Section 20(2), (5) and (6): Disclosure if a supplier consents

Preliminary Matters 

4) When is there a duty to consider the override?:

There has been little case law on the overrides in subsection 20(2), (5) and (6). In a Privacy Act case involving the consent override in subsection 19(2) Privacy Act [subsection 13(2) Access to Information Act], the Federal Court of Appeal stated that a request for personal information under the Privacy Act that a request by an applicant for information subject to section 19 of the Privacy Act (the parallel to section 13 of the Access to Information Act) "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party [other government or international organization of states] which provided the information" (Emphasis added). The Court noted that the evidentiary burden lies on the government institution to show that the exception in subsection 19(2) [subsection 13(2)] for consent does not apply given the inability of the requestor to know who to ask for consent or what the withheld information consists of. The test enunciated by the Court with respect to the application of the consent override in paragraph 19(2)(a) [paragraph 13(2)(a) of the Access to Information Act] was whether the government institution has made reasonable efforts to seek the consent of the other government or institution. See Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No 779, June 8, 2000, (F.C.A.).

In the Ruby case, the Federal Court of Appeal also considered the duty of the institution head to decide whether the public interest override in subparagraph 8(2)(m)(i) of the Privacy Act applied. The Federal Court of Appeal held that the institution head must undertake a weighing of the competing interests behind the public interest override, but that the manner in which the weighing of interests is conducted is within the discretion of the head of the institution. In the Ruby case, the Federal Court of Appeal concluded that it was unclear whether the government institution (CSIS) had conducted any kind of discretionary balancing of public interest and privacy under subparagraph 8(2)(m)(i), and remitted the matter back to the Trial Judge to determine whether the exemption from disclosure that was subject to the override had been properly applied:

Having said all this, however, we confess that we are unable to ascertain from the decision of the reviewing judge whether in fact CSIS conducted any kind of discretionary balancing of public interest and privacy. In other words, it is unclear whether CSIS took any consideration of sub-paragraph 8(2)(m)(i) when it refused to disclose information relating to third parties and whether, therefore, it properly applied the exemption it claimed pursuant to section 26 of the [Privacy] Act. Nor are we able to determine whether the reviewing judge was satisfied that the exemption had been considered by CSIS, or that he considered it himself.

In the circumstances, there should be a new review of the personal information requested in banks 010 and 015 for the purpose of determining whether the exemption in section 26 has been properly applied by CSIS. (at paragraphs 124- 125).

Based on the above, the institution has a duty to consider the override in the following circumstances:

• 20(2): The institution must examine the records requested to determine whether they contain any information relating to the results of product or environmental testing. If the record contains any such information, subsection 20(2) applies; the product and environment testing override clearly means that the institution must disclose the subject information unless another exemption applies to such information. See Dekalb Canada Inc. v. Agriculture and Agri-food Canada (F.C.T.D. 7 September 1999, unreported).
• 20(5): As it applies to the third party with whom the information relates and consents to disclosure. This provision logically requires that there be some possibility for such consent. It is our position that unless the third party has made it clear in the past or on the record that it will not/never consent, the possibility that it will consent is there. Departments should consult to see if consent would be given. They may obtain consent from the third parties at the time of the submission of documents, during informal or formal consultations (i.e., 9(1)(b) situations) or in response to the notification of the intent to disclose by the government institution (section 27). It is not sufficient for the head of the institution to state that they don't know if the third party would consent. In such a case, they must take positive action to determine if the third party would consent (see also X v. Minister of National Defence1).
• 20(6): This provision permits disclosure in the public interest "where such public interest clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of, or interference with contractual or other negotiations of a third party". It must be considered when it is evident from the request or the requested records, the representations under section 27 or the complaint that a public in disclosure under subsection 20(6) could exist. The Federal Court of Appeal has held that the institution head must undertake the balancing of interests mandated by the public interest override, but that the manner of doing so is within the discretion of the institution head. The Information Commissioner, however, can and does make findings and recommendations on the application of the section 20(6) override2.

Once it is established through the request, complaint, section 27 representations or the investigator's inquiries of the institution that there is a prima facie case of public interest, a department arguing that the public interest does not clearly outweigh in importance any financial loss or gain to, prejudice to the competitive position of, or interference with contractual or other negotiations of a third party has the burden of demonstrating this. Since the third party is the one most directly concerned for the purposes of section 35 representations, it is essential that the third party be given an opportunity to make representations on this issue. It is the investigator's responsibility to obtain all the relevant information from the department involved, the third party and the requester in order for the Commissioner to make an appropriate finding on the application of the override.

The Test

1) Preliminary Comments:

You will have to be on the lookout to ensure that institutions have inadvertently failed to recognize that the records deal with testing and/or testing results. If you feel that any of the information in the records might fall within the scope of 20(2), raise this with the ATIP officer. If they claim it was not testing, not a product or an environmental testing; then ensure that they are required to answer the questions designed to provide answers. Theses answers will then enable you to determine what testing was done, why [purpose], what was being tested and what (it) the thing being tested will do. Do not hesitate to ask to see the background files leading up to the testing if that will better enable you to get all of the material facts.

2) Subsection 20(2):

a) What is a 'product'?

One way to determine the meaning of this word is to use the contextual method of interpretation. According to the presumption of coherence between statutes, the legislature is deemed to enact statutes on a given subject that are coherent in their formulation. When a statute is drafted, its author supposedly takes into account legislation already in force. A statute will be drafted so as to integrate it into existing legislation, from the point of view of both form and content. This explains why related prior legislation, as part of the legal environment of the new law, can help to clarify its meaning. In other words, the same word is deemed to have the same meaning in related legislation unless there is a definition in the statute to the contrary.

b) The term 'product' is defined in the Statutes of Canada as follows:

• "Product includes an article and a service."3
• "Product means any article that is or may be the subject of trade or commerce but does not include land or any interest therein".4

Such an interpretation would seem to be consistent with the purpose for which subsection 20(2) was incorporated into section 20. It would be reasonable to disclose information containing the results of testing done by the government on an article or a service that is, or may be the subject of trade or commerce.

c) The testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee:

We agree with the approach in the Treasury Board Guidelines, which is:

• "Under subsection 20(2) a government institution shall not, pursuant to subsection 20(1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution. So even if a record would be exempt from disclosure under subsection (1), a government institution is not permitted to claim exemption under subsection (1) for any part of the record which contains the results of product environmental testing carried out by or on behalf of a government institution.
• However, if the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee, subsection 20(2) does not apply.... The provision also does not apply to testing done by a third party and submitted to a government institution, either on a voluntary or mandatory basis". (An example of this would be where the third party voluntarily files a study/test that contains the results of product testing and the government institution uses the record to enable it to do an assessment and to approve the product. This is a 'voluntary' situation since the institution does not have a requirement that the tests be filed and a licence issued as a condition precedent to the marketing of the product.)"

  It is possible to support this interpretation of 20(2) because:

• it seems to be the most obvious interpretation;
• there does not seem to be any ambiguity in the provision - i.e. there is no other obvious interpretation;
• it does not seem to be inconsistent with the basic purposes of the Act; and
• it seems to make sense that the public should have access to what the government does or pays for itself.

d) The criteria to be met for the non-application of subsection 20(2) are:

• whether the testing was done as a service to a person, a group of persons or an organization other than a government institution; and
• whether the testing was done for a fee.

Example:  Canadair (an organization other than a government institution) pays a fee to the National Research Council to conduct wind tunnel tests on a model of its new Challenger.

In such a case, even if all the criteria of subsection 20(2) were met, the override would not apply since the testing was done as a service to a person, a group of persons or an organization other than a government institution and the testing was done for a fee. However, if one of these two elements were missing (i.e. if Canadair didn't pay for the testing, or if Canadair made the testing and provided it to the institution, either on a voluntary or mandatory basis), 20(2) would still apply.

It may be that the department and the third party have each paid a portion of the fee and each may equally be entitled to the results. If the third party pays the government but the amount is less than the cost of the testing, it may well be that this is an attempt to get around this provision in the Act.

e) What are the 'Results'?

Since there is no definition of the term in the Act or in any other Canadian Statute, the law is deemed to have been drafted in accordance with the rules of language of common use. One way to determine the meaning is to use a dictionary. The Federal Court uses dictionary meanings as a guide to interpretation but only where the meaning is consistent with the purpose of the Act.5

Webster Ninth New College Dictionary:

• Result: "1. something that results as a consequence, issue, or conclusion; also beneficial or tangible effect; 2. something obtained by calculation or investigation..."

Petit Robert, 1987:

• Résultat: "1. tout ce qui arrive, commence à exister à la suite et comme effet de qqch., avec un caractère durable. 2....Phase ultime d'un calcul...3. L'admission ou la non-admission à un examen, un concours; la liste de ceux qui ont réussi." [emphasis added]

The French definition seems wider than the English. It includes "anything that arises following and as a result of something". If we take that interpretation, 20(2) include the "result" portion of the testing, and also any comments, conclusions, recommendations, etc.

On the other hand, 20(4) makes it clear that the records which contain the results of the preliminary tests which were conducted to determine if the test itself was a valid test, is not part of the exception. If appropriate, such information may be exempted under subsection 20(1) or any other exemption that may apply.

Since the purpose of the Act is to "give the public greater access to government records", any restriction to this right of access should be interpreted narrowly. 6 Between two possible interpretations, one that restricts the right of access and another that provides greater access, the second should be adopted.

The wording of subsection 20(3) confirms that the wider interpretation is more appropriate. According to that provision, where information is disclosed pursuant to subsection 20(2), the head must at the same time provide the requester with a written explanation about the methods used in conducting the test. This caveat was designed to alleviate the potential harm to third parties due to misinterpretation of the reports upon their release. Subsection 20(3) is designed to avoid the possible misinterpretation of information contained in subsection 20(2). In that context, it would be illogical to conclude that the legislator intended that only the results of the test be disclosed and not the conclusions of/or resulting from the test.

But subsection 20(3) is an important provision. It expressly requires the institution to disclose records that will enable the requester to understand the methodology used in the testing and then better enable the requester to assess the validity of the test results.

3) Subsection 20(5):

According to this subsection, the head of a government institution 'may' disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates. In a case involving another consent override, the Federal Court of Appeal has stated that the request for information itself "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party which provided the information." (Emphasis added) 7 owever, as discussed above (see section 3.3), when the third party consents the head must disclose the information unless some other exemption applies.

If the requester has consented to information being given to the third party and the consent is restricted to disclosure to that However, as discussed above (see section 3.3), when the third party consents it becomes directory upon the head of the government institution to disclose the information - the head must disclose the information unless some other exemption applies.

If the requester has consented to his/her identity being given to the third party and the consent is restricted to disclosure to that particular requester, the consent ceases to be valid for the purpose of subsection 20(5) in the event of any further requests. However, if it is a general consent, it remains in force until it is withdrawn. Thus, investigators should determine whether the third party has ever consented to the disclosure of the requested information. The fact that it has been disclosed could have a great bearing on whether an exemption could be substantiated under paragraph 20(1)(c) or (d). It couldn't under 20(1)(a) or (b) because the information is no longer secret/confidential.

4) Subsection 20(6):

a) Public Interest:

This override applies to information that otherwise must be exempted under subparagraphs 20(1)(b), (c) or (d). In order to qualify for the override, the public interest in disclosing this information must be such to clearly override any prejudice contemplated by subsection 20(1) that the third party could reasonably be expected to sustain from the disclosure.

To this date, very little has been said as to what constitutes 'public interest', the Treasury Board Guidelines do not address this issue.

In Nakita (Township) v. Canadian National Railway Co., (June 11, 1986), No. A-80-86, (F.C.J.), the Federal Court of Appeal had to determine whether the CN's intention of closing a railway station was in accordance with the public interest. The Railway Transport Committee, when assessing the public interest, considered only those aspects of the public interest that impacted directly or indirectly on the railway operations. Mr. Justice Hugessen in reversing the Committee's decision laid down the following principles:

• By definition, the term 'public interest' includes the interests of all the affected members of the public. The determination of what is in the public interest involves the weighting and balancing of competing considerations. To exclude from consideration any class or category of interests which form part of the totality of the general public interest is an error of law justifying the intervention of the Court.
• The error of law lies simply in the failure to consider. The weight to be given to the competing considerations is a matter for the discretion of the Commission.

In Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] R.C.J. No. 779, June 8, 2000 (F.C.A.), the Federal Court of Appeal considered the process to be undertaken by an institution head in applying the public interest override in subparagraph 8(2)(m)(i) of the Privacy Act. The Court stated that an institution head must undertake a balancing of the competing public interests in disclosure of the information and in protecting the privacy of individuals, and that such balancing could take into consideration concerns specific to the request or general policy concerns as deemed appropriate by the institution head.8

In relation to subsection 20(6) the institution head must consider the public interest in disclosure of the information as it relates to health, safety or protection of the environment and the harm such disclosure would occasion to the third party, as further described in (b) below. The manner of weighing these interests is within the discretion of the institution head as long as full consideration of relevant factors is given by the head.9

As is the case in relation to the discretionary exemptions, however, it is part of the Commissioner's role to 1) ensure that consideration of the public interest override is made by the government institution, and 2) to review the decision on public interest to ensure it accords with the spirit and intent of the Act and the section 20 exemption as a whole and to ensure the head has taken all relevant factors into account.

b) Clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of, or interference with contractual or other negotiations of a third party:

In order for the subsection 20(6) override to apply, the public interest must clearly override the prejudice contemplated in this subsection. A department arguing that the public interest does not clearly outweigh in importance any financial loss or gain to, prejudice to the competitive position of, or interference with contractual or other negotiations of a third party has the burden of demonstrating this by showing/describing to the investigator all the factors taken into consideration.

The expression 'clearly outweigh' is novel and has not been judicially interpreted. The normal burden under section 48 is to establish the right to exempt on a mere balance of probabilities. To show that it clearly outweighs is a higher burden - e.g. you must be more certain that you could convince a court that the override applies. In percentage terms, a balance of probabilities is 51%. Clearly is more like 60-40%.

While the Commissioner cannot substitute his own judgment for that of the head of the institution, he is nevertheless entitled to consider the factors taken into consideration by the department in making its assessment. For example, while the Commissioner cannot require a department to give more weight to a particular factor, he can determine that some factors were missing when the Head of the government institution made his/her judgment.

Case Law

1) Subsection 20(2):

There have been three Federal Court cases which have considered this provision. In one case, it was held that meat audit inspection reports, which are the product of an on-site inspection process by government inspectors, don't constitute environmental or product testing. 10 In Deklb Canada Inc. v. Agriculture and Agri-Food Canada (7 September 1999, File T-1998-97) the Trial Division applied the Federal Court of appeal decision in Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 to confirm that the purpose of subsection 20(2) us to require the disclosure of testing information relating to public health and safety and that the paramount interest in subsection 20(2) is the public interest in disclosure of such information. The information requested disclosed the results of hybrid corn samples tested in the third party's field plots. The Court determined that this information fell within subsection 20(2) and thereby excluded the application of s. 20(1).

There has been only one Federal Court case on this provision. In this case, it was held that meat audit inspection reports, which are the product of an on-site inspection process by government inspectors, don't constitute environmental or product testing.11