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VIA Rail Canada Inc. (Re), 2020 OIC 15

Date: 2020-12-14
OIC file number: 3217-00399
Institution file number: 16-1656

Summary

The complainant disputed VIA Rail’s decision to withhold information related to a High Frequency Rail Proposal in response to an access request. The information was withheld under multiple paragraphs of the Access to Information Act. VIA Rail failed to demonstrate that the information withheld fell within the scope of the exemptions claimed. In addition, VIA Rail did not conduct a severance exercise to disclose non-exempt information. The Information Commissioner recommended that VIA Rail engage in a severance exercise, release all information which does not meet the criteria for exemption, and exercise discretion with regard to the remaining information at issue. VIA Rail responded it would be open to consider implementing the Commissioner’s recommendations, albeit at a later date. The complaint is well founded.

Complaint

[1]      The complaint disputed the decision by VIA Rail to withhold approximately 300 pages of information in its entirety under sections 18(b) (Competitive position of government institutions), 18(d) (Government financial interests), 18.1(1)(d) (Confidential financial, commercial, scientific or technical information of VIA Rail), 21(1)(a) (Advice or recommendations) and 21(1)(b) (Accounts of consultations or deliberations) of the Access to Information Act. The information relates to the VIA Rail High Frequency Rail (HFR) Proposal.

Investigation

[2]      The head of the government institution has the burden of proving that the information being withheld falls within the scope of the exemptions claimed.

[3]      During the course of the investigation, the Office of the Information Commissioner (OIC) sought representations from Via Rail pursuant to section 35(2)(b) of the Act.  

[4]      I am not satisfied that VIA Rail had met its burden of demonstrating that the exemptions applied to all of the information at issue.

Paragraph 18(b): Competitive position of government institutions

[5]      Paragraph 18(b) allows institutions to refuse the release of information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

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

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

[7]      To claim the exemption with regard to contractual or other negotiations, institutions must show the following:

  • Contractual or other negotiations are under way or will be conducted in the future.
  • These negotiations are associated with the economic interests of Canada.
  • Disclosing the information could interfere with the negotiations.
  • 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 in the information meet the requirements of the exemption?

[9]      The investigation showed that some parts of the withheld information could meet the requirements of the exemption. The record contains information related to financial projections. While the investigation did reveal that paragraph 18(b) might be applicable to certain portions of the records, it is certainly not the case for all of the information at issue. VIA Rail did not appropriately sever information that did not qualify for exemption. In addition, VIA Rail did not substantiate the application of paragraph 18(b) by demonstrating how the release of the information would be injurious to their competitive position. Also, VIA Rail did not demonstrate a risk of harm well beyond the merely possible. 

[10]    I am not satisfied that all of the information withheld under paragraph 18(b) meets the requirements of the exemption.

Paragraph 18(d): government financial interests

[11]    Paragraph 18(d) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to substantially harm their financial interests or the Government of Canada’s ability to manage the Canadian economy, or could unduly benefit someone.

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

  • Disclosing the information (for example, details about Canada’s currency or a contemplated change in the bank rate, as set out in subparagraphs 18(i) to (vi)) could do one of the following:
    • substantially harm a government institution’s financial or economic interests; substantially harm the Government of Canada’s ability to manage the economy of Canada; or
    • result in an individual or corporation receiving a larger than necessary, improper or unwarranted benefit.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[13]    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 exemptions?

[14]    The investigation showed that some parts of the withheld information could meet the requirements of the exemption. This includes broken down financial and commercial information, along with certain financial forecasts. While the investigation revealed that paragraph 18(d) might be applicable to certain portions of the records, it is certainly not the case for all of the information at issue. Again, VIA Rail did not substantiate the application of paragraph 18(d) by demonstrating how the release of the information would be create a risk of material injury to their financial interests above mere speculation.

[15]    I am not satisfied that all of the information withheld under paragraph 18(d) meets the requirements of the exemption.

Paragraph 18.1(1)(d): Trade secrets of VIA Rail

[16]    Subsection 18.1(1)(d) allows institutions to refuse the release of trade secrets or confidential financial, commercial, scientific or technical information belonging to VIA Rail Canada Inc.

[17]    To claim the exemption with regard to trade secrets, institutions must show the following:

  • The information is a trade secret—that is, a plan or process, tool, mechanism or compound that possesses all four of the following characteristics:
    • It is secret—that is, it is known only by one or a relatively small number of people.
    • The institution intended to treat the information as secret.
    • The information has industrial or commercial application.
    • The institution has an interest worthy of legal protection (that is, an economic interest).
  • The trade secret belongs to VIA Rail.
  • The institution has consistently treated the information as confidential.

[18]    To claim the exemption with regard to financial, commercial, scientific or technical information, institutions must show the following:

  • The information is financial, commercial, scientific or technical.
  • The information belongs to VIA Rail.
  • That institution has consistently treated the information as confidential.

[19]    When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

[20]    However, subsection 18.1(2) specifically prohibits institutions from using subsection 18.1(1) to refuse to release information that relates to the following:

  • the general administration of VIA Rail, including information related to travel, lodging and hospitality expenses (as per section 3.1).

Does the information meet the requirements of the exemption?

[21]    VIA Rail has not provided representations which support the use of paragraph 18.1(1)(d) to the information at issue. While some of the information may be financial, commercial, scientific, or technical in nature it is certainly not the case that the entire record meets one of the four aforementioned criteria. In addition, VIA Rail has not demonstrated that the information was consistently treated as confidential – within the meaning of the exemption in subsection 18.1(1)(d).

[22]    I am not satisfied that all of the information withheld under paragraph 18.1(1)(d) meets the requirements of the exemption.

Paragraph 21(1)(a) – Advice or recommendations

[23]    Paragraph 21(1)(a) allows institutions to refuse to release advice or recommendations developed by or for a government institution or a Minister.

[24]    To qualify for exemption under paragraph 21(1)(a), 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 advice or recommendations.
  • The information was created by or for a government institution or Minister.

[26]    When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

[27]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to release the following: 

  • records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
  • reports prepared by consultants or advisers who were not officers or employees of an institution or members of a Minister’s staff at the time.

Does the information meet the requirements of the exemption?

[28]    The investigation showed that some parts of the withheld information could meet the requirements of the exemption. This includes portions of the record in which analysis and recommendations are provided. However, much of the information, which is factual in nature, does not fall within the scope of the exemption in paragraph 21(1)(a). Beyond factual information, this also includes information from consultants’ reports, which is excluded from the scope of the exemption in section 21. VIA Rail did not appropriately sever information that did not qualify for exemption. VIA Rail did not provide representations to substantiate the applicability of this exemption.

[29]    I am not satisfied that all of the information withheld under paragraph 21(1)(a) meets the requirements of the exemption.

Paragraph 21(1)(b) – Accounts of Consultations or Deliberations

[30]    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.

[31]    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.

[32]    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.

[33]    When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

[34]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to release the following: 

  • records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
  • reports prepared by consultants or advisers who were not officers or employees of an institution or members of a Minister’s staff at the time.

Does the information meet the requirements of the exemption?

[35]    The investigation showed that some parts of the withheld information could meet the requirements of the exemption. This includes potions of the record that constitute accounts of consultations and deliberations and thus could meet the criteria for exemption under paragraph 21(1)(b). However, this is not the case for all the information where paragraph 21(1)(b) was applied. VIA Rail did not provide representations to substantiate the applicability of this exemption.

[36]    I am not satisfied that all of the information withheld under paragraph 21(1)(b) meets the requirements of the exemption.

Severance

[37]    Section 25 applies notwithstanding any other provision in the Act. It requires institutions to disclose any part of a record that does not contain exempt information under the Act, and which can reasonably be severed from exempt information on the record. This is an extension of the principle that necessary exceptions to access should be limited and specific. 

[38]    The Act requires institutions to do the work of disclosing non-exempt information that is reasonably severable. VIA Rail failed to do this work, and failed to provide representations on the exemptions at issue to the OIC. In these circumstances, the Act requires VIA Rail to review the records in detail, and conduct a severance exercise.

Exercise of Discretion

[39]    VIA Rail has also failed to demonstrate that it has reasonably exercised its discretion with regard to all of the information claimed to be subject to the aforementioned exemptions.

[40]    To the extent that VIA Rail claimed information to be exempt, it was required to reasonably exercise its discretion. All of the exemptions in question are discretionary exemptions, which required VIA Rail to consider all relevant factors for and against disclosure.

[41]    In order to assess the reasonableness of VIA Rail’s exercise of discretion, the OIC required representations showing what factors VIA Rail’s decision-maker considered in exercising discretion concerning all relevant interests including the public interest in disclosure. Factors for consideration in the exercise of discretion are discussed in a number of Federal Court decisions. Some of the factors which should be considered are:

  • The purpose of the Act, which is to provide a right of access to government information, except in specific and limited circumstances;
  • The public interest in the withheld information;
  • The wording of the exemption and the interest its seeks to protect; and
  • The passage of time between the inception of the document and the ATI request.

[42]    In the circumstances, the public interest includes the significance of the project in question for Canadian transportation – as indicated by the fact that it is a $4 billion project. For any public information that VIA Rail claimed to be exempt, the public availability of the information was another relevant factor that VIA Rail was required to consider.

[43]    In light of the above, I conclude that VIA Rail has not established that it exercised its discretion in a reasonable manner because it has not indicated which factors were considered and the weight of those factors.

Results

[44]    The complaint is well founded.

Recommendations

On October 7, 2020, I provided the President and Chief Executive Officer of VIA Rail my initial report setting out my findings and recommendations:

  • Release all information in the records at issue which do not meet the criteria for exemption, including the information set out in the Appendix;
  • Reasonably exercise its discretion with regard to the remaining information that does meet the criteria for exemption;
  • Engage in a severance exercise pursuant to section 25 of the Act;
  • Email a copy of the response to the OIC’s Registrar (Greffe-Registry@oci-ci.gc.ca).

On November 9, 2020, the President and Chief Executive Officer of VIA Rail responded and indicated they would be open to consider implementation of the OIC’s recommendations at a later date, likely by mid-2021. This is an unacceptable response which fails to respect the quasi-constitutional right of access set out in the Act. This is rendered even clearer by the fact that the access request in question was made more than 3.5 years ago, and VIA Rail continues to refuse to disclose the records at issue (hundreds of pages) in their entirety – when it is obvious that the Act does not permit this.

Although recent amendments to the Act authorize me to order the disclosure of records, this is only with respect to complaints received as of June 21, 2019. As this complaint was received prior to that date, I unfortunately have no authority to order that VIA Rail respond to the request by a specified date. Having made my recommendations to VIA Rail, I must conclude my investigation as I have exhausted my jurisdiction under the Act. 

Finally, please note that section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

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