Annual Report: 2003-2004

B. The Commissioner in the Courts

The Attorney General of Canada v. H.J. Heinz Co. of Canada Ltd. and the Information Commissioner of Canada, (T-1470-00) Federal Court, (A-161-03), Federal Court of Appeal

(See Annual Report 2002-2003 p. 113 for more details) The court has not yet rendered its decision in this case.

The Canadian Tobacco Manufacturers’ Council v. Minister of National Revenue, September 8, 2003, Russell J. (See Annual Report 2002-2003 p. 94, 2001-2002 Annual Report p. 91 and 2000-2001 Annual Report p. 119 for further details)

This was an application for an order requiring the Minister of National Revenue to refuse to disclose certain third-party information and records pursuant to section 44 of the Access to Information Act, as well as for an order protecting the confidentiality of these records, including the names of the authors, pursuant to section 47 of the Act.

The applicants in this application are the Canadian Tobacco Manufacturers’ Council (CTMC), an incorporated non-profit organization, and two consulting firms whose names were kept confidential.

Following three private meetings with the CCRA, the CTMC agreed to commission two consulting firms to conduct studies and reports on contraband tobacco. Two reports, Reports A and B, were completed and sent to the CCRA in August 1998.

In October 1998, Mr. Cunningham made an access to information request to the CCRA on behalf of the Canadian Cancer Society. He requested access to the records sent to, and received from the tobacco industry or their representatives, including the CTMC, since February 1, 1998, with respect to marking/stamping on packages of tobacco products.

Following the denial of his request by the CCRA, Mr. Cunningham complained to the Information Commissioner. Thereafter, the CCRA sent letters to the Information Commissioner stating that the requested information was exempted from disclosure pursuant to paragraph 20(1)(b) of the Act and that there were "documents in the case file that fell outside the actual subject matter of the request". The CCRA made further representations to the Information Commissioner in which it proposed to disclose, with the CTMC’s agreement, those portions of Report B that contained information pertaining to the subject matter of the request, that is "marking/stamping on packages of tobacco". The CCRA extracted portions of Report B that it proposed to disclose, subject to further severances pursuant to paragraph 16(1)(c), subsection 16(2) and paragraph 20(1)(b) of the Act. The CCRA also noted that it agreed with the CTMC that Report A had no relevance to Mr. Cunningham’s request.

On April 28, 2000, the applicants were provided with notice of the intention of the CCRA to release the Transmittal Letters and the Reports. The applicants then applied to the Federal Court of Canada.

On July 5, 2000, the Information Commissioner reported the results of his investigation. He concluded that all the records identified by CCRA were relevant to the access request and that the records should not have been exempted pursuant to subsection 20(1) or section 16 of the Act. He recommended disclosure of the records to the requester.

The following legal issues were raised in this application:

1. Are the records identified relevant to the access to information request?
2. Are the records exempted from disclosure under paragraphs 20(1)(a), (b), (c) or (d) of the Act?

Are the records relevant to the access to information request?

The applicants relied on section 6 of the Act, stating that it requires government departments to search for and disclose only those documents relevant to the information requested. The applicants submitted that only a small portion of Report B, that is the portion dealing with Tobacco Package Markings, and Appendix D, are relevant. As a result, the balance of Report B, Report A, and the Transmittal Letters should not be disclosed. In addition, they pointed out that those portions which are in fact relevant are further exempted from disclosure under subsection 20(1) of the Act.

The respondents argued that relevance is not an exemption which may be invoked by a third party. As a result, the applicants do not have standing as a third party to assert that the records sought are irrelevant to a particular request for information.

The court disagreed with the submissions of the applicants, stating that there is no exemption available to the applicants based upon relevancy. With respect to the interpretation of section 6, the court wrote:

"The wording of section 6 contains no prohibition against disclosing documents that are not relevant to the request. In fact, section 6 does not address the concept of relevancy. It merely stipulates that the request must be made in writing and must provide sufficient detail to allow identification of the record requested. It would take a substantial amount of reading in to conclude that this imposes an obligation on the government institution to refrain from disclosing information that is not relevant to the request."

Although there is no authority which clearly determines the rights of third parties to raise exemptions other than those referred to in section 20, the court relied on a Treasury Board of Canada note of December 4, 1992, in which it was made clear that "lack of relevance is not a ground for exemption as exclusion of a portion of a record under the Act" and "[d]etermining what is or is not relevant to a request is, of course, up to the institution".

The court further indicated that, in the event it was wrong in its interpretation of section 6 of the Act, the records requested were in any event relevant to the information request. Although the request deals at first glance with stamping and marking only, the context in which it was made clearly shows that the issues of marking and stamping were part of a broader concern with contraband and smuggling.

The court concluded that the Information Commissioner was right to determine that "an unduly narrow interpretation of the access request was taken and that none of the records at issue should have been withheld on the basis that they were not relevant to the request". As a result, lack of relevance was not regarded as a ground for ordering non-disclosure in this application.

In addition to relevancy, the applicants stated that the records should be exempted pursuant to the various exemptions in subsection 20(1) of the Act.

With respect to paragraph 20(1)(a), the applicants argued the records contain proprietary trade secrets of a peculiar value to them. The trade secret component of Report A resides in its unique methodology, while Report B contains propriety procedures, methodologies and techniques of analysis of unique value to applicant B.

In quoting with approval the decision of Strayer J. in Société Gamma Inc. v. Canada (Department of Secretary of State)¹, the court stated that, in order for paragraph 20(1)(a) to apply, the applicants need to demonstrate that the information contains "something of a technical nature…which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed by its mere disclosure."

The court determined that, in this case, no evidence brought the records within the trade secret category of paragraph 20(1)(a). The court indicated that the term "trade secret" has a narrow and technical sense which it interpreted to involve or pertain to the mechanical arts and applied sciences. In the case at bar, the applicants were only able to show that they had analytical know-how gleaned over years of considerable experience. This knowledge, however, is not sufficient to suggest proprietary methodology which might fit within the definition of a "trade secret" under paragraph 20(1)(a) of the Act.

The applicants also argued that the records contain financial and commercial information supplied to a government institution in confidence by a third party that has been treated consistently in a confidential manner by the third party.

Upon a review of the records at issue, the court determined that the records did not constitute in their entirety commercial or financial confidential information. Even if the information were held to be of a commercial or financial nature, the court indicated that this information is not confidential within the meaning of paragraph 20(1)(b). The court cited with approval the decision of Layden-Stevenson J. in Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services)², in which it was determined that information is not confidential simply because it has been treated as such. Similarly, although undertakings of confidentiality may be taken into account, they cannot override or trump the express statutory provisions of the Act. The court relied on the following excerpt from Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports)³:

As a result, the information must be regarded as confidential on an objective standard. In the case at bar, the court agreed that the information was provided by parties who had consistently treated the information as confidential. However, this information is not confidential on an objective standard and cannot be treated as such within the meaning of paragraph 20(1)(b) as it was submitted to the government for the purpose of addressing issues affecting public policy on tobacco. Denying access to the public would leave the public with no means of responding to the policies and would entirely defeat the purpose of the Act.

The applicants further submitted that disclosure of the records would materially help competitors of the two consulting firms retained in bidding against them in the future. Their competitors would have access to their confidential technologies. In addition, the consulting firms would see their reputation harmed if it were known that they had performed work for the tobacco industry. In contrast, the respondents submitted that the applicants did not demonstrate a reasonable expectation of probable harm.

The court quoted with approval the words of Gibson J. in SNC Lavalin Inc. v. Canada (Minister of International Cooperation)⁴:

"[…] It is simply not sufficient for the applicant to establish that harm might result from disclosure. Speculation, no matter how well informed, does not meet the standard of reasonable expectation of material financial loss or prejudice to the applicant’s competitive position."

Further, the court agreed with the respondents’ submissions to the effect that the applicants’ evidence was merely speculative. They did not discharge the burden required to show that a reasonable expectation of probable harm within the meaning of paragraph 20(1)(c) could result from disclosure.

The applicants also argued that disclosure of the records could reasonably be expected to interfere with contractual or other negotiations. The court stressed that, for paragraph 20(1)(d) to apply, the applicants must show that "there is a probability, and not a mere possibility or speculation, that the disclosure of the information might interfere with contractual or other negotiations". The court also distinguished between paragraphs 20(1)(c) and 20(1)(d), noting that paragraph 20(1)(d) imports an obstruction or thwarting of contractual negotiations. The court came to the conclusion that the applicants’ evidence was speculative in nature and did not meet the burden required.

The application was denied in its entirety. Costs were awarded to the respondents and added parties. The records at issue were disclosed to the representative of the Canadian Cancer Society.