Report 19 - Access to Information Review Task Force

THIRD PARTY PROVISIONS

OVERRIDE PROVISIONS

A. ENVIRONMENTAL AND PRODUCT TESTING INFORMATION: Subsection 20(2)

Pursuant to subsection 20(2), if the information at issue is the result of product or environmental testing that meets the stipulations set out in that subsection, then subsection 20(1) does not apply and the information must be disclosed, regardless of its potential to inflict harm on a third party.

This subsection has been construed somewhat narrowly such that audits of plant conditions and inspection systems have been found not to be tests of product quality -- that is, not the kind of information which must automatically be disclosed under subsection 20(2). ⁽⁴⁷⁾ As well, where the third party has paid a government institution to conduct testing and the testing was for a commercial venture, the information will not fall within the exception to the exemption from disclosure. Thus, for example, the provision does not apply to product testing done by the National Research Council on a commercial basis, nor does it apply to testing done by a third party and submitted to government. ⁽⁴⁸⁾

At the appeal of Canada Post Corp. v. Canada, the Court found that subsection 20(2) requires disclosure of information relating to public health and safety and that the paramount consideration is the public interest. ⁽⁴⁹⁾ The Federal Court Trial Division applied this test in Dekalb Canada Inc v. Canada (Agriculture and Agri-Food). ⁽⁵⁰⁾ This Court found that Dekalb could not benefit from the paragraph 20(1)(c) exemption from disclosure as the information sought fell squarely within subsection 20(2).

In Dekalb, Dubé J. found in favour of release of test results for Dekalb hybrid corn samples requested by a party to one of seven law suits instituted against Dekalb by farmers who claimed damages against Dekalb. Dekalb claimed that the record should be protected under paragraph 20(1)(a) and (c) and Agriculture Canada argued that it must be disclosed under subsection 20(2), as constituting the results of product testing. The information was found to fall squarely within the provisions of subsection 20(2) and the exemption from disclosure did not apply on that basis. The Court held that the information with respect to the testing did not divulge "trade secrets" as it did not reveal information emanating from Dekalb's research and development efforts. Rather, the court found that it merely provided the end results of a government inspection. The Court also held that information is not confidential where it may be obtained by observation, even if this would require more effort by the requester. ⁽⁵¹⁾ In addition, the record was found to have been created by the public authorities spending funds in order to protect the public. ⁽⁵²⁾

B. THE PUBLIC INTEREST OVERRIDE: Subsection 20(6)

Subsection 20(6) of the Act provides authority to the head of a public body to disclose any record that would otherwise be exempt under paragraphs 20(1)(b), (c) or (d) if 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 the subsection 20(1) considerations.

Suggestions for reform of this subsection include broadening the public interest override such that it would allow for disclosure of trade secrets in appropriate circumstances; broadening the override so that it includes consumer protection; or broadening the override so that it applied to all exemption sections of the Act, rather than simply to the third party provisions.

Broadening the override could impose an affirmative duty on the head of an institution to disclose records under specified conditions, despite whatever exemptions may be applicable. Both the Ontario and British Columbia legislation include a broader public interest override that requires disclosure of such types of information as policy advice, information relating to relations with other governments, third party information, economic and other interests, danger to health and safety, and personal privacy where there is a compelling public interest in the disclosure of the record that clearly outweighs the purpose of the exemption. These jurisdictions also provide for an override where the disclosure, for any other reason, is clearly in the public interest. This is likely broad enough to cover issues of consumer protection. As with the federal Act, notice must be provided where the application of the override would result in disclosure of third party information. However, in application it is very difficult to show that the override provisions should be applied and disclosure on this basis is rarely ordered.

At the federal level, there has been a reluctance to use the public interest override because, if release is in the public interest, the information likely should have been released before receiving an access request. While an effective public interest override might further the objectives of the Act, it is not at all clear how a general public interest override would work. Certainly, in British Columbia, where a broad public interest override is included in the legislation, the override is not often applied to require disclosure of information exempted under other sections.

In order to strengthen the public interest override, a general provision could be added at the beginning of the part of the Act listing the exemptions or to the purpose clause in section 2 to obligate government bodies to use their discretion in favour of access and openness as opposed to exemption. Again, however, it is not at all clear that such an amendment would result in increased access to information that would otherwise be protected since the purpose clause presently seems to incorporate this principle.

Some suggest that the public interest override set out in subsection 20(6) should be extended to cover information exempted from disclosure under paragraph 20(1)(a), that is, to cover trade secrets. ⁽⁵³⁾ The Australian Law Reform Commission examined the issue of whether a public interest override ought to apply more broadly to all exemptions to disclosure under the Australian Act. The Commission noted that the Canadian Act includes a public interest override where information relates to public health, public safety or protection of the environment under s. 20(6). A number of the submissions made to the Commission opposed the introduction of a public interest test, on the basis that such a provision might jeopardise the flow of vital commercial information to government and enable businesses to gain an unfair advantage over their competitors. The Commission agreed with these submissions and recommended that the override apply only to paragraph 43(1)(c)(i), the provision exempting disclosure where it might unreasonably harm business, commercial or financial affairs. The Commission reasoned that paragraphs 43(1)(a), (b), and (c)(ii) protect valuable commercial information that, in many cases, the federal government there has obtained free of charge and in the public interest. The Commission found that protection of this information was essential to ensure that this information continues to be available to the government and that its value is not compromised by that availability. Accordingly, the Review did not propose any change to section 43 with respect to the public interest override.

However, experience shows that the public interest override has been applied sparingly, even in jurisdictions like British Columbia, where the override provision is broad and applies to all exemptions. A broader override provision may, then, not make much practical difference in that exemptions from disclosure, if properly justified, are not likely to be overridden in any case.

Similarly, inclusion of trade secrets in the override provision would allow for a balancing of public and private interests, but might not make much practical difference in terms of disclosure or exemption. However, including trade secrets in the override would, to some degree, import a harms test into paragraph 20(1)(a). Those seeking access could invoke the subsection 20(6) override and force the third party to justify why the public interest in non-disclosure should override the public interest in disclosure. This would likely require that the third party show some harm to its interests in order to justify any harm to the public interest advanced. Trade secrets would then be treated in the same manner as other commercial information, and retaining a separate provision to deal with them would not make sense.

THIRD PARTY NOTICE PROVISIONS:

Summary of the Provisions

Section 27 of the Act provides that where the head of a government institution intends to disclose a record that he or she has reason to believe may contain section 20 kinds of information, the head shall give written notice of that intention to any relevant third party. Such notice must be given if the third party can reasonably be located.

Section 28 provides that the third party notified will have twenty days after the notice is given to make representations as to why the record should not be disclosed. This amount of time seems consistent with other jurisdictions, and is in fact longer than some provinces provide. For example, Alberta only allows 14 days for a reply by the third party. The head of the institution must make a decision on disclosure no more than thirty days after third party notice is given under section 27, and must give written notice of that decision to the third party.

If the head of a government institution gives notice of its intention to disclose a document about which the third party had made representations pursuant to paragraph 28(1)(a), such notice must include a statement that the third party is entitled to request a review of the decision under section 44 within twenty days of such notice. The record cannot be disclosed until this review period has expired. If a review is applied for, the record cannot be disclosed until the review process is complete.

Section 29 provides for notice to third parties where the head of a government institution decides to disclose the record upon the recommendation of the Information Commissioner, if that third party has been entitled under subsection 27(1) or would have been so notified if disclosure had been intended. Such notice shall include a statement that the third party is entitled to request a review of the decision to disclose under section 44 within 20 days. The same restrictions on disclosure during the process as set out above apply.

Third parties are often unfamiliar with the policy of the Act and uncomfortable with the idea of access. As a result, they are likely to object to disclosure and have no incentive to have those objections resolved quickly. This must be considered in light of the public interest in access to government information as well as the public interests which the exemption provisions seek to protect. A proper balancing of these interests requires that parties be given a reasonable opportunity to provide input into the process where their interests are at stake, but this ought not unduly delay the delivery of information. This requires that notice be given in a cost-effective manner, that submissions and decisions be completed in a timely way, and unmeritorious objections be discouraged. Since third parties are often in the best position to know whether the release of their information involves section 20 concerns, it may be appropriate for them to accept responsibility for ensuring that their interests are communicated to decision-makers in an efficient and timely way.

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47. Gainers Inc. v. Minister of Agriculture (1987), 14 F.T.R. 133, affirmed (1988), 20 F.T.R. 79 (C.A.).

48. Treasury Board Manual: Access to Information; December 1, 1993.

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

50. Dekalb Canada Inc v. Canada (Agriculture and Agri-Food), [1999] F.C.J. No. 1690 (T.D.).

51. Air Atonabee ltd. v. Minister of Transport (1989), 27 F.T.R. 194 at 208 (T.D.).

52. Intercontinental Packers Ltd. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 142 at 147 (T.D.).

53. "Bryden Bill" , Bill C-264: An Act to amend the Access to Information Act and to make amendments to other Acts; 1^st Session, 36^th Parliament, 46-47 Elizabeth II, 1997-98.