Complaint: Aboriginal Affairs and Northern Development Canada (AANDC) withheld in their entirety under section 23 settlement agreements between it and seven companies related to a building project.

Investigation: During the investigation, AANDC acknowledged that the exemption did not apply to such documents and decided to rely instead on subsection 18(b) and paragraph 20(1)(d) to withhold them. The institution argued that settlement agreements are intended to be confidential and that disclosure could result in financial loss to the federal government or in financial benefit to parties not involved in the settlement, based on the information the agreements contain.

Outcome: AANDC failed to provide sufficient evidence that these harms would occur and disclosed all of the records to the requester.

Information Commissioner’s position:

• To be properly exempted under paragraph 20(1)(d), information must be such that its disclosure could reasonably be expected to interfere with contractual or other negotiations of a third party. This test is similar to that set out in subsection 18(b).
• It is not enough to merely speculate that some harm may occur. When invoking this provision, institutions must refer to an obstruction to negotiations and not simply the heightening of competition that may follow from disclosure.