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Parks Canada (Re), 2022 OIC 58

Date: 2022-04-13
OIC file number: 5819-03385
Institution file number: A-2019-00061

Summary

The complainant alleged that Parks Canada had improperly withheld under subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act, portions of Liricon Capital Ltd.’s (Liricon) draft feasibility study for Aerial Tram and Mount Norquay Ski Area Re-Development, dated May 18, 2018. The complaint falls within paragraph 30(1)(a) of the Act.

Personal information withheld under subsection 19(1) and information relating to Sulphur Mountain Gondola were removed from the scope of the complaint.

During the investigation, Parks Canada decided to no longer rely on paragraphs 20(1)(c) and (d) to withhold information, instead relying on paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information).

The institution and third party did not demonstrate that the requirements of paragraph 20(1)(b) were met where they no longer oppose disclosure and where certain information is publicly available.

The Information Commissioner ordered that Parks Canada disclose specific information at issue.

Parks Canada gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Parks Canada had improperly withheld under subsection 19(1) (Personal Information), paragraph 20(1)(c) (Financial impact on third party) and paragraph 20(1)(d) (Negotiations by a third party) of the Access to Information Act, portions of Liricon Capital Ltd.’s (Liricon) draft feasibility study for Aerial Tram and Mount Norquay Ski Area Re-Development, dated May 18, 2018. 

[2]      During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate Parks Canada’s refusal to disclose personal information withheld under subsection 19(1) or information relating to Sulphur Mountain Gondola.

Investigation

[3]      When an institution withholds information related to a third party, the third party and/or the institution bears the burden of showing that refusing to grant access is justified.

[4]      Pursuant to paragraph 35(2)(c), the OIC sought representations from Liricon concerning the information exempted by Parks Canada. Parks Canada prepared a consultation package of records which was provided to Liricon in order to best enable them to provide representations. The consultation package provided to Liricon and the release package provided to the complainant do not have the same page numbering. The page numbers referenced in this initial report refer to the original release package – A0040738 first, with the page numbers from the consultation package provided to Liricon in brackets – A0040464.

[5]      During the investigation, Parks Canada decided to no longer rely on paragraph 20(1)(c) or paragraph 20(1)(d) to withhold information, and Liricon has not claimed that either of these exemptions apply to the withheld information. Instead, Parks Canada decided to rely on paragraph 20(1)(b) to withhold third-party information.

[6]      Both Parks Canada and Liricon no longer object to disclosure of information identified on pages 9, 15, 20-21, 23, 26, 35, 44, 47, 54, 58, 62-63, 67-68, 81 and 95 (pages 12, 18, 23-24, 26, 29, 38, 47, 50, 57, 61, 65-66, 70-71, 84 and 98 in the Liricon consultation package).

[7]      As neither Liricon nor Parks Canada provided representations as to how the information on these pages meets the requirements of any exemption, I conclude that they have not met the necessary burden, and that this information should be disclosed.

[8]      The following analysis applies to the remaining information at issue.

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

[9]      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).

[10]    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.

[11]    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.

[12]    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.

[13]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) to refuse to release 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?

[14]    I accept that much of the remaining information at issue is financial and/or commercial so as to satisfy the first criteria needed to demonstrate the application of paragraph 20(1)(b). This information includes the anticipated costs and detailed projections of Liricon’s business plan.

[15]    With regard to the second criteria, in order for information to be considered confidential, it must:

  • not be available from sources otherwise accessible by the public;
  • originate and be communicated in a reasonable expectation of confidence that it will not be disclosed; and
  • be communicated whether required by law or supplied gratuitously, 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, and which relationship will be fostered for public benefit by a confidential communication. (Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157, para. 72).

[16]    During the investigation, the OIC identified redacted information that was in fact publicly available and, in some instances, already disclosed elsewhere within the record itself.  Liricon, in turn, conceded that certain information redacted from the draft feasibility study “may now be publicly available”, so as to no longer meet this second requirement of paragraph 20(1)(b).

[17]    In reviewing the information at issue, and considering the information received, I am satisfied that some of the information at issue satisfies this test. This information consists of financial data and projections, and I conclude that this information meets the requirement of objective confidentiality.

[18]    With regard to the third requirement, I accept that the withheld information was supplied by Liricon to Parks Canada.

[19]    With regard to the fourth requirement, I accept that Liricon has consistently treated the withheld information as confidential.

[20]    In light of the above, while Parks Canada and Liricon have provided sufficient representations to demonstrate that some of the withheld information satisfies all of the requirements of paragraph 20(1)(b), I conclude that there remains withheld information that does not meet the requirements of the exemption.

Result

[21]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President and Chief Executive Officer of Parks Canada to disclose:

  • All information on pages 9, 15, 20-21, 23, 26, 35, 44, 47, 54, 58, 62-63, 67-68, 81 and 95 (pages 12, 18, 23-24, 26, 29, 38, 47, 50, 57, 61, 65-66, 70-71, 84 and 98 in the Liricon consultation package);
  • On pages 52, 59, 73 and 79 (pages 55, 62, 76 and 82 in the Liricon consultation package): the historical data (winter skiers, winter sightseeing, summer sightseeing, average people per day (ppd) and total visitors);
  • On page 53 (page 56 in the Liricon consultation package): proposed closure dates for annual maintenance;
  • On page 59 (page 62 in the Liricon consultation package):
    • Number of cabins in the proposed gondola design, visitors per cabin, current skier, tuber and slider visits per year;
    • Average visitors per day;
  • On page 74 (page 77 in the Liricon consultation package): the ticket pricing;
  • On page 79 (page 82 in the Liricon consultation package):
    • The number of years upon which the analysis is based;
    • Norquay’s current approximate number of sightseeing visitors in summer and winter;
    • Visitors per year at Sunshine Village;
    • Total visitors.

On March 9, 2022, I issued my initial report to the President and Chief Executive Officer setting out my order.

On April 8, 2022, the President and Chief Executive Officer gave me notice that he would be implementing my order.

I have provided Liricon Capital Ltd. with this report.

Parks Canada must abide by the terms of subsection 37(4) when disclosing any records in response to my order.

Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions 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.

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