Social Sciences and Humanities Research Council of Canada (Re), 2024 OIC 35
Date: 2024-06-03
OIC file number: 5819-00985
Access request number: A-2018-00032
Summary
The complainant alleged that the Social Sciences and Humanities Research Council of Canada (SSHRC) had improperly withheld information under paragraph 16(2)(c) (facilitating the commission of an offence), subsection 19(1) (personal information), and paragraphs 20(1)(c) (financial impact on a third party), 20(1)(d) (negotiations by a third party), 21(1)(a) (advice or recommendation) and 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act in response to an access request. The request was for information related to the Canada Research Chairs’ Equity, Diversity and Inclusion (EDI) Public Accountability and Transparency Requirements. The allegation falls within paragraph 30(1)(a) of the Act.
The application of paragraph 16(2)(c) was removed from the scope of the complaint.
During the investigation, SSHRC decided to also rely on paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) to withhold some information.
SSHRC showed that the information withheld under subsection 19(1) met all the requirements of the exemption.
SSHRC could not show that other information met the requirements of paragraphs 20(1)(b), 20(1)(c) and 20(1)(d).
Information of a factual or objective nature also did not meet the requirements of paragraphs 21(1)(a) and 21(1)(b).
The Information Commissioner ordered SSHRC to disclose all the redacted information, except information that meets the requirements of subsection 19(1) and/or paragraphs 21(1)(a) and/or 21(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 of Canada (SSHRC) had improperly withheld information under paragraph 16(2)(c) (facilitating the commission of an offence), subsection 19(1) (personal information), and paragraphs 20(1)(c) (financial impact on a third party), 20(1)(d) (negotiations by a third party), 21(1)(a) (advice or recommendation) and 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act in response to an access request. The request was for information related to the Canada Research Chairs’ Equity, Diversity and Inclusion (EDI) Public Accountability and Transparency Requirements. The allegation falls within paragraph 30(1)(a) of the Act.
[2] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate SSHRC’s withholding of passwords and codes. As they were the only information withheld under paragraph 16(2)(c), no information withheld pursuant to paragraph 16(2)(c) remained within the scope of the complaint, and no further examination of that exemption was necessary.
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] During the investigation, SSHRC decided to also rely on paragraph 21(1)(a) to withhold information from disclosure on pages 150-153, and on paragraph 21(1)(b) to withhold information on page 165. In its representations, it also stated that information on pages 122-127 is subject to paragraph 20(1)(b).
[5] The OIC sought representations from all third parties, which are universities, under the terms of paragraph 35(2)©. In response, some universities provided representations in support of the application of the exemptions, some universities provided consent or no longer have concerns with the full disclosure of the information related to their institutions, some universities did not respond, and one university stated it had no comments.
[6] As required by section 36.3, I have notified the relevant third parties of my intention to order SSHRC to disclose some of the information at issue.
Subsection 19(1): personal information
[7] Subsection 19(1) requires institutions to refuse to disclose personal information.
[8] 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).
[9] When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:
- The person to whom the information relates consents to its disclosure.
- The information is publicly available.
- Disclosure of the information would be consistent with section 8 of the Privacy Act.
[10] When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires them to reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[11] In reviewing the information at issue, it is clear that the information satisfies the requirements of subsection 19(1), since it is about named individuals who are clearly identifiable and none of the exceptions to the definition of personal information set out in paragraphs 3(j) to (m) of the Privacy Act apply.
[12] I am also satisfied the remaining information redacted under subsection 19(1) – namely portions of the information on pp. 149, 150, 153, 158, 161-162, 165-166 and 168-174, and the entirety of the information on pp. 163, 164 and 176 – consists of personal information about identifiable individuals. During the investigation, SSHRC asserted that there are no other portions of these pages that could be disclosed without creating a risk of identifying the individuals to whom the information relates.
[13] The Federal Court of Appeal in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157 stated that “an ‘identifiable’ individual is considered to be someone whom it is reasonable to expect can be identified from the information in issue when combined with information from sources otherwise available”. The Federal Court has since framed the test as requiring that there be a serious possibility or reasonable expectation that an individual could be identified using available information (see Gordon v. Canada (Health), 2008 FC 258, paras. 32-34; Canada (Information Commissioner) v. Canada (Minister of Public Safety and Emergency Preparedness), 2019 FC 1279, (“Minister of Public Safety”), para. 53).
[14] A “serious possibility” means something more than a frivolous chance, but less than a balance of probabilities and “other available information” is not limited to information available to the public at large, but may be available only to a smaller subset of the public (Minister of Public Safety, supra, para. 65).
[15] After reviewing the information at issue and the representations I received, I am satisfied that the serious possibility test is met with respect to the remaining withheld information since “other available information” would be available to a smaller subset of the public. This conclusion is in line with the representations received by the Office of the Privacy Commissioner during the course of the investigation.
[16] Consequently, I conclude that the information meets the requirements of subsection 19(1).
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[17] Since the information meets the requirements of subsection 19(1), SSHRC was required to reasonably exercise its discretion under subsection 19(2) to decide whether to disclose the information when one or more of the circumstances described in subsection 19(2) existed when it responded to the access request.
[18] I accept that it would not have been reasonable in the present instance for SSHRC to have sought the consent of the numerous third-party employees whose information is involved. There was therefore no discretion to disclose the information under paragraph 19(2)(a).
[19] I also accept that there is no indication that disclosure would be in accordance with section 8 of the Privacy Act, so as to permit the information’s disclosure under paragraph 19(2)(c).
[20] Under paragraph 19(2)(b), SSHRC’s discretion would have been triggered if any of the personal information was publicly available. There is no indication that any of the information was publicly available when SSHRC responded to the access request.
[21] I conclude that the circumstances set out in subsection 19(2) did not exist when SSHRC responded to the access request. Consequently, there is no need to examine the issue of discretion.
Paragraphs 21(1)(a) and (b): advice or recommendations and accounts of consultations or deliberations
[22] Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.
[23] To claim this exemption, institutions must show the following:
- The information is advice or recommendations.
- The information was developed by or for a government institution or minister.
[24] Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.
[25] To claim this exemption, institutions must show the following:
- The information is an account—that is, a report or a description.
- The account is of consultations or deliberations.
- At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.
[26] To qualify for exemption under paragraph 21(1)(a) or (b), the records that contain the information must have been created less than 20 years before the access request was made.
[27] When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.
[28] However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) or (b) to refuse to disclose the following:
- records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
- reports prepared by consultants or advisers who were not officers or employees of an institution or members of a minister’s staff at the time.
Does the information meet the requirements of the exemptions?
[29] SSHRC relied on paragraphs 21(1)(a) and 21(1)(b) sometimes concurrently with subsection 19(1), and paragraphs 20(1)(c), 20(1)(d) to exempt information.
[30] I accept that portions of the records at issue in which advice and recommendations are provided or where the withheld information constitutes an account of consultations or deliberations meet the requirements of these exemptions.
[31] However, I note that the last sentence under heading “7- Canada 150 Research Chairs” on page 151 is information of a factual or objective nature that does not meet the requirements of the exemptions since it is outside the scope of paragraphs 21(1)(a) or (b) (see: Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2019 FCA 95, para. 40).
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[32] Since most of the information meets the requirements of section 21, SSHRC was required to reasonably exercise its discretion to decide whether to disclose the information.
[33] 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. The Federal Court of Appeal, in Information Commissioner of Canada v. Prime Minister, 2019 FCA 95, provides guidance on what institutions must do to demonstrate the reasonable exercise of discretion.
[34] SSHRC stated it considered the nature of the information and the impact of its disclosure on such future internal discussions and relations with universities.
[35] I am satisfied that SSHRC considered all relevant factors when it decided not to disclose the information. Those factors included the nature of the information at issue and the impact of disclosure on future internal discussions and relations with universities.
[36] Consequently, with regards to the information that meets the requirements of paragraphs 21(1)(a) or (b), I find that the exercise of discretion by SSHRC was reasonable.
Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information
[37] 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).
[38] 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.
[39] 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?
[40] During the course of the investigation, SSHRC briefly stated that pages 122-127 were supplied in confidence to SSHRC and are commercial and technical in nature, are consistently treated in confidence and, while it did not originally apply 20(1)(b), they are subject to that exemption.
[41] When given the opportunity to provide representations about exemptions that were not originally applied to the records in response to my representations request under paragraph 35(2)(b), however, SSHRC did not address paragraph 20(1)(b) or provide additional detailed representations about how the information meets the criteria.
[42] Based on my review of the records and on the limited representations on the application of paragraph 20(1)(b), I am not convinced that the information meets the requirements of the exemption.
Paragraphs 20(1)(c) and 20(1)(d): financial impact on a third party and negotiations by a third party
[43] SSHRC relied on paragraph 20(1)(c) concurrently with paragraph 20(1)(d), and sometimes with subsection 19(1) and/or paragraph 21(1)(a) and/or paragraph 21(1)(b) to withhold portions of the same information.
[44] Where I am of the view that information warrants being withheld under subsection 19(1) and/or paragraph 21(1)(a) and/or paragraph 21(1)(b), I have not considered it necessary to examine whether that same information also meets the requirements of paragraphs 20(1)(c) and 20(1)(d). Therefore, the application of paragraphs 20(1)(c) and 20(1)(d) has only been examined on pages 1, 2, 5-9, 11-39, 42-53, 55-60, 62-63, 67-71, 74-77, 81-83, 86-88, 91-93, 96-98, 100-105 and 107-147.
[45] 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.
[46] 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.
[47] 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.
[48] 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).
[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 disclose the information.
Does the information meet the requirements of paragraph 20(1)(c)?
[51] Universities that objected to the disclosure of information redacted under paragraph 20(1)(c) asserted that there is a reasonable expectation that releasing the information could lead to material loss or prejudice the universities’ economic interests and competitive position, and/or could have significant reputational risks, and/or would result in negative media attention to the institutions, and/or would affect their recruitment processes and ability to attract and retain staff and students.
[52] SSHRC asserted that the information identifies or leads to the identity of the universities, and that its disclosure would reasonably be expected to cause financial loss to the universities or harm their competitive position.
[53] Paragraph 20(1)(c) requires evidence showing the financial impact disclosing the information could have on the universities or their competitive position, and how likely that impact would be. SSHRC 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).
[55] I therefore conclude that the withheld information does not meet the requirements of paragraph 20(1)(c).
Does the information meet the requirements of paragraph 20(1)(d)?
[56] Three (3) universities asserted that identification of the universities could reasonably interfere with contractual (hiring or other) negotiations.
[57] SSHRC has not provided representations on the impact of the disclosure of the information on the universities’ negotiations.
[58] The case law under the Access to Information 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). This requires that a party opposing disclosure demonstrate that the harm is well beyond the merely possible or speculative (Merck Frosst, supra, paras. 197, 206).
[59] Interference, in the context of paragraph 20(1)(d), has been interpreted in 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). Thus, for an exemption under paragraph 20(1)(d) to be valid, the parties resisting disclosure must demonstrate that obstruction of actual or reasonably anticipated 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).
[60] I have not received any evidence or representations demonstrating that this test is met.
[61] As a result, I conclude that the information does not meet the requirements of paragraph 20(1)(d) because insufficient evidence or representations have been provided to demonstrate that the universities were, or were to be, conducting contractual or other negotiations, or that there is a reasonable expectation that disclosing the information could interfere with those negotiations.
Outcome
[62] The complaint is well founded.
Orders and recommendations
I order the President of the Social Sciences and Humanities Research Council to disclose all the redacted information, except information that meets the requirements of subsection 19(1) and/or paragraphs 21(1)(a) and/or 21(1)(b), as described in my initial report. The information that must be disclosed can be found on pages 1, 2, 5-9, 11-39, 42-53, 55-60, 62-63, 67-71, 74-77, 81-83, 86-88, 91-93, 96-98, 100-105, 107-147 and 151.
Initial report and notice from institution
On April 17, 2024, I issued my initial report to the President of the Social Sciences and Humanities Research Council setting out my order.
On April 19, 2024, the Acting Manager, Access to Information and Privacy and Corporate Operations gave me notice that the President would implement my order.
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 and the Privacy Commissioner 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 third parties that made representations to me in respect of the complaint and the Privacy Commissioner of Canada.