Report 19 - Access to Information Review Task Force

THIRD PARTY PROVISIONS

SUMMARY OF OPTIONS FOR REFORM:

The general conclusion reached upon this review is that the third party provisions of the Act provide a good framework that balances the public interest in disclosure of government information with the public interest in ensuring that valuable commercial information is protected. While some amendments may be appropriate, particularly with respect to the notice provisions, it may be more effective to focus on ensuring that third parties are informed of government's obligations with respect to disclosure of information and are aware that some third party commercial information may not be protected from disclosure. Increased awareness of these obligations may go a long way toward encouraging the culture of open and accountable governance that the Act is designed to further.

The Task Force may wish to consider the following options for amendment to the Act and improvements to its application:

1. Paragraph 20(1)(a): the term trade secrets has been given extensive judicial interpretation and the term has, therefore, been given a clear definition in the context of the Act. Given this clear judicial interpretation, it may well follow that amendment of the Act to include an express definition is unnecessary. However, the Task Force may want to consider whether including a definition would serve to alert third parties to the narrow scope of the definition and further third party compliance with the purposes of the Act.

2. The Task Force may also wish to consider the option of repealing the trade secrets exemption entirely on the basis that such information could generally fit within other exemption provisions. However, when a review of the equivalent section in the Australian legislation was conducted, agencies and business opposed the suggestion on the basis that the exemption is necessary to ensure the certainty of protection for intellectual property rights. In the Australian context the exemption was found to be necessary to ensure that information with commercial value, but unrelated to business or professional affairs, would continue to be protected.

3. Subsection 20(6): This subsection could be amended to include consumer protection, could be broadened to include disclosure of trade secrets, or could be broadened so that it applied to all exemption sections of the Act, rather than simply to the third party regime. Experience in jurisdictions with a broad public interest override tends to show that these provisions are rarely applied. The test as it is currently applied is high and applicants are rarely able to show a public interest in disclosure that overrides the public and private interests in exempting information from disclosure that falls with the protected areas. If the override were to be broadened in application, a general provision could be added at the beginning of the exemption to obligate government bodies to use their discretion in favour of access as opposed to exemption. That is, the standard for application of the public interest override could be expressly lowered.

4. The inclusion of trade secrets in the override provision would allow for a balancing of the interests in disclosure and exemption. However, given the current high test for application of the public interest override, it is unlikely that including trade secrets in the matters covered by the override would make a great deal of practical difference. As well, including trade secrets in the override would import a harms test into paragraph 20(1)(a) and third parties seeking to overcome application of the override would have to show some harm to its interest in order to resist disclosure. Trade secrets are expressly not subjected to a harms-based test and the advisability of importing this type of test through a side door should be thoroughly canvassed before such an amendment is made.

5. Notice provisions: The notice requirements can place an undue burden on public bodies where the interests of multiple third parties may be engaged by possible disclosure of the information. The delay associated with requirements to deliver notice to each third party individually may seriously impact the value of time-sensitive information. Further, logistical burdens associated with the release of such documents may influence decision-makers to avoid release. Amendment of the Act to include provisions for substituted service would facilitate the timely release of information. Notice requirements could be effected in a variety of alternative forms including: postings in media, trade journals, or on the Internet; or by e-mail notices. These notice requirements could be set out in amendments to the Act or by regulation.

6. Third parties are concerned that the twenty day time limit is not sufficient for provision of submissions. This time frame appears to be consistent with those in other jurisdictions and is likely reasonable. Third parties should be encouraged to explore methods for increasing the efficiency of their responses.

7. There are no requirements that the actual review hearing be completed in a timely way. Deadlines for these determinations would encourage third parties to resolve these disputes expeditiously. This delay may also be dealt with by amending the Act so that the Information Commissioner initially reviews third party complaints, rather than the Federal Court.

8. Discouraging unmeritorious objections: Amending the Act to make it explicit that the burden is on the party who is attempting to deny disclosure may serve an important public education function, by making it clear to third parties that only serious objections should be filed. This onus is clearly established in the case law, but may not be readily understood by third parties.

9. In addition, unmeritorious objections might be discouraged if cost sanctions were imposed such that unsuccessful third parties could be liable for the costs of section 44 applications in certain circumstances. Cost sanctions can currently be imposed under subsection 53(1). As well, cost sanctions can be imposed by the Federal Court under Part 11 of the Federal Court Rules. However, making the possibility of costs sanctions explicit within the third party provisions of the Act might serve an important public education function and encourage the Court to utilize the cost provisions in a manner which more directly addresses problems of delay arising from unmeritorious third party proceedings.

10. Education: When third parties do business with government, they likely need to be made aware of and reminded of the disclosure requirements under the Act. Information sheets could be developed by agencies so that third parties are informed of disclosure requirements when they provide information to government agencies. This practice could be extended to include a summary of disclosure obligations in such documents as calls for tenders for government contracts. Providing this sort of information might help improve third party awareness of their obligations without necessitating legislative amendment.

11. In addition, a culture of openness could be fostered by providing targeted educational programs for corporate third parties and government agencies dealing on a regular basis with corporate clients. This type of educational initiative could help to ensure that information management and disclosure obligations are understood and might improve compliance with the Act.

12. The Act could be amended to provide a more informal complaint process under which third parties could bring complaints with respect to disclosure of section 20 information directly to the Office of the Information Commissioner. Such a process could incorporate alternative dispute resolution processes and could result in a more efficient complaints process that could also foster increased understanding of access to information requirements by third parties.

13. In essence, this review has concluded that the third party provisions of the Act are generally serving the purposes for which they were designed. Minor amendments could be made to the Act to improve third party understanding of their obligations and to streamline notice provisions. In addition, education and information initiatives could serve to increase third party understanding of their disclosure obligations when they do business with government. If the third party provisions are to function in accordance with the purposes of the Act, both corporate third parties and agencies doing business with third parties must understand the rationale and imperative of open and accountable governance.

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