Transportation Safety Board of Canada (Re), 2022 OIC 46

Date: 2022-11-04
OIC file number: 5821-00718
Institution file number: A-2020-00079

Summary

The complainant alleged that Transportation Safety Board of Canada (TSB) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for an Aviation Occurrence Reporting Form and photographs related to an incident involving an Air Inuit aircraft.  The complaint falls within paragraph 30(1)(a) of the Act.

The application of subsection 19(1) was removed from the scope of the complaint.

TSB could not show that it met all the requirements of these exemptions.  Concerning paragraphs 20(1)(b), neither TSB nor the third party to whom the information relates, provided evidence or representation demonstrating that the information was confidential commercial information. No representations were provided to support the application of paragraphs 20(1)(c) and 20(1)(d).

The Information Commissioner ordered TSB to disclose all information at issue. TSB gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Transportation Safety Board of Canada (TSB) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(c) (financial impact on a third party) and 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for an Aviation Occurrence Reporting Form and photographs related to an incident involving an Air Inuit aircraft. 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 records at issue.

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]      On December 21, 2021, the OIC sought representations from the third party, Air Inuit, under the terms of paragraph 35(2)(c), however Air Inuit did not respond to the OIC’s request.

[5]      TSB, in its representations indicated that Air Inuit authorized the disclosure of additional information on pages 1-2. TSB maintained that the pictures on pages 3-6 should remain withheld and invoked paragraph 20(1)(b) to withhold this information.

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]    TSB applied paragraph 20(1)(b) to withhold both the photographs and the Aviation Occurrence Reporting Form.

[12]    With regard to the first requirement – that the information be “financial”, “commercial”, “scientific” or “technical”, when consulted by TSB, Air Inuit stated that the record contains confidential commercial information. Air Inuit, however, did not provide any evidence in support of its position, nor did it clearly identify what particular portions of the information it was referring to.

[13]    As held by the Supreme Court of Canada in Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3, para. 139, the terms “commercial”, “technical” or “scientific” information, in paragraph 20(1)(b), “…. should be given their ordinary dictionary meanings”.

[14]    According to dictionary definitions:

• the word “commercial” means “concerned with or engaged in commerce”, “making or intended to make a profit”

[15]    Upon review of the records, a significant amount of the withheld information consists of factual, tombstone information such as the occurrence date and time, location, flight number, departure details and photographs.

[16]    I am not convinced that any of the information withheld is “commercial” information, within the ordinary meaning of that term. I note that information is not “commercial” simply because the information relates to Air Inuit’s operations and those operations, in turn, have commercial purposes. Such a broad interpretation of “commercial” information was rejected by the Federal Court of Appeal in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board) et al., 2006 FCA 157, para. 69:

[T]he word ‘commercial’ connotes information which in itself pertains to trade (or commerce). It does not follow that merely because NAV CANADA is in the business of providing air navigation services for a fee, the data or information collected during an air flight may be characterized as ‘commercial’.

(See also: Appleton & Associates v. Canada (Privy Council Office), 2007 FC 640, para. 26).

[17]    In light of the representations and evidence received, I am not convinced that the information is financial, commercial, scientific or technical in nature.

[18]    Turning to the second requirement of paragraph 20(1)(b), in order for information to be considered confidential, each of the following conditions must be 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; and
• 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: NAVCanada, supra, para. 72; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133).

[19]    In the present instance, some of the information is available from sources otherwise available to the public, including on the TSB’s web site.

[20]    No representations were provided to demonstrate that the confidentiality requirement is met despite the information being publicly available.

[21]    Neither party provided any evidence, beyond mere assertion, to demonstrate that the circumstances in which the information originates, and was communicated, give rise to a reasonable expectation that it will not be disclosed. I note that the TSB itself makes the details of aviation occurrences public on its web site.

[22]    In addition, no party has demonstrated that this information was communicated within the context of a relationship that would be fostered for public benefit by the communication’s confidentiality. It appears that Air Inuit’s reporting of this occurrence was mandatory under the Transportation Safety Board Regulations. While the TSB noted the importance of its cooperation with third parties, I am not convinced that keeping the information at issue confidential would foster the relationship between the TSB and Air Inuit for public benefit, given the regulatory context in which it was provided.

[23]    I accept that the information was supplied to TSB by Air Inuit, so as to meet the third requirement for this exemption.

[24]    Turning to the final requirement of paragraph 20(1)(b), I am not convinced that the requirement is met, as no evidence – beyond a mere assertion has been received which would demonstrate that Air Inuit has consistently treated the withheld information as confidential.

[25]    In light of the above, I am not convinced that any of the information found in the photographs and the Aviation Occurrence Reporting Form meets the requirements of paragraph 20(1)(b).

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

[26]    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.

[27]    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.

[28]    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.

[29]    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.

Does the information meet the requirements of the exemption?

[30]    TSB applied paragraph 20(1)(c) concurrently with paragraph 20(1)(d) to withhold four photographs of the aircraft after the accident.

[31]    For this exemption to apply, there must be a clear and direct connection between the disclosure of this information and a risk of harm well beyond the merely possible. (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[32]    Neither Air Inuit nor TSB has provided any details or specific representations explaining how the disclosure of these four photographs would be sufficiently likely to cause injury to Air Inuit, within the meaning of paragraph 20(1)(c), especially in light of the information that is publicly available. As noted above, some details of the crash site and the damages that occurred have been documented in publicly available sources.

[33]    I therefore conclude that the withheld information does not meet the requirements of paragraph 20(1)(c) because no evidence or representations have been provided to demonstrate the nature of the prejudice, nor that there is a reasonable expectation that this prejudice could occur.

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

[34]    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).

[35]    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.

[36]    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.

Does the information meet the requirements of the exemption?

[37]    TSB applied paragraph 20(1)(d) concurrently with paragraph 20(1)(c) to withhold four photographs of the crash site.

[38]    Paragraph 20(1)(d) requires evidence showing how disclosing the exempted information would interfere with any planned or ongoing negotiations by Air Inuit and how likely this interference would be to result from disclosure. Interference has been interpreted to mean obstruction to negotiations (Canada Post Corp. v. National Capital Commission, 2002 FCT 700, para. 18). This exemption, as with other harm-based exemptions in the Act, requires a clear and direct connection between disclosure of specific information and a risk of harm well beyond the merely possible or speculative (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 195, 197, 206).

[39]    I have not received any evidence or representations demonstrating that this test is met.

[40]    As a result, I conclude that the information does not meet the requirements of paragraph 20(1)(d) because no evidence or representations have been provided to demonstrate that Air Inuit is, or will be, conducting contractual or other negotiations, nor that there is a reasonable expectation that disclosing the information would interfere with those negotiations. It is unclear how disclosure of the four photographs of the aircraft after the accident would meet this test, especially in light of what is publicly known about the accident.

Result

[41]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Executive Director of the TSB to release the records in their entirety, other than information currently withheld under subsection 19(1).

The Executive Director must abide by the terms of subsection 37(4) when disclosing any records in response to my order.

On October 7, 2022, I issued my initial report to the Executive Director of the TSB setting out my order.

On November 1, 2022, the Executive Director gave me notice that TSB would be implementing my order.

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 and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, this order takes effect on the 36th business day after the date of this report.