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Transport Canada (Re), 2020 OIC 16

Date: 2020-12-15
OIC file number: 3218-00398
Institution file number: A-2017-00706

Summary

The complainant disputed the decision by Transport Canada to withhold information related to vehicle safety recall completion rates by applying sections 14, 20 and 21 of the Access to Information Act. The Office of the Information Commissioner (OIC) sought representations from the complainant, Transport Canada and a third party. The Commissioner was not satisfied that Transport Canada or the third party had met its burden of demonstrating that the exemptions applied to the information at issue. The Commissioner therefore recommended that Transport Canada release all information previously withheld, with the exception of certain personal information. Transport Canada gave notice that the recommendations would be implemented. The complaint is well founded.

Complaint

[1]      The complainant disputed the decision by Transport Canada to withhold portions of information related to vehicle safety recall completion rates. Transport Canada claimed the information to be exempt under section 14 (Federal-provincial affairs), subsection 19(1) (Personal information), subsection 16(2) (Facilitating the commission of an offence), paragraph 20(1)(b) (Confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (Financial impact on a third party), and paragraph 21(1)(b) (Accounts of consultations or deliberations) of the Access to Information Act. The complainant disputed the application of sections 14, 20 and 21 to the responsive records.

Investigation

[2]      Under the Act, the burden of justifying a refusal of access to records rests on the party opposing disclosure.

[3]      During the course of the investigation, the Office of the Information Commissioner (OIC) sought representations from the third party, the Canadian Council of Motor Transport Administrators (CCMTA) who opposed the release of additional information.

[4]      The OIC also sought representations from Transport Canada.

[5]      Having carefully considered the representations received, as well as other evidence, I am not satisfied that Transport Canada nor the third party in this case, have met its burden of demonstrating that the exemptions applied to the information at issue.

Section 14: Federal-provincial affairs

[6]      Section 14 allows institutions to refuse to release information that, if disclosed, could reasonably be expected to harm the conduct of federal-provincial affairs. 

[7]      To claim this exemption, institutions must show the following:

  • Disclosing the information could harm the Government of Canada’s conduct of federal–provincial affairs (for example, information on federal-provincial consultations or deliberations, or Government of Canada strategy or tactics related to the conduct of federal-provincial affairs, as set out in paragraphs 14(a) and (b)).
  • 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 release the information.

Does the information meet the requirements of the exemption?

[9]      In its representations, Transport Canada no longer disagrees to disclose the information that was previously withheld under section 14. This is on the basis that either the information does not meet the threshold for the exemption, or Transport Canada’s current assessment is that the exercise of discretion favours disclosure. In either way, I agree that the information initially protected under section 14 should be disclosed.

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

[10]    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).

[11]    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?

[12]    In response to my office’s request for representations, Transport Canada advised that it was no longer of the view that this exemption applied. However, CCMTA, the third party, continues to be of the view that this exemption applies.

[13]    The Oxford Dictionary defines the term “commercial” as “concerned with or engaged in commerce – making or intended to make a profit.”  The CCMTA is a non-profit organization comprised of representatives of various governments, and these records contain regulatory information on government policy. In my view, the information is not commercial.

[14]    Additionally, objective confidentiality is a requirement for this exemption.

[15]    I am not convinced that the information previously claimed by Transport Canada to be exempt under paragraph 20(1)(b) is objectively confidential within the meaning of the criteria for objective confidentiality, as set out in Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 37 Admin L.R. 245 (F.C.T.D.). Nor am I convinced that the totality of this information was supplied by the CCMTA to Transport Canada, within the meaning of paragraph 20(1)(b).

[16]    In light of the above, I conclude that the information does not meet the requirements of the exemption.

Paragraph 20(1)(c): Financial impact on a third party

[17]    Paragraph 20(1)(c) requires institutions to refuse to release information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[18]    To claim this exemption with regard to financial impact on a third party, institutions must show the following:

  • Disclosing the information could result in material financial loss or gain to the third party.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[19]    To claim this exemption with regard to competitive position, institutions must show the following:

  • Disclosing the information could injure the competitive position of the third party.
  • There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

Does the information meet the requirements of the exemption?

[20]    In response to my office’s request for representations, Transport Canada advised that it was no longer of the view that this exemption applied. As with paragraph 20(1)(b), above, only the CCMTA continues to be of the view that the paragraph 20(1)(c) exemption applies.

[21]    In my view, the CCMTA does not compete in a marketplace, in the sense contemplated by the paragraph 20(1)(c) exemption; rather, the CCMTA is a forum for governments regulating motor vehicle safety. There are no competitors associated with it, within the meaning of paragraph 20(1)(c), and no evidence that disclosure of the information at issue could reasonably be expected to cause material financial loss to it.

[22]    Accordingly, I conclude that the information does not meet the requirements of the exemption because the CCMTA has failed to identify any likelihood of prejudice to its competitive position, or of material financial loss to it.

Paragraph 21(1)(b): Accounts of consultations or deliberations

[23]    Paragraph 21(1)(b) allows institutions to refuse to release accounts of consultations or deliberations in which government employees, Ministers or members of a Minister’s staff took part. 

[24]    To qualify for exemption under paragraph 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

[25]    To claim this exemption, institutions must then show the following:

  • The information is an account—that is, a report or a description.
  • The account is of consultations or deliberations.
  • At least one of an institution’s directors, officers or employees, a Minister or a member of a Minister’s staff was involved in the consultations or deliberations.

Does the information meet the requirements of the exemption?

[26]    In its representations, Transport Canada no longer disagrees to disclose the information that was previously withheld under this section. This is on the basis that either the information does not meet the threshold for the exemption, or Transport Canada’s current assessment is that the exercise of discretion favours disclosure. In either way, I agree that the information initially protected under paragraph 21(1)(b) should be disclosed.

Results

[27]    The complaint is well founded.

Recommendation

I recommend to the Deputy Minister of Transport to:

  • Release all information that was previously withheld pursuant to sections 14, 20 and 21 of the Access to Information Act, with the exception of the personal information on page 19.
  • Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).   

On November 10, 2020, I issued my initial report to the Deputy Minister of Transport Canada setting out my recommendations. 

On December 7, 2020, the Deputy Minister of Transport Canada gave me notice that he would be implementing my recommendations. The timeline for doing so is governed by subsection 37(4) of the Act.

Section 41 of the Act provides a right to any person, excepting institutions, who receives this report to apply to the Federal Court for a review. Complainants must apply for this review within 35 business days after the date of this report. When they do not, the third party may apply for a review within the next 10 business days. The person who applies for a review must serve a copy of the application for review to the relevant parties, as per section 43.

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