Fisheries and Oceans Canada (Re), 2023 OIC 30
Date: 2023-07-04
OIC file number: 5821-05513
Institution file number: A-2021-00647 / LV
Summary
The complainant alleged that Fisheries and Oceans Canada (DFO) had improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third‐party financial, commercial, scientific or technical information) of the Access to Information Act. This was in response to an access request for medical certificates provided by Marineland for the export of five beluga whales. The complaint falls within paragraph 30(1)(a) of the Act.
The application of subsection 19(1) to withhold the records at issue was removed from the scope of the complaint.
DFO and the third party did not show that the information met all the requirements of paragraph 20(1)(b), in particular, that the information was confidential or that the third party consistently treated the information as confidential.
The Information Commissioner ordered DFO to disclose the record in its entirety, other than information withheld pursuant to subsection 19(1). DFO gave notice to the Commissioner that it would implement the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Fisheries and Oceans Canada (DFO) had improperly withheld information under subsections 19(1) (personal information) and 20(1)(b) (confidential third- party financial, commercial, scientific or technical information) of the Access to Information Act. This was in response to an access request for health certificates provided in support of the Convention on International Trade in Endangered Species of Wild Fauna and Flora and/or the Fisheries Act export permit applications submitted by Marineland of Canada Inc. (Marineland) for the export of beluga whales to Mystic Aquarium in the United States. The complaint falls within paragraph 30(1)(a) of the Act.
[2] During the course of the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the application of subsection 19(1) to the information at issue.
Investigation
[3] When an institution withholds information related to a third party, the third party and/or the institution bear the burden of showing that refusing to grant access is justified.
Paragraph 20(1)(b): confidential third‐party financial, commercial, scientific or technical information
[4] Paragraph 20(1)(b) requires institutions to refuse to release 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). 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.
[5] 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 release the information.
[6] In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances 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.
Does the information meet the requirements of the exemption?
[7] The OIC sought representations from both Marineland and DFO pursuant to section 35 of the Act. Both parties maintain that the information was properly withheld under paragraph 20(1)(b) but failed to provide detailed representations that would convince me that the information meets the requirements for exemption.
[8] In response to the OIC’s Notice pursuant to subsection 36.3(1) of the Act, Marineland confirmed that it had no further representations to make, yet continued to object to the disclosure of the information at issue.
[9] The records at issue are medical certificates produced by the Niagara Falls, Ontario, Animal Medical Centre for five beluga whales. The certificates were produced as part of the condition of sale of whales by Marineland in Niagara Falls, Ontario to Mystic Aquarium, based in the United States.
[10] Portions of the medical certificates were disclosed, including the names of the whales, their dates of birth as well as the addresses of the owner and recipient.
[11] With respect to the first criteria for the exemption to apply, I accept that the medical health records are statements of viability of products (product descriptions) which are part of a condition of sale and therefore qualify as commercial information.
[12] Turning to the second requirement of paragraph 20(1)(b), in order for information to be considered confidential, each of the following conditions must be 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; and
- 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). [SJ1] [CF2]
[13] I accept that portions of the withheld information was not information available from sources otherwise accessible by the public at the time DFO responded to the access request. However, the identification features, which describe unique markings or physical traits associated with each whale, were publicly available for years given the whales in question were on display to the public at Marineland.
[14] That said, no representations were received to demonstrate the second and third criteria for confidentiality apply to the information at issue. The Federal Court has found that “[p]arties seeking government approvals, just as parties seeking government funds or contracts, cannot expect the same degree of confidentiality as a party who is assisting government.” (see AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189, para. 76, affirmed in 2006 FCA 241). No such representations were provided during the course of the investigation.
[15] With respect to the third requirement for the exemption to apply, the OIC accepts the records in questions were supplied to DFO by the third party.
[16] As for the final requirement, the OIC has received no evidence on which it can conclude that Marineland has consistently treated the information as confidential.
[17] I conclude that paragraph 20(1)(b) does not apply to the information at issue.
Result
[18] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the Minister of Fisheries and Oceans to disclose the records in their entirety, other than information currently withheld pursuant to subsection 19(1) as this is out of scope of the investigation.
On April 18, 2023, I issued my initial report to the Minister of Fisheries and Oceans setting out my intended order.
On May 18, 2023, the Director of Access to Information and Privacy gave notice that they would be implementing my order.
Marineland has been provided with this report.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this 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. The person who 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, this order takes effect on the 46th business day after the date of this report.