Canadian Broadcasting Corporation (Re), 2022 OIC 34
Date: 2022-07-13
OIC file number: 5820-03525
Institution file number: A-2020-00103 / JRC
Summary
The complainant alleged that the Canadian Broadcasting Corporation (CBC) had improperly withheld information under paragraph 18(b) (competitive position or negotiations by government institutions) and subsection 19(1) (personal information) of the Access to Information Act (the Act), in response to an access request for documents about the total remuneration of the 250 highest paid unionized employees of the CBC’s French services for two fiscal years.
The CBC relied on paragraph 18(b) to withhold about 25 of the top 250 exact individual salaries requested, for each fiscal year.
The investigation revealed that there is a reasonable expectation that disclosing the information withheld under paragraph 18(b) could injure the CBC’s competitive position. In addition, the Information Commissioner is unable to conclude that the CBC did not consider all the relevant factors to withhold the information. Consequently, the exercise of discretion by the CBC was reasonable.
The complaint is not well founded.
Complaint
[1] The complainant alleged that the Canadian Broadcasting Corporation (CBC) had improperly withheld information under paragraph 18(b) (competitive position or negotiations by government institutions) and subsection 19(1) (personal information), in response to an access request for documents about the total remuneration of the 250 highest paid unionized employees of the CBC’s French Services for two fiscal years.
Investigation
[2] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
Paragraph 18(b): competitive position of government institutions
[3] Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.
[4] To claim this exemption with regard to competitive position, institutions must show the following:
- Disclosing the information could injure the competitive position of a government institution.
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[5] When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[6] The CBC relied on paragraph 18(b) to withhold about 25 of the 250 exact individual salaries requested, for each fiscal year.
[7] The CBC explained that the French broadcasting field in Canada is extremely limited and competitive. The recent exact individual salaries of the employees with the highest remuneration, namely over $150,000, are important information for maintaining the CBC’s competitive position.
[8] The investigation revealed that there is a reasonable expectation that disclosing the information withheld under paragraph 18(b) could injure the CBC’s competitive position. Indeed, the low number of exact individual salaries by $10,000 ranges over $150,000 makes it easy to link these salaries to position types. This information could be used as part of salary negotiations and have a financial impact on the CBC and its employee retention. The disclosure of information would injure the CBC’s competitive position well beyond a mere possibility.
[9] The CBC stated that it would agree to disclose more general information, such as the number of employees and the average salary by salary range, in response to an access request that does not specifically target the exact individual remuneration of employees, as is the case here.
[10] In this case, based on the information on file and after considering the CBC’s representations, I am satisfied that the CBC properly applied the requirements of paragraph 18(b) to the withheld information.
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[11] Since the information meets the requirements of paragraph 18(b), the CBC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, the CBC had to consider all the relevant factors for and against disclosure.
[12] An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation will be sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.
[13] The investigation revealed that the CBC balanced its mandate with the need to effectively manage its resources in a very competitive market. The CBC also considered that the information being requested is employees’ exact individual total remuneration in a specific service and that this information is recent. The institution concluded that these factors against disclosure prevailed over the public interest in disclosure.
[14] Under these circumstances, I am unable to conclude that the CBC did not consider all the relevant factors to withhold the information. Consequently, the exercise of discretion by the CBC was reasonable.
[15] Subsection 19(1) of the Act was simultaneously relied on and applied to the information. Since I am satisfied that paragraph 18(b) applies, it is not necessary to determine if the withholding of the same information is justified under subsection 19(1).
Result
[16] The complaint is not well founded.
Section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43