Health Canada (Re), 2025 OIC 11
Date: 2025-02-19
OIC file number: 5824-01345
Access request number: A-2023-000803
Summary
The complainant alleged that Health Canada had improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request. The request was for documents relating to the impact of campfires on air quality. The allegation falls under paragraph 30(1)(a) of the Act.
Health Canada withheld the names of third parties and short texts about them under paragraph 20(1)(c). The third parties did not demonstrate that general and innocuous information met the requirements of paragraph 20(1)(c). Health Canada agreed to disclose the information following an order issued by the Information Commissioner.
The Information Commissioner ordered that Health Canada disclose specific information at issue.
Health Canada gave notice that it would disclose specific pages in accordance with the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Health Canada had improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request. The request was for documents relating to the impact of campfires on air quality. The allegation falls under paragraph 30(1)(a) of the Act.
[2] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate Health Canada’s application of subsection 19(1) and the information withheld on page 122 of the responsive records.
Investigation
[3] When an institution withholds information related to a third party(ies), the third party(ies) and/or the institution bears the burden of showing that refusing to grant access is justified.
[4] During the course of the investigation, the OIC requested representations from the third parties, the Canadian Automobile Association (CAA) and the Canadian Institute of Planners (CIP), pursuant to paragraph 35(2)(c) of the Act. The OIC also notified the CAA and the CIP pursuant to subsection 36.3(1) of my intention to order Health Canada to disclose the information at issue.
[5] Health Canada and the complainant were also invited to make representations during the course of the investigation. I have taken into consideration all the representations provided by third parties, Health Canada and the complainant in reaching my decision.
Paragraph 20(1)(c): financial impact on a third party
[6] 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.
[7] 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.
[8] 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.
[9] 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.
[10] 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.
[11] 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?
[12] Health Canada applied paragraph 20(1)(c) to redact the names of third parties (on pages 100, 105 and 118) and short texts about them (on pages 102 and 120).
[13] For paragraph 20(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).
[14] In its representations, the CAA opposed disclosure of the information, calling it misinformation that could result in “future risk” to the CAA. However, it did not provide any evidence on how disclosure could cause any specific harm.
[15] With respect to misinformation, the Supreme Court has held that decision makers should be sceptical about claims that the public misunderstanding of disclosed information will inflict harm on third parties, and that refusing to disclose information for this reason would undermine the purpose of access to information legislation (see: Merck supra at para. 224). Furthermore, Health Canada could include an explanatory note in its response in order to reduce the possibility of any such harm (see: Les viandes du Breton Inc. v. Canada (Canadian Food Inspection Agency), 2006 FC 335).
[16] For its part, the CIP reported that disclosure would not cause any harm to it.
[17] Health Canada stated in its representations that it will disclose the information following an order issued by the Information Commissioner.
[18] I conclude that the information remaining at issue does not meet the requirements of paragraph 20(1)(c).
Outcome
[19] The complaint is well founded.
- The information Health Canada withheld under paragraph 20(1)(c) did not meet the requirements of the exemption.
Orders and recommendations
I order the Minister of Health to disclose all information within the scope of the complaint that had been withheld under paragraph 20(1)(c).
Initial report and notice from institution
On January 17, 2025, I issued my initial report to the Minister of Health setting out my order.
On February 10, 2025, the Executive Director, Operations of Access to Information and Privacy gave me notice that Health Canada would be implementing my order.
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, the 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 CAA and the CIP.