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Health Canada (Re), 2024 OIC 75

Date: 2024-11-27
OIC file number: 5821-01140
Access request number: A-2018-001653

Summary

The complainant alleged that Health Canada had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act in response to an access request for records related to Tetra Tech, including peer reviewer comments. This allegation falls under paragraph 30(1)(a) of the Act. Health Canada could not show that it met all the requirements of these exemptions - in particular, that the information was not publicly available, that it was objectively confidential, or that all of the information was provided by the third party, or that there was a real risk of competitive harm to the third party by the release of the information.  Health Canada did reasonably exercise its discretion to decide not to disclose information withheld under paragraph 21(1)(b). The Information Commissioner ordered that Health Canada disclose information withheld under paragraph 20(1)(b).

Health Canada gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Health Canada had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act in response to an access request for records related to Tetra Tech, including peer reviewer comments. This allegation falls under 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 paragraph 20(1)(c) to withhold the names of two third parties on pages 48, 159 and 271.

Investigation

[3]      When an institution withholds information that includes 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]      The OIC gave Tetra Tech the opportunity under paragraph 35(2)(c) to provide representations showing why the information should not be disclosed. In its representations, Tetra Tech maintained its position that the information withheld under paragraph 20(1)(b) should remain undisclosed. Tetra Tech also provided representations which it believed demonstrate that paragraph 20(1)(c) (financial impact on a third party) applies to the withheld information.

[5]      Health Canada maintained that the information meets the requirements of the claimed exemptions.

[6]      The OIC notified Tetra Tech pursuant to subsection 36.3(1) of my intention to order Health Canada to disclose the information at issue. In response, Tetra Tech re-iterated that the information withheld under paragraph 20(1)(b) should not be disclosed.

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

[7]      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).

[8]      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.

[9]      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.

[10]    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.

[11]    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?

[12]    Paragraph 20(1)(b) was applied to withhold the following information:

  • The designation of reviewers (i.e. “Reviewer 1”, “Reviewer 2”, “Reviewer 3”)
  • Information on pages 346-350, 359-363, 372-376;
  • Information on pages: 377-378;
  • Information on pages: 377-447; 
  • Information on pages: 340-346; 353, 355, 356; 366, 368, 369, and 371;
  • Information pages: 2, 8, 114, 123, 132, 137, 145-146, 148-152, 234, 248, 257, 258, 260-263, 336, 353-356, 358, 359, 366-369, 371, and 372;
  • Information on pages: 340-346, 353-359, and 366-372;
  • Information on pages: 339, 352, and 365;
  • Information on pages: 340-346, 353-359, 366-372.

Was the information confidential?

[13]    In order for paragraph 20(1)(b) to be applied, the record must be objectively confidential. In Air Atonabee Limited v. Canada (Minister of Transport), 27 F.T.R. 194, [1989] F.C.J. No. 453 (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 with a reasonable expectation of confidence that it will not be disclosed; and
  • the relationship between the government and third party is not contrary to the public interest and will be fostered for public benefit by keeping the information confidential.

[14]    Considering the first sub-criterion for confidentiality, I find that certain information within the record is available from public sources. The names of the third-party reviewers were published in the final version of the talc report, confirming that there were three reviewers. Health Canada failed to demonstrate how a particular reviewer could be linked to a specific anonymized reviewer designation. To this end, the fact that there were three reviewers who provided input into the records is publicly available information and disclosure of the designations of the reviewers throughout the record would not disclose any additional non-publicly available information.

[15]    Further, information withheld on pages 339, 352, 365, 377-447, and portions of pages 340-346, 353-359, and 366-372 are publicly available, and therefore do not meet the first sub-criterion of objective confidentiality. I accept that the remaining information is not publicly available.

[16]    Considering the second sub-criterion for confidentiality, I find that it has not been demonstrated that the information at issue was provided to Health Canada with a reasonable expectation of confidence that this information would not be disclosed.

[17]    As noted in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, while the proponent(s) of the exemption must establish the exemption applies on a balance of probabilities, “what evidence will be required to reach that standard will be affected by the nature of the proposition the [proponent of the exemption] seeks to establish and the particular context of the case.” (para. 94)

[18]    In these circumstances, where there is no objective evidence demonstrating Health Canada had any obligation of confidentiality in regards to the peer review report it contracted for, and where there is not just one industry standard when it comes to the confidentiality of peer review comments, I required objective evidence demonstrating this sub-criterion was met with regards to the information at issue. The parties failed to provide such evidence. 

[19]    With respect to the third requirement for confidentiality, I am not convinced that the information was communicated within the context of a relationship fostered for public benefit by the communication’s confidentiality.

[20]    I conclude that none of the withheld information meets the requirements for objective confidentiality.

Was the information supplied by a third party to a government institution?

[21]    Turning to the third criteria of paragraph 20(1)(b), some of the information does not appear to have been supplied by the third party to Health Canada. For instance, Health Canada appears to have supplied some information on pages 340-346; 353, 355, 356; 366, 368, 369, and 371.  Further, comments made by Health Canada on pages 2, 8, 114, 123, 132, 137, 145-146, 148-152, 234, 248, 257, 258, 260-263, 336, 353-356, 358, 359, 366-369, 371, and 372 do not always directly reference the specific information provided by the third party. This information does not appear to have been supplied by Tetra Tech.

[22]    I accept that the remainder of the withheld information was supplied by the third party to Health Canada.

Has the third party consistently treated the information as confidential? 

[23]    As for the final criteria, given the purpose of the reviewer submission to Health Canada, the circumstances in which the records were compiled and communicated, and the representations provided by Tetra Tech, I accept that the information was consistently treated as confidential by Tetra Tech, so as to satisfy this requirement.

[24]    While the information meets the fourth and final criteria required for information to be exempt under paragraph 20(1)(b), it has not been shown that the information meets the second criteria for confidentiality or third criteria of all of the information having been supplied by the third party.

[25]    As such, the OIC did not examine whether the information met the requirements of the first criteria; namely, whether the information is financial, commercial, scientific or technical in nature.

[26]    Consequently, I conclude that the information does not meet the requirements of paragraph 20(1)(b).

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

[27]    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.

[28]    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.

[29]    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.

[30]    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.

[31]    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.

[32]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) 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?

[33]    In the present instance, Health Canada has not applied paragraph 20(1)(c) to the records, but Tetra Tech has asserted that the exemption applies to the information at issue.

[34]    For paragraph 20(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206). 

[35]    The case law under the Act makes clear that a party resisting disclosure based on paragraph 20(1)(c) bears the onus of establishing in more than just a general way that there is a reasonable expectation of a probable harm described in paragraph 20(1)(c) occurring if the information is disclosed (see: Les Viandes du Breton Inc. v. Canada (Department of Agriculture), 2000 CanLII 16764 (FC), at para 12). This requires that a party opposing disclosure demonstrate that the harm is reasonably probable and must be assessed based on facts and on the specific records at issue in an access request (see: Samsung Electronics Canada Inc. v. Canada (Health), 2020 FC 1103, at para 113).

[36]    I am not convinced by Tetra Tech’s first assertion that the report could be used by competitors in a manner that could reasonably be expected to result in competitive harm to Tetra Tech. Tetra Tech has not explained what aspect of the report would be of use or interest to competitors such that it could result in a competitive harm.          It is unclear how this peer review report would differ from those created by Tetra Tech’s competitors.

[37]    Regarding Tetra Tech’s second assertion, I am inclined to accept that portions of the review may have some competitive value, but is unclear whether the use of this information by competitors could reasonably be expect to result in harm to Tetra Tech’s competitive position (as opposed to simply increase competition, for example, see Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444).

[38]    I am also not convinced that disclosure of information that is publicly available could reasonably be expected to result in harm to Tetra Tech’s competitive position.

[39]    Finally, regarding any information that could reveal insights into Health Canada’s peer review preferences, I am not convinced that disclosure of this information could reasonably be expected to result in harm to Tetra Tech’s competitive position. Health Canada’s agreement or disagreement with positions taken by the peer reviewers has already been disclosed with the publication of the DSAR. Therefore, it is unclear what information in particular is of concern to Tetra Tech on this basis.

[40]    Therefore, Health Canada and Tetra Tech have not demonstrated a clear and direct connection between disclosure of the information at issue, and a risk of harm within the meaning of paragraph 20(1)(c) that is well beyond the merely possible or speculative.

[41]    I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Paragraph 21(1)(b): accounts of consultations or deliberations

[42]    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.

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

[44]    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.

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

Does the information meet the requirements of the exemption?

[46]    Health Canada applied the exemption to withhold information on pages 6 and 7 in an email discussing the Tetra Tech review process.

[47]    The records in question were created by or for Health Canada and were created less than 20 years before the access request was made.

[48]    I accept that the comments between employees discussing the review would fall under this exemption as there is a clear consultation and deliberation between employees on the services received from the third party.

[49]    I conclude that the information meets the requirements of paragraph 21(1)(b).

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

[50]    Since Health Canada was of the view that the information meets the requirements of paragraph 21(1)(b), it was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, Health Canada had to consider all the relevant factors for and against disclosure.

[51]    Health Canada 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.

[52]    Health Canada explained how it exercised its discretion not to disclose the information.

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

Outcome

[54]    The complaint is well founded.

  • Some of the withheld information that is publicly available.
  • Records for which not all of the withheld information was supplied by the third party to Health Canada.
  • Records for which Health Canada and Tetra Tech did not demonstrate that there was a reasonable expectation of confidentiality for all of the withheld information.
  • Records for which Health Canada and Tetra Tech did not demonstrate a clear and direct connection between disclosure of the information at issue, and a risk of harm within the meaning of paragraph 20(1)(c) that is well beyond the merely possible or speculative.

Order

I order the Minister of Health to disclose some information as detailed in my initial report for which paragraph 20(1)(b) was applied:

  1. Disclose Reviewer designations throughout the records;
  2. Disclose information on pages 346-350, 359-363, 372-376;
  3. Disclose information on pages: 377-378;
  4. Disclose information on pages: 377-447;
  5. Disclose information on pages: 340-346; 353, 355, 356; 366, 368, 369, and 371;
  6. Disclose information on pages: 2, 8, 114, 123, 132, 137, 145-146, 148-152, 234, 248, 257, 258, 260-263, 336, 353-356, 358, 359, 366-369, 371, and 372;
  7. Disclose information on pages: 340-346, 353-359, and 366-372;
  8. Disclose information on pages: 339, 352, and 365;
  9. Disclose information on pages: 340-346, 353-359, 366-372.

Initial report and notice from institution

On October 18, 2024, I issued my initial report to the Minister of Health setting out my order.

On November 14, 2024, the Executive Director of Access to Information and Privacy Operations gave me notice that Health Canada would be implementing the order.

Review by 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.

The complainant and/or institution must apply for a 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. Whoever 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, the order(s) takes effect on the 46th business day after the date of this report.

Other recipient of final report

As required by subsection 37(2), this report was provided to Tetra Tech.

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