Report 19 - Access to Information Review Task Force

THIRD PARTY PROVISIONS

HARM-BASED EXEMPTIONS

Paragraphs (1)(c) and (d) provide for exemptions from disclosure where such disclosure could cause material financial loss to the third party, prejudice its competitive position or interfere with its negotiations. In order for these categories of exemption to apply, the third party must show that the disclosure "could reasonably be expected to" result in a specified type of harm.

The Federal Court of Appeal in Canada Packers (1988) held that the appropriate standard for assessment of harm for the purposes of section 20 must be interpreted to require a reasonable expectation of probable harm. ⁽³⁰⁾ The stringency of the test was challenged in Saint John Shipbuilding v. Canada (Minister of Supply and Services), ⁽³¹⁾ in which a company sought to prevent release of a summary of its contract to build six frigates for the federal government. In that case, Hugessen J.A. reaffirmed the Canada Packers test, finding that "the setting of the threshold at the point of probable harm seems to us to flow necessarily from the context, not only of the paragraph but of the whole statute. ⁽³²⁾ Further, the evidentiary standard that must be met to show a reasonable expectation of probable harm is high. ⁽³³⁾ Conclusions and general allegations of harm will not be sufficient to meet this test.

A. COMPETITIVE HARM: Paragraph 20(1)(c)

A mere possibility of serious harm was found to be insufficient to invoke the exemption in Information Commissioner v. Prime Minister of Canada (1992). ⁽³⁴⁾ In that case, Rothstein J. listed several "guidelines" arising from previous cases, including the following evidentiary principles:

1. Evidence about whether the requested information has been disclosed elsewhere is relevant and should be presented.
2. Evidence about the passage of time between the date of the confidential record and the time of the proposed disclosure is relevant.
3. Evidence on the harm from disclosure must do more than describe the consequences of disclosure in a general way.
4. Each distinct document must be considered on its own and also in the context of all the other documents requested.
5. Exemptions should be justified by affidavit evidence clearly explaining the rationale for withholding each requested record.

In Cooperative fédérée du Québec v. Canada (Agriculture and Agri-Food) ⁽³⁵⁾, the Court dismissed a third party challenge under section 44 of government's decision to disclose information sent to the Canadian Food Inspection Agency concerning facility inspection reports. The third party sought to rely on paragraphs (1)(c) and (d). However, the trial judge held that unbalanced portrayal by the press of the information in question could not be presumed. It concluded that the third party was merely speculating as to the consequence of disclosure and, thus, failed to meet the test of "reasonable expectation of probable harm". The Court held that access should not be prohibited only because the information might be unfavourable to the people it concerns. The test for harm is higher than this.

In Air Atonabee, the Court did recognize that the use to which the information may be put does impact upon the potential for harm. The Court held that the requirement of this subsection is, if used, would disclosure give rise to a reasonable expectation of probable harm. The information in itself may not be harmful: as MacKay J. held, information itself is neutral. However, if some intervening misunderstanding or distortion of the information could cause harm, this may be enough to bring the information within the exemption set out in paragraph 20(1)(c). Nonetheless, in Air Atonabee, the Court held that the evidence showed only a reasonable expectation of probable harm in the context of a possible general misunderstanding. This was found to be only speculation about probable harm with respect to portions of the record and was not enough to bring all of the information under the exemption.

In Canada (Information Commissioner) v. Canada (Minister of External Affairs) (1990), the Court again affirmed the test set out in Canada Packers Inc. v. Canada (Minister of Agriculture) that the provision must be interpreted to require a reasonable expectation of probable harm in the context of the paragraph and the whole statute. ⁽³⁶⁾ In that case, the Court found that the information with respect to each importer's quota was the only information lacking to allow a competitor to estimate the profit levels, discern pricing strategies, market plans, and financial strength of the competition. The information sought was found to be, by its very nature, of no use other than to the third party's competitors, suppliers or customers. Thus, information may be protected where disclosure would permit accurate inferences, which might cause competitive harm, to be drawn as to information that was supplied by third party.

The Australian courts have dealt with the harms test in much the same manner as have Canadian Courts. In Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal, ⁽³⁷⁾ the court held that the phrase "which would, or could reasonably be expected to, unreasonably affect" in the Australian third party provisions should be interpreted in accordance with the following principles:

we are in the field of predictive opinion. The question is whether there is a reasonable expectation of adverse effect. It is to that question that the witnesses' evidence had to be directed, and their assertions are incapable of proof in the ordinary way. What there must be is a foundation for a finding that there is an expectation of adverse effect that is not fanciful, imaginary or contrived, but rather is reasonable, that is to say based on reason, namely "agreeable to reason; not irrational, absurd or ridiculous". (Shorter Oxford Dictionary).

Thus the test for exemption under the harms-based categories is high and information can only be withheld under this paragraph where there is convincing evidence of probable material harm.

B. INTERFERENCE WITH NEGOTIATIONS: Paragraph 20(1)(d)

Paragraph (1)(d) has also been construed strictly. In Canada Packers, the Court held that "interfere" for the purposes of this paragraph is to be used in the sense of "obstruct". ⁽³⁸⁾ Hypothetical problems that might arise from release are not sufficient to invoke the exemption.

This view was confirmed in Société Gamma Inc. v. Canada (Department of Secretary of State), where the Court held that paragraph 20(1)(d) must be given a meaning distinguishable from the prejudice to a third party's competitive position dealt with in paragraph 20(1)(c). ⁽³⁹⁾ That is, paragraph (1)(d) must refer to disclosure which could obstruct those negotiations, not just heighten the competition for the third party. As well, like paragraph (1)(c), the test for harm under paragraph (1)(d) is one of "a reasonable expectation of probable harm" that must be supported by clear and cogent evidence. Again, a mere possibility of harm will not be sufficient to overcome the obligation to disclose under this paragraph.

A concern with this test is that it may be difficult, in not impossible, for a third party to produce cogent and convincing evidence that the harm is probable, rather than possible, until after the harm has occurred. For example, in Canada (Information Commissioner) v. Canada (Minister of External Affairs), the Court found that evidence of the possible effect of disclosure on international contracts generally and hypothetical problems concerning foreign suppliers and local customers was insufficient to establish a reasonable expectation that any particular contract or negotiations would be obstructed by disclosure. ⁽⁴⁰⁾ The fact that the harm does or does not occur after the fact is not decisive as to whether the harm was probable or not and this high test may place too high an onus on third parties.

THIRD PARTY CONSENT TO DISCLOSURE: Paragraph 20(5)

Subsection 20(5) provides that information which falls under one of the section 20 exemptions may be disclosed if the third party to whom the information relates consents to its release. The head involved, however, may not have the discretion to refuse disclosure of information once this consent has been obtained.

While subsection 20(5) has not been judicially considered, the Federal Court has interpreted the discretion conferred under section 19(2)(a) of the Act, to allow release of otherwise exempted personal information where the individual to whom it relates consents to the disclosure. The Federal Court has interpreted this paragraph such that its application is essentially not discretionary. ⁽⁴¹⁾ In Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), Richard J. held that it would not be in keeping with the purpose of the Act to interpret this section in such a way that it would provide a discretion to withhold information. The Court held that there was no public policy objective to be served by granting such a discretion to refuse to disclose information which is publicly available or for which consent to disclosure had been granted. As a consequence, the Court held that once consent for release had been granted, the Minister could not refuse disclosure. While there is no similar case with respect to interpretation of section 20(5), the same considerations would likely apply.

This decision is consistent with existing provincial guidelines in Alberta, British Columbia and Manitoba. In these jurisdictions, policies stipulate that once consent to disclosure is obtained, the information must be disclosed unless it falls under another exemption in the respective statutes. There is sound policy rationale for these guidelines. Refusing disclosure when consent has been granted does not make sense because the purpose of the exemption is to protect the business interests of the third party. If the third party gives their consent, it is unlikely that a public interest will be damaged by disclosure. ⁽⁴²⁾

If the information sought falls under one of the section 20 exemptions, the government institution which refuses disclosure may have a duty under section 20(5) to seek the consent of the third party who provided the information. A similar provision of the Privacy Act ⁽⁴³⁾ was considered by the Federal Court in Ruby v. Canada (Solicitor General). ⁽⁴⁴⁾ In that case, the Court held that the exemptions for disclosure and the consent provision must be read within the overall context of the Act, which favours access to the information held. The party claiming the benefit of the exemption bears the burden of ensuring that the third party has not consented to disclosure. The applicant generally does not know the content of the information, what it relates to, or the identity of the third party. Therefore, imposing the burden of seeking consent on those applying for disclosure would be unfair, and the possibility of obtaining a consensual release of the information would become so remote as to be non-existent. The Court held that a request for access to personal information confers a duty on the government institution to make reasonable efforts to seek the consent of the third party who provided the information.

In arriving at this conclusion, the Court acknowledged that it may be impractical to seek consent in circumstances where the nature and volume of the information sought would present procedural difficulties. However, the onus is on the government to make reasonable efforts to seek the consent of the third party when disclosure is refused under the exemptions. The Court suggested that protocols may be established which respect the spirit and the letter of the Act and the exemption. ⁽⁴⁵⁾

Whether section 20(5) of the Access to Information Act imposes a similar burden on government institutions that refuse disclosure of information falling under the section 20 exemptions has not yet been considered by the Courts. However, the Privacy Act and the Access to Information Act are complementary Acts, and, at least to some degree, the same principles of interpretation likely apply to both. ⁽⁴⁶⁾

Return to Table of Contents

Next Page

30. Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 2 F.C. 47 (C.A.).

31. Saint John Shipbuilding v. Canada (Minister of Supply and Services), [1990] F.C.J. No. 81.

32. Saint John Shipbuilding v. Canada (Minister of Supply and Services), [1990] F.C.J. No. 81 at 316.

33. Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare), [1988] F.C.J. No. 290 at 4.

34. Canada (Information Commissioner) v. Canada (Prime Minister) (1992), 57 F.T.R. 180, [1993] 1 F.C. 427.

35. Cooperative fédérée du Québec v. Canada (Agriculture and Agri-Food) (T-1798-98) Trial Div.

36. Canada Packers Inc. v. Canada (Minster of Agriculture), [1988) 53 D.L.R. (4^th) 246 at 255.

37. Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal, (1985) 7 A.L.D. 584 at 590.

38. Canada Packers Incl. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.).

39. Société Gamma Inc. v. Canada (Department of Secretary of State), [1994] F.C.J. No. 589.

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

41. Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), [1997] 1 F.C.J. No. 1318 at para. 41 to 44 & 57 (T.D.) (Q.L.).

42. Manitoba FIPPA website p. 12.

43. Privacy Act, R.S.C. 1985, c. P-21, s. 19(2).

44. Ruby v. Canada (Solicitor General), [2000] F.C.J. No. 779 at para.101-111 (C.A.) (Q.L.).

45. Ruby v. Canada (Solicitor General), ibid at para110.

46. Open and Shut: Enhancing the Right to Know and the Right to Privacy. Report of the Standing Committee on Justice and the Solicitor General on the Review of Access to Information Act and the Privacy Act. Ottawa, House of Commons, 1987 at 4.