Old Port of Montreal Corporation Inc. (Re), 2022 OIC 36

Date: 2022-07-20
OIC file number: 5820-01685
Institution file number: OPM-A-2020-002

Summary

The complainant alleged that the Old Port of Montreal Corporation Inc. had improperly withheld information under paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), paragraph 18(d) (government financial interests), subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request for records related to the loan of objects for the exhibit “Autopsy of a Murder”.

Signatures were removed from the scope of the complaint.

The institution did not provide any representations supporting the application of the exemptions. A third party made representations related to photographs of human remains that were withheld pursuant to subsection 19(1). Given the photographs do not relate to an identifiable individual or they relate to an individual who has been deceased for more than 20 years, the Office of the Information Commissioner (OIC) found that the photographs could not be withheld pursuant to subsection 19(1). The Office of the Privacy Commissioner agreed with the OIC’s position.

The Information Commissioner ordered the Old Port of Montreal Corporation Inc. to disclose all information at issue.

The Old Port of Montreal Corporation Inc. gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Old Port of Montreal Corporation Inc. had improperly withheld information under paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), paragraph 18(d) (government financial interests), subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request for records related to the loan of objects for the exhibit “Autopsy of a Murder”.

[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 signatures under subsection 19(1) (personal information).

Investigation

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

[4]      The “Autopsy of a Murder” exhibit was loaned to three partnering institutions: the Montreal Science Centre, the Canada Science and Technology Museum, and le Musée de la civilisation à Québec (hereinafter referred to as “le Musée”).

[5]      The records at issue consist of contracts, photographs, inventory lists, and other paperwork for objects in the “Autopsy of a Murder” exhibit, including objects loaned from le Musée to the Montreal Science Centre.

[6]      The Canada Lands Company Limited has three subsidiaries, including the Old Port of Montreal Corporation Inc., an agent Crown corporation which owns and operates the Old Port of Montreal and includes the Montreal Science Centre. The Canada Lands Company Limited was asked by the OIC to make representations during the course of the investigation pursuant to paragraph 35(2)(b) of the Act. Furthermore, le Musée was identified as a third party and representations were sought by the OIC pursuant to paragraph 35(2)(c) of the Act during the course of the investigation.

[7]      Finally, the Bureau du coroner en chef du Québec (Coroner’s office) requested an opportunity to make representations with regard to some of the information at issue – specifically, photographs of human remains. The Coroner’s office was advised of the existence of the OIC’s ongoing complaint investigation, but it remains unclear how or by whom. As explained further below, while the Coroner office’s submissions were added to the investigation file as a courtesy, I find that the Coroner’s office is not a third party as contemplated by the Act and, as such, has no right to make representations under paragraph 35(2)(c) of the Act.

Paragraph 18(b): competitive position of government institutions, negotiations by government institutions

[8]      Paragraph 18(b) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

[9]      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.

[10]    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.
• These negotiations are associated with the economic interests of Canada.
• 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.

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

Does the information meet the requirements of the exemption?

[12]    Paragraph 18(b) was applied concurrently with paragraph 18(d) to details within the agreement between the three partnering institutions hosting the exposition “Autopsy of a Murder”: the Montreal Science Centre, the Canada Science and Technology Museum, and le Musée, as well as to the insurance value and origin organization for each object in the inventory list.

[13]    The Supreme Court established that the accepted formulation for the alleged harm is “a reasonable expectation of probable harm.” This captures the need to demonstrate a clear and direct connection between disclosure of specific information and a risk of harm well beyond the merely possible. (see Merck Frosst v. Canada (Minister of Health), 2012 SCC 3, paras 194-6, 206).

[14]    The Canada Lands Company asserted in its initial representations that disclosing the information at issue could give other parties a potential unfair advantage when negotiating with it. The Canada Lands Company did not provide any details supporting the likelihood of the envisioned harm coming to pass, or reference any specific negotiations that would be affected.

[15]    The OIC questioned the application of the exemption to information disclosed elsewhere within the records, as harm would appear unlikely should this information be disclosed throughout the records.

[16]    Upon examination of the records, the OIC noted that the origin of some of the objects was withheld on one inventory list, but disclosed on others. On the same list where the origin was withheld, the contact persons for each organization were disclosed. I am not satisfied that disclosing the origin of the objects throughout the records is sufficiently likely to result in harm to Old Port of Montreal within the meaning of paragraph 18(b), as the withheld information can mostly be deduced by comparison with the disclosed information.

[17]    I find that the information does not meet the requirements of the exemption as no representations have been provided to demonstrate that disclosure would result in a risk of harm described in paragraph 18(b), that is well beyond the merely possible. Consequently, there is no need to examine whether the Canada Lands Company reasonably exercised its discretion to decide whether to release the information.

Paragraph 18(d): government financial interests, undue benefit to an individual

[18]    Paragraph 18(d) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to substantially harm their financial interests or the Government of Canada’s ability to manage the Canadian economy, or could unduly benefit someone.

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

• Disclosing the information (for example, details about Canada’s currency or a contemplated change in the bank rate, as set out in subparagraphs 18(i) to (vi)) could do one of the following:
• substantially harm a government institution’s financial or economic interests;
• substantially harm the Government of Canada’s ability to manage the economy of Canada; or
• result in an individual or corporation receiving a larger than necessary, improper or unwarranted benefit.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

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

Does the information meet the requirements of the exemption?

[21]    Paragraph 18(d) was applied concurrently with paragraph 18(b) to details within the agreement between the three partnering institutions hosting the exposition “Autopsy of a Murder”, as well as the insurance value and origin organization for each object in the inventory list.

[22]    As with paragraph 18(b), an institution must demonstrate that disclosure of the information will result in a risk of harm that is well beyond mere speculation or possibility and the harm must be linked directly to the disclosure of the information, and supported by clear and cogent evidence.

[23]    The Canada Lands Company asserted in its initial representations that disclosing the information at issue could unfairly advantage another party in dealings with the Old Port of Montreal. The Canada Lands Company did not provide any details supporting the likelihood of the envisioned harm coming to pass.

[24]    Again, given that some information has been disclosed within the records and other information can be deduced from the disclosed information, harm would appear unlikely should the information be disclosed.

[25]    The withheld financial information consists of insurance values for certain objects. Given the age of these assessments, and the overall value, I am not satisfied that disclosure of this information is sufficiently likely to have a material financial impact on the Old Port of Montreal within the meaning of paragraph 18(d).

[26]    I find that the information does not meet the requirements of the exemption as no representations have been provided to demonstrate that disclosure would result in a risk of harm described in paragraph 18(d) that is well beyond the merely possible. Consequently, there is no need to examine whether the Canada Lands Company reasonably exercised its discretion to decide whether to release the information.

Subsection 19(1): personal information

[27]    Subsection 19(1) requires institutions to refuse to release personal information.

[28]    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).

[29]    When these requirements are met, institutions must then consider whether the following circumstances exist:

• The person to whom the information relates consents to its release.
• The information is publicly available.
• Disclosure of the information would be consistent with section 8 of the Privacy Act.

[30]    When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[31]    The Canada Lands Company withheld signatures and photographs of a portrait, a death mask and human remains pursuant to subsection 19(1). The signatures are no longer within the scope of this investigation.

[32]    With respect to the photographs, apart from the portrait of Wilfred Derome, the death mask of André Ochsner’s and Raoul Delorme’s skull, the OIC has found no evidence that disclosing the photographs would identify the individual, the human remains belonged to.

[33]    Of the three identifiable individuals, all seem to have been deceased for over 65 years, and none of the parties have disputed this. If this is indeed the case, this information is excluded from the definition of personal information, as per paragraph 3(m) of the Privacy Act.

[34]    As mentioned above, le Musée provided representations to the OIC, as a third party, during the course of the investigation. Le Musée asserts that the photographs should be withheld out of respect for the dignity of the deceased. However, it is difficult to reconcile this assertion with the fact that these items were on display to the public in an exhibit, and that photographs of some of the remains are available online. Additionally, there is no basis for withholding the photographs for this reason under subsection 19(1).

[35]    The OIC sought representations from the Office of the Privacy Commissioner (OPC) pursuant to paragraph 35(2)(d), on whether the photographs meet the requirements of the subsection 19(1) exemption. The OPC is in agreement with the OIC and is also of the view that the photographs do not meet the requirements for exemption as personal information.

[36]    Consequently, I find that the photographs do not meet the requirements of the exemption because in all cases:

• the individual whose remains were photographed is not identifiable; or
• the photographs fall under an exception to the definition of personal information, in that the individual has been deceased for over 20 years.

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

[37]    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.

[38]    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.

[39]    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.

[40]    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.

[41]    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.

[42]    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?

[43]    Paragraph 20(1)(c) was applied concurrently with paragraphs 18(b), 18(d) and 20(1)(d) to details within the agreement between the three partnering institutions hosting the exposition “Autopsy of a Murder”.

[44]    A party or parties resisting disclosure based on paragraph 20(1)(c) bears the onus of establishing a clear and direct connection between disclosure and a risk of harm described in paragraph 20(1)(c) that is well beyond the merely possible. (see: Merck Frosst, supra,paras. 197, 206).

[45]    The OIC sought representations from le Musée, however, it stated that it had no representations to make in support of the application of paragraph 20(1)(c).

[46]    The Canada Lands Company only provided general representations, with no details or evidence to support the application of paragraph 20(1)(c) to the withheld information. The required clear and direct connection between disclosure and an adequate risk of harm has not been substantiated for any of the information over which paragraph 20(1)(c) has been claimed.

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

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

[48]    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).

[49]    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.

[50]    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.

[51]    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.

[52]    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?

[53]    Paragraph 20(1)(d) was applied concurrently with paragraphs 18(b), 18(d) and 20(1)(c) to details within the agreement between the three partnering institutions hosting the exposition “Autopsy of a Murder”.

[54]    A party or parties resisting disclosure based on paragraph 20(1)(d) bears the onus of establishing a clear and direct connection between disclosure and a risk of harm described in paragraph 20(1)(c) that is well beyond the merely possible. (see: Merck Frosst, supra,paras. 195, 197, 206).

[55]    For this exemption to apply, a party or parties resisting disclosure must demonstrate that obstruction of actual contractual 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).

[56]    The OIC sought representations from le Musée, however, again, it stated that it had no representations to make in support of the application of paragraph 20(1)(d).

[57]    The Canada Lands Company only provided general representations, with no details or evidence to support the application of paragraph 20(1)(d) to the withheld information. The required clear and direct connection between disclosure and an adequate risk of harm has not been substantiated for any of the information over which paragraph 20(1)(d) has been claimed.

[58]    Consequently, I find that the information does not meet the requirements of paragraph 20(1)(d).

Observation

[59]    As mentioned above, while the Coroner’s office has no right to make representations as a third party under paragraph 35(2)(c) of the Act, it was given an opportunity to provide its observations on the issue of whether the photographs of human remains could be disclosed.

[60]    The Coroner’s office made several arguments, including that similar information is withheld under the Québec freedom of information law. However, this does not account for differences between that law and the federal access to information regime, which vary in the scope of what constitutes personal information that is protected from disclosure.

[61]    While the Coroner’s office opposed the disclosure of photographs of human remains, it did not demonstrate that any exemption under the Act applies to this information. The Canada Lands Company was invited to make additional representations based on the points raised by the Coroner’s office, but did not do so.

[62]    The subject matter of the present complaint is the Canada Lands Company’s refusal to disclose information to the complainant, on the basis of its application of exemptions. While the Coroner has raised various issues as a basis to refuse disclosure, the relevant question in this investigation is whether the exemptions under the Act have been properly applied. The right of access to records under the control of government institutions is subject only to Part 1 of the Act, and applies notwithstanding any other Act of Parliament (subsection 4(1)).

[63]    On a final note, I must add that the Coroner’s office has conceded that no exemption in section 20 of the Act (third party exemptions) would apply to the office per se. Consequently the Coroner’s office has been made aware that it is not entitled to receive a final report under paragraph 37(2)(c) of the Act.

Result

[64]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President and Chief Executive Officer of the Canada Lands Company to disclose the records in full, with the exception of the signatures withheld pursuant to subsection 19(1) as they are out of scope.

The President and Chief Executive Officer must abide by the terms of subsection 37(4) when disclosing any records in response to my order.

On May 9, 2022, I issued my initial report to the President and Chief Executive Officer setting out my order.

On May 30, 2022, the Canada Lands Company’s Law Clerk and Manager, Legal Services gave me notice that the Old Port of Montreal Corporation would be implementing my order.

I have provided le Musée de la civilisation à Québec and the Privacy Commissioner of Canada with this report.

Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. When they do not, third parties and the Privacy Commissioner 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.