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Fisheries and Oceans Canada (Re), 2023 OIC 42

Date: 2023-12-18
OIC file number: 5820-03625
Institution file number: A-2020-01054/NA

Summary

The complainant alleged that Fisheries and Oceans Canada (DFO) had improperly withheld information under paragraph 13(1)(c) (confidential information from government bodies), subsection 16(2) (security), paragraph 16(2)(c) (facilitating the commission of an offence), subsection 19(1) (personal information) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for records about the Laval River slope stabilization project, at kilometre 680. This allegation falls within paragraph 30(1)(a) of the Act.

The use of subsections 16(2) and 19(1) to withhold signatures when the name of the signing authority was indicated directly below was removed from the scope of the complaint.

The Information Commissioner concluded that the information withheld under subsection 19(1) met the criteria of the exemption.

DFO did not show that the information met all of the requirements of paragraph 13(1)(c), in particular the confidentiality requirement.

Neither DFO nor the third party showed that the information met all the requirements for the exemption under paragraph 20(1)(c).

The Commissioner ordered DFO to release all information that was previously withheld pursuant to paragraphs 13(1)(c) and 20(1)(c), with the exception of the information withheld under subsection 19(1).

The institution gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1]     The complainant alleged that Fisheries and Oceans Canada (DFO) had improperly withheld information under paragraph 13(1)(c) (confidential information from government bodies), subsection 16(2) (security), paragraph 16(2)(c) (facilitating the commission of an offence), subsection 19(1) (personal information) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for records about the Laval River slope stabilization project, at kilometre 680. This allegation 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 subsections 16(2) and 19(1) to signatures when the name of the signing authority was indicated directly below.

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]     During the investigation, the OIC sent the third party, Les Excavations A. Savard Inc., a request for representations on the application of paragraph 20(1)(c) pursuant to paragraph 35(2)(c). Les Excavations A. Savard Inc. did not respond. In accordance with subsection 36.3(1) of the Act, I gave notice to Les Excavations A. Savard Inc. of my intention to order DFO to disclose information. Les Excavations A. Savard Inc. did not respond.

Subsection 13(1): confidential information from government bodies

[5]     Subsection 13(1) requires institutions to refuse to disclose information obtained in confidence from certain government bodies.

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

  • The information was obtained from one of the following government bodies:
  • a government of a foreign state or an institution of a foreign state;
  • an international organization of states or an institution of such an organization;
  • a provincial government or institution;
  • a municipal or regional government or institution; or
  • an aboriginal government or council listed in subsection 13(3).
  • The information was obtained from the government body in confidence—that is, with the understanding that it would be treated as confidential.

[7]     When these requirements are met, institutions must then consider whether the following circumstances exist:

  • The government body from which the information was obtained consents to its disclosure.
  • That body has already made the information public.

[8]     When one or both of these circumstances exist, subsection 13(2) requires them to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[9]     DFO applied paragraph 13(1)(c) to the majority of the pages of the records, which consisted of letters, emails, presentations and studies. This exemption was applied concurrently with paragraph 20(1)(c) at pages 313 to 316 of the records.

[10]     DFO explained that the Laval River slope stabilization project was under the jurisdiction of the Quebec government and that the information was obtained from the Quebec Ministère de l’Environnement et de la Lutte contre les changements climatiques, the Quebec Ministère des Forêts, de la Faune et des Parcs or the MTQ.

[11]     However, some information appears to come from DFO, and not the Province of Quebec, as indicated in my initial report: pages 10-11, 60-61, 71, 73-74, 119-120, 125-127, 136, 293-303, 317-318, 321-323, 326-327, 335, 347, 351, 376-377, 384-386, 427-440, 526-531, 533, 535, 540 and 543. The same is true for some information from DFO reproduced in documents from the MTQ, at pages 129-132.

[12]     DFO indicated that the information obtained from the Quebec government departments was subject to a level of confidentiality that could be implied. DFO explained that the implicit confidentiality means that the information should be kept confidential even if, when submitted, a government (province) did not clearly identify that it should be. It specified that this implicit confidentiality protects partnership and collaboration in intergovernmental relations.

[13]     DFO admitted that it is possible that the confidentiality of the information was not a factor at the time of disclosure. However, it felt that the particular circumstances of this case and the importance to maintain good federal-provincial relations justify the application of paragraph 13(1)(c).

[14]     DFO was unable to establish that the information was provided with the expectation that it would be treated as confidential.

[15]     The onus was on DFO to establish that at the time the information was communicated, it was intended to be treated as confidential.

[16]     In addition, during the investigation, DFO raised the implicit confidentiality of the technical information that could have an impact on public safety. It did not specify, however, what that information was when asked to do so, and failed to establish how the disclosure of said information would have an impact on public safety.

[17]     In light of the above, DFO has not established that the confidentiality requirement is met for the information at issue. I conclude that the information does not meet the requirements of paragraph 13(1)(c).

[18]     Consequently, there is no need to examine whether DFO reasonably exercised its discretion to decide whether to disclose the information when one or more of the circumstances set out in subsection 13(2) existed.

Subsection 19(1): personal information

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

[20]     To claim this exemption, institutions must then 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).

[21]     When these requirements are met, institutions must then consider whether the following circumstances 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.

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

Does the information meet the requirements of the exemption?

[23]     Subsection 19(1) was applied concurrently with paragraph 13(1)(c) to individuals’ leave information, contact information of individuals and signatures.

[24]     DFO demonstrated that the information is about individuals, that it would identify these individuals, and it 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.

[25]     I find that the information meets the requirements of the exemption.

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

[26]     Under subsection 19(2), DFO was required to reasonably exercise its discretion in deciding whether to release the information, where at least one of the circumstances described in that subsection existed at the time of the response.

[27]     Under paragraph 19(2)(a), DFO was required to determine whether consent was provided by making reasonable efforts to seek consent from the individuals whose personal information appears in the records. I agree with DFO that it would be unreasonable to ask individuals for their consent to disclose this information.

[28]     Under paragraph 19(2)(b), DFO’s discretion would have been triggered if the personal information was publicly available. The investigation confirmed that the personal information is not publicly available. Consequently, there is no need to examine the issue of discretion under paragraph 19(2)(b).

[29]     Discretion is also triggered under paragraph 19(2)(c) when the disclosure would be in accordance with section 8 of the Privacy Act. The investigation determined that the disclosure would not be in accordance with subsection 8(2) of the Privacy Act. Consequently, there is no need to examine whether discretion was triggered under paragraph 19(2)(c).

[30]     I conclude that the circumstances set out in subsection 19(2) did not exist when DFO responded to the access request. Consequently, there is no need to examine the issue of discretion to decide whether to disclose the information.

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

[31]     Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material 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.

[32]     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.

[33]     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 harm could occur—that is, the expectation is well beyond a mere possibility.

[34]     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.

Does the information meet the requirements of the exemption?

[35]     DFO concurrently applied paragraphs 20(1)(c) and 13(1)(c) to a document entitled “Méthodes de travail” and to an attached document from Les Excavations A. Savard Inc., at pages 313 to 316.

[36]     Les Excavations A. Savard Inc. and DFO did not demonstrate that the disclosure of information could cause financial loss to Les Excavations A. Savard Inc. or could harm its competitive position, or that there is a reasonable expectation that this harm could occur. In light of the above, I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Outcome

[37]     The complaint is well founded.

Orders and recommendations

I order the Minister of Fisheries and Oceans to release all information that was previously withheld pursuant to paragraphs 13(1)(c) and 20(1)(c), with the exception of the information withheld under subsection 19(1).

Initial report and notice from institution

On September 20, 2023, I issued my initial report to the Minister of Fisheries and Oceans setting out my order.

On November 10, 2023, the Acting Director, Access to Information and Privacy Secretariat, gave notice that Fisheries and Oceans would be implementing my order. However, the notice does not specify the concrete steps that the institution has taken or that will be taken to implement the order.

Review by the Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so 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, the order(s) takes effect on the 36th business day after the date of this report.

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