Report 19 - Access to Information Review Task Force

THIRD PARTY PROVISIONS

ANALYSIS

Are the categories of protected information adequate and clear enough to bridge the gaps between the interpretation of the Act by government and industry?

As early as 1987, the third party provisions of the Act were criticized for failing to provide precise exemptions. ⁽⁵⁴⁾ A 1992 study showed that about two-thirds of cases taken to the Federal Court on access to information involved corporate applications to prevent the release of commercial information. ⁽⁵⁵⁾ Although the third party provisions of the Act have been extensively litigated, third parties often remain somewhat reluctant to accept the interpretation of the criteria by government officials. This leads to frequent challenges of decisions to disclose. Arguably, those third parties might be more willing to accept government's interpretation of the criteria if the terms were more extensively defined in the legislation.

The 1987 Review of the Access to Information Act ⁽⁵⁶⁾ recommended that the following definition of "trade secrets" be included in the Act:

A secret, commercially valuable plan, formula, process or device, that is used for the making, preparing, compounding or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.

In response, government suggested that it would consider including a definition if a uniform definition were developed for use in the Criminal Code and provincial legislation dealing with protection of trade secrets. ⁽⁵⁷⁾

Some agencies distribute fact sheets to third party applicants outlining what must or may be disclosed under the Act. This practice could be extended to include a summary of disclosure obligations in such documents as call for tenders for government contracts. Providing this sort of information, that could include some definition of the terms, might help improve third party awareness of their obligations without necessitating legislative amendment.

Firms choosing to bid on government contracts should be advised that bid details and the details of the final contract are publicly accessible information. Third parties must be aware that disclosure of such information is vital to foster transparency and public confidence that taxpayer dollars are being well-spent. Section 20 could be amended to explicitly ensure that all bids submitted for government contracts can be disclosed, rather than just winning bids.

In addition, to foster a culture of openness targeted educational programs could be developed for corporate third parties and government agencies dealing on a regular basis with corporate clients to ensure that information management and disclosure obligations are understood to ensure compliance with the Act.

As well, some suggest that security and safety information should be included in the list of types of protected information set out in paragraph 20(1)(b). The Act currently addresses security and safety issues under sections 16 and 17. Subsection 16(2) provides that the head of a government institution may refuse to disclose any record requested under the Act that contains information that could reasonably be expected to facilitate the commission of an offence, including without restricting the generality of the foregoing, any such information (a) on criminal methods or techniques; (...) or (c) on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems. Section 17 provides that the government may refuse to disclose any record requested under the Act that contains information that could reasonably be expected to threaten the safety of individuals. While these provisions are broad enough that they should apply to limit the disclosure of third party information that would violate these sections, they do not necessarily provide for notice to third parties or an opportunity for making submissions as to the disclosure of the information. However, where information that government sought to withhold as safety or security information also fell within one of the categories set out in subsection 20(1), notice would be required. It is difficult to imagine third party safety or security information that would not fit within section 17 or section 20 and therefore require third party notice. Thus the Act likely already deals adequately with issues relating to security and safety information.

The categories of information exempted from disclosure under subsection 20(1) have been extensively judicially considered. The definitions are, thus, clearly established and there will likely always be some disagreement as to whether particular information falls within these categories and should thus be exempt from disclosure. Rather than amending the legislation to explicitly define terms, it may be beneficial to seek to increase awareness in corporate communities as to the categories of information that may have to be disclosed by including statements in calls for tenders and other such documents, setting out the obligations of disclosure that may impact upon third parties.

What are the implications, if any, of failing to provide guaranteed protection for third parties providing information to the government?

There is some tension between the purposes of access to information legislation and the commercial interests of third parties dealing with government. In 1977 the Williams Commission reviewed Ontario's practices with respect to public information and made recommendations to improve public information policies and legislation. The Williams Commission suggested that:

... business information is collected by government institutions in order to administer various regulatory schemes, to assemble information for planning purposes, and to provide support services, often in the form of financial or marketing assistance, to private firms. All these activities are undertaken by the government with the intent of serving the public interest; therefore, the information collected should, as far as is practicable, form part of the public record. ⁽⁵⁸⁾

The public interest in encouraging transparency in government justifies liberal disclosure of information. There is, however, also a public interest in ensuring that not all commercial information be accessible to the public. All access to information legislation provides exemptions from disclosure for information that is commercially valuable. If such protection were not provided, the viability of some businesses would be jeopardized and investment in the creation of new technologies or processes would be stifled. In general, business has an interest in ensuring that its trade secrets or business methods are protected.

Courts have in some instances provided time limits on protection of information, in recognition that the value of information may be time-limited. While some sort of time-limited protection for confidential business information could be expressly included in the Act, this sort of determination is likely too fact-specific in nature to allow for reasonable limitation periods to be established. As the courts do appear to be cognizant of this factor, it may be better to leave such determinations to third party consent and to the courts for appropriate determination in each case. The business community must recognize that it is a privilege to do business with government, rather than a right. The business community must accept the reality that when business is conducted with government, whether by securing government contracts or by participating in regulated industry, the public interest in open and accountable government may mandate disclosure of third party information. The public interest in the protection of commercially valuable information must be balanced against the public's right to know and this balance may mandate disclosure in some circumstances.

Should a distinction be made between third party information provided to government voluntarily and information provided involuntarily?

Information supplied to public bodies may be provided voluntarily, as in the case of tender documents, or on a compulsory basis, such as when it is submitted in order to fulfil regulatory requirements. Several jurisdictions include provisions excepting information from disclosure where disclosure could result in similar information no longer being supplied to the public body where it is in the public interest that similar information continue to be supplied. ⁽⁵⁹⁾ Currently, section 20 of the Act does not contain such a provision.

Connelly notes that where the information is collected by an agency under statutory compulsion, courts have not found that disclosure would impair the government's ability to gather such information in the future. ⁽⁶⁰⁾ Connelly suggests that this results in a situation where the benefit to government of voluntary, as opposed to compelled, disclosure of information by industry is not recognized.

The American view of "confidentiality" has been set out in National Parks and Conservation Ass'n v. Morton. ⁽⁶¹⁾ Although the American legislation ⁽⁶²⁾ does not expressly contain such an exception, the U.S. legislation has been judicially interpreted such that commercial information is confidential where the release would either impair government's ability to obtain similar information in the future or cause substantial competitive harm to the person from whom it was obtained. ⁽⁶³⁾ This differs from the Canadian definition of confidentiality. The Federal Court found that the Canadian Act does not consider whether disclosure would result in injury to the government or the third party in the test for confidentiality. Thus, in Canada, the test deals only with the nature of the information itself, its purpose, and the conditions under which it was prepared and communicated.

In Nöel and Great Lakes Pilotage Authority Ltd. et al., Dubé J. concluded that information obtained as a result of a regulatory obligation on a third party to report information to government could not be deemed to be confidential on the basis that its disclosure would likely impair government's ability to acquire the information in future, particularly in circumstances where there were advantages accruing to the third party from reporting. ⁽⁶⁴⁾

In Air Atonabee, the applicant's argument was based on the special relationship of confidence that arises in communications between inspection staff and industry operators. It was asserted that the inspection staff must rely on industry operators for knowledge and experience in the operation of aircraft, especially in light of the limited resources available to oversee an expanding and diversifying industry in a climate of deregulation. Inspectors have stressed the importance of relationship-building between inspectors and the monitored industry. The inspectors' primary priority is to ensure compliance with the industry standard and to ensure that problems are corrected. They suggest that this is best accomplished by maintaining a strong network of contacts in the industry. ⁽⁶⁵⁾ In Air Atonabee, the applicants submitted that the relationship between parties in a regulatory regime is one of confidence that warrants exemptions from disclosure of all the records maintained by government arising from this relationship.

MacKay J. acknowledged that there is a public interest in fostering such relationships by treating as confidential those communications which originate with the applicant where the applicant has considered them confidential. MacKay J. suggested that this would encourage the third party to be open and frank with inspectors. Information originating with the government, however, is treated as confidential only where the relationship is exceptional and warrants treating the records as confidential. MacKay J. held that:

(...) for records originating in departmental responsibilities, compiled by public officers at public expense, in this as in other regulatory regimes, unless there be reasons to support an exceptional conclusion that the public interest is better served by treating the records as confidential, the records would not be considered confidential for the purposes of the Act. ⁽⁶⁶⁾

This suggests that there may be public interests taken into account in assessing whether records originating with the government are to be considered confidential, aside from the special public interests identified in subsection 20(6) which may be considered by the head of the government institution concerned. Classifying information as confidential because of an identified public interest would not preclude its release under subsection 20(6) in a proper case.

In Australia and New Zealand a distinction is made between compulsorily acquired commercial information and other commercial information. In these jurisdictions, the courts have been slow to allow public interest considerations to justify disclosure of compulsorily acquired commercial information. In Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal [No. 2], ⁽⁶⁷⁾ the Australian Administrative Appeals Tribunal drew a distinction between "truly government documents" and documents that "consist simply of business information supplied to government by direction with the authority of statute". The Tribunal indicated that in its view, the public interest override should be applied with greater force in the case of the former on the basis that "truly government documents" are those in which government dealings with business are involved.

In Mauri Gas Reserves, ⁽⁶⁸⁾ the New Zealand Ombudsman declined a request for access to information which had been supplied to a public body under statutory compulsion, on the basis that any prejudice which might arise from disclosure of information supplied under compulsion would clearly be unreasonable. On the other hand, on considering whether such principles should inform application of Ireland's access to information legislation, Maeve McDonagh suggests that it could be argued that "the very fact that information has been acquired under statutory compulsion may be indicative of strong public interest in such information being disclosed under FOI". ⁽⁶⁹⁾

The American test, as set out in National Parks v. Morton, has been further developed to provide greater protection to information which is voluntarily supplied to the government in a series of cases involving the Critical Mass Energy Project. In one of the early cases in this series, D.C. Circuit Court Judges Randolph and Williams held that if it were a question of first impression, they would "apply the common meaning of the word "confidential" and would reject the National Parks test". However, the Court recognized that given the almost twenty year application of this test, they were not at liberty to simply apply their own definition. The government petitioned for an en banc rehearing and the full panel's decision was issued in August 1992. ⁽⁷⁰⁾ The Court held that there was insufficient justification for abandoning so well-established a precedent, but did go on to "correct some misunderstandings as to its scope and application". ⁽⁷¹⁾

The Court specifically confined the National Parks test to the category of cases where the third party was obligated to supply the information to government. The Court established a new standard where information is "voluntarily" submitted. The Court held that voluntarily supplied information is protected in the U.S. regime where it would not be "customarily" disclosed to the public by the submitter. ⁽⁷²⁾

The Court held that such a distinction was justified because different interests are implicated depending on whether the submission of the information is compelled or voluntary. Where the submission is compelled, the submitter has an interest in preventing any commercial disadvantage which may result from disclosure. This concern is recognized under the National Parks test. Where the information is voluntarily supplied, the submitter may have a different interest B that of protecting information that would customarily not be released to the public by the person from whom it was obtained. Since the government has an interest in encouraging voluntarily supplied information in the regulatory context to ensure the continued availability of this information, a higher degree of protection may warranted. Thus, under the new test, the National Parks analysis applies to information submitted under compulsion, but if the information was supplied voluntarily, it would be considered confidential for the purposes of the exemption if it is of a kind that would customarily not be released to the public by the person from whom it was obtained. This test is still an objective test and the party invoking it has the burden of meeting the criteria. ⁽⁷³⁾

The Court recognized that this new test might lead government agencies and industry to conspire to keep information from the public by agreeing to the voluntary submission of information that the agency has the power to compel. This objection was dismissed on the basis that there is provision in FOIA that obliges agencies to exercise their regulatory authority in a manner that will maximize the amount of information that will be made available to the public through the Act and that it did not see any reason to interfere with government's exercise of its own discretion in determining how it can best secure the information it needs.

In applying this analysis, the U.S. Department of Justice has concluded that a submitter's voluntary participation in an activity such as seeking a government grant, loan or contract, does not govern whether submissions made with respect to that activity are voluntary or compulsory. ⁽⁷⁴⁾ In this application, information can be considered to be compelled in any context if the information at issue is required to be submitted by those who choose to participate in the activity. Essentially, where the information must be submitted as a condition of doing business with the government, as in the case of loan or grant applications or submission of contract tenders, it will be subject to the National Parks test. That is, submissions required for participation in a voluntary program are still considered to have been submitted under compulsion. Under this analysis, submission of a post-marketing study for approval of a new drug and documents submitted for approval for the merger of two banks were considered to be compelled, despite the third parties' attempts to claim they were submitted voluntarily. Several cases have interpreted the Critical Mass test to find that where contractors submit tenders for contracts, the terms of those bids are compelled, in that they must be provided in order to have a chance of winning the contract and are, thus, not voluntarily supplied. ⁽⁷⁵⁾

The rationale for the Critical Mass test is to provide an incentive for voluntary submission of accurate and reliable information. However, in application, this test could result in situations where, once a third party can meet the high test of showing that the information was provided voluntarily, it will only have to show that information is of a type that it would customarily not release to the public, in order to obtain the protection of the exemption from disclosure. Despite the statement that this is an objective test, this test would seem to give the third party's characterization of the information a great deal of weight in the analysis. Canadian courts have expressed a concern in allowing the third party's characterization of the information to govern disclosure. Canadian Courts have held that it is not enough that the third party treats the information as confidential: rather, the information must be shown to be confidential by some objective standard. ⁽⁷⁶⁾

The Federal Court was faced with a determination with respect to voluntary submission of an unsolicited contract tender in Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence). ⁽⁷⁷⁾ In that case, a company anticipated what it thought the Department of National Defence needs might be and submitted an unsolicited proposal. The proposal was not accepted and a later call for tenders was published. O'Keefe J. did not specifically analyse the voluntary/compulsory distinction, but did find that the third party did meet all the criteria for the confidential information test as set out in Air Atonabee. It appears from this application that the Canadian test is sufficient to meet a voluntary/compulsory distinction and that a further exemption, such as that set out in Critical Mass, may not be warranted. Given the increased litigation spawned by the Critical Mass test in the U.S. it does not appear that this distinction would further the purposes of the Act. Rather, inclusion of such an explicit distinction is not necessary and could easily result in increased litigation as third parties attempt to bring their information within this type of less stringent test.

The British Columbia Information and Privacy Policy and Procedure Manual lists a number of factors, including whether the information was supplied voluntarily, which may be considered when determining if information was supplied in confidence. ⁽⁷⁸⁾ The British Columbia Act also includes the provision under the clause 21(1)(c)(ii) harms-based test for exemption from disclosure where disclosure could reasonably be expected to result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied.

Fletcher Challenge Canada Ltd. v. The Information and Privacy Commissioner ⁽⁷⁹⁾ dealt with the voluntary release of waste management records which could have been compelled, but were not in this case. Fletcher Challenge, citing the importance of cooperative relationships between government and industry in the regulatory context, argued that compellable information is not "similar information" to information voluntarily supplied (that is, that a distinction should be made) for the purposes of clause 21(1)(c)(ii) of the British Columbia legislation. The Information Commissioner had held in the decision being reviewed by the Court that it was not appropriate to require analysis of two elements of similarity in interpretation of the term. The company had argued that this interpretation demanded assessment of whether the information was of the same kind, but also whether the circumstances that prompted its being supplied would remain essentially the same (that is, that it would continue to be volunteered, even though the information could be compelled). The Court found that the Commissioner's interpretation was not unreasonable and upheld his decision. Lowry J. also commented that the Commissioner's decision was indicative of the limited extent to which the industrial community could expect to communicate privately with government regarding protection of the environment.

In other cases dealing with the issue of encouraging industry to cooperate in the supply of information in the regulatory context, the British Columbia Information and Privacy Commissioner has set a high test for finding that information would no longer be supplied. ⁽⁸⁰⁾ The Commissioner has held that it is open to government to find means to compel disclosure of information and encouraging voluntary disclosure is not a sufficient reason for the exemption to apply where there are other means of obtaining the information. This analysis does accord with the central purpose of such legislation B to facilitate and encourage openness and accountability.

Despite the application of a less stringent test in the U.S context for information that has been voluntarily supplied, such a distinction does not seem to be appropriate in the Canadian context. Even in jurisdictions like British Columbia, where the legislation expressly includes recognition of the importance of ensuring that similar types of information will continue to be supplied to government, any distinction between information disclosed voluntarily and compelled information has been construed very narrowly in conformity with the purposes of the Act.

Can the notice provisions of the Act be improved?

1. Form of Notice

There are also procedural barriers to transparency in private sector dealings with government. Where there are a large number of affected parties, the requirement of providing each party with an individual notice may raise very practical procedural difficulties. The delay associated with such notices may have a serious impact on those who request information, particularly if that request is time-sensitive. In addition, the logistical burdens associated with such a requirement may influence decision-makers to avoid contemplating the release of such documents.

Where there are many third parties, direct notice and consultation can be impractical. The path of least resistance may lead government officials to simply refuse disclosure, attempting to offload the dissatisfied applicant and the notice and consultation problems on to the Information Commissioner.

It may therefore be appropriate to adopt alternative forms of notice. For many years, substituted service in various forms has been ordered by courts when it is impractical to serve a party personally. Class action legislation provides that class members may be given notice of action which may affect their legal entitlement through a number of means, including publications and postings.

Depending on the type of third party affected, it may be appropriate to post notices in various media or trade journals. Posting of notices on the Internet may also be considered. The new Personal Information Protection and Electronic Documents Act ("PIPEDA") provides that electronic means of distributing and publishing information can be specified by regulation. For certain types of third parties, it may be appropriate to develop electronic mail lists which allow for instant and inexpensive service. As noted earlier, it may be appropriate to inform third parties of the requirements of the Act at the time that they provide information to government agencies. At the same time, information regarding alternative forms of notice should also be provided.

There is a substantial body of case law which explores what constitutes adequate notice in the context of the general duty of fairness. The content of reasonable notice will vary depending on the circumstances. Generally, notice must be adequate in all the circumstances to allow those affected to have a reasonable opportunity to participate. Where specific notice requirements are set out in legislation, failure to comply with those requirements will invalidate a decision. However, where there is a discretion as to the manner in which notice may be given, the exercise of that discretion will be reviewed on a standard of reasonableness.

An amendment of the Act which explicitly provides that notice may given in a number of specified ways, or in any appropriate manner, would put third parties on notice that alternative forms of notice may be used. Alternatively, given the PIPEDA and the fact that section 77(10(b) provides for regulations prescribing the procedure for responding to a request for access, the implementation of new types of notice methods may be achieved through regulation.

In Air Atonabee ⁽⁸¹⁾, the issue of disclosure of records created by government with respect to a third party without the knowledge of that third party was considered. In such a circumstance, the public body may disclose records that it does not deem to fall within subsection 20(1), and for which notice of disclosure is therefore not required, without the knowledge of the third party. Mackay J. suggested that this concern could be addressed simply by ensuring that internal records compiled pursuant to ongoing regulatory processes are simultaneously provided by copy to any third party whose interests are dealt with in the records so that they may, if they wish, respond or comment. MacKay J. suggests that this would simply be good manners and would provide a measure of fairness if comment or response from the party affected were retained on government files with the internal records relating to that third party.

Whenever possible, third parties should be encouraged to provide their positions on the release

of information at the time that the information is submitted to government. If third parties have informed government that they take the position that a record includes information that they believe should be exempted under subsection 20(1), that will likely ensure that they will receive a third party notice. It will also ensure that third parties have turned their minds to what subsection 20(1) concerns may be raised, so that once notice is received, submissions can be completed in a more timely way. In cases where third parties take the position that no subsection 20(1) concerns are raised, prior notice to this effect provided to government will reduce the potential for delay and expense associated with unnecessary third party notice.

2. Timing

(i) providing submissions

Third parties have concerns that the twenty day time limit is insufficient for them to provide submissions. One option would be to extend the amount of time available for a third party to make submissions. However, the time frame is consistent with those in other jurisdictions; in fact, Alberta requires that submission be made within 14 days. If alternative forms of notice are adopted, the twenty day period will run from the time notice is deemed to be completed, either because it is specified by the statute or regulation, or because it is reasonable in all the circumstances to assume notice was effected at that time.

Third parties should be encouraged to explore methods for increasing the efficiency of their responses. For example, third parties who deal often with government could be encouraged to conduct systematic reviews of the type of information which they provide to government in order to determine whether there are subsection 20(1) concerns associated with that type of information generally. This would assist third parties in responding to individual requests.

If parties are informed at the time of providing information that it is subject to the Act, and notified of the twenty day time frame, they may be motivated to develop internal guidelines which assist them in responding to specific notices in a timely way. In this way disclosure of information that does not fall within the categories of exemption might be encouraged and facilitated.

(ii) pursuing reviews

A second timing issue arises with respect to the ability of third parties to seek, under section 44, a review of a decision to disclose a record. While the third party must file a request for review under section 44, there is no requirement that the actual hearing be completed in a timely way. Additional deadlines regarding these determinations would encourage third parties to move expeditiously to have these matters resolved.

3. Discouraging Unmeritorious Objections

As third parties become more familiar with the policy and procedures under the Act, they may adopt an attitude of increased openness regarding access, as has occurred within government. However, at this time, those unfamiliar with the system are likely to object to disclosure as a matter of course, since there is little motivation for them to consent. A combination of education and disincentives may address this reluctance to disclose information.

It should also be remembered that the trigger for a section 20 notice is that the head of the government body has reason to believe that the requested record includes the type of information that falls within subsection 20(1). In many jurisdictions, the practice is to consult with third parties to determine whether it is appropriate for notice to be given B in other words, to assist the government body in determining whether the record is one which might contain section 20 information.

However, it is not clear that the government is required to seek out such advice from third parties at this stage. In Sawridge Indian Band, ⁽⁸²⁾ the Court decided that the decision not to issue a third party notice was not reviewable under section 44. The Court held that the appropriate standard for reviewing a decision to give such notice is whether the judgment was made taking relevant facts into consideration. While the head of the public body needs some facts on which to make a decision as to whether third party notice is required, if on a review of the facts the head of the public body does not have any reason to believe such notice is required, he or she may not be required to consult with third parties on that question.

Despite the uncertainty as to whether there is a requirement to consult, it may be advantageous in some situations for public bodies to consult with third parties when a decision is made with respect to the applicability of section 20. This may particularly be the case where the disclosure requested relates to a type of information which is being sought for the first time. The third party will often be the best source of facts and information needed to make a determination as to whether an exception applies to the requested information.

As well, amending the Act to make it explicit that the burden is on the party who is attempting to deny disclosure may serve an important educative purpose, by making it clear to third parties that only serious objections should be filed. This onus is clearly established in the case law with respect to application of the Act, but may not be readily understood by third parties.

Consideration could also be given to some form of sanction to be applied to third parties who object for frivolous or unmeritorious reasons. Sanctions are likely not appropriate or necessary at the submissions stage - wholly unmeritorious submissions can simply be dismissed. However, if the matter is pursued through a section 44 review, it may be appropriate to make unsuccessful third parties liable for the costs of these applications in certain circumstances. This result is possible in light of the discretion of the Court that is to be exercised under section 53 of the Act. In Sheldon Blank & Gateway Industries Ltd. v. The Minster of the Environment ⁽⁸³⁾, the court dealt with the issue of delay. In that case, despite the fact that there were 7,655 pages of documents and significant third party consultations, the period of delay was found to be inordinate and to have contravened the policy of dealing with access requests in a summary manner. The Court awarded costs to the applicant under s.53(1). Making cost sanctions explicit in the Act may serve an important public education purpose and encourage the Court to utilize the costs provisions in a manner which more directly addresses the problem of delay arising from unmeritorious third party proceedings.

Should third parties be provided a means to file a complaint with the Information Commissioner, rather than appealing decisions directly to the Federal Court?

Subsection 30(1) provides that applicants who are denied access to information may file a complaint with the Information Commissioner. Upon receipt of the complaint, the Information Commissioner must review the decision to refuse disclosure, and make a recommendation to the head of the government institution if disclosure is found to be warranted. However, third parties who object to a decision to disclose information cannot file a complaint with the Information Commissioner. Rather, they must apply to the Federal Court for a review of the matter within 20 days of being notified of the intention to disclose.

The Ontario and British Columbia Acts do give third parties the right to ask the provincial Information Commissioner for review of a decision by a public body. The Information Commissioners in these provinces are also mandated to issue binding orders once they have completed an inquiry. In theory at least, in these jurisdictions, third parties have a more efficient, accessible and expedient means of addressing their concerns with respect to disclosure.

However, amending the Act to confer similar adjudicative powers on the federal Information Commissioner raises some concerns. Some fear that the number of complaints initiated by third parties would increase if a more accessible complaints process were provided, resulting in increased delays in providing access to information. There is also concern that such a process could result in an increase to the Information Commissioner's caseload and could result in backlogs in that system if appropriate funding and infrastructure were not provided concurrently.

In British Columbia, of the 823 requests resolved by the Information Commissioner in the year 2000, only 11 complaints were initiated by third parties. ⁽⁸⁴⁾ In Ontario, 20 of 857 appeals to the Information Commissioner were initiated by a third party. ⁽⁸⁵⁾ By comparison, the federal Information Commissioner completed 1,337 investigations in the year 2000, while 34 applications were made by third parties under section 44 to the Federal Court. ⁽⁸⁶⁾ This seems to suggest that the number of third party complaints is not significantly affected when initial reviews are performed by the Federal Court as opposed to the Information Commissioner. In addition, the total number of third party complaints handled by the provincial Information Commissioners is small (1-2% of all complaints). An amendment to the Act allowing the Federal Information Commissioner to initially review third party complaints would probably not increase the Commissioner's caseload significantly.

The Ontario and British Columbia Acts authorize the Commissioners in those provinces to utilize alternative dispute resolution mechanisms. The majority of complaints in these provinces are resolved using informal methods. In Ontario, 72% of appeals in 2000 were closed without the need for a formal order. ⁽⁸⁷⁾ In British Columbia, 88% of all reviews were resolved through mediation, including 10 of the 11 third party complaints. ⁽⁸⁸⁾ Using mediation to resolve access to information disputes may be an effective way to address concerns about any increase in the number of complaints handled by the Commissioner, as the majority of complaints could be resolved through delegation to mediation staff. In addition, mediation can serve as an educational tool and the process can result in greater understanding between parties as to their roles and responsibilities.

Authorizing a complaints process through the Information Commissioner's Office, rather than through the Federal Court, may then provide a more efficient, expedient and accessible process for resolution of third party complaints. In 1992, a court decision on a section 44 application took 22 months. ⁽⁸⁹⁾ The time-lines for reviews by the Information Commissioner are much shorter. For example, the estimated time period for conducting a review was 5.4 months in the year 2000. ⁽⁹⁰⁾ Lengthy delays in the court process present a procedural obstacle to access to information and an amendment to the Act authorizing the Information Commissioner to initially review third party complaints should be given consideration.

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54. David Schneiderman, "The Access To Information Act: A Practical Review" (1987) 7 Advocates' Quarterly 474-491, at 481.

55. Tom Onyshko, "The Federal Court and the Access to Information Act", (1993) 22 Man. L.J. 73-144.

56. 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 26.

57. The Steps Ahead. The Government's Response to the Report of the Standing Committee on Justice and Solicitor General. Ottawa, Dept. of Justice Canada, 1987.

58. Williams Commission Report, Vol. 2 at 312-313.

59. Discretionary provisions to this effect are included in access to information legislation in the following jurisdictions: Alberta [s.15(1)(c)(ii)]; British Columbia [s. 21(1)(c)(ii)]; Manitoba [s.18(1)(c)(iv)]; Ontario [s. 17(1)(b)[; Australia [s.43(1)(c)(ii)[; Ireland [s.26(1)(a)]; and New Zealand [s.9(2)(b)(i)].

60. M. Q. Connelly, "Freedom of Information and Commercial Confidentiality, in John D. McCamus, Freedom of Information: Canadian Perspectives, (Toronto: Butterworths, 1981).

61. National Parks and Conservation Ass'n v. Morton,498 F. 2d 765 (D.C. Cir. 1974) at 770.

62. 5 U.S.C. s. 552(b)(4)

63. M. Q. Connelly, "Freedom of Information and Commercial Confidentiality", in John D. McCamus, Freedom of Information: Canadian Perspectives, (Toronto: Butterworths, 1981) at 104.

64. Nöel and Great Lakes Pilotage Authority Ltd. et al. (1987), 45 D.L.R. (4^th) 127 (F.C.T.D.).

65. John C. Clifford, Inspection: A Case Study and Selected References, (Law Reform Commission of Canada, 1988).

66. Air Atonabee Ltd. v. Canda (Minister of Transport), [1989] F.C.J. No. 453 at 19 (T.D).

67. Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal [No. 2] (1985) 7 A.L.D. 584.

68. Mauri Gas Reserves, 9 C.C.N.O. 114 (N. Tollenmarche).

69. M. McDonagh, Freedom of Information Law in Ireland, (Dublin: Round Hall Sweet & Maxwell, 1998) at 262.

70. Critical Mass Energy Project v. NRC 975 F. 2d 871, 877 (D.C. Cir. 1992).

71. Critical Mass, ibid at 875.

72. Critical Mass, ibid at 877-79.

73. Critical Mass, ibid at 878.

74. Department of Justice, FOIA Update, Vol. XiV, No. 2 at 3-5, "OIP Guidance: The Critical Mass Distinction Under Exemption 4".

75. McDonnell Douglas Corp. v. NASA, 981 F. Supp. 12, 15 (DDC 1997); Martin Marietta Corp. v. Dalton, 974 F. Supp. 37, 39 (DCC 1999); CC Distribs. v. Kinzinger, No 94-1330, 1995 SL 405445 at 4 (DCC, 1995); Chemical Waste Management Inc. v. O'Leary, No. 94-2230, 1995 WL 115894 at 4 (DCC, 1995).

76. Maislin Industries Ltd. v. Minister for Industry Trade and Commerce, Regional Economic Expansion, [1984] 1 F.C. 939 at 944 (T.D.).

77. Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), [2000] F.C.J. No. 828.

78. British Columbia, Policy and Procedures Manual: The Freedom of Information and Protection of Privacy Act, http://www.ista.gov.bc.ca/foi_pop/manual/c4.12.htm at C.4.12: Section 21, paragraph 21(1)(b).

79. Fletcher Challenge Canada Ltd. v. The Information and Privacy Commissioner, (1996) (Vancouver Registry No. A953676) (B.C.S.C.).

80. Office of the Information and Privacy Commissioner, Order No. 57-1995, Inquiry re: A request by the Dunbar Residents Association for environmental test results on a Vancouver site submitted to the Ministry of Environment, Lands and Parks by Chevron Canada Limited; Office of the Information and Privacy Commissioner, Order No. 67-1995, Inquiry re: A request to the Ministry of Environment, Lands and Parks for reports of the North Fraser Harbour Commission concerning contamination of a Vancouver site; Office of the Information and Privacy Commissioner, Order No. 288-1999, Inquiry re: Requests for a record relating to superferry construction in the custody or under the control of the Job Protection Commission and the British Columbia Ferry Corporation; Office of the Information and Privacy Commissioner, Order No. 01-26: Financial Institutions Commission.

81. Air Atonabee Ltd. v. Minister of Transport (1989), 27 F.T.R. 194.

82. Sawridge Band v. R., (sub nom. Sawridge Band v. Canada) [1997] 3 F.C. 580, (Fed. C.A.),

83. Sheldon Blank & Gateway Industries Ltd. v. The Minister of the Environment (T-1111-98 Trial Division).

84. Office of the Information and Privacy Commissioner for British Columbia, Annual Report 2000 at 16.

85. Information and Privacy Commissioner of Ontario, Annual Report 2000 at 32.

86. Information Commissioner of Canada, Annual Report Information Commissioner 2000-2001 at 107.

87. Information and Privacy Commissioner of Ontario, Annual Report 2000 at 29.

88. Office of the Information and Privacy Commissioner for British Columbia, Annual Report 2000 at 16.

89. Tom Onyshko, "The Federal Court and the Access to Information Act" (1993) 22 Man. L. J. 73.

90. Information Commissioner of Canada, Annual Report Information Commissioner 2000-2001 at 79.