Consultation on Financial and Commercial Information
March 16, 2001

Participants (18)

Agriculture and Agri-Food Canada
Canada Customs and Revenue Agency
Canadian Environmental Assessment Agency
Canadian Food Inspection Agency
Canadian International Development Agency
Department of Fisheries and Oceans
Department of National Defence
Health Canada
Indian and Northern Affairs Canada
National Energy Board
National Research Council
Natural Sciences and Engineering Research Council of Canada
Patented Medicines Prices Review Board
Public Works and Government Services Canada
Social Sciences and Humanities Research Council
Solicitor General of Canada
Transport Canada
Treasury Board of Canada Secretariat

Issues, concerns and suggestions for change

There was a consensus among participants that, while the current provisions of the Act provide good protection for commercially sensitive information provided by third parties to the government, there remains a concern that any weakening of these provisions would have a negative impact. If companies do not feel that their confidential information is safe they may choose not to contract with the Canadian government or even, more seriously, would not provide information needed for government to run a number of programs including health and safety programs. Participants emphasized that to preserve collaboration and a relationship of trust, the government cannot be perceived to be diluting the protection of the confidential information of businesses that deal with the government.

A concern was raised about Crown Corporations and government-like bodies not covered by the Act. There was some uncertainty as to whether their information becomes subject to the Act when they provide it to the government. These Crown corporations and quasi-government bodies wish reassurance that their commercially sensitive information will be protected by the government. Participants expressed the need for protection under section 20 for these bodies so that important commercial information continues to be shared by them with the government.

A related concern emerged about who is responsible for the information that used to be under the control of a department covered by the Act, but which has subsequently been devolved into a new hybrid organization either through alternate service delivery (ASD), as a Special Operating Agency or through contracting out. This raises issues related to the definition of "under the control of". Participants recommended that the best time to address the access to information function is at the time of devolution as it is much harder to do so after the fact, and that the requirement to address the issue of access should be built into the ASD policy. Furthermore, an agreement should be sought with the ASD agencies at the outset on what information can be disclosed informally. These measures would contribute to the perception that these agencies continue to be accountable and transparent in their business activities.

Even though a company may treat its sensitive commercial information consistently in a confidential manner, it may perceive that it could lose control of the information if it provides it to the government by regulation or under the terms of a contract. There may be disagreement between the department and the company on probable harm in release of the information in response to access requests. The participants felt that it is a challenge to maintain open, transparent and trustworthy relationships between government and industry when there are disagreements on access.

Recommended solutions included encouraging more consistency across the government in interpretations of "what is and what isn't releasable". Guidelines and best practices established by departments that are specific to their operations would be helpful, as would be examples of what are considered to be injurious disclosures. These guidelines could be regularly updated and shared with other departments. There needs to be a mechanism for coordination among departments when dealing with requests that cross departmental boundaries.

Working with small businesses on access issues entails a communications challenge because the concept of "commercially confidential" information is not, in all cases, easy to understand or apply, nor is it easy to understand "probable / significant injury" or how the exemptions work. Education of third parties is needed about the provisions of the ATIA that are applicable to business.

When an injury has to be proved, the onus that is on the company to demonstrate why the information cannot be released can be a burden. It was mentioned that the cost of making representations to the government as to why a record should not be disclosed could be prohibitive to small and medium-sized enterprises (SMEs). Better definitions or guidelines on terminology used in the Act, such as the phrase "which could reasonably be expected" in section 20 and the concept of "injury" would help third parties better understand the threshold test that must be met. It was also recommended that where the third party alleges that disclosure of information will cause injury, the onus should be shifted on to the government to establish that there will be no harm.

Participants recommended that an Alternate Dispute Resolution mechanism for dealing with third party disputes be considered as it may alleviate some of these issues. Some felt that the current system is too inflexible and often leads to court cases. Many SMEs have limited resources and experience in defending in court their right of confidentiality for their commercial information.

Sometimes who is requesting the information becomes an issue for a company when it could be a competitor. Currently, the identity of access requesters is protected but, even though some departments are feeling increasing pressure from companies, the OIC and others to lift this restriction, they feel it is important to maintain this protection. On the other hand, releasing the names of access requesters would make it easier for the department to deal with their request informally.

Section 27 of the ATIA requires the government to notify/consult third parties even though it is known that the information is going to be disclosed. It was suggested that the government should not be consulting third parties in cases where we know very clearly, from jurisprudence, that the information has to be released. Some participants felt that third party notifications and federal court challenges may just be a stalling tactic favouring the third parties. The third party procedure is very costly to taxpayers and to SMEs , and it should be avoided where the outcome is obvious. On the other hand, it was felt that the Information Commissioner may press for disclosure in cases where ATI Coordinators know from experience that information can and should be protected.

Timelines for access requests is an important issue for financial and commercial information due to the need to consult third parties. It was recommended that realistic extensions be available for all time limits, including third party consultations, where the operations of the department would be compromised. The 20-day period allowed for third party intervention is too short when many technical documents need to be reviewed. Businesses do not have enough time to do a proper review in the short time-frame when not enough resources are at hand with the required technical expertise. Sometimes there are circumstances that do not occur in government such as extended summer closures or extended Christmas closures. The time frames for notices of intended disclosure are not sufficient for foreign companies when consultations have to go through the embassies of the countries concerned, and when there are language barriers. Sometimes departments cannot identify who the affected third parties are when goods enter Canada via export-import businesses.

Consulting non-resident third parties may be essential under NAFTA, WTO, etc. to give them a fair chance to respond. Some participants noted that the short deadlines in the ATIA could interfere with legal proceedings (e.g. WTO case), and thereby may jeopardize Canada's position in litigation.

A concern was raised that when the government goes to court with some commercial interests, the opposing lawyers may use the ATIA to get information they could not obtain through the discovery process and that this could place the government at a disadvantage.

Uncertainty was expressed as to whether new information is created in response to an access request when dealing with a database. The consensus was that each item in a data base can be viewed as information and collating it in various ways to produce a response is not really creating a new record. Participants suggested that a guideline on this issue would be helpful.

Participants noted that consistency among departments is sometimes lacking in determining what information is confidential and what is not. While one department may protect a document as confidential, another department may post the same document to their web site. Participants called for more clarification and education on this issue as well as on the issue of when is there a need to consult. In cases where the legislation is not clear, interpretation may have to be tested in court. It was suggested that a better alignment between the Treasury Board Secretariat and departments such as Industry Canada might be helpful.

Several participants mentioned the need to harmonize with U.S. access practices and to educate American companies operating in Canada. American third parties need to understand the implications of the Canadian Access to Information Act in their dealings with our government so that a relationship of trust is maintained, and accurate and timely information continues to flow across the border.

The suggestion was made that it would be beneficial for the government to make an analysis of all cases of application to the Federal Court by third parties under section 44 of the ATIA for a review of a decision to disclose a record. Some felt it would be helpful to know how many such cases there were, who were the applicants, what were the issues of concern and what was the decision of the Court.

A strong recommendation was made that the government better educate third parties as well as program areas within government departments. More guidance and training is needed by line employees working in departments to clarify what can and cannot be released, preferably with the use of some simple tools made widely available that contain concrete examples. Legal services units should communicate with each other and with the Information Law and Privacy section of the Department of Justice on a regular basis to promote consistency of interpretations across government.

More emphasis on good records management practices and identifying "open" information right from the start would be an asset. This could be done throughout the department, for example in forms design and design of information collection instruments, involving the ATIP Office for advice at the conceptual stages. Proactive release and routine dissemination of non-sensitive commercial information, particularly through government web sites, was recommended as potentially an effective way to reduce formal requests under the ATIA.

Consultation