Vancouver Fraser Port Authority (Re), 2023 OIC 44

Date: 2023-12-18
OIC file number: 5821-07279
Institution file number: 52100-20-046-2021

Summary

The complainant alleged that the Vancouver Fraser Port Authority (VFPA) had improperly withheld information under subsection 18(b) (competitive position of government institutions or negotiations by government institutions) 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 a copy of an agreement between the Musqueam Indian Band and the VFPA. The allegation falls within paragraph 30(1)(a) of the Act.

The Information Commissioner was not satisfied that all of the information withheld under subsection 18(b) met the criteria for exemption. Further, the VFPA did not demonstrate that it considered all relevant factors and reasonably exercised its discretion to decide not to release the information.

Neither the institution nor the third party demonstrated that the information met the requirements for exemption pursuant to paragraph 20(1)(b).

The Commissioner ordered the VFPA to disclose all of the information withheld pursuant to paragraph 20(1)(b), unless it is found to meet the criteria for exemption pursuant to paragraph 18(b). The Commissioner also ordered the VFPA to re-exercise discretion concerning the information found to meet the criteria for exemption pursuant to paragraph 18(b).

The VFPA gave notice that it would release the information that did not meet the criteria for exemption, in a manner that would not disclose the length of the agreement. The VFPA did not address the second part of the order.

The complaint is well founded.

Complaint

[1]     The complainant alleged that the Vancouver Fraser Port Authority (VFPA) had improperly withheld information under subsection 18(b) (competitive position of government institutions or negotiations by government institutions) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act (the Act). This was in response to an access request for a copy of an agreement between the Musqueam Indian Band (Musqueam) and the VFPA (the Agreement). The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

[2]     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.

[3]     During the course of the investigation, the VFPA, Musqueam and the complainant were invited to provide representations with respect to the application of exemptions to withhold the Agreement. The VFPA also provided representations on auxiliary matters relevant to my investigation. In coming to the conclusions contained herein, I have considered all representations made by the VFPA, Musqueam and the complainant.

[4]     As required by section 36.3, I notified Musqueam of my intention to order the VFPA to disclose portions of the Agreement. In response, Musqueam indicated that it does not support the release of the Agreement or elements of the Agreement.

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

[5]     Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

[6]     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.

[7]     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.
• 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.

[8]     When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[9]     The VFPA applied paragraph 18(b) to withhold the entirety of the Agreement. In its representations, the VFPA asserted that releasing the Agreement would prejudice the competitive position of the VFPA and interfere with ongoing negotiations.

[10]     The VFPA also emphasized the importance of the Crown’s relationship with Indigenous groups. The VFPA provided context concerning the importance it places on relationships with Indigenous communities and efforts to support reconciliation, including consultation and agreements with Indigenous communities. The VFPA provided additional representations concerning the impact disclosure may have on its negotiations with Indigenous communities and emphasized the confidentiality of the information.

[11]     With respect to the competitive aspect, the VFPA explained that its agreements with Indigenous communities are essential to fulfill its mandate of enabling trade. It also outlined potential impacts on the success of a project, in the event of failing to reach an agreement with an Indigenous community. According to the VFPA, these potential harms include delays to permits and an increase in project costs, as well as a risk to the VFPA’s reputation and relationships with Indigenous groups, all of which could have a commercial impact on the VFPA.

[12]     However, the VFPA did not establish how the disclosure of the information could affect its competitive position. The representations provided did not identify that the VFPA is in competition with either the private sector or the public sector of another government. Nor did the VFPA outline how an existing or potential competitor could use this information to weaken the VFPA’s competitive position.

[13]     While the VFPA has outlined potential harms to its commercial projects as well as its relationships with Indigenous groups, I conclude that it has not sufficiently demonstrated how disclosure would injure its competitive position nor did it establish a reasonable expectation that this harm could occur.

[14]     Concerning interference with negotiations, the VFPA explained that it was engaged in negotiations with other First Nations groups and anticipated participating in negotiations with other groups in the future. The VFPA outlined that it has three teams dedicated to building relationships and consulting with Indigenous communities “to ensure that its operations and development don’t adversely impact asserted or established Aboriginal or Treaty rights.” The VFPA stated that these efforts have resulted in hundreds of agreements with Indigenous communities. The VFPA referenced specific negotiations that had yet to be concluded. Based on the foregoing, I accept that the VFPA is currently engaged in negotiations and will engage in negotiations in the future.

[15]     The exemption also requires that the disclosure of the information could reasonably be expected to interfere with the negotiations. The VFPA explained that its agreements with Indigenous groups are negotiated on a Nation by Nation basis. It stated that the terms of the Agreement with Musqueam were not template terms nor were they in the public domain; the terms were unique and specific to the negotiations between themselves and Musqueam. It elaborated that not all of the First Nations groups it is engaging in negotiations with have asked for the same elements in its agreements, and the VFPA cannot provide the same benefits to all parties. The VFPA indicated that providing the elements of this Agreement to other First Nations would prejudice the VFPA’s negotiating position. It could also result in the introduction of new elements to ongoing and upcoming negotiations. While the VFPA maintains that the differences between agreements are essential, it insists that the terms remain a sensitive issue and, as mentioned above, disclosure could negatively affect its relationships with communities.

[16]     I am satisfied that the disclosure of some of the information in the records could reasonably be expected to interfere with ongoing or future negotiations with other First Nations that may take place.

[17]     However, I am not satisfied that the disclosure of some portions of the Agreement could reasonably be expected to produce this harm.

[18]     In its representations, the VFPA argued that even knowing the nature of the elements of an agreement or the length of an agreement could have some material effect, potentially introducing new elements to signed agreements. Musqueam also asserted that releasing the page length of the document would reveal its negotiation strategy by reflecting the detail and volume of provisions.

[19]     The Supreme Court established that the accepted formulation for the alleged harm is “a reasonable expectation of probable harm.” The parties must demonstrate a clear and direct connection between the disclosure of the information and a risk of harm that is well beyond the merely possible, although the risk does not need to be proven on a balance of probabilities (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 194-197, 206).

[20]     The VFPA has established that the significant majority of the Agreement contains information that would reveal the substance of unique terms negotiated by the two parties. I accept that the disclosure of such terms could reasonably be expected to interfere with the VFPA’s negotiations. However, any portions of the records consisting of standard articles that could reasonably be expected to be found in any number of agreements between parties, or any information that is publicly known or capable of being reasonably deduced based on information that is already within the public domain, is unlikely to interfere with the VFPA’s contractual or other negotiations.

[21]     First, the Agreement contains portions of information that are publicly known. Both the VFPA and Musqueam publicized the signing of the Agreement, with public statements referencing the parties, the signatories and signing date.

[22]     In addition, the content of Schedules A and E are in the public domain.

[23]     Secondly, page 2 of the records includes information that is capable of being reasonably deduced based on information that is already within the public domain.

[24]     Third, the Agreement includes standard articles that could reasonably be expected to be found in any number of agreements between parties. I accept that many of the terms under Article 1.1 contain information that is unique to the Agreement. However, Article 1.1 also includes some standard terms that are not unique to these negotiations, or the resulting Agreement, and could be reasonably expected based on information that is publicly known about the Agreement or the VFPA.

[25]     Similarly, Article 1.2 contains general information that could reasonably be expected in a contractual agreement.

[26]     As noted, a reasonable expectation of interference with the VFPA’s negotiations would be limited to information that would reveal the substance of unique terms agreed to in the Agreement that are not otherwise publicly available or capable of being reasonably deduced based on information that is already within the public domain.

[27]     I conclude that the portions of the record that are otherwise publicly available or capable of being reasonably deduced based on information that is already within the public domain do not meet the criteria of the exemption.

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

[28]     Since portions of the information meet the requirements of paragraph 18(b), the VFPA was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, the VFPA had to consider all the relevant factors for and against disclosure.

[29]     The representations provided identify numerous factors that the VFPA considered against the release of the information. In particular, it considered the impact that disclosure could have on its relationships with Indigenous groups, future negotiations and the success of future projects. It also considered the confidentiality of the Agreement and the concerns raised by Musqueam.

[30]     However, the VFPA did not provide any representations suggesting that it considered any factors in favour of the release of information, such as the purpose of the Act, the accountability of government institutions, the public interest in the information, or, more specifically, the interest of other Indigenous communities in receiving this information.

[31]     I conclude that the VFPA did not consider all relevant factors when it decided not to disclose the records. Consequently, the exercise of discretion by the VFPA was not reasonable.

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

[32]     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).

[33]     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.

Does the information meet the requirements of the exemption?

[34]     The VFPA has applied paragraph 20(1)(b), concurrent with section 18(b), to withhold the entirety of the Agreement between the VFPA and Musqueam.

[35]     In response to the OIC’s request for representations pursuant to paragraph 35(2)(c), Musqueam raised concerns regarding the application of the Act, and the criteria of paragraph 20(1)(b), to situations in which First Nations are a party to the negotiations and agreements that reflect its title and rights. Musqueam suggested that releasing this information would impact Musqueam’s position in future accommodation agreements. It argued that the information is confidential and should remain withheld.

[36]     In its representations, Musqueam explained that access to the Agreement was addressed in litigation in Cowichan Tribes v Canada (Attorney General), 2020 BCSC 1660. Musqueam and the VFPA produced a redacted version of the Agreement for the plaintiff in that case; however, it is not publicly available.

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

[38]     In its representations, Musqueam stated, “the agreement reveals Musqueam’s confidential financial, commercial, scientific and technical information owned by Musqueam.” Musqueam argued that the Agreement’s content and terms are informed by Musqueam title and rights, as well as its language, place names, and specific culture, teachings, oral history and customs. In this sense, it considers the information to be technical to Musqueam. It also noted that the Agreement is informed by technical information, such as economic and technical assessments completed by consultants and supplied by Musqueam.

[39]     The Merriam-Webster Dictionary definition of technical includes “having special and usually practical knowledge especially of a mechanical or scientific subject… marked by or characteristic of specialization… of or relating to a particular subject… based on or marked by a strict or legal interpretation.” Although the terms of the Agreement may be informed by specialized knowledge, the content of the Agreement itself does not appear to be technical or scientific in nature.

[40]     There are small portions of information within the Agreement that I accept meets the definition of financial or commercial information.

[41]     However, the fact that a record was created within a context that may have financial or commercial implications is insufficient to establish that the entire record contains information that is financial or commercial under paragraph 20(1)(b) of the Act (Appleton & Associates v. Canada (Clerk of the Privy Council Office), 2007 FC 640, para. 26).

[42]     The implication of the Agreement, as outlined in Musqueam’s press release dated November 5, 2021, is to create “a framework for a long-term, meaningful relationship between Musqueam and the port authority—one that will advance a strong, shared future marked by mutual respect and reconciliation” and “reframes their working relationship to better deliver on joint commitments.” The record, in this context, is not limited to financial or commercial information.

[43]     Although the Agreement includes some financial and commercial information, the Agreement does not appear to involve "financial" or "commercial information", in its entirety, as those terms are ordinarily understood. As such, I am not convinced the records in their entirety meet this criterion.

[44]     With respect to the second criterion, that the information is confidential, the information must be assessed against 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: Air Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453).

[45]     I accept that the Agreement in its entirety is not publicly available; however, as noted above, some components of the records can be found online and are therefore available from sources accessible to the public.

[46]     As to whether the information originated and was communicated with a reasonable expectation that it would not be disclosed, Musqueam’s representations to the VFPA state that the components of the Agreement are informed by confidential and sensitive information. Musqueam stated that the information was shared with the Port in its capacity as a Crown body/government agency.

[47]     In its response to the OIC, Musqueam reinforced its expectation that the information would not be disclosed. It stated that it is not standard practice to release the content of Musqueam’s business agreements and accommodation agreements. It elaborated that it is also not common to find other First Nations being required to share the contents of its agreements.

[48]     The VFPA’s representations emphasize the confidentiality of the Agreement and the expectation of both parties that it would not be disclosed. It pointed to specific elements of the Agreement addressing confidentiality as evidence of this expectation. A review of these elements, however, indicated that both parties anticipated some information concerning the Agreement would be disclosed.

[49]     Having considered the parties’ representations, along with the provisions in the Agreement itself, I am not satisfied that the Agreement in its entirety was communicated with a reasonable expectation that it would not be disclosed.

[50]     With respect to the last condition of confidentiality, the VFPA’s representations suggest that the relationship between the VFPA and Musqueam is fostered for public benefit by the confidentiality of the Agreement.

[51]     The VFPA asserted that its relationships with Indigenous communities are essential to fulfill its mandate of enabling trade and its mission of “ensuring safety, environmental protection and consideration for local communities.” The VFPA also maintained that its agreements with Indigenous groups help support the goal of reconciliation.

[52]     As outlined above, the VFPA indicated that disclosing the information would have a negative impact on its reputation, its relationships with other Indigenous groups and its negotiations for agreements with other communities. It also stated that failing to reach an agreement with an Indigenous community could affect the success of future projects.

[53]     I accept that maintaining the confidentiality of unique terms in the Agreement at issue fosters a relationship between the VFPA and Musqueam for public benefit, both economically and in terms of supporting relationships with Indigenous communities.

[54]     The third criterion for paragraph 20(1)(b) specifies that the information must be supplied to the government institution by the third party. Representations from the VFPA state that the terms of this Agreement are unique, as opposed to template terms, and were the result of negotiations between both parties.

[55]     The question of whether information has been supplied by a third party to a government institution is focused on the content of the information, rather than its form (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 156-159). The case law under the Act demonstrates that negotiated terms do not constitute information that is supplied by a third party (Canada Post Corp. v. National Capital Commission, 2002 FCT 700, para. 14; see also: Halifax Developments Ltd. v. Minister of Public Works, (1994) FCJ No. 2035 (QL) (F.C.T.D.).

[56]     In its representations, Musqueam explained that it provided information including its Musqueam-specific language, place names, specific culture, teachings, oral history and customs to inform and contextualize the discussions and negotiations. It also supplied information produced by consultants that directly informed the Agreement. While Musqueam may have supplied specific information to the VFPA, it is unclear what portions of the completed Agreement represent that information. Further, while this information may have informed the negotiations and the development of the Agreement, the information in the Agreement itself consists of negotiated terms developed and agreed upon by both parties. As a result, I am not satisfied that any of the information in the records meets this criterion.

[57]     As for the final criterion, the third party must have consistently kept the information confidential. The mere assertion, without evidence that the third party treated the information in a confidential manner, does not establish the applicability of the exemption.

[58]     Musqueam asserted that the information in question has been consistently treated as confidential. It explained that the members of its community were only provided a high-level presentation including a cursory overview of the content and the details of the Agreement have not been shared. However, it is not clear which information was made publicly available to the community. Any information provided to the community in a public presentation would not be considered to be consistently treated as confidential.

[59]     As noted above, both the VFPA and Musqueam released public statements announcing the signing of the Agreement and some of the Schedules in the records are published online. Information that had been made publicly available would also not meet this criterion.

[60]     Although Musqueam and the VFPA agreed on the development of a redacted version of the Agreement in litigation, both parties have provided representations outlining that this redacted version was protected under confidentiality terms and a court order, and will not be made publicly available as a result of the court process.

[61]     In light of the above, I am not convinced that the Agreement in its entirety has been consistently treated as confidential.

[62]     In consideration of all of the above, I am not persuaded that any portion of the Agreement meets all four of the criteria for exemption under paragraph 20(1)(b).

Outcome

[63]     The complaint is well founded.

Orders and recommendations

I order the Chief Executive Officer to do the following:

1. Disclose all of the information withheld pursuant to paragraph 20(1)(b) unless it is found to meet the criteria for exemption pursuant to paragraph 18(b), as outlined in my initial report;
2. Re-exercise discretion concerning the information found to meet the criteria for exemption pursuant to paragraph 18(b), including a consideration of the factors in favour of disclosure as noted in my report above.

Initial report and notice from institution

On October 23, 2023, I issued my initial report to the Chief Executive Officer setting out my orders.

On November 21, 2023, the Access to Information and Privacy Coordinator gave notice that the Chief Executive Officer is prepared to release the information that I found did not meet the criteria for exemption under the Act, in a manner that would not disclose the length of the Agreement.

The Coordinator did not indicate whether the Chief Executive Officer would implement the second element of my order.

As indicated in my initial report, if the Chief Executive Officer does not intend to fully implement my above order, he must apply to the Federal Court for a review within the time limit set out below.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. The complainant and/or institution must apply for a 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. Whoever 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, the orders take effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to the Musqueam Indian Band.