Housing, Infrastructure and Communities Canada (Re), 2024 OIC 47

Date : 2024-07-24 
OIC file number : 5819-00040 
Access request number : A-2018-117

Summary

The complainant alleged that Housing, Infrastructure and Communities Canada (Infrastructure Canada) had improperly withheld information under 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 a third party) and subsection 24(1) (disclosure restricted by another law) of the Access to Information Act in response to an access request. The request was for all official documents from the Signature on the Saint Lawrence Group (SSLG) asking for payment from Infrastructure Canada from January 2016 to March 2019. The allegation falls under paragraph 30(1)(a) of the Act.

During the investigation, the complainant decided it was no longer necessary investigate the withholding of GST/PST numbers, banking information and information withheld under subsection 19(1).

Infrastructure Canada and SSLG showed that the information related to pricing and contractual relationships met all of the requirements of paragraph 20(1)(c) but could not show that any of the other withheld information met the requirements of paragraphs 20(1)(b), 20(1)(c) or subsection 24(1).

The Information Commissioner ordered that Infrastructure Canada disclose the information remaining within the scope of the complaint, other than the information related to pricing and contractual relationships.

Infrastructure Canada gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Housing, Infrastructure and Communities Canada (Infrastructure Canada) had improperly withheld information under 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 a third party) and subsection 24(1) (disclosure restricted by another law) of the Access to Information Act in response to an access request. The request was for all official documents from the Signature on the Saint Lawrence Group (SSLG) asking for payment from Infrastructure Canada from January 2016 to March 2019. The 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 withholding of GST/PST numbers, banking information and information withheld under subsection 19(1).

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]      The OIC sought representations from SSLG pursuant to paragraph 35(2)(c). I gave notice to SSLG under section 36.3 that I was not satisfied that the requirements of the exemptions were met for specific information related to it.

[5]      Both Infrastructure Canada and the complainant were also asked to provide representations during the investigation. Along with its representations, Infrastructure Canada provided me with a partial copy of the relevant Project Agreement between Infrastructure Canada and SSLG.

[6]      I considered all of representations provided by SSLG, Infrastructure Canada and the complainant in coming to my decision.

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

[7]      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.

[8]      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.

[9]      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?

[10]    Infrastructure Canada applied paragraph 20(1)(c) concurrently with paragraph 20(1)(b) to withhold the information that remains at issue.

[11]    The records contain detailed financial amounts and SSLG’s representations focused mainly on these types of financial information.

[12]    I accept that disclosure of financial information that provides insight into pricing and contractual relationships would likely give SSLG’s competitors an advantage against SSLG in competition for further work. Such information is limited to details such as supplier names and details that reveal specific charges and costs. Since SSLG is a consortium created specifically for this project, any relevant future work may well be limited (for example, to additional work that needs to be done on the bridge that was not included in the project scope), but based on the representations received from SSLG, it is evident that SSLG does intend to bid on relevant future work.

[13]    SSLG identified one other type of information that it asserted would cause it harm if disclosed. SSLG indicated that disclosure of this information “could be seen negatively by project owners on future bids”. I find, however, that this argument is entirely speculative. Neither SSLG nor Infrastructure Canada have provided evidence that disclosure of any other information in the context of this access request could reasonably be expected to result in such harm.

[14]    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).

[15]    Other than for the information related to pricing and contractual relationships, neither SSLG nor Infrastructure Canada have adequately established how the rest of the information at issue could be used by SSLG’s competitors to harm the third party.

[16]    I conclude that only the information related to pricing and contractual relationships that Infrastructure Canada withheld under paragraph 20(1)(c) meets the requirements of this exemption.

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

[17]    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).

[18]    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.

Does the information meet the requirements of the exemption?

[19]    Infrastructure Canada applied paragraph 20(1)(b) concurrently with paragraph 20(1)(c) to withhold the following information that remains at issue:

• The Procurement Business Number;
• The full description section of the invoices; and
• The cost breakdown under the Total column (sub-total and total were disclosed).

[20]    SSLG indicated that it now consents to the disclosure of the Procurement Business Number. In any event, I note that neither SSLG nor Infrastructure Canada had provided sufficient representations to support that paragraph 20(1)(b) applies to this information.

[21]    I accept that invoice descriptions contain financial, commercial and technical information, and that the cost breakdown is financial information. As such, most of this information meets the first requirement of the exemption. Where it does not, I have also found, as explained below, that the information is not objectively confidential.

[22]    The second requirement of paragraph 20(1)(b) is that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:

• the content of the record is not available from sources otherwise accessible to the public or obtainable by observation or independent study by a member of the public acting on their own;
• the information originates and is communicated in a reasonable expectation of confidence that it will not be disclosed; and
• the information, whether provided by law or supplied voluntarily, be communicated in a relationship between government and the third party that is either a fiduciary relationship or one that is not contrary to the public interest, and that will be fostered for the public benefit by confidential communication. (see Air Atonabee Ltd. v. Canada (Minister of Transport) , (1989) 27 FTR 194 (F.C.T.D.); see also: Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3, para. 133).

[23]    I accept that the information at issue is not publicly available.

[24]    In the Federal Court’s decision in AstraZeneca Canada Inc. v. Canada (Minister of Health ), 2005 FC 189 at para 76, the court stated that “parties seeking government funds or contracts cannot expect the same degree of confidentiality as a party who is assisting government”.

[25]    Both SSLG and Infrastructure Canada asserted that confidentiality of this information was provided for in the Project Agreement. The Federal Court, however, has held that parties are unable to contract out of the Act ( St. Joseph Corp. v. Canada (Public Works and Government Services) , 2002 FCT 274, at para. 54). Therefore, while the presence of a confidentiality clause is a relevant factor in determining objective confidentiality, it is not determinative. Infrastructure Canada provided me with a partial copy of the Project Agreement. The partial copy is lacking crucial details such as the definition of the term “Confidential information”. As such, I could not rely on the partial copy of the agreement to determine to what extent SSLG had a reasonable expectation that the information at issue would not be disclosed.

[26]    Although there may have been a reasonable expectation that some of the withheld information would remain confidential as per the agreement, such as detailed cost breakdowns, I am not convinced this is true of all of the withheld information. Since I have found such detailed cost breakdowns to meet the requirements of another exemption, it is not necessary to determine whether this information also meets the requirements of paragraph 20(1)(b).

[27]    Additionally, I do not find that SSLG or Infrastructure Canada have established that this information as a whole was communicated within the context of a relationship that would be fostered for public benefit by the communication’s confidentiality. The information pertains to the spending of a significant amount of public funds. The Federal Court of Appeal found in Canada (Minister of Public Works and Government Services) v. The Hi-Rise Group Inc. , 2004 FCA 99 at para. 41:

Absent special circumstances (national security comes to mind), I fail to see how public benefit could be fostered by maintaining the confidentiality of amounts paid or payable by government pursuant to contractual obligations with third parties.

[28]    In light of the substantial public funds being spent on the project, it seems that general details of what work was carried out in exchange for those funds would be of significant public interest.

[29]    Neither SSLG nor Infrastructure Canada provided representations as to how confidential communication of all of the information at issue fosters the relationship between Infrastructure Canada and SSLG for the public benefit. The severance and disclosure of rather innocuous details in the description would seem unlikely to damage Infrastructure Canada’s relationship with SSLG or similar third parties in future projects. Moreover, there is a public benefit in disclosing some information surrounding the spending of significant public funds.

[30]    In light of the above, I am not convinced that the requirements of objective confidentiality are met for the information I have not already found to meet the requirements of paragraph 20(1)(c).

[31]    Turning to the third requirement of paragraph 20(1)(b), although the Construction Contractor Project Team collected all of the data and issued the invoices, I am not convinced that all of the information contained within the invoices was supplied by a third party to Infrastructure Canada. Neither SSLG nor Infrastructure Canada have adequately addressed the fact that certain details and payment amounts would have been determined by agreement between the government and the third party. Although the invoices were supplied by SSLG, some of the information within them clearly originated from the government, such as the Procurement Business Number. Moreover, contractual terms agreed upon by the parties cannot generally be considered supplied by the third party. Neither SSLG nor Infrastructure Canada provided details as to what amounts and details were agreed upon.

[32]    Turning to the final requirement of paragraph 20(1)(b), based on the representations provided by SSLG and Infrastructure Canada, I accept that SSLG has consistently treated the withheld information as confidential.

[33]    I conclude that the information remaining at issue does not meet the requirements of paragraph 20(1)(b).

Subsection 24(1): disclosure restricted by another law

[34]    Subsection 24(1) requires institutions to refuse to disclose information the disclosure of which is restricted by a provision set out in Schedule II of the Access to Information Act. 

Does the information meet the requirements of the exemption?

[35]    Infrastructure Canada applied subsection 24(1) to the third party’s Procurement Business Number, concurrently with paragraph 20(1)(b). Infrastructure Canada appeared to be relying on section 295 of the Excise Tax Act to withhold this information; however, Infrastructure Canada failed to confirm this.

[36]    SSLG indicated that it does not oppose disclosure of the Procurement Business Number, and neither SSLG nor Infrastructure Canada provided sufficient representations to support that any Schedule II provision applies to this information.

[37]    I conclude that the information does not meet the requirements of subsection 24(1).

Outcome

[38]    The complaint is well founded.

Orders and recommendations

I order the Deputy Head of Infrastructure Canada to do the following:

1. Disclose the Procurement Business Number;
2. Disclose the information that remains within the scope of the complaint where I have found the requirements of paragraph 20(1)(c) are not met.

Initial report and notice from institution

On June 11, 2024, I issued my initial report to the Deputy Head setting out my orders.

On July 8, 2024, Infrastructure Canada’s Director, ATIP and Executive Correspondence gave me notice that Infrastructure Canada would be implementing the orders.

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 recipients of final report

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