Public Services and Procurement Canada (Re), 2024 OIC 08

Date: 2024-03-15

OIC file number: 5820-02287

Institution file number: A-2019-00247

Summary

The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under paragraph 18(b) (negotiations by government institutions), subsection 19(1) (personal information) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for records related to the use of Indigenous languages in the proceedings of the House of Commons. The complaint falls within paragraph 30(1)(a) of the Act.

PSPC showed that the per diem rates met all of the requirements of paragraph 18(b) but could not show that any of the other withheld information met the requirements of paragraphs 18(b) or 20(1)(d).

PSPC did not demonstrate that it considered all relevant factors and reasonably exercised its discretion to decide to withhold the per diem rates.

The Information Commissioner ordered that PSPC disclose the information it withheld under paragraphs 18(b) and 20(1)(d) other than the per diem rates and re-exercise its discretion to decide whether to withhold the per diem rates under paragraph 18(b).

PSPC gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under paragraph 18(b) (negotiations by government institutions), subsection 19(1) (personal information) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for records related to the use of Indigenous languages in the proceedings of the House of Commons. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

[2]      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.

[3]      On January 4, 2024, PSPC disclosed certain estimates and a contract amount, which it had withheld under paragraph 18(b) and subsection 19(1) when it responded to the access request. PSPC continued to withhold the remaining information under paragraph 18(b), subsection 19(1) and paragraph 20(1)(d).

[4]      During the investigation, the complainant indicated that it was no longer necessary for the OIC to investigate the application of subsection 19(1).

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

[5]      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).

[6]      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.

[7]      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?

[8]      PSPC withheld information related to the extension and renewal of the Partnership Agreement between the Translation Bureau, Public Works and Government Services and the House of Commons Information Services under paragraph 20(1)(d).

[9]      During the course of the investigation, both PSPC and the House of Commons were afforded an opportunity to provide representations. To that end, with one exception, the House of Commons was provided a copy of the records over which PSPC had claimed paragraph 20(1)(d). This exception was regarding an email found at pages 1890-1891 of the responsive records, which could not be shared with the House of Commons because of PSPC’s concurrent claim that these pages warranted being withheld under paragraph 18(1)(b). In light of this position, the OIC provided a summary of the information redacted on these pages in order to facilitate the House of Commons’ ability to provide representations of the disclosure of the information.

[10]    I accept that the first requirement of paragraph 20(1)(d) is met. At the time of the response, PSPC and the House of Commons were in active negotiations with respect to the partnership agreement, and these negotiations were anticipated to continue into the future.

[11]    The House of Commons further argued that there was a potential for negotiations with external translation service providers. The House of Commons indicated that this option had been explored in 2022, but no further steps were taken at the time.

[12]    The House of Commons refuted the idea that the relationship between the House of Commons and the Translation Bureau at PSPC is an exclusive one, protected by law. Despite the wording of subsection 4(1) of the Translation Bureau Act, there does appear to be evidence supporting that this relationship is not exclusive (see, for example: https://www.ourcommons.ca/DocumentViewer/en/44/boie/meeting-8/minutes;https://www.noscommunes.ca/Content/Committee/421/LANG/Reports/RP8360007/langrp02/langrp02-e.pdf, page 16).

[13]    Although I accept that there is potential for the House of Commons to negotiate contracts for services with parties other than the Translation Bureau, the evidence does not support that assertion that at the time of the institution’s response in 2020, the House of Commons was conducting negotiations with external parties or reasonably expected to be doing so. As such, the only negotiations ongoing at that time were those between the House of Commons and PSPC.

[14]    Turning to the second requirement of paragraph 20(1)(d), it was not established that the disclosure of the information at issue could interfere with negotiations between the House of Commons and PSPC. Beyond stating that disclosure “could have created a chilling effect on the ongoing discussions on the specifics of the Translation Services Agreement”, the House of Commons has provided no evidence to support this. Although PSPC has indicated that disclosure of certain information “may lead a requester to understand the discussions surrounding the negotiations between the House and PSPC in relation to the translation services to be provided”, PSPC made no link to how this could interfere with negotiations.

[15]    Interference, in the context of paragraph 20(1)(d), has been interpreted by the courts as meaning “obstruction” – as indicated by the corresponding word for interference in the French version, “entraver”. (see Blood Band v. Canada (Minister of Indian Affairs and Northern Development), 2003 FC 1397, para. 49; Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.), paras. 24-25). Heightened competition flowing from disclosure is not enough for the requirements of the exemption to be met (see, for example: Burnbrae Farms Ltd. v. Canada (Canadian Food Inspection Agency), [2014] F.C.J. No. 1274).

[16]    I find that the parties have not established that disclosure could interfere with any specific contractual negotiations.

[17]    Finally, neither PSPC nor the House of Commons have established that there is a reasonable expectation that interference with any negotiations could occur as a result of disclosure. Given that much of the information would appear to be innocuous, and no specific portions have been identified as likely to cause interference with negotiations, the representations received from the House of Commons and PSPC are insufficient to support the application of the exemption.

[18]    It should also be noted that in response to my notice of my intention to order disclosure of the information discussed above, the House of Commons indicated that it would not provide further representations and would ultimately abide by my order.

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

Paragraph 18(b): negotiations by government institutions

[20]    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.

[21]    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.

[22]    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.

[23]    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?

[24]    PSPC continues to withhold information such as fees, estimates and information related to the renewal and extension of the partnership agreement under paragraph 18(b).

[25]    Interference, in the context of paragraph 20(1)(d), which uses the same wording as paragraph 18(b), has been interpreted in the Courts as meaning “obstruction”, as outlined in the analysis of the application of paragraph 20(1)(d).

[26]    I accept that disclosure of estimates for per diem fees for services could reasonably be expected to interfere with PSPC’s negotiations for the same services with other providers.

[27]    I also accept that PSPC and the House of Commons were in active negotiations with respect to the partnership agreement, and that these same negotiations would continue for future agreement extensions and renewals.

[28]    Where paragraph 18(b) was applied on pages 1890-1891, neither the content of the records nor the representations from PSPC explain how disclosure could reasonably be expected to result in harm to PSPC’s competitive position or harm to specific negotiations.

[29]    Neither PSPC nor the House of Commons have made any representations that demonstrate how disclosure of the information at issue could reasonably be expected to interfere with those negotiations. I find that the representations made by the House of Commons are speculative in nature and provide no details as to the specific information that would cause harm if disclosed.

[30]    I conclude that the information does not meet the requirements of paragraph 18(b), apart from estimates for per diem fees for services.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[31]    Since some of the information meets the requirements of paragraph 18(b), PSPC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, PSPC had to consider all the relevant factors for and against disclosure.

[32]    An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation will be sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.

[33]    PSPC has provided representations as to the factors it considered when deciding to withhold its per diem fees. PSPC indicated that it could not “find any reasonable arguments in favour of disclosure”. Although PSPC seems to have considered appropriate factors weighing against disclosure, such as the continued relevance of the information and how it could be used to provide an unfair advantage to service providers, I find that PSPC should also have considered factors that would favour disclosure. Under the circumstances, the purpose of the Act, the public interest and the passage of time should all have been considered in favour of disclosure.

[34]    I conclude that PSPC did not consider all relevant factors when it decided not to disclose the per diem rates. Consequently, the exercise of discretion by PSPC was not reasonable.

Outcome

[35]    The complaint is well founded.

Orders and recommendations

I order the Minister of Public Works and Government Services to:

1. Disclose the information withheld under paragraph 18(b), other than where it has been applied to personal information or per diem rates;
2. Re-exercise discretion to decide whether to withhold the per diem rates under paragraph 18(b), taking all relevant factors into consideration; and
3. Disclose the information withheld under paragraph 20(1)(d), other than where it has been applied to personal information or to per diem rates.

Initial report and notice from institution

On February 12, 2024, I issued my initial report to the Minister of Public Works and Government Services setting out my orders.

On March 8, 2024, the Minister of Public Works and Government Services gave me notice that PSPC would be implementing the orders. The Minister indicated that PSPC will release the information described in points 1 and 3 to the complainant. Additionally, the Minister indicated that PSPC has reviewed its decision to withhold the per diem rates under paragraph 18(b). This review took into consideration multiple factors, and found that disclosure of the per diem rates “would not be in the public interest or bring value for money to Canadians.”

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 the House of Commons.