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Natural Resources Canada (Re), 2022 OIC 62

Date: 2022-10-14
OIC file number: 5821-00274
Institution file number: A-2020-00464/TR

Summary

The complainant alleged that Natural Resources Canada (NRCan) had improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on 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 relating to, but not limited to, the role and activities of NRCan and/or Canadian Forest Service representatives on the Board of Governors of the Maritime College of Forest Technology (MCFT). The complaint falls within paragraph 30(1)(a) of the Act.

A portion of the records had also been withheld pursuant to subsection 19(1) and section 23, but these exemptions were not at issue.

During the investigation, MCFT decided to no longer oppose disclosure of two pieces of information that were publicly available.

For the remaining information, NRCan and the third party could not show that all of the requirements of these exemptions were met, in particular, that the information met the criteria for confidentiality, and that there was a reasonable expectation of harm in releasing it.

The Information Commissioner ordered that NRCan disclose any information that was not withheld under subsection 19(1) or section 23.

NRCan gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Natural Resources Canada (NRCan) had 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 relating to, but not limited to, the role and activities of NRCan and/or Canadian Forest Service representatives on the Board of Governors of the Maritime College of Forest Technology (MCFT). The complaint falls within paragraph 30(1)(a) of the Act.

[2]      While subsection 19(1) (personal information) and section 23 (legal advice and litigation privilege) were also applied to withhold information in response to the access request, these exemptions are not at issue.

Investigation

[3]      When an institution withholds information related to a third party, the third party and/or the institution bears the burden of showing that refusing to grant access is justified.

[4]      The Office of the Information Commissioner (OIC) sought representations from the third party, MCFT, under the terms of paragraph 35(2)(c). MCFT maintained that paragraphs 20(1)(b), 20(1)(c) and 20(1)(d) apply to the entirety of the information withheld by NRCan, with the exception of two pieces of information.

[5]      MCFT also provided separate representations to the effect that, in its view, the records, which relate to an NRCan Director General’s involvement on the Board of Governors of MCFT (as a representative of NRCan’s Canadian Forest Service), are not under the control of NRCan. In response to the OIC’s request for representations, NRCan chose not to provide representations of its own, instead deferring to the MCFT’s representations.

Control of records

[6]      The Act provides requesters with a right of access to records that are under the control of government institutions. While the Act does not define “control,” the Supreme Court of Canada held that the term should be interpreted broadly and liberally to provide a meaningful right of access. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.)

[7]      When records are not under the control of the institution, they do not fall within the scope of the Act. Therefore, institutions are not required to give access to them.

[8]      While MCFT asserts that the records at issue are not under the control of NRCan, I note that NRCan treated the records as being under its control. This is demonstrated by the fact that NRCan processed the records under the Act, disclosing portions of the records while withholding other portions on the basis of exemptions in sections 19, 20 and 23 of the Act.

[9]      The records pertain to an NRCan Director General’s involvement on the Board of Governors of MCFT as a representative of NRCan. Since the records in question were processed under the Act by NRCan, meaning that NRCan concluded that it had control over these records, this matter is moot and does not need to be addressed further.

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

[10]    Paragraph 20(1)(b) requires institutions to refuse to release 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).

[11]    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.

[12]    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 release the information.

[13]    In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances 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.

[14]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) to refuse to release 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?

[15]    This exemption was applied to withhold information about MCFT business on a number of pages.

[16]    Regarding the first criterion, in the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada stated that the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings.

[17]    Portions of the information consist of financial information. That said, it is unclear how all of the information withheld fits within the categories of financial, commercial, scientific or technical information.

[18]    The records are related to MCFT business, and were created in the context of a proceeding having financial or commercial implications. However, many of the records in question do not contain explicit financial or commercial information (see: Appleton & Associates v. Canada (Privy Council Office), 2007 FC 640, at para 26). In addition, while some information is alleged by MCFT to be technical, no further explanation or evidence has been provided to support this claim. As such, I have not received sufficient representations to conclude that the first criterion has been met for all of the withheld information.

[19]    Regarding the second criterion, in order for paragraph 20(1)(b) to be applied, the record must be confidential. In Air Atonabee Limited v. Canada (1989), 27 F.T.R. 194 (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 in a reasonable expectation of confidence that it will not be disclosed; and
  • the relationship between the government and the third party is not contrary to the public interest and will be fostered for public benefit by keeping the information confidential.

[20]    The OIC has provided a list of the information that was withheld which it considers to be publicly available. While MCFT has agreed that two pieces of information should be released, it did not address the fact that some of the remaining information is also available from public sources.

[21]    In addition, MCFT has not established that any of this information was provided to NRCan with a reasonable expectation of confidence that this information would not be disclosed. While MCFT noted in its representations that the expectation of confidentiality was implied, it did not identify specific portions of the information that it feels were supplied in a reasonable expectation of confidence that they would not or could not be disclosed.

[22]    Furthermore, it has not been demonstrated that keeping all of the information confidential would foster the relationship between NRCan and MCFT for public benefit. Given NRCan’s role on MCFT’s board, it would appear that public, rather than confidential, communication of the information would foster the relationship for public benefit. Neither NRCan’s nor MCFT’s representations have supported a different conclusion.

[23]    The information claimed by NRCan to be subject to the paragraph 20(1)(b) exemption does not, therefore, meet the confidentiality test for the second criterion.

[24]    While it appeared that MCFT supplied much of the information in question to a government institution, MCFT specified that it did not believe that it had supplied the information to NRCan. MCFT stated that the information was supplied to an individual in their capacity outside of that individual’s NRCan duties. I also note that some information created by NRCan and its representatives, that does not reveal information supplied by MCFT to NRCan, does not meet this criterion.

[25]    Regarding the fourth criterion for the exemption, I am not convinced that MCFT has consistently treated the information as confidential. MCFT’s representations indicated that some information could be posted to its website if some unspecified confidential information were to be removed. Some of the withheld information, as noted above, is already publicly available, and MCFT did not show that particular information has been consistently treated as confidential. It therefore appears unlikely that the entirety of the withheld information was consistently treated as being of a confidential nature and as a result, the fourth criterion for the exemption does not appear to be met.

[26]    It is also unclear if members of the Board of Governors (with whom MCFT appears to have shared the information at issue) have an obligation to keep information confidential, given that the Board consists of both government and private sector representatives. MCFT did not provide representations regarding this important point beyond assertions of implied confidentiality.

[27]    To summarize, I am not convinced that the information withheld under paragraph 20(1)(b) meets the second and fourth criteria for this exemption. Consequently, I conclude that the information does not meet the requirements of paragraph 20(1)(b).

[28]    Since the information does not meet the requirements of this exemption, I also examined whether NRCan had properly applied paragraphs 20(1)(c) and 20(1)(d) to the information that was concurrently withheld under those exemptions.

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

[29]    Paragraph 20(1)(c) requires institutions to refuse to release 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.

[30]    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.

[31]    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.

[32]    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 release the information.

[33]    In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances 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.

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

[35]    Paragraph 20(1)(c) requires evidence showing the impact that disclosing the information would have on MCFT, and how likely that impact would be. NRCan and MCFT must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206). I did not receive representations or evidence to this effect.

[36]    MCFT indicated that releasing certain information could prejudice MCFT’s financial or competitive position, but did not explain how.

[37]    MCFT also did not provide representations about some pages on which paragraph 20(1)(c) was applied by NRCan.

[38]    While MCFT did provide an example of financial harm for one set of pages,  I did not receive a sufficiently detailed explanation as to how releasing this information could be reasonably expected to result in material financial loss or gain to MCFT, how it could injure MCFT’s competitive position, or how likely these injuries would be.

[39]    In addition, as noted above, some information was withheld that is publicly available, suggesting that the likelihood of financial or competitive harm resulting from releasing the information is small. (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 208-210).

[40]    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. c. 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). NRCan and MCFT did not demonstrate a clear and direct connection between the disclosure of the information at issue and a risk of harm well beyond the merely possible.

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

[42]    Since the information does not meet the requirements of this exemption, I also examined whether NRCan had properly applied paragraph 20(1)(d) to the information that was concurrently withheld under that exemption.

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

[43]    Paragraph 20(1)(d) requires institutions to refuse to release 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).

[44]    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.

[45]    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 release the information.

[46]    In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances 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.

[47]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(d) to refuse to release 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?

[48]    Paragraph 20(1)(d) requires evidence showing how disclosing the exempted information would disrupt any planned or ongoing negotiations by MCFT and how likely this disruption would be. NRCan or MCFT must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206). I did not receive representations or evidence to this effect.

[49]    The case law under the Act makes clear that a party resisting disclosure based on paragraph 20(1)(d) bears the onus of establishing that there is a reasonable expectation of a probable harm described in paragraph 20(1)(d) occurring if the information is disclosed. (see: Merck Frosst v. Canada (Minister of Health), 2012 SCC 3, paras. 195, 227; Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.) at para 22).

[50]    For an exemption claim under paragraph 20(1)(d) to be valid, the party or parties resisting disclosure must demonstrate that obstruction of actual or reasonably anticipated negotiations, other than the third party’s day‐to‐day operations, could reasonably be expected to result from disclosure (see: Saint John Shipbuilding Ltd. V. Canada (Minister of Supply & Services) (1990), 67 D.L.R. (4th) 315 (Fed. C.A.) at para 316, Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 F.T.R. 254 at para 271).

[51]    Paragraph 20(1)(d) was used to withhold several pages in their entirety, without severing information that was unrelated to negotiations. MCFT did not respond to the OIC’s questions about whether the opportunity for interference in negotiations has passed, though I accept that portions of the information do relate to planned or ongoing negotiations.

[52]    MCFT also did not demonstrate how releasing the information could reasonably be expected to affect negotiations in a harmful manner. It has also not been shown how the release of the remaining general information would disrupt any planned or ongoing negotiations by MCFT.

[53]    MCFT did not provide a sufficient explanation of the interference in negotiations that could occur for the remaining pages on which it felt that paragraph 20(1)(d) should be applied.

[54]    NRCan and MCFT did not show a clear and direct connection between the disclosure of the information and interference with actual or reasonably anticipated negotiations. Consequently, I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Result

[55]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Natural Resources to:

  1. Disclose all of the information previously withheld under paragraphs 20(1)(b), (c) and (d), as follows:
  • 0005 – 0007, except for information that has been withheld by NRCan under the subsection 19(1) (personal information) exemption;
  • 0009, except for information that has been withheld by NRCan under the subsection 19(1) exemption;
  • 0010, except for information that has been withheld by NRCan under the subsection 19(1) exemption;
  • 0012 – 0014, except for information that has been withheld by NRCan under the subsection 19(1) exemption;
  • 0015 – 0040;
  • 0047 – 0049, except for information that has been withheld by NRCan under the subsection 19(1) exemption;
  • 0052, except for information that has been withheld by NRCan under the subsection 19(1) and section 23 (solicitor-client and litigation privilege) exemptions;
  • 0056 – 0058, except for information that has been withheld by NRCan under the subsection 19(1) exemption;
  • 0061 – 0062, except for information that has been withheld by NRCan under the subsection 19(1) exemption;
  • 0063;
  • 0070 – 0071, except for information that has been withheld by NRCan under the subsection 19(1) exemption;
  • 0077, except for information that has been withheld by NRCan under the subsection 19(1) and section 23 exemptions.

The Minister must abide by the terms of subsection 37(4) when disclosing any records in response to my order.

On August 12, 2022, I issued my initial report to the Minister of Natural Resources setting out my order.

On October 3, 2022, the Associate Deputy Minister of Natural Resources Canada gave me notice that NRCan plans to implement my order.

I have provided MCFT with this report.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this 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. The person who 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, this order takes effect on the 46th business day after the date of this report.

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