Vancouver Fraser Port Authority (Re), 2022 OIC 59

Date: 2022-04-25
OIC file number: 5820-01142
Institution file number: 52100-20-006-2020

Summary

The complainant alleged that the Vancouver Fraser Port Authority had improperly withheld information under paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), paragraph 18(d) (government financial interests, government of Canada’s ability to manage the economy, undue benefit to an individual), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request for records related to $103 million of funding from the National Trade Corridors Fund to be provided to the Vancouver Fraser Port Authority. The complaint falls within paragraph 30(1)(a) of the Act.

The institution did not demonstrate that all information it withheld under paragraphs 18(b) and (d) met the requirements of those exemptions.

The institution and third party did not demonstrate that the requirements of paragraphs 20(1)(b) and (d) were met for any of the withheld information.

The Information Commissioner ordered the Vancouver Fraser Port Authority to disclose all information withheld under paragraphs 20(1)(b) and (d) and disclose specifc information withheld under paragraphs 18(b) and (d).

The Vancouver Fraser Port Authority gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1] The complainant alleged that Vancouver Fraser Port Authority (VFPA) had improperly withheld information under paragraph 18(b) (competitive position of government institutions, negotiations by government institutions), paragraph 18(d) (government financial interests, government of Canada’s ability to manage the economy, undue benefit to an individual), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request for records related to $103 million of funding from the National Trade Corridors Fund to be provided to the Vancouver Fraser Port Authority.

Investigation

[2] 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.

[3] The Office of the Information Commissioner (OIC) sought representations from the third party in this case, Canadian National Railway (CN), under the terms of paragraph 35(2)(c). CN did not respond to the OIC’s request. The OIC later sent notice to CN, informing them of my intention to order disclosure of information related to CN. No response was received from CN.

Paragraph 18(b) : competitive position of government institutions, negotiations by government institutions

[4] 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.

[5] 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.

[6] To claim this exemption with regard to contractual or other negotiations, institutions must show the following:

Contractual or other negotiations are under way or will be conducted in the future.
These negotiations are associated with the economic interests of Canada.
Disclosing the information could interfere with the negotiations.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[7] 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?

[8] On pages 61, 63 and 76-78 of the records, VFPA withheld information related to the fiscal year budgeting, the Monitoring Committee and project information. The OIC questioned whether there was a reasonable expectation of harm occurring upon disclosure of the withheld information. VFPA agreed in their representations that this information can be disclosed.

[9] On pages 79-81 of the records, VFPA withheld estimated project expenditures and estimated contributions from the parties involved. Based on the rationale provided by VFPA, I accept that disclosure of these estimates could reasonably be expected to harm negotiations for funding, and disadvantage VFPA in negotiations with contractors. VFPA confirmed that funding was not yet secured, which supports that there is a reasonable expectation this harm could occur.

[10] In light of the above, I conclude that only the information on pages 79-81 of the records meets the requirements of paragraph 18(b).

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

[11] Under paragraph 18(b), VFPA was required to reasonably exercise its discretion to decide whether to release the information. In doing so, VFPA had to consider all the relevant factors for and against disclosure.

[12] In their representations, VFPA identified several relevant factors taken into consideration, including the status of the projects and the impact disclosure of project costs would have on those projects.

[13] I conclude that VFPA considered all relevant factors when it decided not to disclose the project cost information. Consequently, the exercise of discretion by VFPA was reasonable with respect to this information.

Paragraph 18(d) : government financial interests, government of Canada’s ability to manage the economy, undue benefit to an individual

[14] Paragraph 18(d) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to substantially harm their financial interests or the Government of Canada’s ability to manage the Canadian economy, or could unduly benefit someone.

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

Disclosing the information (for example, details about Canada’s currency or a contemplated change in the bank rate, as set out in subparagraphs 18(i) to (vi)) could do one of the following:
substantially harm a government institution’s financial or economic interests;
substantially harm the Government of Canada’s ability to manage the economy of Canada; or
result in an individual or corporation receiving a larger than necessary, improper or unwarranted benefit.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[16] 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?

[17] The information on pages 5, 8 and 24 of the records refers to commodities that VFPA already handles, as described on the VFPA website. Although revealing this information may provide a benefit to those considering which commodities to invest in, the OIC questioned how disclosure of this information would result in an unwarranted benefit to a single individual, as there is no limitation on the subsequent disclosure of this information once released under the Act. VFPA agreed in their representations that this information can be disclosed.

[18] VFPA withheld certain details on pages 10, 12 and 13 of the records. The OIC questioned how harm could reasonably result from disclosure of this information. VFPA agreed in their representations that this information can be disclosed.

[19] Although the OIC accepted that the information on pages 24, 26-29, 46, 48 and 50 related to future development plans for the site is part of the “confidential strategies belonging to VFPA”, the OIC questioned whether the requirements of paragraph 18(d) are met, as VFPA had not provided any rationale to explain the nature of the prejudice and the likelihood of it. VFPA agreed in their representations that this information can be disclosed.

[20] With respect to the project costs withheld on pages 15-16, 34-35 and 53-54 of the records, based on the rationale and representations provided by VFPA, I accept that the disclosure of this information could reasonably be expected to result in an unwarranted benefit to contractors.

[21] In light of the above, I conclude that only the information on pages 15-16, 34-35 and 53-54 of the records meets the requirements of paragraph 18(d).

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

[22] Under paragraph 18(d), VFPA was required to reasonably exercise its discretion to decide whether to release the information. In doing so, VFPA had to consider all the relevant factors for and against disclosure.

[23] In their representations, VFPA provided several relevant factors taken into consideration, including the status of the projects and the impact disclosure of project costs would have on those projects.

[24] I conclude that VFPA considered all relevant factors when it decided not to disclose the project cost information. Consequently, the exercise of discretion by VFPA was reasonable with respect to this information.

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

[25] 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).

[26] 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.

[27] 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.

[28] 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.

[29] 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?

[30] 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.

[31] VFPA applied paragraph 20(1)(b) on pages 11, 13, 33 and 36 of the records to parts of the project description in an application for funding, reference to CN, the amount of CN’s contribution to the project and the reason the funding from CN was not secured.

[32] With regard to the first requirement, that the information be “financial”, “commercial”, “scientific” or “technical”, no representations have been provided to demonstrate how the withheld portions of the project descriptions, in their entirety, fall within the ordinary meaning of these terms. With respect to the information related to funding to be provided by CN on pages 33 and 36, I accept that this constitutes financial information.

[33] The second criterion of paragraph 20(1)(b) requires 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: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133; Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157, para. 72).

[34] VFPA has asserted that it considers the withheld information to be confidential, but has not provided sufficient representations for me to conclude that the information is confidential by an objective standard.

[35] CN’s involvement in the project appears to be public: https://www.portvancouver.com/projects/road-and-rail/portside-blundell-road-improvements-project/. Additionally, I am not convinced that the information was communicated within the context of a relationship fostered for public benefit by the information’s confidentiality. The information pertains to a project with considerable public funding. It is generally in the public interest to disclose information related to the spending of public funds, in the interest of accountability (see Canada (Minister of Public Works and Government Services) v. The Hi-Rise Group Inc., 2004 FCA 99, paras. 41-42).

[36] Turning to the third requirement of paragraph 20(1)(b), the withheld portions of the project descriptions appear to have been created by VFPA, with no indication that the information was supplied to a government institution by CN. Portions of the withheld information that could be deemed information supplied by CN would be limited to information that emanated directly from CN. CN has provided no representations, and VFPA has not disputed that they created some of the withheld information.

[37] With respect to the final requirement, no representations have been provided by either party to demonstrate that CN has consistently treated the withheld information as confidential.

[38] In light of the above, I come to the conclusion that none of the information meets all four of the requirements for exemption under paragraph 20(1)(b).

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

[39] 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).

[40] 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.

[41] 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.

[42] 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.

[43] 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?

[44] Paragraph 20(1)(d) requires evidence showing how disclosing the exempted information could reasonably be expected to interfere, in the nature of obstruction, with any actual or reasonably anticipated negotiations by CN and how likely this interference would be. (AstraZeneca Canada Inc. v. Canada (Health), 2005 FC 189, para. 87, affirmed in 2006 FCA 241).

[45] I have not received such evidence.

[46] VFPA applied paragraph 20(1)(d) on page 82 of the records to the name of the contributor for Project 2 and the “Amount to be contributed to the Project” by CN on one page of the records.

[47] Parties resisting disclosure based on paragraph 20(1)(d) bear the onus of establishing that there is a reasonable expectation of a probable harm described in paragraph 20(1)(d) occurring if the information is disclosed.(see: Merck Frosst v. Canada (Minister of Health), 2012 SCC 3, paras. 195, 227; Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.) at para 22). This requires that a party opposing disclosure demonstrates that the harm is well beyond the merely possible or speculative (Merck Frosst, supra, paras. 197, 206).

[48] For an exemption under paragraph 20(1)(d) to be valid, the parties resisting disclosure must demonstrate that obstruction of actual or reasonably anticipated contractual negotiations could reasonably be expected to result from disclosure (see: Saint John Shipbuilding Ltd. v. Canada (Minister of Supply & Services) (1990), 67 D.L.R. (4^th) 315 (Fed. C.A.) at para 5;Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 F.T.R. 254 at para 29).

[49] VFPA’s original rationale asserted that disclosing the information at issue could result in pressure being put on CN to contribute similar amounts to future projects. As was found in the case of Canada Post Corp. v. Canada (National Capital Commission), 2002 FCT 700 at paragraph 18, “[t]he possibility of pressure from third parties for matching sponsorship funds and pressure from competitors cannot be considered interference or obstruction with future contractual negotiations.” During the investigation, VFPA indicated that it would no longer rely on the application of paragraph 20(1)(d) to withhold information.

[50] I conclude that the information does not meet the requirements of the exemption as no evidence or representations have been provided to demonstrate that CN was conducting contractual or other negotiations, or was planning to in future, and that there was a reasonable expectation that disclosing the information could interfere with those negotiations.

Result

[51] The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President and Chief Executive Officer of VFPA to disclose:

All information withheld under paragraph 20(1)(b) and 20(1)(d);
The information withheld under paragraph 18(b) on pages 61, 63 and 76-78 of the records; and
The information withheld under paragraph 18(d) on pages 5, 8, 10, 12-13, 24, 26-29, 46, 48 and 50 of the records.

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

On March 8, 2022, I issued my initial report to the President and Chief Executive Officer setting out my intended order.

On April 7, 2022, the President and Chief Executive Officer gave me notice that he would be implementing my order.

Please email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oci-ci.gc.ca).

Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions 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.