Trans Mountain Corporation (Re), 2022 OIC 20

Date: 2022-03-18
OIC file number: 5819-03380
Institution file number: ATIA.01.0004.2019

Summary

The complainant alleged that Trans Mountain Corporation (TMC) had improperly withheld information under paragraphs 21(1)(a) (advice or recommendations), 21(1)(b) (accounts of consultations or deliberations) and section 26 (information to be published) of the Access to Information Act in response to an access request for documents pertaining to the Trans Mountain Project and related to specific TMC Board of Directors meetings held in 2019.

During the course of the investigation, TMC informed the OIC that it had decided to continue to withhold all of the information responsive to the request, in accordance with, not only the three exemptions mentioned above, but also the following twelve exemptions: paragraphs 13(1)(c) (confidential information from government bodies), 18(a) (government financial, commercial, scientific or technical information), 18(b) (competitive position of government institutions), 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(b.1) (third-party emergency management plans), 20(1)(c) (financial impact on a third party), 20(1)(d) (negotiations by a third party), and sections 17 (safety of individuals), 22 (testing or auditing procedures or techniques), 22.1 (draft internal audit reports and their working papers), and 23 (legal advice and litigation privilege) of the Act.

TMC failed to convince the Commissioner that it had applied the Act correctly to the entirety of the information found in the record and did not provide sufficient details for the Commissioner to decide whether it had reasonably exercised its discretion to decide not to release the information. Accordingly, the Commissioner found that further disclosure was warranted.

As a result, the Commissioner provided the President and Chief Executive Officer of TMC with her initial report setting out her intended order to disclose all information withheld under the Act.

Following receipt of the Commissioner’s intended order, the President and Chief Executive Officer of TMC gave the Commissioner notice that he would be partially implementing her order by releasing portions of the records. Thereafter, the complainant indicated to the OIC that they were satisfied with the additional information that had been released. Therefore, an order was no longer required.

The complaint is well founded.

Complaint

[1] The complainant alleged that Trans Mountain Corporation (TMC) has improperly withheld information under paragraphs 21(1)(a) (advice or recommendations), 21(1)(b) (accounts of consultations or deliberations) and section 26 (information to be published) of the Access to Information Act in response to an access request for documents pertaining to the Trans Mountain Project and related to specific TMC Board of Directors meetings held in 2019.

[2] The complainant also alleged that TMC did not conduct a reasonable search for records as it did not provide a complete response to the request. These allegations were investigated by the Office of the Information Commissioner (OIC) separately in complaint file 5820-01119.

Investigation

[3] During the investigation, the OIC had several discussions with TMC officials who committed to reconsider the application of the exemptions to the records at issue. TMC also committed to proceed with a supplementary disclosure to the complainant by July 30, 2020, at the latest.

[4] Despite several extensions to the July 30, 2020, date, TMC failed to issue a supplementary release as promised.

[5] Instead, almost a year and a half into the investigation, and with no explanation as to why these exemptions could not have been raised at an earlier date, TMC informed the OIC that it had decided to continue to withhold all of the information responsive to the request, in accordance with, not only the three exemptions mentioned above, but also the following twelve exemptions: paragraphs 13(1)(c) (confidential information from government bodies), 18(a) (government financial, commercial, scientific or technical information), 18(b) (competitive position of government institutions), 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(b.1) (third-party emergency management plans), 20(1)(c) (financial impact on a third party), 20(1)(d) (negotiations by a third party), and sections 17 (safety of individuals), 22 (testing or auditing procedures or techniques), 22.1 (draft internal audit reports and their working papers), and 23 (legal advice and litigation privilege) of the Act.

[6] The purpose of the Act is to provide a right of access to information in records under the control of a government institution (subsection 2(1)). Necessary exceptions to the right of access should be limited and specific (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at paragraph 21). When an institution withholds information under an exemption, it must state the provision on which the refusal is based (subsection 10(1)) and it bears the burden of justifying that refusal.

[7] In this instance, my investigation has shown that TMC has failed to fulfill its obligations under the Act.

[8] Firstly, TMC stated, with essentially no explanation, that all the information in the record warranted exemption in its entirety. Furthermore, TMC failed to specify which exemptions were being claimed over which information and failed to justify the application of these exemptions.

[9] Secondly, TMC erred when it exempted the entirety of the records with no regard to severability and section 25 of the Act (Air Transat A.T. Inc. v. Canada (Transports), 2019 FCA 286 at paragraph 66). Following TMC’s determination that the requested record contained exempted information, it was then obliged to consider the issue of severance. In other words, TMC should have disclosed any part of the record that did not contain exempted information and which could reasonably be severed from any part that did contain exempted information (Merck Frosst at paragraph 229).

[10] As explained in detail below, ultimately, TMC has failed to convince me that it has applied the Act correctly to the entirety of the information found in the record. Accordingly, I find that further disclosure is warranted.

Subsection 13(1): confidential information from government bodies

[11] Subsection 13(1) requires institutions to refuse to release information obtained in confidence from certain government bodies.

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

The information was obtained from one of the following government bodies:
a government of a foreign state or an institution of a foreign state;
an international organization of states or an institution of such an organization;
a provincial government or institution;
a municipal or regional government or institution; or
an aboriginal government or council listed in subsection 13(3).
The information was obtained from the government body in confidence—that is, with the understanding that it would be treated as confidential.

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

The government body from which the information was obtained consents to its release.
That body has already made the information public.

[14] When one or both of these circumstances exist, subsection 13(2) requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[15] In its representations, TMC alleged that portions of the records were obtained in confidence from provincial governments and therefore warranted exemption under paragraph 13(1)(c). However, other than a brief reference to an agreement between TMC and a particular province, TMC has not identified within the records, specific information withheld under this exemption.

[16] Furthermore, TMC’s representations do not demonstrate that the identified information warrants exemption under the Act. With reference to the agreement between the province in question and TMC, found at pages 158-190 of the working copy, TMC has not demonstrated that this agreement – which appears to include terms negotiated by both sides – was obtained from the province in confidence.

[17] In light of the above, I am unable to conclude that the information meets the requirements of subsection 13(1).

Section 17 : safety of individuals

[18] Section 17 allows institutions to refuse to release information that, if disclosed, could reasonably be expected to threaten an individual’s safety.

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

Disclosing the information could threaten the safety or health of an individual.
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] In its representations, TMC indicated that portions of the records were withheld under section 17 of the Act as the release of the information would reasonably be expected to threaten the safety of individuals, namely, TMC employees and consultants. However, TMC failed to identify in the records the specific information withheld under section 17.

[22] While TMC did indicate that it has been subject to various criminal activities that put the safety of its personnel in danger, TMC did not explain how the disclosure of the specific information in the records would create a risk well beyond a mere possibility of the alleged harms occurring. (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paragraphs 195-197, 206).

[23] The OIC’s investigation shows that the identity of TMC’s Board members as well as its management team is public information. Despite this, the names of these individuals were withheld in the records (e.g., page 4 of the working copy) and TMC provided no explanation of this apparent discrepancy between the alleged safety risk to these employees and the publicly available information connecting these individuals to TMC.

[24] In light of the above, I am unable to conclude that the information meets the requirements of section 17.

Paragraph 18(a) : government financial, commercial, scientific or technical information

[25] Paragraph 18(a) allows institutions to refuse to release trade secrets or financial, commercial, scientific or technical information of the Government of Canada or a government institution when that information has or is likely to have substantial value.

[26] To claim this exemption with regard to financial, commercial, scientific or technical information, institutions must show the following:

The information is financial, commercial, scientific or technical.
The information belongs to the Government of Canada or one of its institutions.
The information has substantial, rather than nominal, market value or is reasonably likely to have such value in the future.

[27] 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?

[28] In its representations, TMC indicated that paragraph 18(a) was applied to reports supplied to its Board of Directors, including detailed financial forecasts, profit and cost estimates, draft financial reports and investment amounts for the Trans Mountain Expansion Project.

[29] However, TMC has not identified the specific information that is withheld under paragraph 18(a) in the records, nor has it provided detailed representations explaining how the information meets the criteria for the exemption. It is clear that much of the information in these reports is not financial, commercial, scientific or technical information that has or is reasonably likely to have substantial value.

[30] While it is possible that certain financial forecasts, estimates and amounts may meet the criterion for this exemption, TMC’s cursory representations are insufficient to meet its burden of proof.

[31] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 18(a).

Paragraph 18(b) : competitive position of government institutions

[32] 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.

[33] 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.

[34] 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?

[35] In its representations, TMC indicated that it claimed paragraph 18(b) to portions of the records containing confidential business information, the disclosure of which would result in competitors receiving insight into TMC’s operating costs and expenses, and would provide advantages to potential vendors. According to TMC, this information would also provide special interest groups with insights that would assist them in opposing or delaying the Trans Mountain Expansion Project.

[36] TMC has not identified the specific information that is withheld under paragraph 18(b) in the records at issue, nor has it provided representations explaining how the information meets the criteria for the exemption, namely how the disclosure of the specific information could injure its competitive position.

[37] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 18(b).

Paragraph 20(1)(a) : third-party trade secrets

[38] Paragraph 20(1)(a) requires institutions to refuse to release trade secrets that belong to a third party (that is, a private company or individual, but not the person who made the access request).

[39] To claim this exemption, institutions must show that the information is a trade secret—that is, a plan or process, tool, mechanism or compound that possesses all four of the following characteristics:

The information is secret—that is, only one or a relatively small number of people know it.
The third party intended to treat the information as secret.
The information has industrial or commercial application.
The third party has an interest worthy of legal protection (that is, an economic interest).

[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] However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(a) 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?

[42] In its representations, TMC indicated that portions of the records include third party information from TMC’s consultants and that this information may contain trade secrets of a third party.

[43] TMC has not identified the specific information that is withheld under paragraph 20(1)(a) in the records and has failed to identify the third party(ies) whose trade secrets are at issue. Section 33 of the Act required that TMC advise the OIC of any third party that it had notified under subsection 27(1) or would have notified under that subsection if TMC had intended to disclose the record or part thereof. Despite its obligations under the Act, and upon being asked again by the OIC to identify any alleged third party(ies), TMC explicitly refused to do so.

[44] Furthermore, TMC failed to provide representations justifying the application of the exemption.

[45] Based on my review of the records, I did not see any information which contained, or which I had reason to believe might contain trade secrets of a third party.

[46] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 20(1)(a).

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

[47] Paragraph 20(1)(b) requires institutions to refuse to release 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).

[48] 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.

[49] 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.

[50] 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.

[51] However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) 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?

[52] In its representations, TMC indicated that portions of the records include third party information from TMC’s consultants and that this information may contain information described in paragraph 20(1)(b).

[53] TMC has not identified which specific information that is withheld under paragraph 20(1)(b) in the records and has failed to identify the third party whose information is at issue. Section 33 of the Act required that TMC advise the OIC of any third party that it had notified under subsection 27(1) or would have notified under that subsection if TMC had intended to disclose the record or part thereof. Despite its obligations under the Act, and upon being asked again by the OIC to identify any alleged third party(ies), TMC explicitly refused to do so. Furthermore, TMC failed to provide representations justifying the application of the exemption.

[54] Based on my review of the records, I did not see any information which contained, or which I have reason to believe might contain information described in paragraph 20(1)(b).

[55] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 20(1)(b).

Paragraph 20(1)(b.1) : third-party emergency management plans

[56] Paragraph 20(1)(b.1) requires institutions to refuse to release information related to emergency management plans that a third party (that is, a private company or individual, but not the person who made the access request) supplies in confidence to an institution.

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

The information concerns critical infrastructure information—that is, information about the vulnerability of the third party’s buildings or other structures, its networks or systems (including computer or communication networks or systems) or the methods used to protect that infrastructure.
The information was supplied to a government institution by the third party.
The information was supplied in confidence—that is, with the understanding that it would be treated as confidential.
The information was supplied for the preparation, maintenance, testing or implementation by the institution of emergency management plans, as defined in section 2 of the Emergency Management Act.

[58] 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.

[59] 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.

[60] However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b.1) 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?

[61] In its representations, TMC indicated that portions of the records include third party information from TMC’s consultants and that this information may contain information described in paragraph 20(1)(b.1).

[62] TMC has not identified which specific information that is withheld under paragraph 20(1)(b.1) in the records and has failed to identify the third party(ies) whose information is at issue. Section 33 of the Access to Information Act required that TMC advise the OIC of any third party that it had notified under subsection 27(1) or would have notified under that subsection if TMC had intended to disclose the record or part thereof. Despite its obligations under the Act, and upon being asked again by the OIC to identify any alleged third party(ies), TMC explicitly refused to do so. Furthermore, TMC failed to provide representations justifying the application of the exemption.

[63] Based on my review of the records, I did not see any information which contained, or which I have reason to believe might contain information described in paragraph 20(1)(b.1).

[64] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 20(1)(b.1).

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

[65] 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.

[66] 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.

[67] 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.

[68] 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.

[69] 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.

[70] 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?

[71] In its representations, TMC indicated that portions of the records include third party information that may contain information the disclosure of which the head of TMC can reasonably foresee might effect a result described in paragraph 20(1)(c).

[72] TMC has not identified the specific information that is withheld under paragraph 20(1)(c) in the records and has failed to identify the third party(ies) that would be impacted by the disclosure of the information. Section 33 of the Act required that TMC advise the OIC of any third party that it had notified under subsection 27(1) or would have notified under that subsection if TMC had intended to disclose the record or part thereof. Despite its obligations under the Act, and upon being asked again by the OIC to identify any alleged third party(ies), TMC explicitly refused to do so. Furthermore, TMC failed to provide representations justifying the application of the exemption.

[73] Based on my review of the records, I did not see any information which contained, or which I have reason to believe might contain information described in paragraph 20(1)(c).

[74] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 20(1)(c).

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

[75] 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).

[76] 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.

[77] 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.

[78] 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.

[79] 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?

[80] In its representations, TMC indicated that portions of the records include third party information that may contain information the disclosure of which the head of TMC can reasonably foresee might effect a result described in paragraph 20(1)(d).

[81] TMC has not identified the specific information that is withheld under paragraph 20(1)(d) in the records and has failed to identify the third party(ies) that would be impacted by the disclosure of the information. Section 33 of the Act required that TMC advise the OIC of any third party that it had notified under subsection 27(1) or would have notified under that subsection if TMC had intended to disclose the record or part thereof. Despite its obligations under the Act, and upon being asked again by the OIC to identify any alleged third party(ies), TMC explicitly refused to do so. Furthermore, TMC failed to provide representations justifying the application of the exemption.

[82] Based on my review of the records, I did not see any information which contained, or which I have reason to believe might contain information described in paragraph 20(1)(d).

[83] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 20(1)(d).

Paragraph 21(1)(a) : advice or recommendations

[84] Paragraph 21(1)(a) allows institutions to refuse to release advice or recommendations developed by or for a government institution or a Minister.

[85] To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

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

The information is advice or recommendations.
The information was created by or for a government institution or Minister.

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

[88] However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to release 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 exemption?

[89] In its representations, TMC indicated that the records were entirely withheld under paragraph 21(1)(a) of the Act as they constitute advice or recommendations developed by or for a government institution, or the Minister of Finance.

[90] In support of its position, TMC argued that “[a]ll of the records requested are exempt under sections 21(1)(a) and (b) of the Act”, essentially repeating the wording of the exemptions without undertaking any analysis. This is clearly insufficient to meet its burden of proof, especially in relation to more than 300 pages.

[91] In reviewing the records, I found numerous, clear, examples of information that does not meet the requirements of the exemption. For instance, reports prepared by are expressly excluded from the application of paragraph 21(1)(a) pursuant to subsection 21(2) of the Act.

[92] Furthermore, I note that information of a factual or objective nature, for example, is outside the scope of the paragraph 21(1)(a) exemption: Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2019 FCA 95, para. 40.

[93] Finally, as noted above, when an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified. In this instance, TMC has failed to do so.

[94] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 21(1)(a).

Paragraph 21(1)(b) : accounts of consultations or deliberations

[95] Paragraph 21(1)(b) allows institutions to refuse to release accounts of consultations or deliberations in which government employees, Ministers or members of a Minister’s staff took part.

[96] To qualify for exemption under paragraph 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

[97] To claim this exemption, institutions must then 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.

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

[99] However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to release 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 exemption?

[100] In its representations, TMC indicated that the records were entirely withheld under paragraph 21(1)(b) of the Act as they constitute an account of consultations or deliberations in which directors, officers or employees of TMC participated.

[101] In support of its position, TMC argued that “[a]ll of the records requested are exempt under sections 21(1)(a) and (b) of the Act”, essentially repeating the wording of the exemptions without undertaking any analysis. This is clearly insufficient to meet its burden of proof, especially in relation to more than 300 pages.

[102] In reviewing the records, I found numerous, clear, examples of information that does not meet the requirements of the exemption. As with paragraph 21(1)(a), reports prepared by consultants are expressly excluded from the application of paragraph 21(1)(b) pursuant to subsection 21(2) of the Act.

[103] Paragraph 21(1)(b) does not apply to information of a largely factual and objective nature (see Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 FC 245, para. 39; Treasury Board Access to Information Manual, s. 11.18.4). Information of this sort, including headings throughout the records at issue, and background information such as that found in a memorandum at page 132, do not constitute accounts of consultations or deliberations.

[104] Finally, as noted above, when an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified. In this instance, TMC has failed to do so.

[105] In light of the above, I am unable to conclude that the information meets the requirements of paragraph 21(1)(b).

Section 22 : testing or auditing procedures or techniques

[106] Section 22 allows institutions to refuse to release information related to testing or auditing that, if disclosed, would prejudice the use of particular tests or audits, or their results.

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

The information relates to testing or auditing procedures or techniques, or details of specific tests to be given or audits to be conducted.
Disclosing this information would do one of the following:
prejudice the results of a specific test or audit—in progress or to be carried out in the future; or
jeopardize the later use of the tests or audits, or of the testing or auditing procedures.

[108] 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?

[109] In its representations, TMC indicated that section 22 was claimed on information relating to testing or auditing procedures and techniques. TMC stated that disclosure of this information would prejudice the purpose and use of the tests or audits results.

[110] TMC has failed to identify which specific information is withheld under section 22 in the records and has failed to provide satisfactory representations justifying the application of the exemption. It has not demonstrated, beyond a mere assertion, that the harm envisioned by the section 22 exemption would occur.

[111] In light of the above, I am unable to conclude that the information meets the requirements of section 22.

Subsection 22.1(1): draft internal audit reports and their working papers

[112] Subsection 22.1(1) allows institutions to refuse to release an institution’s draft internal audit reports or any related internal audit working papers.

[113] To qualify for exemption under subsection 22.1(1), the records that contain the information must have been created less than 15 years before the access request was made.

[114] To claim this exemption, institutions must then show that the information consists of draft reports of an internal audit of a government institution or internal audit working papers.

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

[116] However, subsection 22.1(2) specifically prohibits institutions from using subsection 22.1(1) to refuse to release draft internal audit reports when the final reports have been published or when they were not delivered within two years after the day the audits began.

Does the information meet the requirements of the exemption?

[117] In its representations, TMC indicated that section 22.1 was claimed to withhold portions of the records, namely draft reports of internal audits, which are not older than fifteen years.

[118] TMC has failed to identify which specific information is withheld under section 22.1 in the records and has failed to provide satisfactory representations justifying the application of the exemption.

[119] In light of the above, I am unable to conclude that the information meets the requirements of subsection 22.1(1).

Section 23: solicitor-client and litigation privilege

[120] Section 23 allows institutions to refuse to release information subject to solicitor-client privilege, or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to release information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[121] To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

The information consists of communication between a lawyer or notary and his or her client.
That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
The parties intend the communication and advice to remain confidential.

[122] To claim this exemption with regard to litigation, institutions must show the following:

The information was prepared or gathered for the dominant purpose of litigation.
The litigation is either in progress or is reasonably expected to occur.

[123] Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

[124] When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[125] In its representations, TMC indicated that portions of the records are solicitor-client privileged, and include the advice of legal counsel to TMC, its Board, and the discussions of such legal advice by the Board.

[126] TMC, however, failed to identify what specific information warranted exemption under section 23 of the Act.

[127] In reviewing the records, I found one example of information, at pages 197-198 of the working copy, which might meet the requirements of the exemption. However, in the absence of any representation in support of the application of section 23 or any indication of the proper exercise of discretion, I am unable to conclude that the information meets the requirements of the exemption.

Section 26 : information to be published

[128] Section 26 allows institutions to refuse to release information the Government of Canada will publish in the near future.

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

There are reasonable grounds to believe that the information will be published by a government institution, agent of the Government of Canada or Minister, other than material proactively disclosed under Part 2 of the Access to Information Act.
The publication will occur within 90 days after the access request is made or within the time that may be necessary for printing or translation to take place.

[130] 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?

[131] In its representations, TMC indicated that portions of the records were withheld under section 26, namely records related to the final cost of the Trans Mountain project, and any project related shutdown costs, as such costs were to be reflected in TMC’s quarterly financials within 90 days of the request. TMC further stated that this information has since been made public.

[132] Despite the OIC’s request to that effect, TMC failed to identify the specific information withheld under section 26 in the records and to specify the date on which the information was published.

[133] In light of the above, I am unable to conclude that the information meets the requirements of section 26.

Section 25: severability

[134] Section 25 of the Act provides that, to the extent an institution is authorized to refuse disclosure of part of a record, it must nonetheless disclose any part of the record that does not contain, and can reasonably be severed from any information that the institution is authorized to refuse.

[135] In the Merck Frosst decision, the Supreme Court determined that the analysis of whether severance under section 25 is reasonable (and therefore required) involves a semantic and cost-benefit analysis, which must consider the purpose of section 25: “to facilitate access to the most information reasonably possible while giving effect to the limited and specific exemptions set out in the Act.” The semantic analysis considers “whether what is left after excising exempted material has any meaning”, while the cost-benefit analysis “considers whether the effort of redaction by the government institution is justified by the benefits of severing and disclosing the remaining information.” (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 229-238).

[136] In its representations, TMC indicated that severing the records is not justified because the information that is exempt from disclosure forms nearly all of the records. TMC further stated that considerable time and effort would be required to identify portions of the records that could be released. Ultimately, TMC concluded that the time and effort required for this exercise would outweigh the value of what could be disclosed.

[137] Upon review of the records, I conclude that this is clearly wrong. Section 25 does not permit the records at issue, which total around 300 pages, to be entirely withheld; substantial portions of the records do not warrant exemption under the Act. The semantic analysis demonstrates that the non-exempt information is not meaningless, while the cost-benefit analysis demonstrates that the effort of redaction by TMC would be justified by the significant and meaningful disclosure it would provide to the complainant. Consideration of the purpose of section 25 makes this even more evident.

[138] Most of the pages at issue contain examples of information that is not exempt and must therefore be disclosed. A clear example is found on pages 143 to 150 of the working copy, where TMC’s delegation of authority has been entirely withheld. Furthermore, general identifying information of a factual or objective nature has been withheld throughout the records on documents such as Minutes of Board meetings.

Result

[139] The complaint is well founded.

Order

On December 15, 2021, upon finding that the complaint against TMC was well founded, I provided the President and Chief Executive Officer of TMC with my initial report setting out my intended order, which read as follows:

Disclose all information currently withheld under the Act;

On January 27, 2022, the President and Chief Executive Officer of TMC gave me notice that he would be partially implementing my order by releasing portions of the records.

In February 2022, TMC disclosed to the complainant additional information it had previously withheld. Thereafter the complainant, who had been informed of the issuance of my initial report and intended order which would require that all information be disclosed, indicated to the OIC that they are now satisfied with the information that has been released and that their complaint can be closed.

Therefore, an order is no longer required.

That being said, I wish to comment upon what occurred during this investigation.

In its January 27, 2022 notice, TMC also provided additional submissions in an effort to bolster exemptions previously applied and raised new exemptions never mentioned during the investigation. This was inappropriate and not in accordance with processes set out in the Act.

More specifically, the issuance of my initial report of investigation and intended order under subsection 37(1) was not a further opportunity for TMC to provide new arguments or raise additional grounds for refusing access. My initial report made explicitly clear that this was not an opportunity for additional representations to be made. Meanwhile, TMC offered no explanation as to why it had not made its submissions during the investigation itself.

Certain investigative steps are dictated by the Act. Of relevance, paragraph 35(2)(b) specifies that in the course of the OIC’s investigation of complaint, the head of the institution is to be given a reasonable opportunity to make representations. The Act does not envision that following the issuance of my initial report institutions are further authorized or entitled to provide additional representations and / or raise additional basis for refusing access. Paragraph 37(1)(c) expressly states that my initial report is to set out the period within which the head of the government institution shall notify me of the action taken or proposed to be taken to implement the order or recommendation made or reasons why no such action has been or is proposed to be taken. This does not include submitting new arguments or new exemptions for withholding the information at issue.

At the outset of the investigation, the OIC attempted to secure a supplementary disclosure reflective of a genuine severance exercise. Despite TMC’s promises to this effect, when it became clear that TMC would not issue a supplementary disclosure package, the OIC then formally sought representations from TMC in March of 2021. At that time, TMC was informed that that was the last opportunity to provide representations and, following the deadline therein, the OIC would conclude its investigation regardless of whether it had received representations. TMC responded by asserting that, in addition to the three exemption provisions initially claimed, the information warranted being withheld under an additional twelve exemptions. Despite being provided ample opportunities, TMC neglected to even indicate what information was being withheld under which exemption(s) claimed, much less provide substantive representations in support of the application of those exemptions.

The OIC carefully considered each additional exemption asserted by TMC during the course of the investigation. Ultimately, as noted in this report, I found that TMC had failed to convince me that it had applied the Act correctly to the entirety of the information found in the record.

The initial report was sent to TMC in December of 2021. In accordance with subsection 37(1), this report set out my findings, intended order and the period within which the President and Chief Executive Officer of TMC was to give me notice of the actions proposed to implement my order or why no such actions were proposed to be taken. It is only after my initial report was issued to the President and CEO of TMC, along with my finding that the complaint was well founded and my intended order, that TMC finally started to take the OIC and the complainant’s rights of access seriously.

Section 34 gives me the authority to determine the procedure to be followed in the performance of any duty or function in carrying out my investigations within the parameters set out in the Act. In my view, this procedure cannot reasonably involve a relaunching of my investigation as a result of submissions made by an institution after the fact -particularly where, as here, the institution was afforded ample opportunity to meaningfully participate throughout the investigation conducted, yet neglected to do so.

As emphasized by the Federal Court in Information Commissioner of Canada v. Toronto Port Authority and Canadian Press Enterprises Inc., 2016 FC 683, to impose an obligation on the Information Commissioner to relaunch the investigation when the investigation is complete would:

(1) frustrate the investigation process; (2) be contrary to the duties imposed upon government institutions under subsection 4(2.1) and paragraph 10(1)(b) of the ATIA to make every reasonable effort to assist requesters and to identify the specific provision of the ATIA for a refusal, respectively; (3) undermine the Commissioner's role as the master of her own process; and (4) potentially undermine the quasi-constitutional right of timely access (Statham at para 1). (paragraph 72)

As Information Commissioner, I must express my disappointment with the lack of engagement and respect exhibited by TMC during the investigative process and with TMC’s disregard of its obligations under the Act. Such behaviour on the part of TMC undermines not only an already struggling access system, but more importantly, the quasi-constitutional rights of access of all Canadians.

Section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.