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Social Sciences and Humanities Research Council of Canada (Re), 2023 OIC 23

Date: 2023-08-07
OIC file number: 5820-04513
Institution file number: A-2020-00036

Summary

The complainant alleged that the Social Sciences and Humanities Research Council (SSHRC) had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act. This was in response to an access request for records relating to a virtual town hall meeting involving the SSHRC President and President of Memorial University of Newfoundland and Labrador (MUN), as well as other meetings or contacts between SSHRC and MUN officials and representatives from December 11, 2020 to the date of the request. The complaint falls within paragraph 30(1)(a) of the Act.

The institution and third party did not demonstrate that all of the requirements of paragraph 20(1)(b) were met.

The Information Commissioner ordered that SSHRC release all of the information withheld under paragraph 20(1)(b).

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

The complaint is well founded.

Complaint

[1]     The complainant alleged that the Social Sciences and Humanities Research Council (SSHRC) had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act. This was in response to an access request for records relating to a virtual town hall meeting involving the SSHRC President and President of Memorial University of Newfoundland and Labrador (MUN), as well as other meetings or contacts between SSHRC and MUN officials and representatives from December 11, 2020 to the date of the request. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

[2]     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.

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

[3]     Paragraph 20(1)(b) requires institutions to refuse to disclose 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).

[4]     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.

[5]     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.

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

Does the information meet the requirements of the exemption?

[7]     On December 15, 2022, the Office of the Information Commissioner (OIC) requested representations from MUN concerning the application of paragraph 20(1)(b) to withhold the information at issue. MUN provided its response on January 27, 2023, which was identical to the response provided to SSHRC during the processing of the request.

[8]     On February 23, 2023, the OIC requested representations from SSHRC. SSHRC responded that it is willing to release the information on pages 107-108, pertaining to MUN’s SSHRC application success rates, as this information is publicly available.

[9]     On May 9, 2023, the OIC provided notice to MUN, pursuant to section 36.3, of its intention to order the release of the information withheld under paragraph 20(1)(b). MUN did not respond.

[10]     SSHRC applied paragraph 20(1)(b) to withhold technical information for WebEx meetings, as well as information related to MUN’s number of applications and success rates for various scholarship and grant programs.

[11]     During the investigation, MUN stated that it considers the WebEx information confidential. It suggested that sharing the video conferencing information can reasonably be expected to reveal the security arrangements for WebEx and could allow savvy individuals to repurpose and exploit that information in the future, gaining access to virtual meetings. MUN did not provide representations concerning its number of applications and success rates for SSHRC funding programs.

[12]     With respect to the first criteria, that the information be “financial”, “commercial”, “scientific” or “technical”, the Supreme Court of Canada in Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3, para. 139, stated the terms “financial”, “commercial”, “scientific” or “technical” information, in paragraph 20(1)(b), “…. should be given their ordinary dictionary meanings.”

[13]     I am satisfied that the WebEx access information for the virtual event, including web links, session numbers, access codes and passwords, meets the definition of technical information.

[14]     However, I am not convinced that MUN’s number of applications and success rates for SSHRC funding programs meet this criterion. While the granting of monetary awards may have financial implications by providing financial assistance to the university’s researchers, the redacted information is not itself financial in nature. Rather, it reveals the number of applications submitted by the university and MUN’s performance in different competition years. The fact that a record was created within a context that may have financial or commercial implications is insufficient to establish that the record contains information that is financial or commercial under paragraph 20(1)(b) of the Act (Appleton & Associates v. Canada (Clerk of the Privy Council Office), 2007 FC 640, para. 26).

[15]     With respect to the second criterion, that the information is confidential, the information must be assessed against three conditions for confidentiality:

  • The information must not be available from sources otherwise accessible by the public.
  • It must originate and be communicated with a reasonable expectation that it will not be disclosed.
  • It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see: Air Atonabee Ltd. v. Canada (Minister of Transport), [1989]     F.C.J. No. 453). [SJ1]     [CF2]    

[16]     With respect to the WebEx information, it does not appear that the information to access the town hall virtual meeting was made accessible to the general public. The emails containing the WebEx information were exchanged between MUN and SSHRC officials.

[17]     However, it does appear that this information, or at least the event link, was accessible to a large number of people, specifically, anyone with MUN login information, bringing into question the reasonableness of MUN’s expectation that it would not be disclosed.

[18]     An online article promoting the event (Virtual visit (mun.ca)) outlines that people interested in attending the meeting were required to log in to the MUN Brightspace platform using their MUN ID and password in order to register and to access the WebEx link at the event date and time. The event is described as being targeted towards MUN researchers, research administration staff and post-doctoral fellows. The invitation also notes that the WebEx event is limited to 1,000 participants, and if the limit was reached, interested attendees would be directed to a view-only stream on YouTube.

[19]     MUN has not provided any representations as to how it communicated the virtual event information to either SSHRC or those attending the event with an expectation of confidentiality. It would seem reasonable that there would be a lower expectation of confidentiality with such a large number of attendees. As noted above, MUN was prepared to facilitate a live stream on YouTube if the number of attendees exceeded the WebEx event capacity. There also does not appear to be any measures in place to prevent attendees from sharing the information, in particular the WebEx link, with other persons. It is not clear if the web links and passwords included in the records at issue are the same as that provided to general attendees in the MUN platform. However, the distribution of some WebEx access information to a potentially large number of attendees draws into question the confidentiality of WebEx links and the potential security risks associated with its disclosure.

[20] As for the last condition of confidentiality, neither SSHRC nor MUN have provided representations suggesting that their relationship is fostered for public benefit by the confidentiality of the WebEx information.

[21] With respect to the competition statistics, in its initial representations, SSHRC initially stated that it does not publish this information on an institution-specific level. However, SSHRC has since indicated that this information is publicly available.

[22] No representations have been provided concerning MUN’s expectation that its application information would remain confidential. Similarly, there are no representations demonstrating that the relationship between SSHRC and MUN is fostered for public benefit by the confidentiality of the statistics.

[23] In light of the above, I am not satisfied that any of the information at issue meets the confidentiality criterion. As a result, I do not need to assess whether the information meets the requirements of the remaining criteria for paragraph 20(1)(b) to apply.

[24] I conclude that the information does not meet the requirements for exemption under paragraph 20(1)(b).

Result

[25] The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President of SSHRC to release all of the information withheld under paragraph 20(1)(b).

On June 28, 2023, I issued my initial report to the President of SSHRC setting out my order.

On July 11, 2023, SSHRC gave me notice that it would implement my order.

I have provided Memorial University of Newfoundland and Labrador 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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