Transport Canada (Re), 2023 OIC 10

Date: 2023-04-06
OIC file number: 5821-01350
Institution file number: A-2020-00475

Summary

The complainant alleged that Transport Canada had improperly withheld information under subsection 19(1) (personal information) and 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 information related to the most recent applications and Minimum Safe Manning (MSM) Documents issued for the motor vessel Spirit of Vancouver Island. The complaint falls within paragraph 30(1)(a) of the Act.

Personal information withheld under subsection 19(1) was removed from the scope of the complaint.

During the course of the investigation, Transport Canada decided to also apply paragraph 20(1)(b.1) to one document in the records.

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

The Information Commissioner was satisfied that portions of the information in one document at issue met the requirements of paragraph 20(1)(b.1).

The Commissioner ordered Transport Canada to disclose the information withheld under paragraphs 20(1)(b) and 20(1)(b.1), with the exception of portions of one document in the records.

Transport Canada gave notice that it would “would likely” comply with the order.

The complaint is well founded.

Complaint

[1]      The complainant alleges that Transport Canada had improperly withheld information under subsection 19(1) (personal information) and 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 information related to the most recent applications and Minimum Safe Manning (MSM) Documents issued for the motor vessel Spirit of Vancouver Island. The complaint 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 the application of subsection 19(1) to the information at issue.

Investigation

[3]      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.

[4]      The OIC sought representations from the third party, British Columbia Ferries (BC Ferries), pursuant to paragraph 35(2)(c) of the Act. In response, BC Ferries confirmed that it takes no position concerning the disclosure of the information in the records, with the exception of the document on page 50 of the records. BC Ferries argued that page 50 is appropriately withheld by Transport Canada under paragraph 20(1)(b) and suggested that it must also be withheld under paragraph 20(1)(b.1). BC Ferries proposed, “…in the spirit of transparency…” releasing only the headings and subheadings of the document.

[5]      In its representations, Transport Canada agreed that paragraph 20(1)(b) no longer applies to the withheld information, with the exception of page 50. It indicated that it would consider releasing the information previously withheld on pages 13, 17-28, 34-40, 42-43 and 46-47.

[6]      As for the document on page 50, Transport Canada maintained the application of paragraph 20(1)(b) and stated it is also now relying on paragraph 20(1)(b.1) to withhold this information.

[7]      As required by section 36.3, I notified BC Ferries of my intention to order Transport Canada to disclose the information withheld under section 20 in its entirety, other than at page 50, and for page 50, to disclose the titles and headings. In response, BC Ferries informed the OIC that they had nothing further to submit.

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

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

[9]      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.

[10]    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.

[11]    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?

[12]    During the course of the investigation, Transport Canada applied paragraph 20(1)(b.1) to withhold the information on page 50 in its entirety.

[13]    Regarding the first criteria, I am satisfied that the information at issue includes critical infrastructure information. Specifically, as pointed out by BC Ferries, it includes information about the methods employed by BC Ferries to protect its infrastructure.

[14]    However, I do not accept that the information in its entirety meets this criteria. The title and headings of the document do not, when severed from rest of the information, concern critical infrastructure information or the methods used to protect that infrastructure. BC Ferries’ representations also confirm that “…in the interest of transparency…” and in order to provide the applicant with information to observe and understand the nature of the details withheld, it would agree to the release of the titles and headings of the document.

[15]    With respect to the second criterion, I am satisfied that BC Ferries supplied the information at issue to Transport Canada. Transport Canada confirmed that BC Ferries provided the document as part of response to Transport Canada’s Marine Safety Inspector, as per its duty under the Canada Shipping Act.

[16]    Regarding the third criterion, I am satisfied that BC Ferries provided this information with the expectation that it would be treated as confidential. As noted in their representations, BC Ferries provided the information with a confidentiality statement and they themselves have treated the information as confidential. BC Ferries emphasized the sensitivity of the information and the harms that could arise from its disclosure.

[17]    Transport Canada also stated that the document was communicated by BC Ferries with the expectation that it would not be disclosed. Transport Canada explained that the sharing of the information was required under the Canada Shipping Act but it was never shared publicly.

[18]    As for the final criteria, BC Ferries claimed that the document is an emergency management plan and was provided to Transport Canada for its review.

[19]    Section 2 of the Emergency Management Act reads:

          emergency management plan means a program, arrangement or other measure

          (a) for dealing with an emergency by the civil population; or

          (b) for dealing with a civil emergency by the Canadian Forces in accordance with the National Defence Act. (plan de gestion des urgences)

[20]    I am satisfied that the document constitutes an emergency management plan, as defined in section 2. I also accept that it was provided to Transport Canada for the maintenance of BC Ferries’ emergency management plan.

[21]    The Merriam-Webster dictionary definition of “maintenance” includes “the act of maintaining: the state of being maintained… something that maintains… [and] the upkeep of property or equipment…”.

[22]    The definition of to “maintain” includes “to keep in an existing state (as of repair, efficiency, or validity): preserve from failure or decline (maintain machinery)” and “to sustain against opposition or danger: uphold and defend…”.

[23]    These definitions are broad in nature and can encompass many activities that contribute to the support, upkeep or continuation of a state of being, property, or equipment. I am satisfied that Transport Canada’s activities as a regulator, contribute to the maintenance of the emergency management plans developed by vessel operators. More specifically, Transport Canada, in their oversight capacity, participates in the maintenance of emergency management plans by reviewing and assessing these plans and proposing modifications as required. Transport Canada used the information on page 50 to fulfill this function. In light of the above, I conclude that the content of page 50 meets the requirements of paragraph 20(1)(b.1). However, I am not satisfied that the title and headings on this page meet the criteria for exemption.

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

[24]    Since portions of the information on page 50 meet the requirements of paragraph 20(1)(b.1), Transport Canada was required to reasonably exercise its discretion to decide whether to disclose the information when the third party to whom it relates consents to its disclosure, as per subsection 20(5). Transport Canada explained that BC Ferries did not provide consent to disclose the information at the time the request was processed, and as such, the circumstances under subsection 20(5) did not exist. Consequently, there is no need to examine the issue of discretion.

[25]    In addition, since portions of the information meet the requirements of paragraph 20(1)(b.1), Transport Canada was required to reasonably exercise its discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when the two circumstances described in subsection 20(6) existed when it responded to the access request.

[26]    Transport Canada explained that it had considered the interest of public safety under 20(6) and determined that the adverse effects of disclosure of the information would outweigh any benefits. It argued that releasing the information would impact its credibility with marine safety and marine environment partners, hindering open reporting to Transport Canada and its ability to obtain similar information in the future. In turn, it would impact Transport Canada’s ability to deliver its safety program, which would not be in the interest of public safety.

[27]    Transport Canada relied on court decisions from the airline industry [Air Atonabee Ltd. v. Canada (Minister of Transport) (1989) para 49; Porter Airlines Inc v. Canada (Attorney General) 2014 FC 392, para 68], to support its argument that disclosing information provided to Transport Canada under a regulatory regime would hinder open reporting and provide competitors with an unfair advantage, which would ultimately be contrary to the public benefit.

[28]    Further, as noted above, BC Ferries emphasized the sensitivity of the information and the potential harm that could arise from disclosure. I am satisfied that the release of the information would be contrary to the public benefit.

[29]    I conclude that the circumstances set out in subsection 20(6) did not exist when Transport Canada responded to the access request. Consequently, there is no need to examine the issue of discretion.

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

[30]    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). 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.

[31]    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.

[32]    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.

Does the information meet the requirements of the exemption?

[33]    Paragraph 20(1)(b) requires representations from the parties resisting disclosure that demonstrate all four requirements of the exemption are met for the specific information being withheld.

[34]    Neither Transport Canada nor BC Ferries provided representations in support of paragraph 20(1)(b) to the information at issue, except for information at page 50. As I have already accepted that paragraph 20(1)(b.1) applies to the contents of that page, there is no need to examine whether the same information may also be withheld pursuant to paragraph 20(1)(b).

[35]    The following analysis applies solely to the application of paragraph 20(1)(b) to withhold the titles and headings on page 50, given no representations in support of any exemptions, except for on this page, were received during the course of the investigation.

[36]    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 “commercial”, “technical” or “scientific” information, in paragraph 20(1)(b), “…. should be given their ordinary dictionary meanings.”

[37]    I find that, even once severed from the contents of the document at issue, portions of the titles and headings could constitute technical information.

[38]    In order to meet the second criterion, the information must meet the following 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: Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157, para. 72).

[39]    With respect to the confidentiality of the titles and headings, both BC Ferries and Transport Canada confirmed that the document is never shared publicly. BC Ferries also confirmed that the information was supplied to Transport Canada with an expectation that it would not be disclosed.

[40]    As for the last condition of confidentiality, Transport Canada emphasized the importance of maintaining trust and confidentiality in its communications with stakeholders, to preserve its emergency management plans and respect the Canada Shipping Act. BC Ferries also expressed that its ability to provide sensitive and confidential information to Transport Canada was essential for it to fulfill its regulatory role.

[41]    That being said, I am of the view that the title and headings at page 50, when severed from the content, would not disclose any confidential details of the emergency management plan, or have any negative effect on the integrity of that plan. It follows that the release of these portions of the record would not have a negative effect on the relationship and trust between Transport Canada and BC Ferries or be contrary to the public interest.

[42]    In light of the representations received, I conclude that none of the information withheld under paragraph 20(1)(b) meets the criteria for the application of this exemption.

Result

[43]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Transport to:

• disclose the information withheld under paragraphs 20(1)(b) and 20(1)(b.1) in its entirety, with the exception of page 50; and
• disclose the titles and headings on page 50.

The Minister of Transport must abide by the terms of subsection 37(4) when disclosing any records in response to my orders.

On February 28, 2023, I issued my initial report to the Minister of Transport setting out my orders.

On March 28, 2023, the Deputy Minister gave me notice that Transport Canada “would likely” comply with my order.

The OIC has provided BC Ferries 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.