Annual Report: 2002-2003

Background

One of the organizations covered by the Access to Information Act is Canada Economic Development for the Quebec Region (FORDQ). This organization, as its name implies, provides economic assistance--primarily through loans and grants--to firms in the Quebec region.

Similar organizations exist to assist economic development in other regions of Canada. For example, the Atlantic Canada Opportunities Agency (ACOA) for the eastern region and Western Economic Diversification Canada (WED) for the western region.

An individual made access requests to all three organizations seeking lists of the repayments made by the companies. ACOA and WED disclosed the lists for their areas; FORDQ, on the other hand, refused. FORDQ took the position that disclosure of the repayment records would be prejudicial to the commercial and competitive interests of the companies which had received loans.

Legal Issues

Could FORDQ prove, at the level of a probability, that disclosure would be injurious to the companies which had received loans? If disclosure was not expected to be injurious to the firms in the other regions, why would disclosure be injurious to firms in the Quebec region? These were the issues which the commissioner considered.

Early in the investigation, FORDQ communicated with the same 400 companies involved to determine whether or not any would consent to disclosure and, if not, why not. All but nine of the companies gave consent for disclosure. Although FORDQ continued to refuse to disclose the loan repayment records for these nine firms, FORDQ could not explain what injury would result from disclosure.

The commissioner informed FORDQ that it bore the legal burden of proving the reasonable likelihood of injury from disclosure and that it was not sufficient for FORDQ to justify secrecy merely because these nine third parties wanted secrecy. The commissioner also asked these nine companies directly to explain what injury they feared from disclosure of the loan repayment record. In response, the commissioner received either no response, or mere assertions that harm would occur without evidence to support those assertions.

FORDQ was informed that the case for exemption had not been proven along with a recommendation that the information be disclosed. FORDQ agreed to accept the recommendation and so informed the third parties. After the 20-day waiting period passed without court action to block release by the third parties, the records were disclosed to the requester.

Lessons Learned

Government institutions bear the burden of proof that information held in government files relating to private companies should be kept secret. It is not sufficient for government institutions to blindly follow the wishes of the private firms or to shift the burden of proof to the third parties.

In order for government institutions to discharge the burden of proof in such cases, simple assertions that harm will result from disclosure, or speculation as to the potential harm from disclosure, will not suffice. Concrete evidence is required which demonstrates, at the level of a probability, that competitive harm to the private company is likely to result from disclosure of the information.