Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Section 20 - Third Party Information

	The second most frequently claimed exemption, Section 20 accounted for 23.9% of exemptions claimed in 2000-2001.
	[T]he third party provisions of the Act provide a good framework that balances the public interest in disclosure of government information with the public and private interest in ensuring that valuable commercial information is protected. Murray Rankin, Kathryn Chapman Research Report 19

Section 20 is intended to protect confidential commercial information which third parties provide to the government. It parallels Section 18, which protects the government’s own information of a commercial nature.

This is a mandatory exemption, requiring the head of a government institution to refuse to disclose any record containing:

• trade secrets;
  
  
• confidential commercial, financial, scientific or technical information that a third party supplies to the government, and consistently treats in a confidential manner;
  
  
• information, which if disclosed, could reasonably be expected to result in a material financial loss or gain to, or prejudice the competitive position of, a third party; or
  
  
• information, which if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party.

There are three qualifications to the exemption:

• the head of a government institution cannot refuse to disclose the results of product or environmental testing carried out by, or on behalf of, a government institution, unless it was done for a third party and for a fee;
  
  
• information may be disclosed, provided the third party to which it relates consents; and
  
  
• as noted earlier in our report, the head of a government institution may disclose a record subject to the exemption (other than a trade secret), 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 in importance the interests protected by the exemption.

The provision must be viewed together with Sections 27, 28, 29 and 44 of the Act, which describe the notice and appeal rights of third parties.

Section 20 is one of the most frequently claimed exemptions, second only to the exemption for personal information (Section 19). The Information Commissioner is concerned that the exemption is abused and over-litigated – presumably because of a widespread reluctance on the part of third parties to have information of a commercial nature disclosed. However, the higher rate of litigation is also due to the high degree of interaction between the government and third party business interests, and the large number of access to information requests from business (40 per cent of total requests).

We believe that the provision is basically sound, and that the courts have consistently applied it as originally intended by Parliament. This is one of the few areas of the Act where there is a substantial body of case law. Therefore, changes being recommended are essentially to clarify the current exemptions and the public interest override, and to reform the administrative practices relating to third party information.

The 1986 Parliamentary Committee recommended that the Act be amended to include a “narrow” definition of trade secrets. In its view, this would help distinguish them from other confidential commercial information protected by the exemption. However, the courts have in fact applied a very narrow definition of trade secrets in the context of access to information. It is our view that the addition of a definition to the Act is therefore unnecessary. In fact, legislating a definition could create uncertainty in an area where the case law is clear.

Except for trade secrets, the head of a government institution may disclose information protected by Section 20(1) “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.”

	Informing third parties about the Act, and the portions of their information that would be disclosed in response to a request, before they provide that information.

The Information Commissioner has recommended that the override in Section 20(6) be broadened to include consumer protection as an element of the public interest to be considered (along with public health, public safety and protection of the environment) in deciding whether to disclose the information in question. We agree with this recommendation.

Under Sections 27-29 and 44 of the Act, third parties have the right to be notified if the head of an institution intends to disclose a record protected by Section 20, as well as a right to make representations and to appeal to the Federal Court.

The 1986 Parliamentary Committee observed that notification of third parties within the 30-day time limit could be difficult, particularly where many third parties had to be notified or they were located outside of Canada. With this in mind, the Committee recommended that the Act be amended to provide, in such circumstances, for notifying third parties through the Canada Gazette and advertisements in relevant trade journals, periodicals or newspapers. Information Commissioners have agreed with this recommendation. This amendment is overdue.

After reviewing all issues related to Section 20, we concluded that the education of third parties about the Act is the key to any improvement. It was clear from our consultations that many third party complaints arise from the fact that third parties are unaware that information they provide to government may be accessible under the Act. For this reason, departments that deal extensively with third parties on access to information have taken steps (such as preparing fact sheets) to make sure that third parties understand what information may be accessible, and why. Such best practices should be shared and adopted throughout the public service.

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Section 22 - Testing Procedures, Tests and Audits

Section 22 gives the head of a government institution discretion to refuse to disclose information relating to testing or audit procedures or techniques, or details of specific tests to be given or audits to be conducted, if disclosure would prejudice the use of results of particular tests or audits. The section does not provide an exemption for the results of tests or audits.

The government's Policy on Internal Audit requires departments to issue completed internal audit reports “in a timely manner and make them accessible to the public with minimal formality.” As a result, government institutions make final audit reports publicly available as a matter of course. However, a question has arisen about the release of draft internal audit reports and related working papers, which may contain unvalidated information.

The internal audit community, as well as the Auditor General of Canada, have expressed concerns about the impact of any premature release of draft internal audit reports and working papers before the information is validated. It is their view that the potential release of incomplete reports or unvalidated information could result in internal audit reports that are limited in scope or content. This would affect the ability of internal auditors to meet professional standards and would in turn affect the extent to which the Office of the Auditor General might rely on the work of internal auditors.

More specifically, the Auditor General has expressed the view that internal audit records should be protected for a period of time that is sufficient to allow internal auditors to effectively carry out their function, that is, to complete their work and validate the results. We agree internal audit working papers and draft reports should be protected, not indefinitely, but until the internal audit report is completed. To avoid any possible abuse of such a provision by keeping reports in draft form indefinitely, draft internal audit reports should be accessible six months after the audit has been completed or work on the audit has stopped. In no case should they be protected for longer than two years after the audit begins.

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Section 23 - Solicitor-Client Privilege

	Section 23 accounted for 4.3% of exemptions claimed in 2000-2001.
	[T]his exemption should continue as a class exemption. Again, perceived abuse or over-use of the exemption should be addressed as part of the process of clarifying and explaining the use of discretionary exemptions. Barbara McIsaac Research Report 17

Section 23 permits the head of a government institution to refuse to disclose records containing information subject to solicitor-client privilege. The doctrine of solicitor-client privilege has been recognized as a fundamental principle of our legal system for over 300 years. The exemption in Section 23 ensures that the government has the same protection for its legal documents as persons in the private sector. The exemption was made discretionary to parallel the common law rule that the privilege belongs to the client who is free to waive it.

The Task Force examined previous proposals and related approaches in other jurisdictions. We concluded that Section 23 should remain a discretionary class exemption. However, we believe that the privilege in the context of the Act may not always be well-understood by government lawyers and government institutions, and that guidance should be provided on the circumstances in which a record could be disclosed without prejudice to the government's legal interests. This could be done through training and guidelines.

Section 25 of the Act requires the head of a government institution to sever and release parts of a record that are not protected. Under the common law, however, disclosure of part of a record subject to solicitor-client privilege can constitute a waiver of the privilege with respect to the rest of the record, or other related records. This is understandably of concern to the legal community.

We agree with the Information Commissioner that it would be useful to spell out in the Act that release of part of a record containing privileged information does not result in waiver of the privilege on information in the rest of the record, or in related records.

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