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Transport Canada (Re), 2021 OIC 17

Date: 2021-05-25
OIC file number: 5819-02078
Institution file number: A-2019-00337

Summary

The complainant alleged that Transport Canada improperly withheld under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act information related to mediation services provided by the Canadian Institute for Conflict Resolution (CICR). Transport Canada applied paragraph 20(1)(b) to information contained in invoices billed by CICR. In its representations, CICR maintained that the exemption was properly applied. The Information Commissioner agreed that the third party’s hourly rate and the number of hours billed were properly withheld as it would reveal commercial information and CICR has consistently treated this information as confidential. However, the Information Commissioner concluded that the description of services billed, the dates of services, the subtotal of charges, the amount of taxes applied, the “total amount” and the “amount paid” cannot be withheld under paragraph 20(1)(b) as they do not meet the criteria set out in that paragraph.   

The Commissioner ordered Transport Canada to disclose this redacted information. The Minister of Transport gave notice to the Commissioner that he would be implementing the order.

The complaint is well founded.

Complaint

 [1]     The complainant alleged that Transport Canada improperly withheld under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act information related to mediation services provided by the Canadian Institute for Conflict Resolution (CICR).

[2]      During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the application of subsection 19(1).

Investigation

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

[3]      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).

[4]      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.

[5]      When these requirements are met, and the third party to whom the information relates consents to its disclosure, institutions must then reasonably exercise their discretion to decide whether to release the information.

[6]      Institutions must also reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances exist:

  • disclosure of the information would be in the public interest; and
  • the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

[7]      However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) to refuse to release information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[8]      Paragraph 20(1)(b) was applied to certain information contained in invoices billed to Transport Canada by CICR. Specifically, Transport Canada redacted the description of services billed, the dates of services, the subtotal of charges, the amount of taxes applied, the “total amount”, the “amount paid”, the hourly rate of the third party and the number of hours billed. The amount owing was released.

[9]      In its representations, CICR maintained that the redacted information is “financial” as it is included on its invoices to Transport Canada. It further maintained that the redacted information is also confidential, as it has only ever been provided to Transport Canada. According to CICR, it has consistently treated the information as confidential and it requires the individual who processes these invoices to possess a security clearance in order to ensure that this confidentiality is maintained.

[10]    During the investigation, Transport Canada indicated that upon reconsidering the applicability of paragraph 20(1)(b), it agrees that the description of services billed, the dates of services, the subtotal of charges, the amount of taxes applied, the “total amount”, and the “amount paid” do not warrant being withheld under this exemption. Transport Canada, however, maintained that the hourly rate of the third party and the number of hours billed satisfy the requirements of paragraph 20(1)(b) so as to warrant being withheld.

[11]    Having reviewed the information at issue, along with the representations received, I agree that paragraph 20(1)(b) has been properly applied to withhold the hourly rate of the third party as well as the number of hours billed. This information would reveal commercial information that is confidential by an objective standard, that was supplied to a government institution by a third party, and that has been consistently treated as confidential by the third party.

[12]    I am, however, not satisfied that the remaining redacted information (consisting of the description of services billed, the dates of services, the subtotal of charges, the amount of taxes applied, the “total amount”, and the “amount paid”) meets each of the requirements needed to be established in order to be withheld under paragraph 20(1)(b).

[13]    More specifically, I am not satisfied that the description of the mediation services and the dates of service contain financial, scientific, commercial or technical third party information, so as to meet the first requirement of paragraph 20(1)(b).

[14]    With regard to the second requirement of paragraph 20(1)(b), I am not satisfied that the subtotal of charges, amount of taxes applied and the “total amount”, can be considered “confidential” information by an objective standard, as this information can readily be ascertained based on the information already released (i.e., by dividing the amount owing by the current tax rate reveals the subtotal, amount of taxes applied and the total amount). 

[15]    Turning to the third requirement, I am not satisfied that the amount paid is information supplied to Transport Canada by the third party.

[16]    In light of the above, I conclude that the description of services billed, the dates of services, the subtotal of charges, the amount of taxes applied, the “total amount”, and the “amount paid” cannot be withheld under paragraph 20(1)(b).

Result

The complaint is well founded.

Order

Under subsection 36.1(1) of the Access to Information Act, I order the Minister of Transport to:

  • Disclose the description of services billed, the dates of services, the subtotal of charges, the amount of taxes applied, the “total amount” and the “amount paid”;
  • Disclose this information within 10 days after the day on which this order takes effect under subparagraph 36.1(4)(b); and
  • Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).

On April 12, 2021, I issued my initial report to the Minister of Transport setting out my intended order. 

On May 10, 2021, the Minister of Transport gave me notice that he would be implementing my order.

I have provided the Canadian Institute for Conflict Resolution with this report.  

Institutions must abide by the terms and timelines of subsection 37(4) when disclosing any records in response to my order.

Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. When they do not, third parties 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. If no one applies for a review by these deadlines, this order will take effect in accordance with subsection 36.1(4).

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