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Canadian Food Inspection Agency (Re), 2025 OIC 56

Date:2025-11-25
OIC file number: 5824-01957
Access request number: A-2023-00214

Summary

The complainant alleged that the Canadian Food Inspection Agency (CFIA) improperly withheld information under subsection 19(1) (personal information) and paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for a copy of the full Issue Detail Report for Food Complaint number 112063. This allegation falls under paragraph 30(1)(a).

The complainant also alleged that the CFIA improperly redacted the information in white (negative redactions) in response to the above-noted access request making it difficult to determine which portions were redacted. This allegation falls under paragraph 30(1)(f).

During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the information withheld under subsection 19(1).

Neither the CFIA nor the third party to whom the information relates established that information other than supplier names and internal process details met all the requirements set out in paragraphs 20(1)(b) and 20(1)(c).

The Information Commissioner ordered that the CFIA disclose all third-party information included in the report, except for the names of the third party’s suppliers, information describing procedural details, and specific process for weighing products. The Information Commissioner also recommended that the CFIA cease the use of negative (white) redactions, as required by the Treasury Board of Canada Secretariat Directive on Access to Information. The CFIA gave notice to the Commissioner that it would be implementing the order and recommendation.

The complaint is well founded.

Complaint

[1]The complainant alleges that the Canadian Food Inspection Agency (CFIA) improperly withheld information under subsection 19(1) (personal information) and paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for a copy of the full Issue Detail Report for Food Complaint number 112063. This allegation falls under paragraph 30(1)(a).

[2]The complainant also alleges that the CFIA improperly redacted the information in white (negative redactions) in response to the above-noted access request making it difficult to determine which portions have been redacted. This allegation falls under paragraph 30(1)(f).

[3]During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the information withheld under subsection 19(1).

Investigation

[4]When an institution withholds information, including information related to third parties, the third parties and/or the institution bear the burden of showing that refusing to grant access is justified.

[5]The third party provided representations which appear to concede that not all of the information meets the requirements for the exemption.

[6]As required by section 36.3, the OIC notified the third party of my intention to order the CFIA to disclose some of the information at issue.

[7]Representations were received from all parties, and I considered these representations in coming to my conclusions.

Subsection 4(2.1): Responsibility of government institutions

[8]Pursuant to subsection 4(2.1) of the Access to Information Act, the head of a government institution is required to “make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.”

Did the CFIA satisfy its statutory obligations when using negative redactions?

[9]The CFIA used negative (white) redactions to sever portions of the requested records based on exceptions to the right of access. The complainant alleged that this type of redaction makes it difficult to determine which information has been withheld.

[10]Institutions are required to sever and disclose all portions of those records that do not warrant redaction under a specific provision set out in Part I of the Act, save for if this cannot reasonably be done (section 25). They are also required to “make every reasonable effort to assist the person in connection with the request” and “respond to the request accurately and completely” (subsection 4(2.1)).

[11]While the Act does not expressly prescribe how redaction must be completed, caselaw under the Act recognizes that a requester must be given sufficient information to enable them to identify and challenge exemptions claimed (see, for example: Blank v. Canada (Environment), 2007 FCA 289, para.6).

[12]Also, according to section 10.10 of the Treasury Board of Canada Secretariat (TBS) Access to Information and Privacy (ATIP) Manual:

The demarcation of the redaction should be completed in a manner that enables the requester to see where the faredactions were applied, such as in greyscale or black over text in black and white. “Negative redaction,” where the removed section is blanked out leads to confusion about what has been removed from the page and does not align with section 4.1.35 of the Directive which requires redacted material to be clearly identified in a manner that is evident.

[13]The Directive is binding on federal government institutions, including the CFIA, through the Policy on Access to Information. Sections 6 and 7 cover the application of the Policy and the Directive as well the consequences of non-compliance.

[14]In response to OIC’s request for representations regarding this issue, the CFIA advised that it was willing to use greyscale redactions, rather than negative redactions, to protect the withheld information.

[15]In light of this, I conclude that the CFIA failed to meet its obligations with respect to severance and duty to assist set out in subsection 4(2.1).

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[16]Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

[17]To claim this exemption, institutions must show the following:

  • The information is financial, commercial, scientific or technical.
  • The information is confidential.
  • The third party supplied the information to a government institution.
  • The third party has consistently treated the information as confidential.

[18]When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[19]The third party stated in its representations to the CFIA that the information pertaining to the name and address of its vendors and the product information (ingredient, country of origin, component format and percentage, characteristics) is commercial in nature. I agree that these specific types of information fall within the meaning of commercial information, as they directly relate to the competitive and proprietary aspects of the product in question.

[20]With respect to the balance of the withheld information, I am of the view that some types of information are not commercial in nature (e.g. the name of the store and address). While the third party did not provide representations regarding the first requirement, the CFIA advised that it conceded that paragraph 20(1)(b) should not have been applied to withhold store names, or specific store addresses and has no objections to the release of the information in question. Accordingly, I am not satisfied that the name of the store and address meet the requirement for financial, commercial, scientific or technical information.

[21]The second requirement of paragraph 20(1)(b) is that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:

  • The information must not be available from sources otherwise accessible by the public;
  • It must originate and be communicated with a reasonable expectation that it will not be disclosed;
  • It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see: Air Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453).

[22]The investigation revealed that there was no related information in the public domain. Consequently, I accept that the information at issue was not publicly available at the time the CFIA responded to the access request.

[23]Regarding the second condition for confidentiality, in its representations to the CFIA, the third party advised that it had a reasonable expectation of confidence that the information contained in the records would not be disclosed, however, neither the third party nor the CFIA provided any representations regarding whether the CFIA assured the third party that confidentiality would be maintained or whether there was any confidentiality agreement in place.

[24]As per the findings of the Federal Court in Bristol-Myers Squibb Canada Co. v. Canada (Attorney General), 2005 FC 235 at para 11, to simply assert that the information was provided with a reasonable expectation of confidence is not sufficient to meet the burden of proof. Neither the CFIA nor the third party provided any specific representations demonstrating that the information was to be treated as confidential, or any evidence that the CFIA understood this to be so.

[25]Regarding the third condition for confidentiality, the third party stated that it is in the public interest that the CFIA receives information from organizations to assist in its important inspection role.

[26]As per the findings of the Federal Court in Toronto Sun Wah Trading Inc. v. Canada (Attorney General), 2007 FC 1091 at para 23:

In order to maintain food safety and the integrity of the food inspection process it is important that companies, such as the Applicant, make full disclosure to the CFIA [sic] about their operations. However, it is also important to have the public quickly and fully informed about issues relating to food safety and to have public awareness on this topic. Therefore, as was held in Canada Packers Inc. v. Canada (Minister of Agriculture) (1988), 1988 CanLII 1421 (FCA), […] there is a strong public interest in obtaining access to the information.

[27]While I accept that some of the information meets this requirement, for example, information related to the third party’s suppliers and detailed internal processes, I am not convinced that the confidential communication of information related to the incident itself would foster the relationship between the CFIA and the third party for public benefit.

[28]For all the reasons outlined above, I am of the view that the withheld information does not meet all the conditions for objective confidentiality and, therefore, does not satisfy the second requirement of the exemption, except for the following information:

  • the names of the third party’s suppliers on pages 7, 9 and 12 of the records;
  • part of the text describing procedural details related to its scales on page 7;
  • the description of the specific process for weighing products on page 12 of the records;

[29]In its representations to the OIC, the third party mentioned that they “consent to the OIC’s proposed designation of confidentiality”. Thereafter, the CFIA informed the OIC that they agreed with the third party’s position on this matter.

[30]Turning to the third requirement of the exemption, some of the withheld information has not been supplied by the third party. Page 8 contains a statement related to the CFIA’s review of its own records as well as an explanation of the rationale behind the decision made by the CFIA. The CFIA advised that it agreed that paragraph 20(1)(b) should not have been applied to withhold the information in question and has no objections to its release.

[31]Finally, with respect to the fourth requirement for exemption under paragraph 20(1)(b), based on the representations provided by the third party, I am of the view that the information found to meet the other requirements of paragraph 20(1)(b) also satisfies the final requirement of the exemption.

[32]I conclude that most of the withheld information does not meet all of the requirements of paragraph 20(1)(b). More specifically, I consider that only the following information meets the requirements of paragraph 20(1)(b):

  • the names of the third party’s suppliers on pages 7, 9 and 12;
  • part of the text describing procedural details on page 7;
  • the description of the specific process for weighing products on page 12.

Paragraph 20(1)(c): financial impact on a third party

[33]Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[34]To claim this exemption with regard to financial impact on a third party, institutions must show the following:

  • Disclosing the information could result in material financial loss or gain to the third party.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[35]To claim this exemption with regard to competitive position, institutions must show the following:

  • Disclosing the information could injure the competitive position of the third party.
  • There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

[36]When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

[37]In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) exist:

  • disclosure of the information would be in the public interest; and
  • the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

[38]However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[39]Paragraph 20(1)(c) is applied to the same information as paragraph 20(1)(b).

[40]For this exemption to apply, there must be a clear and direct connection between the disclosure of this information and a risk of harm well beyond the merely possible. (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[41]As was the case in Concord Premium Meats Ltd. v. Canada (Food Inspection Agency), 2020 FC 1166, the records indicate that the issue was addressed in the corrective action, and the problems have been resolved. Additionally, the weighing process described in the report does not appear to be unique to the third party; rather, it seems to be similar across the industry.

[42]The third party did not provided sufficient representations nor evidence that demonstrates that disclosing the withheld information could reasonably be expected to result in injury to the competitive position of the third party or could result in material financial loss to the third party or gain to another third party.

[43]In its representations to the OIC, the CFIA advised that, given the current climate of consumer skepticism, reports of “shrinkflation”, and incidents such as mis-weighed meat at the third party stores, even when explained as isolated human errors, may further undermine public trust in large grocery chains. As such, the disclosure of information related to product-weighing procedures and corrective actions taken by the third party could reasonably be expected to result in material financial loss to the third party, harm its market share and profitability, and/or prejudice its competitive position. Therefore, the CFIA maintained that paragraph 20(1)(c) was applicable to the information in question.

[44]The CFIA stated that, given the passage of time, the public release of the information, and that the third party no longer objects to disclosure, it is prepared to issue an updated final response to release most of the information identified for disclosure by the OIC but has not yet done so.

[45]In light of CFIA’s representations, I am of the view that, while concerns about consumer trust are understandable, the CFIA’s representations are largely speculative and do not establish how disclosing the withheld information, specifically description of the issue and corrective actions taken, could reasonably be expected to result in additional financial harm or lead to the described outcomes, such as widespread loss of trust or significant consumer avoidance.

[46]I find that the parties have not established that disclosing the results of the third party’s investigation into the reported issue, including details of the weighing process and the corrective measures taken, could reasonably be expected to result in significant financial loss to the third party or adversely affect its competitive position.

[47]Consequently, I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Outcome

[48]The complaint is well founded.

Orders and recommendations

I order the President of the CFIA to disclose all third-party information included in the report, except for:

  • the names of the third party’s suppliers on pages 7, 9 and 12 of the records;
  • Part of the text describing procedural details on page 7;
  • the description of the specific process for weighing products on page 12 of the records;
  • where subsection 19(1) was applied concurrently to subsection 20(1).

I recommend that the President ensure that CFIA ceases the use of negative (white) redactions, as required by the TBS Directive on Access to Information.

Initial report and notice from institution

On November 12, 2025, I issued my initial report to the President setting out my order and recommendation.

On November 17, 2025, the Director of Access to Information and Privacy, Policy and Programs branch, gave me notice that the CFIA would be implementing the order and recommendation.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. The complainant and/or institution must apply for a review within 35 business days after the date of this report. When they do not, third parties may apply for a review within the next 10 business days. Whoever applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, the order(s) takes effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to the third party.

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