Section 20(1)(b): Confidential information supplied by a third party

Preliminary Matters

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act), as extended by the Access to Information Act extension order no. 1 of April 13, 1989, gives any Canadian citizen or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the federal government. More specifically, the Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.

Paragraph 20(1)(b) is a mandatory class exemption. The consequence is that once the head determines that a record or part thereof contains certain information which falls within the class enunciated in the exemption, he/she must then refuse to grant access to the requested information unless either of the exceptions in 20(2), (5) or (6) applies. The exemption process under 20(1)(b) is not completed until this determination is made.

This test applies to commercially sensitive information regardless of whether it was filed voluntarily or was legally required to be filed.

The Test

In Air Atonabee Ltd. v. Minister of Transport, (1989), 27 F.T.R. 194 (T.D.) the Federal Court applied the four criteria that were laid down by Jerome A.C.J. on April 15, 1988, in Montana Band of Indians v. Minister of Indian and Northern Affairs et al., [1989] 1 F.C. 143. To fall within 20(1)(b), it must be established that the information meets all of the following criteria - i.e., it must (be):

• financial, commercial, scientific or technical information,
• confidential information,
• supplied to a government institution by a third party, and
• treated consistently in a confidential manner by a third party.

Case Law

1) Financial, commercial, scientific or technical information:

For the purpose of this section, it is sufficient that the information 'relate or pertain' to matters of finance, commerce, science or technical matters, as those terms are 'commonly understood' (see Air Atonabee Ltd. v. Minister of Transport (1989), 27 F.T.R. 194 (T.D.). Further, as Mr. Justice Rothstein explained in Canada Post Corporation v. Minister of Public Works et al., [1993] 3 F.C. 320 (T.D.), confirmed by F.C.A. (February 10, 1995) A-372-93, dictionary definitions can be considered in determining the meaning of a provision when the suggested meaning in the dictionary is consistent with the purpose of the Act.

These terms are defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

• Finance: "1. the management of (esp. public) money. 2. monetary support for an enterprise. 3. (in pl.) the money resources of a State, company, or person... ."
• Financial: "1. of finance... ."
• Commerce: "1. financial transactions, esp. the buying and selling of merchandise, on a large scale... ."
• Commercial: "1. of, engaged in, or concerned with, commerce. 2. having profit as a primary aim rather than artistic etc. value; philistine...."
• Science: "1. a branch of knowledge conducted on objective principles involving the systematized observation of and experiment with phenomena, esp. concerned with the material and functions of the physical universe... ."

  "2a. systematic and formulated knowledge, esp. of a specified type or on a specified subject... ."

  "2b. the pursuit or principles of this."

  "3. an organized body of knowledge on a subject."

  "4. skilful technique rather than strength or natural ability."

  "5. archaic knowledge of any kind."

• Scientific: "1a. according to rules laid down is an exact science for performing observations and testing the soundness of conclusions."

  "1b. systematic, accurate."

  "2. used in, engaged in, or relating to science."

  "3. assisted by expert knowledge."

• Technic: "1a. technology."

  "1b. technical terms, details, methods, etc."

  "2. technique."

• Technical: "1. of or involving or concerned with the mechanical arts and applied sciences."

  "2. of or relating to a particular subject or craft etc. or its techniques... ."

  "3. using technical language; requiring special knowledge to be understood... ."

It was further noted in Chippewas of Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1996), 116 F.T.R. 37, that information will be deemed to be financial, commercial, scientific or technical when it relates to material that is commonly referred to as such, in keeping with the ordinary dictionary definition of those terms. Upon review, the Court in this case held that Band Council Resolutions clearly did not fall within the definition of financial, commercial, scientific or technical information.

2) Confidential information:

Under the Act, the Federal Court declared in Maislin Industries Limited v. Minister for Industry, Trade and Commerce et al. [1984] 1 F.C. 939 (F.C.T.D.), that to determine whether third party information is 'confidential information', an objective standard is to be applied rather than a subjective one. To prove that it is 'confidential information' four essential conditions must be met1:

• The communications must originate in a confidence that they will not be disclosed.
• This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
• The relation must be one which in the opinion of the community ought to be sedulously fostered.
• The injury that would result to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

To put those tests in a different way, whether information is confidential will depend upon its content, its purpose and the circumstances in which it is compiled and communicated. In Air Atonabee Ltd. v. Minister of Transport (1989), 27 F.T.R. 194 (T.D.) the Federal Court has given some additional/alternative indicators to determine whether information is confidential, namely:

• that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that it could not be obtained by observation or independent study by a member of the public acting on his own;
• that the information originated and be communicated in a reasonable expectation of confidence and that it will not be disclosed, and2
• that the information be communicated, whether required by law or supplied gratuitously, 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, and which relationship will be fostered for public benefit by confidential communication. 3

Even if these criteria were met it cannot be concluded that the information is (still) confidential. Where the evidence indicates that the information the disclosure of which is being contested has in fact been disclosed or is otherwise available from sources accessible by the public, the information should not be considered as 'confidential'.4

To the same extent, in order for the information to be exempted there must be some objective evidence that the information is such (i.e., confidential); mere affirmation by the third party or by the government is not decisive enough as to whether the criteria has been met. 5 Basically saying it 'is confidential' is not enough - it must be proven.

What is important to consider is whether any objective facts could prove that the information is confidential. For example:

• That the information is marked confidential, it is kept locked and that only a few people have access to it, etc. However, since some information is normally considered to be confidential in nature it does not need to meet a very high burden of proof.
• It would not need very much evidence to consider a company's overhead, profit rates, operation costs, labour costs, administration fees, etc. as confidential. The test of the 'reasonable man' is to be applied when determining whether information is confidential, or not.6

In Timiskaming Indian Band v. Canada (Minister of Indian and Northern Affairs), (1997) 148 D.L.R. (4th) 356, 132 F.T.R. 106 (F.C.T.D.), the Federal Court Trial Division held that "land records" of an Indian Band, including related Band Council minutes and resolutions, were not subject to a fiduciary duty on the part of the federal government requiring it to keep the records confidential. The Court held that the records were not confidential, as there was no evidence they were submitted to the government institution in confidence, that the reporting requirement for land transfers did not contain a presumption of confidentiality and that the institution did not treat the information as confidential.

In Occam Marine Technologies Ltd. v. Canada (National Research Council) (1998), 155 F.T.R. 117 (F.C.T.D.) the Federal Court Trial Division held that a government institution does not need to consult third parties before deciding to apply paragraph 20(1)(b) to records required under the Act in a situation where the third party could reasonably rely on the confidentiality regime applicable in the institution's policy concerning disclosure of the records which indicated the information was exempt from disclosure.

3) Supplied to a government institution by a third party:

One of the requirements of this section is that the information be supplied to the government by the third party. Therefore, where the records consists of comments and observations made by public (government) inspectors based on their review of the records maintained by the third party, such information is not to be considered as provided by the third party.7 It would not apply, therefore, to reports of government officers on what they had observed in the course of an official inspection.8

Of course, such report may be based both on an examination of particular operations or the physical condition of premises and on a written or oral record made available by the third party. If any information from the latter source is incorporated into the report, that part of the text may qualify for protection under the commercial information exemption (e.g. plant production statistics which were not readily observable and which were given by the company to the inspector).

It should be noted that information supplied by third party would also include any information that, if disclosed, would permit an accurate inference to be drawn as to the actual information that was supplied by the third party. Thus, information generated by an institution could qualify for protection from disclosure if it summarized what must logically have come from the third party.

In Tridel Corp. v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185, the Court found that since Tridel Corporation had not supplied the information there was no factual basis for it raising an objection under sub-paragraph 20(1)(b) of the Act.

4) Treated consistently in a confidential manner by the third party:

To meet the test of being treated consistently, it must be shown that when the information was being supplied to the government, the third party took sufficient steps to ensure the government would treat it confidentially.

While the exemption reads "treated consistently in a confidential manner by the third party", the Federal Court in Cyanamid Canada v. Minister of National Health and Welfare (February 21, 1992) No.T-1970-89, T-2235-89, T-868-90 (F.C.T.D.) confirmed by F.C.A. (October 23, 1992), A-456-91, A-457-91, A-458-91, A-296-92, A-297-92 held that it is not sufficient that the applicant consider the information to be confidential, it must also be kept confidential by both parties and must not have been otherwise disclosed or available from sources to which the public has access9. In other words, the parties must be able to say that, the information was confidential when it was supplied to the institution and has remained confidential from the date of supply to the government up to the time of the decision not to disclose. This may seem to be more than what the words of the Act require but this is how the Court has interpreted the test.

While the Court's decision seems to go farther than the actual terminology of the exemption, we seem to be bound by it since the Federal Court of Appeal in Cyanamid Canada v. Minister of National Health and Welfare (October 23, 1992) No.A-456-91, A-457-91, A-458-91, A-294-92, A-296-92, A-297-92 made no comments on the matter.

Section 20(1)(b): The Questions

• Questions to assist the investigator in fact-finding and in making recommendations for the resolution of the complaint.