Report 19 - Access to Information Review Task Force

THIRD PARTY PROVISIONS

THE STATUTORY SCHEME:

In the context of commercial information, access to information legislation must balance competing public interests by ensuring that information is generally made available while simultaneously providing protection for certain kinds of information by exempting it from disclosure. Increasing uses of privatization and alternate service delivery raises the concern that government accountability may become an increasingly elusive goal. Corporations doing business with government must be made aware of their obligations with respect to access to information. The Federal Court of Appeal has held that, where third parties choose to do business with a government institution, they are bound by the Act and cannot later complain of the hardship resulting from their choice to do business with the government. ⁽³⁾ At the same time, in the context of a competitive business environment, there is a public interest supported by the protection of commercially valuable information.

Courts have held that, in accordance with the purposes of the Act, all exceptions to disclosure are to be construed narrowly:

The Access to Information Act has been interpreted in a purposive and liberal manner, and courts are invariably guided by the purpose clause in section 2. In Maislin Industries Limited v. Minster for Industry, Trade and Commerce, [1984] 1 F.C. 939 (T.D.).at page 943, Jerome A.C.J. states:

... since the basic principle of these statutes is to codify the right of public access to Government information two things follow: first, that such public access ought not be frustrated by the courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure whether, as in this case, it is the private corporation or citizen, or in other circumstances, the Government. ⁽⁴⁾

As the courts have indicated, any analysis of access to information schemes must include recognition of the purpose of this type of legislation. Such schemes have been created in most Canadian jurisdictions in an effort to ensure that governance operates in accordance with the principles of openness and accountability. The schemes are intended to make available to the public information upon which government action is taken or refused. In addition, corporate third parties, and the public, have a legitimate interest in ensuring that some types of competitive information are protected from disclosure. The exemptions to disclosure set the boundaries on the openness of government and must be designed and applied carefully so as to protect only that information that society, in general, believes should be kept confidential.

Section 20 Categories of Exemption:

Accordingly, section 20 of the Act provides a mandatory exemption from disclosure, subject to some discretionary exceptions. It provides as follows:

20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains:

(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

(2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the result of a product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.

(3) Where the head of a government institution discloses a record requested under this Act, or a part thereof, that contains the results of product or environmental testing, the head of the institution shall at the same time as the record or part thereof is disclosed provide the person who requested the record with a written explanation of the methods used in conducting the tests.

(4) For the purposes of this section, the results of product or environmental testing do not include the results of preliminary testing conducted for the purpose of developing methods of testing.

(5) The head of a government institution may disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates.

(6) The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1) (b) (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party.

Each of the subsections in section 20 should be considered separately. Paragraphs (1)(a) and (b) create class-based exemptions in that all information falling within their ambit is to be automatically withheld on the basis that there is a presumption of harm in the disclosure of some categories of information. Paragraphs (1)(c) and (d), in contrast, create an injury test under which the third party must show specific probable harm before the information will be withheld.

These class and injury- based exemptions are qualified by discretionary and mandatory exceptions set out in subsections (2) to (6). Under subsections (2) to (4), the results of product or environmental testing carried out by or on behalf of a government institution must be disclosed unless the testing was done as a service, was done for a party other than a government institution and was done for a fee. Subsection (5) provides a discretionary exemption where the third party to whom the information relates consents to its release. Finally, subsection (6) provides a discretionary exception permitting disclosure of third party information where it would be in the public interest, under certain conditions, to do so.

The third party provisions of the Act apply, by definition to, "any person, group or persons or organization other than the person that made the request or a government institution". ⁽⁵⁾ However, despite this broad application, the provisions are generally considered to define the right of the public to access commercial information held in government files.

Section 4(1): application of the Act

Pursuant to subsection 4(1) of the Act, information is only subject to disclosure where the government has "control" of that information. Significant questions have been raised as to what constitutes "control" in this context. For example, the issue of whether government has control of documents has been raised where:

(a) there is a statutory requirement that a third party hold the record;
(b) records are seized under section 490 of the Criminal Code;
(c) records are obtained by a government institution from a third party in the context of civil litigation pursuant to an implied undertaking of confidentiality;
(d) records are currently in the possession of third parties, and relate to the spending of public funds provided by the government institution when the third party has a contractual obligation to provide these records to the government on request; and
(e) the government institution has the ability to compel the production of the record by means of a contractual provision in a contribution agreement.

In the leading case with respect to the issue of "control", Canada Post Corp. v. Canada, ⁽⁶⁾ the Court found that the term "control" must be read in the context of the purposes of the Act. The Court confirmed that Parliament intended the Act to apply liberally and broadly such that the right of access should be denied only by limited and specific exceptions. Letourneau J.A. held that if Parliament had intended to qualify and restrict the notion of control to the power to dispose of information, it could have done so by limiting the citizen's right of access only to those records that the Government can dispose of or which are under the lasting or ultimate control of the Government. The Court found that there was nothing in the Act that indicated an intention that the word "control" should not be given a broad interpretation. On the contrary, the Court held that a narrow interpretation would deprive citizens of a meaningful right of access to government information under the Act. Thus, it is likely that in the situations set out above, the information would be found to be in the "control" of government and might be disclosed, subject to application of the exemptions in the Act.

However, in a recent case dealing with the issue of "control", Rubin v. Canada (Minister of Foreign Affairs and International Trade), the Court applied Canada Post v. Canada, but did construe the meaning rather narrowly. ⁽⁷⁾ The Court found that documents relating to environmental screening regarding the sale of Candu nuclear reactors to China, which were used by a government department for a limited time and then returned to Atomic Energy of Canada Ltd., were not "in control" of the government department and were, therefore, not subject to the Act.

Cases with respect to disclosure of third party information can come before the courts in two ways: firstly, the applicant for the information may apply, under section 41, for a review of government's denial of access; or, secondly, the third party can initiate an application under section 44 for exemption of their information from disclosure.

The burden rests with the third party to show that the information falls within one of the categories for exception to disclosure set out in section 20. This result not only accords with the spirit of the Act, it also makes practical sense, given that the third party is often best placed to substantiate its claim for confidentiality. Court decisions suggest that this onus is a heavy one: the issue of onus is the deciding factor in many section 44 applications. ⁽⁸⁾

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3. Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 at 124-5 (C.A.).

4. Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 at para.8 (T.D.).

5. R.S.C. 1985, c. A-1, s.3.

6. Canada Post Corp. v. Canada, [1995] 2 F.C. 110 at 124-125 (C.A.).

7. Rubin v. Canada (Minister of Foreign Affairs and International Trade), [2001] F.C.J. No. 698 at 12 to 21 ((T.D.). (Q.L.).

8. Northern Cruiser (1991); Cyanamid Canada (1992); Glaxo Canada (1992)