’s claim that because the information at issue studies/measures jaundice in farmed salmon, it does not engage matters of public health, public safety or the protection of the environment, is undermined by previously published scientific studies, including two studies co-authored by the project lead and principal author of the draft Final Project Report and Manuscript. These studies, conclude, inter alia, that: migratory Chinook salmon may be at more than a minimal risk of disease from exposure to the high levels of PRV occurring on salmon farms. (see: https://www.psf.ca/news-media/prv-virus-may-cause-disease-chinook-salmon); and “PRV-1 is now an important infectious agent in critically endangered wild Pacific salmon populations, fueled by aquacultural transmission.” (see: https://advances.sciencemag.org/content/7/22/eabe2592)

[54] Similarly, recent testimony of several witnesses before the Standing Committee on Fisheries and Oceans raised issues regarding the risks of disease and pest transfers from farmed salmon to wild fish. Notably, that Committee recommended, within its June 22, 2021 report entitled, Pacific Salmon: Ensuring the Long-term Health of Wild Populations and Associated Fisheries, that:

…Fisheries and Oceans Canada improve its data transparency practices, including making information available to the public without needing approval from industry and corporate stakeholders. (https://www.ourcommons.ca/Content/Committee/432/FOPO/Reports/RP11345845/foporp05/foporp05-e.pdf at page 19)

[55] Based on the above, had any of the information at issue fell within the scope of paragraph 20(1)(b) or (c), it would have been incumbent on DFO to consider disclosure under subsection 20(6), based on a consideration of all relevant factors.

Result

[56] The complaint is well founded.

Recommendations

I recommend that the Minister of Fisheries and Oceans:

Disclose the information at issue in full, with the exception of personal information withheld at the time of DFO’s receipt of the request under subsection 19(1); and
Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe‐Registry@oic‐ci.gc.ca).

On November 10, 2021, I issued my initial report to the Minister of Fisheries and Oceans setting out my recommendations.

On December 10, 2021, the Director of the Access to Information and Privacy Division of DFO gave me notice that DFO would be implementing my recommendations.

I have provided Creative Salmon Ltd. with this report. Institutions must abide by the terms of subsection 37(4) when disclosing any records in response to my recommendations.

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.