Port Alberni Port Authority (Re), 2025 OIC 6

Date: 2025-02-10
OIC file number: 5823-04530
Access request number: A-2022-027

Summary

The complainant alleged that Port Alberni Port Authority (PAPA) had improperly withheld information under paragraphs 18(a) (government financial, commercial, scientific or technical information) and 18(b) (competitive position of government institutions or negotiations by government institutions), subsection 19(1) (personal information), and paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request about the lease of equipment.

The complainant also alleged that PAPA had not conducted a reasonable search for records in response to that access request.

Both allegations fall under paragraph 30(1)(a) of the Act.

PAPA could not show that the information met the requirements of paragraph 20(1)(c).

PAPA showed it conducted a reasonable search for records.

The Information Commissioner ordered PAPA to disclose the redacted information.

PAPA gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Port Alberni Port Authority (PAPA) had improperly withheld information under paragraphs 18(a) (government financial, commercial, scientific or technical information) and 18(b) (competitive position of government institutions or negotiations by government institutions), subsection 19(1) (personal information), and paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request.

[2]      The complainant also alleged that PAPA had not conducted a reasonable search for records in response to that access request.

[3]      Both allegations fall under paragraph 30(1)(a) of the Act.

[4]      The access request was for information related to the lease of property by the San Group and the lease of equipment to DP World by the PAPA.

[5]      This investigation into exemptions has been limited to the application of paragraph 20(1)(c) to pages 54 and 55, given that the remainder is being investigated in another linked investigation in file number 5822-00380. The complainant has been informed about this approach and has provided no objection.

Investigation

[6]      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.

[7]      The Office of the Information Commissioner (OIC) sought representations from the third party, Western Stevedoring (which has rebranded under the name SSA Marine), pursuant to paragraph 35(2)(c) of the Act. Western Stevedoring/SSA Marine did not respond to the OIC’s request for representations.

[8]      As required by section 36.3, I have notified the third party of my intention to

order PAPA to disclose the information at issue.

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

[9]      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.

[10]    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.

[11]    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.

[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 disclose the information.

Does the information meet the requirements of the exemption?

[13]    PAPA applied paragraph 20(1)(c) to withhold amounts of the rental rate on pages 54 and 55 of the records as follows:

• On page 54: the amount of the rental rate in “Port Alberni Port Authority Forklift Rental Agreement June 2018” signed on June 14, 2018;
• On page 55: the amount of the rental rate in “Port Alberni Port Authority Forklift Rental Agreement Sept. 18, 2018” signed on September 18, 2018.

[14]    Paragraph 20(1)(c) requires evidence showing the financial impact disclosing the information would have on the third party and its competitive position, and how likely that impact would be. The parties must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (see: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[15]    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).

[16]    PAPA asserted that disclosing the information would provide a competitive disadvantage towards Western Stevedoring/SSA Marine because this would further put at risk pricing power. PAPA stated that the potential for unknown financial loss is significant. It added that it is difficult to determine the extent of harm due to unknown factors.

[17]    PAPA asserted that there are multiple stevedoring companies in British Columbia, and that exposing key insider costs could provide unnecessary financial pressures and strain ongoing business relationships. PAPA stated that the likelihood of this prejudice occurring is unknown due to several unknown factors.

[18]    In its representations to PAPA during the processing of the request, Western Stevedoring/SSA Marine agreed with PAPA’s proposed redactions under paragraph 20(1)(c).

[19]    Neither Western Stevedoring/SSA Marine nor PAPA have adequately established how the information at issue could reasonably be expected to be used by Western Stevedoring/SSA Marine’s competitors to harm the third party, beyond a mere possibility.

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

Reasonable search

[21]    PAPA was required to conduct a reasonable search for records that fall within the scope of the access request—that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[22]    A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[23]    This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[24]    During the course of the investigation, PAPA provided representations on how it conducted the search for responsive records.

[25]    Based on PAPA’s representations, I am satisfied that PAPA demonstrated that the proper information repositories were searched using appropriate parameters, which should have captured any records responsive to the request.

[26]    Therefore, I conclude that PAPA conducted a reasonable search for records.

Outcome

[27]    The complaint is well founded:

• The information PAPA withheld under paragraph 20(1)(c) does not meet the requirements of the exemption.

Order

I order the President and Chief Executive Officer of Port Alberni Port Authority to disclose the following information on pages 54 and 55 of the records:

• On page 54: the amount of the rental rate in “Port Alberni Port Authority Forklift Rental Agreement June 2018” signed on June 14, 2018;
• On page 55: the amount of the rental rate in “Port Alberni Port Authority Forklift Rental Agreement Sept. 18, 2018” signed on September 18, 2018.

Initial report and notice from institution

On January 8, 2025, I issued my initial report to the President and Chief Executive Officer setting out my order.

On February 4, 2025, the President and Chief Executive Officer gave me notice that the Port Alberni Port Authority would be implementing my order and that it would inform Western Stevedoring/SSA Marine about the order and information disclosure.

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.