Innovation, Science and Economic Development Canada (Re), 2024 OIC 14
Date: 2024-04-17
OIC file number: 5819-05491
Institution file number: A-2019-00318
Summary
The complainant alleged that Innovation, Science and Economic Development Canada (ISED) had improperly withheld information under paragraph 18(b) (negotiations by government institution) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for a list of grants and contributions approved under specific ISED programs, including assistance type and other specific details. The allegation falls under paragraph 30(1)(a) of the Act.
ISED could not show that it met all the requirements of paragraph 18(b), as the harm alleged by ISED already exists, and ISED did not demonstrate how further harm could be caused by the release of the information.
The Information Commissioner ordered that ISED disclose the information withheld under paragraph 18(b). ISED gave notice to the Commissioner that it would implement the order, while maintaining the exemption pursuant to paragraph 20(1)(c).
The complaint is well founded.
Complaint
[1] The complainant alleged that Innovation, Science and Economic Development Canada (ISED) had improperly withheld information under paragraph 18(b) (negotiations by government institution) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for a list of grants and contributions approved under specific ISED programs, including assistance type and other specific details. The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
[2] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
[3] 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 information.
Paragraph 18(b): negotiations by government institutions
[4] Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.
[5] To claim this exemption with regard to competitive position, institutions must show the following:
- Disclosing the information could injure the competitive position of a government institution.
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[6] To claim this exemption with regard to contractual or other negotiations, institutions must show the following:
- Contractual or other negotiations are under way or will be conducted in the future.
- Disclosing the information could interfere with the negotiations.
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[7] 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?
[8] During the course of the investigation, ISED informed the OIC that it would no longer apply paragraph 18(b) to the assistance type for projects in the records that were under the Program for Strategic Industrial Projects and under the Automotive Innovation Fund. ISED also stated that it would no longer apply 18(b) to the assistance type for projects under the Strategic Innovation Fund (SIF) involving QNX Software Systems Limited, CAE INC., exactEarth Ltd., STEMCELL Technologies Inc., and BioVectra Inc., in light of this information being publicly available.
[9] ISED acknowledged that the assistance type for 9496041 Canada Inc., North Inc., Ranovus Inc. and Toyota Manufacturing Canada Inc. were previously disclosed to the complainant in access request A-2018-00684, but stated that the disclosure was erroneous and that as it relates to SIF funding, the information should have been withheld. ISED failed to demonstrate how re-releasing this information to the complainant could interfere with negotiations, and that there is reasonable expectation that this harm could occur.
[10] With respect to the remaining information, ISED stated that it “maintains its position against the public release of information that specifies whether a repayable contribution has conditions pertaining to repayability (‘conditional’) or no conditions (‘unconditional’). ISED submitted that SIF’s ability to fairly negotiate on behalf of the Crown is prejudiced if negotiating partners can invoke precedent agreements where conditionality was granted. ISED stated that the program area learned from their experience with programs such as the Strategic Aerospace Defence Initiative that disclosure of this information caused interference with their negotiations. ISED found that when companies compare themselves to their peers, they want to have the same repayment terms that they believe other companies received, which causes challenges to the negotiations of the terms. ISED submitted that releasing the information would cause economic harm, as more companies would seek conditionally repayable contributions which in practice lead to lower overall monetary payments, which would prevent SIF from maximizing future benefits in negotiation. As such, ISED submitted that the release of the information would interfere with ISED’s negotiations in relation to SIF.
[11] ISED failed to demonstrate how the release of the assistance type could interfere with negotiations, and that there is reasonable expectation that this harm could occur. It is already publicly available information that several companies have projects under the SIF with conditionally repayable contributions as the assistance type. As such, negotiating partners can already invoke precedent agreements where conditionality was granted. The harm alleged by ISED already exists, and ISED did not demonstrate how further harm could be caused by the release of assistance type of additional projects.
[12] ISED did not show that the information could interfere with negotiations, and that there is reasonable expectation that this harm could occur. Consequently, I conclude that the information does not meet the requirements of paragraph 18(b).
Outcome
[13] The complaint is well founded.
Orders and recommendations
I order the Minister of Industry to disclose the information withheld under paragraph 18(b).
Initial report and notice from institution
On February 29, 2024, I issued my initial report to the Minister of Industry setting out my order.
On April 11, 2024, the Acting Director of Access to Information and Privacy Services gave me notice that ISED would be implementing the order while maintaining the exemption pursuant to paragraph 20(1)(c).
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. 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.