2017-2018 Investigations
Table of contents
- Confirming or denying records exist can jeopardize investigations
- Inappropriate to refuse to confirm or deny existence of known information
- Information too vague to cause competitive harm
- Third-party information must meet section 20 tests to qualify for exemption
- Institutions must consider public interest in third-party information
Confirming or denying records exist can jeopardize investigations
Complaint: The Canadian Security Intelligence Service (CSIS) refused to confirm or deny that it had records related to specific individuals, citing subsection 10(2).
Investigation: The OIC considered whether CSIS’s either confirming or denying that it had records related to specific individuals could reasonably be expected to harm its investigative work related to threats to Canada’s national security.
Outcome: The OIC agreed that CSIS’s reliance on subsection 10(2) was reasonable in these circumstances.
Information Commissioner’s position
- Unless their existence or non-existence has already been made known elsewhere, such as before a court, confirmation from CSIS as to whether it has records related to specific individuals could potentially be injurious to CSIS’s investigative work. It is reasonable in these circumstances for CSIS to rely on subsection 10(2).
- The Federal Court confirmed CSIS’s approach in VB v. Canada (Attorney General), 2018 FC 394.
Published: 2017–2018 annual report
Inappropriate to refuse to confirm or deny existence of known information
Complaint: Public Services and Procurement Canada (PSPC) refused to confirm or deny the existence of records related to a bid for an integrated analytics solution, citing subsection 10(2).
Investigation: The OIC learned that PSPC had used this exemption despite having posted information about the bid, including the bid number and the product or service being sought, on the Internet.
Outcome: The OIC did not agree that PSPC could apply subsection 10(2) in these circumstances. PSPC subsequently released a significant amount of information to the requester.
Information Commissioner’s position
- Generally, it is not reasonable for institutions to apply subsection 10(2) when the existence or non-existence of records is already known.
Published: 2017–2018 annual report
Information too vague to cause competitive harm
Complaint: VIA Rail declined to release information about where passengers got on and off trains, claiming that doing so could jeopardize the company’s competitive position.
Investigation: The OIC analyzed this claim with reference to subsection 18.1, which allows VIA Rail, among other institutions, to withhold information to protect its economic interests.
Outcome: The OIC was not convinced that the information VIA Rail had withheld was detailed enough to cause any competitive harm if it had been disclosed. Therefore, the institution could not rely on this claim as a factor weighing in favour of protecting the information. VIA Rail accepted the OIC’s analysis and now releases this type of information in its entirety.
Information Commissioner’s position
- Institutions withholding information under a claim of competitive harm must assess whether competitors’ having access to the information in question could genuinely harm the institution’s competitive position.
- Based on the information at issue in this case, competitors could not have, for example, done the following:
- determined VIA Rail’s profitability;
- offered alternative transportation services for better prices on VIA Rail’s busiest routes or on routes that had seen an increase in customers over the years;
- offered options or promotions to targeted customers at the right place or right time to gain a higher market share; or
- obtained favourable leases or tariffs at the conclusion of existing Railway Service Agreements.
Published: 2017–2018 annual report
Third-party information must meet section 20 tests to qualify for exemption
Complaint: Health Canada refused to disclose the dates on which various pharmaceutical companies’ generic drugs had been examined and approved.
Investigation: The OIC determined that these dates did not qualify as commercial information, nor were they supplied by a third party, as is required under paragraph 20(1)(b). In addition, the OIC found Health Canada’s claims that releasing the dates would cause competitive harm to be speculative and not supported by detailed evidence, as paragraph 20(1)(c) requires.
Outcome: Health Canada released the information and now does so without requiring a formal access request, after it issues third parties’ notices of compliance following the satisfactory review of a submission for a new drug.
Information Commissioner’s position
- To validly apply section 20, institutions must demonstrate that the information meets all the criteria required by the subsection(s) being claimed.
Published: 2017–2018 annual report
Institutions must consider public interest in third-party information
Complaint: Transport Canada applied section 20, which protects third-party information, to withhold reports on inspections of the Ste-Anne tunnel in St-Hyacinthe, Quebec.
Investigation: The OIC learned that the tunnel—which is situated near two large residences for long-term care and the elderly—had various structural problems that were of concern to local residents. The OIC considered these factors to be relevant to the public’s health and safety, as per subsection 20(6), outweighing any third-party interests in protecting the information.
Outcome: The institution and the third party agreed that there was a compelling public interest in releasing the information, and disclosed it in its entirety.
Information Commissioner’s position
- When applying section 20 to withhold third-party information, institutions must consider whether there is a public interest in disclosing the records related to public health, safety or protection of the environment that outweighs third-party interests in protecting the information, as per subsection 20(6).
- In some circumstances, there may be competing public health, safety or environmental interests. For example, an institution argued that releasing specific technical details about the design of an oil refinery’s containment system could make the refinery vulnerable to anyone with harmful intentions. The OIC agreed that the public’s interest in the information did not outweigh the risk to public safety that could result from disclosure of the information.
Published: 2017–2018 annual report