Annual Report: 2003-2004

6. Confidentiality Versus Public Interest

Background

The Canadian Institute of Health Research awarded funds to the University of British Columbia to conduct research on the health risks to healthcare workers of certain disinfectant products. As part of the research, a UBC researcher made an access request to Health Canada for toxicological data on a disinfectant known as CIDEX OPA solution, manufactured by Johnson & Johnson.

Health Canada disclosed some information, but withheld most details in order to protect the manufacturer from commercial and competitive injury.

The researcher complained to the Information Commissioner arguing that the public interest in determining the risks of the product to public health and safety should override the manufacturer’s commercial and competitive concerns.

Legal Issue

Did Health Canada properly exercise the discretion given to it by subsection 20(6) of the Access to Information Act? That provision authorizes government to disclose commercially sensitive information "if that disclosure would be in the public interest as it relates to public health, public safety or the 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."

The researcher seeking disclosure argued that disinfectants, like CIDEX OPA solution, might have an adverse effect on the health of healthcare workers. She argued that the goal of the research--that of comparing the relative health impacts of various products--was supported by the Workers’ Compensation Board of B.C., the Occupational Health and Safety Agency for Healthcare in B.C., healthcare management associations, and labour union members.

For its part, Health Canada took the position that the requester had not shown that the product in question poses any threat to public health or safety. Health Canada and the product’s manufacturer took the view that the approved labeling and package insert for the product ensure that the product is handled and used safely. In the absence of some evidence to the contrary, they argued that disclosure would not promote any public interest and, hence, would not outweigh the likely commercial prejudice to the manufacturer from disclosure of the toxicological data.

The commissioner agreed with Health Canada and Johnson & Johnson that this was not a case where the public interest in health and safety outweighed the commercial and competitive interests of Johnson & Johnson. The commissioner found that Health Canada had carefully weighed the factors for and against disclosure and that there was good reason to insist on secrecy in this case. The complaint was recorded as not substantiated.

Lessons Learned

Government institutions are under a mandatory obligation to refuse to disclose information if disclosure could harm private firms. They are also under an obligation to consider the subsection 20(6) public interest override before refusing access. This discretion to disclose in the public interest must be exercised in good faith and there must be evidence that relevant factors for and against disclosure were weighed. If the discretion to disclose in subsection 20(6) is exercised in good faith, it is not for the commissioner or a reviewing court to seek to substitute its judgment for that of the head of the government institution which received the access request.