National Research Council Canada (Re), 2025 OIC 4

Date: 2025-02-06
OIC file number: 5822-02864
Access request number: A-2022-06

Summary

The complainant alleged that the National Research Council Canada (NRC) had improperly withheld information on specific pages under paragraphs 20(1)(d) (negotiations by a third party), 21(1)(a) (advice or recommendations), 21(1)(c) (positions or plans developed for negotiations) and section 23 (solicitor-client privilege) of the Access to Information Act in response to an access request. The request was for records pertaining to negotiations with the Professional Institute of the Public Service of Canada (PIPSC) regarding the conversion of overtime into leave following the December 2021 shutdown. The allegation falls under paragraph 30(1)(a) of the Act.

The NRC could not show that it met all the requirements of paragraph 20(1)(d), paragraph 21(1)(a) and paragraph 21(1)(c), but it did show that it met the requirements of section 23.

The Information Commissioner ordered that the NRC disclose some information originally withheld under paragraph 20(1)(d), and paragraphs 21(1)(a) and 21(1)(c).

The NRC gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

Complaint

[1]        The complainant alleged that the National Research Council Canada (NRC) had improperly withheld information on specific pages under paragraphs 20(1)(d) (negotiations by a third party), 21(1)(a) (advice or recommendations), 21(1)(c) (positions or plans developed for negotiations) and section 23 (solicitor-client privilege) of the Access to Information Act in response to an access request. The request was for records pertaining to negotiations with the Professional Institute of the Public Service of Canada (PIPSC) regarding the conversion of overtime into leave following the December 2021 shutdown. The allegation falls under paragraph 30(1)(a) of the Act.

Investigation

[2]        When an institution withholds information that includes 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.

[3]        During the course of the investigation, the Office of the Information Commissioner (OIC) sought representations from the PIPSC and the Research Council Employees’ Association (RCEA) (third parties), as well as from the NRC pursuant to section 35 of the Act.

[4]        The PIPSC consented to the disclosure of records withheld under paragraph 20(1)(d) of the Act relating to them.

[5]        The RCEA indicated that the disclosure of records relating to them and withheld under paragraph 20(1)(d) of the Act would not likely cause any harm to its ongoing or future negotiations.

[6]        The NRC indicated it is no longer relying on paragraphs 20(1)(d), 21(1)(a) and 21(1)(c) to withhold some of the records at issue.

[7]        The OIC also notified the PIPSC and the RCEA pursuant to subsection 36.3(1) of my intention to order the NRC to disclose the information relating to them.

Paragraph 20(1)(d): negotiations by a third party

[8]        Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

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

• A third party is or will be conducting contractual or other negotiations.
• Disclosing the information could interfere with those negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[10]      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.

[11]      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.

[12]      However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(d) 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?

[13]      The NRC originally applied paragraph 20(1)(d) to the following information in the records at issue:

• Information withheld in the first paragraph on page 4, in the sentence starting with “Part of my grievance”;
• Pages 24 and 31;
• Pages 35-44.

[14]      In the course of the investigation, the NRC indicated it is no longer relying on paragraph 20(1)(d) to withhold the information at issue on pages 4, 24 and 31 of the records and proposed disclosure of said information.

[15]      As for the email exchanges on pages 35-44, the NRC proposed partial disclosure of the records by applying severance under section 25 of the Act. However, the NRC maintains the application of paragraph 20(1)(d) to the substance of the email exchanges by arguing that the information reveals specific concerns of the third parties within negotiations, which could provide undue advantage in their bargaining with other government departments.

[16]      I am of the view that these submissions fall short of establishing that the requirements of paragraph 20(1)(d) are met. Indeed, the information at issue pertains to specific negotiations related to a particular situation. It is unclear how disclosure of the information could interfere with any future negotiations, as this specific situation will likely never happen in the future.

[17]      Furthermore, in its representations provided to the OIC, the RCEA clearly expresses that it is not currently conducting any negotiations that would likely be affected by the release of the NRC’s records related to the 2021 December shutdown negotiations. The RCEA further stated that the disclosure of these exchanges or of the draft versions of the MOU would not likely cause any harm to ongoing or future negotiations. Evidently, the PIPSC is of the same view as it consented to the release of the information.

[18]      The word “interference” in paragraph 20(1)(d) denotes an “obstruction” or “thwarting”

of the negotiations (See, for example: Saint John Shipbuilding Ltd. v. Canada

(Minister of Supply and Services), 1990 CanLII 8108 (FCA) (“Saint John

Shipbuilding”); Canadian Tobacco Manufacturers' Council v. Canada (Minister of

National Revenue), 2003 FC 1037, at para. 133).

[19]      In order to fulfill the requirements of paragraph 20(1)(d), it also must be shown that the interference to the third party’s actual negotiations is reasonably expected, meaning that it is considerably above a mere possibility. (Merck, supra) The fear of interference in the form of an obstruction to actual contractual or other negotiations cannot be merely speculative. It must be supported by cogent and credible evidence.

[20]      As neither the NRC nor the third parties involved showed that the disclosure of the information could result in a reasonable expectation of interference with negotiations, I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Paragraph 21(1)(a): advice or recommendations

[21]      Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

[22]      To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

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

• The information is advice or recommendations.
• The information was developed by or for a government institution or minister.

[24]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[25]      However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the following: 

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[26]      The NRC applied paragraph 21(1)(a), along with paragraph 21(1)(c) to withhold the following information:

• Pages 19 and 20;
• Information withheld in the first sentence on page 21.

[27]      A review of the records confirms that the draft version of the MOU on pages 19 and 20 differs from the final version released on pages 33 and 34, as it contains potential modifications in track changes.

[28]      I agree with the NRC that disclosure of this draft version of the MOU would reveal advice and recommendations developed by the NRC for the purpose of negotiations with the unions. Therefore, I conclude that the information meets the requirements of paragraph 21(1)(a).

[29]      As for the limited information withheld under paragraph 21(1)(a) on page 21, the NRC indicated it is no longer relying on either paragraph 21(1)(a) nor 21(1)(c) to withhold this information and proposed to release it.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[30]      Since some of the withheld information meets the requirements of paragraph 21(1)(a), NRC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, the NRC had to consider all the relevant factors for and against disclosure.

[31]      The NRC does not have to provide a detailed analysis of each factor it considered and explain how it weighted one against each other. However, a blanket declaration that it had exercised its discretion and considered all relevant factors is not sufficient.

[32]      The NRC’s representations satisfy me as to the reasonable exercise of discretion in light of relevant factors which ultimately led to the decision to withhold the information.

Paragraph 21(1)(c): positions or plans developed for negotiations

[33]      Paragraph 21(1)(c) allows institutions to refuse to disclose positions or plans developed for negotiations by or on behalf of the Government of Canada.

[34]      To qualify for exemption under paragraph 21(1)(c), the records that contain the information must have been created less than 20 years before the access request was made.

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

• The information consists of positions or plans developed for negotiations or related considerations.
• The negotiations were, are being or will be carried on by or on behalf of the Government of Canada.

[36]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[37]      However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(c) to refuse to disclose the following: 

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[38]      Aside from the information exempted pursuant to both paragraph 21(1)(a) and 21(1)(c), the NRC applied paragraph 21(1)(c) to withhold limited information on page 14.

[39]      Following exchanges with the OIC, the NRC indicated it is no longer relying on paragraph 21(1)(c) to withhold this information and proposed to release it.

Section 23: solicitor-client privilege

[40]      Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[41]      To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

• The information consists of communication between a lawyer or notary and his or her client.
• That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
• The parties intend the communication and advice to remain confidential.

[42]      To claim this exemption with regard to litigation, institutions must show the following:

• The information was prepared or gathered for the dominant purpose of litigation.
• The litigation either is in progress or is reasonably expected to occur.

[43]      Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

[44]      When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[45]      The NRC applied section 23 to withhold portions of a sentence on page 23.

[46]      In its representations, the NRC confirms that this information constitutes confidential legal advice obtained from its legal services on a specific topic. I agree that this information meets the requirements of solicitor-client privilege and thus falls under section 23 of the Act.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[47]      Since the information meets the requirements of section 23, NRC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, the NRC had to consider all the relevant factors for and against disclosure.

[48]      The NRC does not have to provide a detailed analysis of each factor it considered and explain how it weighted one against each other. However, a blanket declaration that it had exercised its discretion and considered all relevant factors is not sufficient.

[49]      The NRC’s representations satisfy me as to the reasonable exercise of discretion in light of relevant factors which ultimately led to the decision to withhold the information.

Outcome

[50]      The complaint is well founded.

Orders

I order the President of the NRC to do the following:

1. Disclose the following information originally withheld under paragraph 20(1)(d):
   1. In the first paragraph on page 4, in the sentence starting with “Part of my grievance”;
   2. Pages 24 and 31;
   3. Pages 35-44.
2. Disclose the following information originally withheld under paragraphs 21(1)(a) and 21(1)(c):
   1. Information withheld on page 14;
   2. Information withheld in the first sentence on page 21.

Initial report and notice from institution

On December 13, 2024, I issued my initial report to the President setting out my orders.

On December 20, 2024, the Director of Access to Information and Privacy at the NRC gave me notice that she would be implementing the orders.

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 PIPSC and to the RCEA.