Impact Assessment Agency of Canada (Re), 2024 OIC 74

Date: 2024-11-19
OIC file number: 5823-01006
Access request number: A-2022-00046

Summary

The complainant alleged that the Impact Assessment Agency of Canada (IAAC) improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for records pertaining to engagement with proponents of the Ksi Lisims LNG project and the proponents’ engagement with Indigenous communities relating to the project.

The complainant decided to limit the scope of the complaint to the information withheld on pages 51-74 of the records, and decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate information withheld under subsection 19(1). As information on page 57 was withheld under both subsection 19(1) and paragraph 20(1)(b), the OIC included this page in the scope of its investigation.

The IAAC could not show that the information on pages 62, 63, 65 and 73 met all the requirements of the exemptions.

The IAAC showed that the information on page 57 met all the requirements of subsection 19(1). The circumstances set out in subsection 19(2) did not exist and there was no need for the IAAC to exercise its discretion.

The IAAC showed that the information on page 67 met the requirements of paragraph 20(1)(c).  The IAAC did not consider all relevant factors and did not reasonably exercise its discretion to decide not to release the information on page 67.

The Information Commissioner ordered that the IAAC disclose the information withheld on pages 62, 63, 65 and 73 of the records.

The Commissioner also ordered the IAAC to determine, on page 67, whether the circumstances described in subsection 20(6) exist and reasonably exercise discretion to decide whether to release the information.

The IAAC gave notice to the Commissioner that it would be implementing the orders.

The complaint is well-founded.

Complaint

[1]        The complainant alleged that the Impact Assessment Agency of Canada (IAAC) improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for records pertaining to engagement with proponents of the Ksi Lisims LNG project and the proponents’ engagement with Indigenous communities relating to the project.

[2]        During the investigation, the complainant decided to limit the scope of the complaint to the information withheld on pages 51-74 of the records, and decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate information withheld under subsection 19(1). As information on page 57 was withheld under both subsection 19(1) and paragraph 20(1)(b), the OIC included this page in the scope of its investigation.

Investigation

[3]        When an institution withholds 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]        On November 15, 2023, the IAAC partially disclosed information on page 73, which it had previously withheld under paragraphs 20(1)(b), 20(1)(c), and 20(1)(d) when it responded to the access request, on the basis that the information was publicly available. The IAAC continued to withhold the remaining information.

[5]        During the course of the investigation, the OIC requested representations from Ksi Lisims LNG (KL LNG), Rockies LNG LP (Rockies), the Nisga’a Nation, and the Lax Kw’alaams Band.

[6]        In its response, KL LNG indicated that it does not object to the disclosure of the information on pages 63, 65, and 73, if the OIC determines that it does not qualify for exemption. However, KL LNG maintained its objection to the disclosure of the other information in the records.

[7]        Similarly, while acknowledging that the OIC was not requesting representations on pages 62 and 67, Rockies addressed the information withheld on pages 63, 65 and 73. It stated that if the OIC determines that the information at issue does not satisfy the requirements of the exemptions, it does not object to such a finding or to the disclosure of the information.

[8]        The Lax Kw’alaams Band acknowledged that the statement on page 73 is similar in substance to published information and the Band does not oppose the disclosure of that passage.

[9]        The Nisga’a Nation did not provide a response to the OIC’s request for representations.

[10]      On May 28, 2024, notices were sent to the third parties pursuant to section 36.3 of the Act. No additional representations were received.

[11]      A second notice was sent to KL LNG, Rockies LNG and the Nisga’a Nation on July 23, 2024, advising of the OIC’s determination that the diagram on page 62 was publicly available, and that I intend to order disclosure of this page. KL LNG responded that it did not object to the OIC’s determination. The other parties did not provide any additional representations.

[12]      In representations provided during the investigation, the IAAC stated that, since the relevant third party is not opposed to disclosure, it is of the opinion that the information on page 73 can be disclosed. With respect to the information on pages 63 and 65, the IAAC outlined the representations provided by KL LNG at the time the request was processed, which was the basis for their application of the exemptions. The IAAC noted that the third parties had not provided any additional representations to the OIC to support the exemption of the information. As such, it stated that it was amendable to disclosure of the information, if the OIC determined the information on these pages does not meet the requirements of the exemption.

[13]      Following the OIC’s determination that the information on page 62 is publicly available, the IAAC indicated that this information could be disclosed. The IAAC also later advised the OIC that it had reconsidered the information withheld on page 67 and was of the view that the information could be disclosed.

Subsection 19(1): personal information

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

[15]      To claim this exemption, institutions must 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).

[16]      When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) 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.

[17]      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 criteria of the exemption?

[18]      Although the complainant indicated that they are not contesting the application of subsection 19(1) to withhold personal information, on page 57, the IAAC withheld signatures and a job title on land surveys under subsection 19(1), concurrently with paragraph 20(1)(b). As such, page 57 falls within the scope of the complaint.

[19]      I accept that an individual’s signature is an identifying particular assigned to the individual and a job title would constitute employment information about an individual. When combined with other available information, the exempted information could lead to the identification of the individuals. The information also does not fall under the exceptions in paragraphs 3(j) to 3(m) of the Privacy Act.

[20]      As the IAAC showed that the information is identifiable information about individuals, I conclude that the information meets the requirements of subsection 19(1).

[21]      Since the information meets the requirements of subsection 19(1), I did not examine the application of paragraph 20(1)(b) to withhold the same information.

Did the institution reasonably exercise its discretion?

[22]      Since the information meets the requirements of subsection 19(1), the IAAC was required to reasonably exercise its discretion under subsection 19(2) to decide whether to disclose the information when one or more of the circumstances described in subsection 19(2) existed when it responded to the access request.

[23]      The individuals in question did not provide their consent to disclose the information and the information is not publicly available. I am also of the view that the information does not qualify for disclosure under sections 8(2)(a) through (m) of the Privacy Act.

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

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

[25]      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.

[26]      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.

[27]      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.

[28]      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.

[29]      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?

[30]      The IAAC withheld information in a slide deck on pages 62, 63, 65 and 67, and a portion of an email on page 73, under paragraphs 20(1)(b), (c) and (d), concurrently.

[31]      The IAAC relied on the extensive representations provided by KL LNG during the processing of the request, which stated that the disclosure of the information would result in significant harm to its competitive position, as well as undue financial loss to KL LNG and financial gain to its competitors.

[32]      The Supreme Court of Canada, in Merck Frosst Canada Ltd. V. Canada (Health), 2012 SCC 3 (Merck), established that “as a matter of principle, the disclosure of information that is not already in the public domain and that could give competitors a head start in product development, or which they could use to their competitive advantage, may be shown to give rise to a reasonable expectation of probable harm or prejudice to the third party’s competitive position” (para. 220).

[33]      In addressing the second criteria of this exemption, the Court elaborated on the “reasonable expectation of probable harm.” It established that the risk of harm must be “well beyond the merely possible or speculative, but also that it need not be proved on a balance of probabilities that disclosure will in fact result in such harm” (para. 206).

[34]      I am satisfied that disclosure of the information on page 67 could reasonably be expected to harm the competitive position of KL LNG and its partners. The information on this page includes proprietary information that is not publicly available. Its disclosure could allow competitors to assess a component of the project being offered by KL LNG and modify their own project offerings. It is reasonable to expect that disclosing information about infrastructure developed and proposed by KL LNG for its project could provide a competitive advantage to its competitors in the liquefied natural gas industry. I accept that the disclosure of this information could provide other companies with the type of head start in product or project development described in Merck.

[35]      In addition, competitors could financially benefit from KL LNG’s efforts without the costs of the research and development. At the same time, any loss of a project or contract to a competitor as a result of the disclosure could have a significant financial impact on KL LNG and its partners. I am satisfied that the disclosure of the information on page 67 could reasonably be expected to have a material financial impact on KL LNG and its partners.

[36]      The remaining information at issue includes details of a Floating LNG barge (FLNG) on page 62, an Environmental-Impact Assessment Timeline on page 63, a Baseline Studies Schedule on page 65, and information regarding engagement with First Nations communities on page 73.

[37]      The information on page 62 is publicly available in a scientific journal published in 2014, years prior to the KL LNG presentation to the IAAC in May 2021. As a result of the public availability of this information and the date it was published, it appears that the information is neither confidential, nor is it proprietary information belonging to any of the third parties in this complaint. As such, there is no reasonable expectation that its disclosure could cause the harms outlined in paragraphs 20(1)(c). As noted above, both KL LNG and the IAAC have indicated that they do not object to the disclosure of this information.

[38]      As for the Timeline and Schedule on pages 63 and 65, it is not clear how the disclosure of this specific information could reasonably be expected to result in the harms described. This information does not appear to contain any detailed information concerning the project that could provide competitors with an advantage over the third parties or an opportunity to benefit from its research and development, or that could result in financial losses to the third parties.

[39]      In addition, some portions of the withheld information on page 65 were disclosed on other pages of the records. Further, although the specific information withheld on page 65 does not appear to be publicly available, a Detailed Project Description made available online includes many details concerning baseline studies. It is not clear how the information on page 65 could reasonably be expected to injure the third parties’ competitive position or to result in financial losses, beyond the merely possible or speculative, when information concerning baseline studies appears to be made publicly available in different contexts.

[40]      Regarding the information withheld on page 73, detailed information concerning the project proponents’ engagement with First Nations communities is publicly available in various documents that were produced by the project proponents prior to the processing of the access request, such as the Detailed Project Description and Engagement Plan.

[41]      Although the information on page 73 of the records is not publicly available verbatim, the essence of the information has been made available online. I am not satisfied that the disclosure of information that was already made public by the project proponents in other documents could result in a financial loss to the third parties or impact their competitive position. If such a result was likely, it would have already been made possible by the availability of the information in the Project Description and Engagement Plan.

[42]      I conclude that the information on page 67 meets the requirements of paragraph 20(1)(c). However, the parties did not show that the disclosure of the information on pages 62, 63, 65 and 73 could reasonably be expected to result in material financial loss or gain to the third party or injure the competitive position of the third party. I conclude that this information does not meet the criteria of paragraph 20(1)(c). 

[43]      Since the information on page 67 meets the requirements of paragraph 20(1)(c), it is not necessary to analyse the application of other exemptions to withhold the same information.

[44]      Since the information on pages 62, 63, 65 and 73 does not meet the requirements of paragraph 20(1)(c), I also examined whether the IAAC had properly applied paragraphs 20(1)(b) and 20(1)(d) to the same information.

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

[45]      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).

[46]      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.

[47]      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.

[48]      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?

[49]      The IAAC relied on the information provided by KL LNG during the processing of the request as its basis for the application of the exemption. None of the parties provided additional representations during the course of the investigation to demonstrate that the information on pages 62, 63, 65 or 73 meets the requirements of paragraph 20(1)(b).

[50]      With respect to the first requirement, in its representations to the IAAC, KL LNG had argued that all the information it recommended for exemption meets one of the different categories of information under paragraph 20(1)(b).

[51]      I am inclined to accept that the information on page 62 pertaining to an FLNG barge meets the definition of technical information.

[52]      While the information on pages 63 and 65 refers to subject matter that may have a scientific or technical components, the withheld information on its own is not scientific or technical in nature. The information on page 73 is also not scientific or technical information.

[53]      The Court in Appleton & Associates v. Canada (Privy Council Office), 2007 FC 640, established that for information to be commercial or financial in nature it is not enough that the record was created in the context of a proceeding having financial or commercial implications. The record itself must contain financial or commercial information.

[54]      Such a broad interpretation of “commercial” information was also rejected by the Federal Court of Appeal in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board) et al., 2006 FCA 157:

[T]he word ‘commercial’ connotes information which in itself pertains to trade (or commerce). It does not follow that merely because NAV CANADA is in the business of providing air navigation services for a fee, the data or information collected during an air flight may be characterized as ‘commercial’. (See also: Appleton & Associates v. Canada (Privy Council Office), 2007 FC 640, para. 26).

[55]      I am not convinced that simply because the withheld information relates to KL LNG’s proposed project, which, in turn, has commercial purposes, this establishes that the information itself is in fact “commercial” information. Similarly, although the project has financial implications for the third parties, the information at issue is not financial in nature.

[56]      The IAAC did not show that the information on pages 63, 65 and 73 meets the first requirement of the exemption. As such, there is no need to examine the remaining criteria for these pages.

[57]      With respect to page 62, the second criterion of paragraph 20(1)(b) requires 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 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).

[58]      As described above, the information on page 62 is included in a scientific journal published in September 2014. The article and the information at issue is available online to the general public. In light of this information, I am not satisfied that the information on page 62 is confidential information.

[59]      I conclude that the information on pages 62, 63, 65 and 73 does not meet the requirements of paragraph 20(1)(b).

20(1)(d): negotiations by a third party

[60]      Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

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

• A third party is or will be conducting contractual or other negotiations.
• Disclosing the information could interfere with those negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[62]      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.

[63]      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?

[64]      In its representations to the IAAC, KL LNG explained that it and its partner organizations are continuously conducting negotiations with various businesses, contractors, partners and Indigenous Nations, and will continue to do as so as the project evolves. A review of the records and publicly available information confirmed that KL LNG is engaged in ongoing negotiations, such as early engagement capacity funding. I accept that the third parties are currently engaged in negotiations and will be involved in other negotiations in the future.

[65]      As for the likelihood that the disclosure of the information at issue would interfere with these negotiations, KL LNG argued in its representations to the IAAC that disclosure of the information would provide entities with confidential information that would interfere with its existing and future negotiations.

[66]      As described above, the harm analysis was addressed by the Supreme Court of Canada in Merck. It established that the risk of harm must be “well beyond the merely possible or speculative, but also that it need not be proved on a balance of probabilities that disclosure will in fact result in such harm” (para. 206).

[67]      The OIC did not receive any representations establishing a reasonable expectation that the disclosure of the information on pages 62, 63 and 65 could interfere with the negotiations, beyond what is merely possible. With respect to page 62, since the information is neither confidential, nor is it proprietary information belonging to any of the third parties in this complaint, I do not accept that there is a reasonable expectation that its disclosure could cause the harms outlined in paragraph 20(1)(d).

[68]      I am also not convinced that the disclosure of the information concerning engagement with First Nations on page 73 could interfere with negotiations. KL LNG disclosed detailed information concerning the proponents’ engagement with First Nations groups in the Project Description and Engagement Plan. If the publicly available information can be disclosed without risk of harm to the negotiations, I am not convinced that the disclosure of the information on page 73 could cause a reasonable expectation of this harm. 

[69]      The parties did not show that the disclosure of the information on pages 62, 63, 65, and 73 could reasonably be expected to interfere with contractual or other negotiations. I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Subsection 20(6): Exercise of Discretion

[70]      Since the information on page 67 meets the requirements of paragraph 20(1)(c), the IAAC was required to reasonably exercise its discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when the two circumstances described in subsection 20(6) existed when it responded to the access request.

[71]      The complainant, in their representations, asserted that the disclosure of the exempted information would be in the public interest for the protection of the environment. With respect to the information on page 67, the complainant outlined that the project proponents have stated that electrification is key to the project and is necessary to meet environmental regulatory requirements, while also acknowledging potential environmental impacts of the proposed electrical transmission line. The complainant argued that the details of the proposal to the IAAC are important for the public to understand how these environmental concerns will be addressed.

[72]      During the investigation, the IAAC stated that it did not consider the circumstances outlined in subsection 20(6) at the time the request was processed.

[73]      Since the IAAC stated that it did not consider whether the circumstances set out in subsection 20(6) existed when it responded to the access request, I must conclude that the IAAC did not determine whether those circumstances existed, which prevented it from exercising its discretion when appropriate.

Outcome

[74]      The complaint is well founded.

Orders and recommendations

I order the President to:

1. Disclose the information withheld on pages 62, 63, 65 and 73 of the records.
2. Determine, on page 67, whether the circumstances described in subsection 20(6) exist and reasonably exercise discretion to decide whether to release the information.

Initial report and notice from institution

On October 21, 2024, I issued my initial report to the President setting out my orders.

On November 1, 2024, the Access to Information and Privacy Coordinator gave me notice that he 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 KL LNG, Rockies, and the Lax Kw’alaams Band.