Transport Canada (Re), OIC 2023 38

Date: 2023-10-25
OIC file number: 5820-00469
Institution file number: A-2019-00078/JAB

Summary

The complainant alleged that Transport Canada had improperly withheld 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 portions of the Hazardous Occurrence Investigation Report, dated August 25, 2016, into the death of a Canadian National Railway (CN) employee. The complaint falls within paragraph 30(1)(a) of the Act.

Certain information did not meet the requirements of subsection 19(1), including train numbers, track numbers, locations and information found within witness statements where disclosure would not create a serious possibility of identification of the witnesses.

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

The Information Commissioner ordered that Transport Canada disclose specific information withheld under subsection 19(1), consider whether its discretion was triggered under paragraph 19(2)(c) and if so excersize its discretion reasonably and disclose the information withheld under paragraph 20(1)(b) where such information does not meet the requirements of subsection 19(1).

Transport Canada gave notice that it would be implementing the order.

The complaint is well founded.

Complaint

[1] The complainant alleged that Transport Canada had improperly withheld 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 portions of the Hazardous Occurrence Investigation Report, dated August 25, 2016, into the death of a Canadian National Railway (CN) employee.

Investigation

[2] 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.

Subsection 19(1): personal information

[3] Subsection 19(1) requires institutions to refuse to disclose personal information.

[4] 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).

[5] 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.

[6] When one or more of these circumstances exist, subsection 19(2) of the Act requires them to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[7] In the present case, consent was provided to Transport Canada from the victim’s next of kin to release the victim’s information to the complainant. Transport Canada released a significant amount of information related to the victim, but withheld other information. The Office of the Information Commissioner (OIC) understands Transport Canada’s position to be that the withheld information is about individuals other than the victim, such as witnesses and other CN employees.

[8] The information withheld under this exemption consists of:

train numbers, track numbers, locations;
names, positions and contact telephone numbers of CN employees; and
witness statements and the description of the hazardous occurrence.

[9] I accept that names, positions and contact telephone numbers of CN employees are personal information so as to fall within the scope of subsection 19(1), as well as portions of the witness statements.

[10] However, for the reasons that follow, regarding train serial numbers, track numbers, locations and portions of the witness statements the disclosure of which would not create a serious possibility of identification, I find the requirements of subsection 19(1) are not met.

[11] In its representations, CN indicated that the fatal occurrence was in the news, and disclosing the witness statements, as well as surrounding details such as train serial numbers, track numbers and/or location, could make the employees present at the time of the accident identifiable by the public. CN, however, provided no explanation as to how the release of these details would make the individuals identifiable.

[12] Transport Canada, in its representations, maintained that the witness statements must be withheld under subsection 19(1). Transport Canada argued that the witnesses’ descriptions should be considered the witness’ personal views and opinions of what transpired and that disclosing this information could lead to identification of who was present for the incident. However, as was the case with CN’s representations, Transport Canada neglected to demonstrate how the release of certain portions of the witness statements carried a serious risk of identification of the individuals involved, absent other publicly available knowledge of the events.

[13] Pursuant to paragraph 35(2)(d), the OIC consulted the Office of the Privacy Commissioner (OPC). The OPC opined that, in isolation, information such as train serial numbers, track numbers, and locations does not constitute personal information. The OPC referenced the serious possibility test set out by the Federal Court in Gordon v Canada (Health), 2008 FC 258 (Gordon). This test requires an assessment of whether there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.

[14] In respect of the factual information contained within the witness statements, the OPC was in agreement with me and acknowledge that much of the information would seem to relate to normal train operating activities. The OPC highlighted several examples, which I included in my initial report to Transport Canada. The OPC further stated that disclosure of this type of information would not increase the possibility of identifying individuals. The OPC noted that, in its opinion, experts in the railroad industry are best placed to determine what constitutes standard events in the industry.

[15] Having considered the representations provided by Transport Canada, CN, the OPC and the complainant, I find that information such as train serial numbers, track numbers, and locations has not been shown to meet the criteria of subsection 19(1). It seems the only persons who would reasonably be able to identify witnesses based on this type of information would be persons who already had considerable knowledge of the events. In consideration of the test enunciated in Gordon, I am not satisfied that the parties have shown there to be a serious possibility that individuals present at the time of the fatal incident could reasonably be identified by anyone other than those already aware of the information. Transport Canada indicated in its representations that it is now willing to disclose this type of information.

[16] Regarding the witness statements, I find that these statements mainly consist of accounts of events that took place. If the names of witnesses are redacted, it is not clear how portions of witness statements could reveal any information about any identifiable individual so as to qualify for exemption under subsection 19(1). In its representation to the OIC, the OPC cited several phrases which, in its view, did not meet the criteria of 19(1). In addition to those examples, there are many other portions of the witness statements which it would seem could be released without creating a risk of identifying the individual providing the statement, such as the ones I included in my initial report to Transport Canada. I find that the parties have not demonstrated that this type of factual information within the witness statements reveals any information about an identifiable individual other than the victim.

[17] I conclude that information where disclosure would not create a serious risk of identification of an individual other than the victim does not meet the criteria of subsection 19(1). This includes train serial numbers, track numbers, locations, and information found in the witness statements the disclosure of which does not create a serious possibility of identification of the witnesses.

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

[18] Since some of the information meets the requirements of subsection 19(1), Transport Canada 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.

[19] Under paragraph 19(2)(a), Transport Canada was required to determine whether consent was provided by making reasonable efforts to seek consent from the individuals whose personal information appears in the records. It should be noted that, when it responded to the request, Transport Canada exercised its discretion to release personal information belonging to the victim, based on the consent provided by the complainant. Transport Canada indicated that the witnesses provided their statements with an expectation of privacy, and consequently Transport Canada did not consider it reasonable to seek consent from the individuals whose information was withheld. I accept that under the circumstances, Transport Canada’s position is reasonable.

[20] Turning to paragraph 19(2)(b), Transport Canada was required to reasonably consider whether the personal information is publicly available. While I have found that some of the information withheld under subsection 19(1) is publicly available, I have also found it does not meet the requirements of subsection 19(1). Consequently, there is no need to consider whether discretion was triggered under paragraph 19(2)(b) for the train serial numbers, track numbers and locations.

[21] Discretion is also triggered under paragraph 19(2)(c) when disclosure would be in accordance with section 8 of the Privacy Act. Given that the records relate to a workplace fatality, I questioned whether Transport Canada considered subparagraph 8(2)(m)(i) of the Privacy Act, which would allow it to disclose personal information if the “public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure”. Transport Canada indicated that it did consider whether disclosure would be in the public interest, and it found that the public interest did not clearly outweigh the invasion of privacy that would have resulted from disclosure. Transport Canada did not, however, demonstrate that it seriously considered all of the relevant factors in weighing the public interest against any invasion of privacy that would result from disclosure, as is required (See: Fraser v. Canada (Public Safety and Emergency Preparedness), 2023 FCA 167 at paras 71 to 77). In this case, the witnesses were providing information as employees of the third party, and the statements they provided would not appear to implicate them in any wrongdoing. As such, the invasion of their privacy that would result from partial or full disclosure of their statements may be minimal.

[22] I conclude that the circumstances set out in paragraphs 19(2)(a) and (b) did not exist when Transport Canada responded to the access request, apart from where Transport Canada exercised its discretion under paragraph 19(2)(a) to release information about the victim when it processed the request. With respect to paragraph 19(2)(c), I must conclude that Transport Canada did not show that it had determined whether those circumstances existed, which prevented it from exercising its discretion when appropriate.

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

[23] 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).

[24] 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.

[25] 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.

[26] 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?

[27] The OIC sought representations from the third party, CN, pursuant to paragraph 35(2)(c). CN responded with its representations, however, I remained unconvinced that the requirements of paragraph 20(1)(b) were met for the withheld information.

[28] As required by section 36.3, the OIC notified the third party of my intention to order Transport Canada to disclose information not otherwise protected under subsection 19(1). CN responded, reiterating the same representations previously provided.

[29] The OIC also sought representations from Transport Canada pursuant to paragraph 35(2)(b).

[30] Transport Canada withheld portions of the report containing freight train numbers, track and mile information, witness statements, facts of the event, an analysis of causal factors, and portions of the conclusions and recommendations under paragraph 20(1)(b).

[31] In relation to the first requirement of the exemption, I accept that some of the redacted information is technical and/or commercial information, as those terms are commonly understood. Therefore, at least some of the redacted information may satisfy the first requirement of paragraph 20(1)(b). I am not convinced, however, that all of the withheld information falls within these categories.

[32] The victim’s movements, for example, do not appear to be commercial or technical information. As laid out for Transport Canada in my initial report, I am not convinced that specific information on pages 11 and 13-16 constitutes commercial or technical information.

[33] In its representations, CN provided examples of information it felt is technical and commercial information: CN train serial numbers, track numbers and/or location, the operational processes relied upon at CN. Although I accept that most of the information CN identified is of this nature, some of the information would appear to reflect standard industry practices. Transport Canada made no representations addressing these points. Rather, Transport Canada seems to rely on CN’s assertion that the information is commercial or technical in nature. As I have laid out above, such a blanket assertion is insufficient to demonstrate that the first requirements of the exemption are met.

[34] 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 content of the record is not available from sources otherwise accessible to the public or obtainable by observation or independent study by a member of the public acting on their own;
the information originates and is communicated in a reasonable expectation of confidence that it will not be disclosed; and
the information, whether provided by law or supplied voluntarily, be communicated in a relationship between government and the third party that is either a fiduciary relationship or one that is not contrary to the public interest, and that will be fostered for the public benefit by confidential communication. (see Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 27 FTR 194 (F.C.T.D.); see also: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133).

[35] While I accept that not all of the information at issue is accessible to the public, a substantial amount of the information is available within the public domain and therefore does not meet the requirement that the information be objectively confidential. In particular, I note the previously mentioned standard industry practices, and that details of the occurrence are contained in a letter sent from the Transportation Safety Board of Canada to Transport Canada, dated May 22, 2015, which can be found online: https://www.documentcloud.org/documents/6793183-RSA-06-15-Communicating-Changes-to-Workplans.html. The Transportation Safety Board of Canada routinely posts these letters on its website.

[36] For another example of information in the public domain, a quotation from CN’s General Operating Instructions was exempted under paragraph 20(1)(b) at pages 18 to 19. This section of CN’s General Operating Instruction is available in a Transportation Safety Board of Canada report posted on its website.

[37] Despite CN’s claims that the public information is “not comparable to the highly sensitive information” within the records, CN has provided no support for this position, and I am unconvinced that disclosure of this information in the context of the records would reveal any non-public information.

[38] During the investigation, Transport Canada indicated that, upon further review of publicly available information, it no longer maintains the application of paragraph 20(1)(b) to publicly available information on pages 9-11 and 13-17.

[39] Additionally, I note that there are instances where information that continues to be redacted has been disclosed elsewhere within the responsive record, and I provided these examples to Transport Canada in my initial report.

[40] I have received no evidence upon which I could conclude that all of the information reflected in the report was communicated in a reasonable expectation of confidence that it would not be disclosed. Rather, information of this type is routinely disclosed by the Transportation Safety Board of Canada, which would seem to diminish the expectation that Transport Canada would withhold the same type of information under similar circumstances.

[41] Although CN made representations as to how the relationship between CN and Transport Canada is fostered for the public benefit by confidential communication of the withheld information, I am unconvinced. CN claims that the benefit of confidential communication is “exemplified by the additional safety measures that were put in place by CN after the incident at hand”, however, it seems unlikely that CN would have decided not to put in these new safety measures simply because details of the incident were made public by Transport Canada. Where the withheld information relates to rail safety, the confidential communication of such information would appear to be contrary to the public interest.

[42] In light of the above, I am not convinced that any of the withheld information meets the second requirement of the exemption.

[43] I accept that much of the withheld information would have been supplied to Transport Canada by CN or its employees, so as to meet the third requirements of the exemption. However, some of the withheld information would seem to be directly observable by the Transport Canada investigating officers. This includes information such as mile markers, train numbers and the clothing and equipment on the victim.

[44] Finally, based on the representations and evidence, I am willing to accept that the withheld information has consistently been treated as confidential by CN, and therefore meets the fourth requirement of the exemption.

[45] I conclude that the information does not meet the requirements of paragraph 20(1)(b), as none of the information satisfies all four requirements of the exemption.

Result

[46] The complaint is well founded.

Order

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

Disclose the information that does not meet the requirements of subsection 19(1), as outlined in my initial report;
Consider whether disclosure would be in the public interest, and seriously consider whether the public interest clearly outweighs the invasion of privacy, and, if discretion is triggered under paragraph 19(2)(c), reasonably re-exercise discretion with respect to the information withheld under subsection 19(1); and
Disclose the information withheld under paragraph 20(1)(b) where the information does not meet the requirements of subsection 19(1).

On September 12, 2023, I issued my initial report to the Minister of Transport setting out my order.

On October 19, 2023, the Deputy Minister of Transport Canada gave me notice that Transport Canada would be implementing my order.

I have provided CN and the Privacy Commissioner of Canada 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 and the Privacy Commissioner 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.