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Fisheries and Oceans Canada (Re), 2023 OIC 25

Date: 2023-09-11
OIC file number: 5822-06636
Institution file number: A-2022-00744

Summary

The complainant alleged that Fisheries and Oceans Canada (DFO) had improperly withheld information under subsection 19(1) (personal information), and paragraphs 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third‐party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act. This was in response to an access request for correspondence between DFO and Deep Water Recovery. The complaint falls within paragraph 30(1)(a) of the Act.

The application of subsection 19(1) to withhold the records at issue was removed from the scope of the complaint. Furthermore, both DFO and the third party conceded that paragraphs 20(1)(a) and 20(1)(c) should not have been applied to withhold information.

Neither DFO nor the third party showed that the records met all the requirements of paragraph 20(1)(b).

The complaint is well founded.

The Information Commissioner ordered DFO to disclose the information.

DFO gave notice that it would implement the order.

Complaint

[1]     The complainant alleged that Fisheries and Oceans Canada (DFO) had improperly withheld information under subsection 19(1) (personal information) and paragraphs 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for correspondence between DFO and Deep Water Recovery. 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 the application of subsection 19(1) to withhold information.

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]     During the investigation, the OIC came to the preliminary view that paragraphs 20(1)(a), 20(1)(b) and 20(1)(c) were not properly applied to withhold the records. As such, the OIC sought representations from DFO and Deep Water Recovery in accordance with section 35 of the Act.

[5]     In response, Deep Water Recovery conceded that paragraphs 20(1)(a) and 20(1)(c) should not have been applied to the records, but argued that the information should remain withheld under paragraph 20(1)(b), and also suggested that paragraph 21(1)(a) (advice or recommendations) could be applied to withhold some information.

[6]     In its response, DFO agreed that the information did not meet the requirements for exemption under paragraphs 20(1)(a), 20(1)(b) or 20(1)(c), and expressed its intention to disclose the information in accordance with the terms set out in the Act.

[7]     Following the receipt of all representations, I provided Deep Water Recovery with a notice to third parties in accordance with section 36.3. In its response, Deep Water Recovery’s representatives maintained that the information should continue to be withheld. It also argued that the notice that I provided was in breach of natural justice and procedural fairness, since it did not include an analysis of Deep Water Recovery’s previous representations. I note that the notice included the required elements listed under subsection 36.3(2) of the Act. I also note that Deep Water Recovery has received a thorough analysis of the information withheld under exemptions when it was given the opportunity to provide representations under paragraph 35(2)(c). I am therefore satisfied that Deep Water Recovery has been treated fairly and in accordance with the procedural requirements of the Act.

[8]     The investigation is focused on pages 2, 3, 8 to 14 and 34 (based on the numbering in the lower right corner of each page).

[9]     Since, from the outset of the investigation, the OIC was of the view that paragraphs 20(1)(a) and 20(1)(c) were not properly applied to the records and because DFO and Deep Water Recovery conceded that the information at issue did not meet the criteria for those exemptions, my analysis is limited to the application of paragraph 20(1)(b).

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

[10]     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).

[11]     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.

[12]     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.

[13]     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.

Does the information meet the requirements of the exemption?

[14]     Regarding the first criterion, in the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada stated that that the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings. As the records in question contain commercial plans, I accept that the first criterion is met.

[15]     Regarding the second criterion, in order for paragraph 20(1)(b) to be applied, the record must be confidential. The Federal Court has outlined three specific sub‐criteria, each of which must be met, for the information to be considered confidential:

  • The information must not be available from sources otherwise accessible by the public.
  • It must originate and be communicated with a reasonable expectation that it will not be disclosed.
  • It must be communicated, whether required by law or otherwise, 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. This relationship must be fostered for public benefit by the confidential communication. (see: Air Atonabee Ltd. v. Canada (Minister of Transport), [1989]     F.C.J. No. 453). [SJ1]     [CF2]     

[16]     Some of the information that was withheld is publicly available elsewhere. For example, a copy of one of the records was released, with only employees’ phone numbers withheld, following a provincial Freedom of Information request, before DFO received this access request. That record was therefore publicly available prior to the processing of this request. Some information is also available through inspection reports that are publicly available or by simple observation, as Deep Water Recovery performs its work out in the open, visible to neighbours, to anyone passing by on the water or in the air, or in satellite images. Deep Water Recovery claimed that any observers would be trespassing, but given there is a residential neighbourhood on one side of the property and that most of the work is done facing directly onto a public waterway, I am not convinced that some information is not available through public observation.

[17]     Deep Water Recovery also noted that much of the information in question is anticipatory and contains procedures that have not been triggered. There was, however, an incident reported in the news that presumably would have triggered these procedures. Furthermore, not all of the information is anticipatory, as some withheld paragraphs describe a practice that has been observed by local residents. As another example, one of the records describes an ongoing process that has been described in provincial inspection reports. Based on this, it appears that much of the withheld information is available from public sources.

[18]     With regard to the expectation of confidentiality, the Federal Court has found that “[p]    arties seeking government approvals, just as parties seeking government funds or contracts, cannot expect the same degree of confidentiality as a party who is assisting government.” (see AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189, para. 76, affirmed in 2006 FCA 241). Given the records seem to have been submitted in the process of seeking approval from DFO to perform some work, it appears that Deep Water Recovery was seeking approval, rather than providing assistance to DFO. Deep Water Recovery claimed that its submissions to DFO are assisting DFO in fulfilling its mandate, but the records nonetheless appear to fall within the category of seeking approval rather than providing assistance. Deep Water Recovery also cited SNC-Lavalin v. Canada (Minister of Public Works), 1994 FCJ 1059, para. 35 to demonstrate that a record prepared by a fourth party could be confidential. In that case, however, the records were clearly stamped as confidential. The record in the present instance contains no such markings. It therefore does not appear that there was a reasonable expectation of confidence that this information would not be disclosed.

[19]     Turning to the third criterion of confidentiality, that the information was communicated within the context of a relationship fostered for public benefit by the communication’s confidentiality, it appears that the relationship exists for the purpose of ensuring that Deep Water Recovery’s activities do not harm aquatic ecosystems. However, oversight by DFO would presumably persist regardless of the type of relationship between the two parties. I am not convinced that keeping all of the information at issue confidential would foster the relationship between Deep Water Recovery and DFO for public benefit.

[20]     In light of all of the above, and on the basis of the representations received, I find that none of the information at issue meets all three criteria for confidentiality.

[21]     While Deep Water Recovery supplied much of the information in question to a government institution, meeting the third criterion of the exemption, any information created by the government institution and its representatives would not meet this criterion except to the extent that the information reveals confidential information supplied by the third party. For example, the recommendations listed by DFO on pages 2 and 3 do not appear to have been provided by Deep Water Recovery. Deep Water Recovery suggested that these recommendations should be withheld under paragraph 21(1)(a) instead, but DFO did not provide any representations to that effect. As a result, I find that the third criterion for the exemption to apply has not been met for all of the information at issue.

[22]     Regarding the fourth criterion for the exemption, Deep Water Recovery provided evidence that it has consistently treated the information as confidential, and expects its employees not to reveal such information. As such, I find that the fourth criterion for the exemption has been met.

[23]     While Deep Water Recovery has provided evidence that it has consistently treated the information as confidential, neither Deep Water Recovery nor DFO have met the burden to demonstrate that the information is confidential and entirely supplied by the third party. As such, I must find that the information does not meet the requirements of paragraph 20(1)(b).

Result

[24]     The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Fisheries and Oceans to disclose all of the information at issue previously withheld under paragraphs 20(1)(a), 20(1)(b) and 20(1)(c), as follows:

  • page 2, except for information that has been withheld by DFO under the subsection 19(1) exemption;
  • page 3;
  • pages 8 to 14, except for information that has been withheld by DFO under the subsection 19(1) exemption;
  • page 34.

On August 4, 2023, I issued my initial report to the Minister of Fisheries and Oceans setting out my order.

On August 11, 2023, DFO gave me notice that it would be implementing my order.

I have provided Deep Water Recovery 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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