Transport Canada (Re), 2023 OIC 37
Date: 2023-01-25
OIC file number: 5821-01349
Institution file number: A-2020-00472
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 passenger ship, Queen of Cumberland. 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.
The institution and third party did not demonstrate that all of the requirements of paragraph 20(1)(b) were met.
The Information Commissioner ordered Transport Canada to disclose all of the information withheld under paragraph 20(1)(b), with the exception of any information withheld under subsection 19(1).
Transport Canada gave notice that it “would likely” comply with the order.
The complaint is well founded.
Complaint
[1] 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 passenger ship, Queen of Cumberland. 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 information withheld under subsection 19(1) (personal information).
Investigation
[3] When an institution withholds information related to a third party, the third party and/or the institution bears the burden of showing that refusing to grant access is justified.
[4] The OIC sought representations from the third party, BC Ferries, under the terms of paragraph 35(2)(c). In response, BC Ferries indicated that they take no position concerning the disclosure of the information in the records. BC Ferries was provided an additional opportunity to provide representations in response to the OIC’s notice under section 36.3, but did not do so.
[5] Transport Canada, in its representations, agreed that the information previously withheld in accordance with paragraph 20(1)(b) appearing on pages: 1, 3-8, 10-14, 16-26, 28-36, 39-40, 42-53, can now be disclosed. No representations were provided concerning the information withheld on pages 2, 9, 15 and 27.
Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information
[6] 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).
[7] 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.
[8] 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.
[9] 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.
[10] 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?
[11] 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.
[12] Transport Canada applied the exemption to information relating to the vessel’s physical features, safety equipment and procedures, handwritten notes, and references to minimum safe manning (MSM) numbers included in emails, an Evaluation Form, Applications for Minimum Safe Manning and signed Minimum Safe Manning Documents (MSMDs).
[13] As noted above, after having been provided with an opportunity to make representations, BC Ferries indicated that they take no position concerning the disclosure of the information in the records.
[14] 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.”
[15] I accept that the details of the physical features of the vessel and its safety information, such as its marine evacuation system and other emergency response equipment, constitute technical information. However, I am not convinced that the MSM numbers, whether presented in the emails, the Evaluation Form or the MSMDs, or the handwritten notes in the Evaluation Form, are financial, commercial, scientific or technical information, as the terms are commonly understood.
[16] The second requirement of paragraph 20(1)(b) is that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:
- 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).
[17] With respect to the vessel features and safety information withheld in the Evaluation Form, at least some of the withheld information is publicly available. BC Ferries publishes safety information about each vessel under its fleet information on its website.
[18] Although some of the safety information provided online is not consistent with that included in the Evaluation Form, the information published demonstrates that BC Ferries makes some of its vessel and safety information publicly available. Further, some of these vessel features and safety equipment would be observable by vessel passengers, who would likely also receive a safety briefing prior to departure. In light of the public availability of this information, I am not convinced that BC Ferries communicated this information with a reasonable expectation that it would not be disclosed.
[19] As for the last condition of confidentiality, I do not accept that the relationship between the government and BC Ferries is fostered for public benefit by the confidentiality of the vessel features or safety information. BC Ferries is required to provide information concerning its vessel to Transport Canada in its applications for MSMDs. Transport Canada Marine Safety Inspectors (MSIs) verify the information provided, complete the assessments and issue the MSMDs. It does not appear that keeping the information confidential would promote the sharing of similar information with Transport Canada in the future, therefore fostering the relationship between BC Ferries and Transport Canada for public benefit.
[20] With respect to the MSM numbers, I am not satisfied that the information meets the conditions for confidentiality. The OIC has not received any representations demonstrating that this information is not publicly available. It is also not apparent that BC Ferries communicated the information at issue with the expectation that it would not be disclosed. As for the last condition, as noted above, it is not clear that the relationship between the government and BC Ferries is fostered for public interest by the confidentiality of the information.
[21] Turning to the third requirement of paragraph 20(1)(b), I am not convinced that all of the withheld information was supplied to Transport Canada by BC Ferries. Transport Canada confirmed that BC Ferries completed and supplied the copies of the Evaluation Form. BC Ferries also produced the handwritten notes on pages 20 and 22, with the remainder of the handwritten notes being produced by the MSI. I accept that the information in the emails sent by the BC Ferries’ Captain, the application forms and the Evaluation Form constitute information supplied by the third party to Transport Canada. However, I am not satisfied that the handwritten notes made by the MSI or the approved MSMDs qualify as information supplied by the third party.
[22] In Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada held that whether information was supplied to a government institution by a third party is a question of fact and that the content of the information rather than its form must be considered. The mere fact that a document has been prepared by a government official is not sufficient to refuse its exemption under paragraph 20(1)(b). However, information based on observations of a government official, for example, reports resulting from observations made by government inspectors, is not considered supplied by a third party (Merck, supra, para. 156).
[23] In this case, the MSI’s handwritten notes in these records constitute observations made by the MSI while attending safety drills. With respect to the completed MSMDs, the Transport Canada MSIs produce and sign these documents. While the crew numbers specify the manning that will be operated by BC Ferries, Transport Canada establishes and approves the crew numbers listed on these documents as a result of its own assessment and the Marine Safety Regulations. I conclude that this information does not meet the third requirement for exemption pursuant to paragraph 20(1)(b).
[24] With respect to the fourth requirement, no representations have been provided to demonstrate that BC Ferries has consistently treated all of the withheld information as confidential. In their response to Transport Canada during the processing of the request, BC Ferries stated that withholding this information would be consistent with their responses to provincial access requests. However, as noted above, some of the vessel information has been made publicly available on the company’s website and may be readily observable by any ship passengers.
[25] Transport Canada did not show that the information meets the criteria of paragraph 20(1)(b). Consequently, I conclude that none of the withheld information meets the requirements of paragraph 20(1)(b).
Result
[26] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the Minister of Transport to release all of the information withheld under paragraph 20(1)(b), with the exception of any information withheld under subsection 19(1).
The Minister of Transport must abide by the terms of subsection 37(4) when disclosing any records in response to my order.
On November 18, 2022, I issued my initial report to the Minister of Transport setting out my order.
On January 9, 2023, the Deputy Minister gave me notice that Transport Canada would likely comply with an order to disclose third party information while maintaining the application of exemptions pursuant to subsection 19(1).
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.