Port Alberni Port Authority (Re), 2025 OIC 23

Date: 2025-03-13
OIC file number: 5822-00380
Access request number: A-2021-278

Summary

The complainant alleged that Port Alberni Port Authority (PAPA) had improperly withheld information under paragraphs 18(a) (government financial, commercial, scientific or technical information), 18(b) (competitive position of government institutions or negotiations by government institutions) and 18(c) (government scientific or technical information obtained from research), 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. The request was for documents related to the lease or sale of all assets of PAPA from October 2020 to October 2021. This allegation falls under paragraph 30(1)(a) of the Act.

The scope of the investigation was limited to company names and amounts. PAPA did not show that the information met the requirements of paragraphs 18(a), 18(b) and 18(c), subsection 19(1), and paragraphs 20(1)(b) and 20(1)(c) for any information related to company names or amounts.

The Information Commissioner ordered PAPA to disclose the redacted information at issue.

PAPA gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1] The complainant alleged that Port Alberni Port Authority (PAPA) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

paragraph 18(a) (government financial, commercial, scientific or technical information);
paragraph 18(b) (competitive position of government institutions or negotiations by government institutions);
paragraph 18(c) (government scientific or technical information obtained from research);
subsection 19(1) (personal information);
paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information); and
paragraph 20(1)(c) (financial impact on a third party).

[2] The request was for information related to the lease or sale of all assets of the Port Alberni Port Authority for the period of October 1, 2020 to October 1, 2021. This allegation falls under paragraph 30(1)(a) of the Act.

[3] During the investigation, the complainant limited the scope of the investigation to information related to amounts and to company names.

Investigation

[4] When an institution withholds information that includes 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 Office of the Information Commissioner (OIC) sought representations from the third party, which is a company, pursuant to paragraph 35(2)(c) of the Act. The third party did not respond to the OIC’s request for representations. I gave notice to the third party under section 36.3 that I was not satisfied that the requirements of paragraphs 20(1)(b) and 20(1)(c) were met for specific information related to it. The third party did not respond to this notice.

Paragraph 18(a): government financial, commercial, scientific or technical information

[6] Paragraph 18(a) allows institutions to refuse to disclose trade secrets or financial, commercial, scientific or technical information of the Government of Canada or a government institution when that information has or is likely to have substantial value.

[7] To claim this exemption with regard to trade secrets, institutions must show the following:

The information is a trade secret—that is, a plan or process, tool, mechanism or compound that possesses all four of the following characteristics:
- It is secret—that is, it is known only by one or a relatively small number of people.
- The Government of Canada or the institution intended to treat the information as secret.
- The information has industrial or commercial application.
- The Government of Canada or the institution has an interest worthy of legal protection (that is, an economic interest).
The trade secret belongs to the Government of Canada or one of its institutions.

[8] To claim this exemption with regard to financial, commercial, scientific or technical information, institutions must show the following:

The information is financial, commercial, scientific or technical.
The information belongs to the Government of Canada or one of its institutions.
The information has substantial, rather than nominal, market value or is reasonably likely to have such value in the future.

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

Does the information meet the requirements of the exemption?

[10] PAPA applied paragraph 18(a) concurrently with paragraph 18(b) to withhold amounts related to equipment rental.

[11] During the course of the investigation, PAPA conceded that the first piece of information withheld in the Port Alberni Port Authority Forklift rental agreement signed on June 3, 2021 (on page 1 of the records) does not meet the requirements of paragraphs 18(a) or 18(b). I agree that this information does not meet the requirements of paragraph 18(a).

[12] I accept that the rest of the information is financial.

[13] PAPA asserted that the rates in the Port Alberni Port Authority Forklift rental agreement signed on June 3, 2021 and in invoice # 2021-274 (respectively on pages 1 and 4 of the records) belong to PAPA and the third party as it is a confidential commercial agreement between two parties. However, it is unclear whether the rates on pages 1, 3 and 4 do belong to PAPA because they may have been negotiated with the third party.

[14] Regarding the third requirement of paragraph 18(a), PAPA argued that the rental rate has commercial and competitive pricing, and that the amount is based off a general market value at the time of the agreement.

[15] When relying on paragraph 18(a), the institution bears the onus of demonstrating that the information has not only value, but substantial value. Given the low value of most of the amounts at issue, it is unclear how the information has substantial, rather than nominal, market value or is reasonably likely to have such value in the future.

[16] I conclude that the information does not meet the requirements of paragraph 18(a).

Paragraph 18(b): competitive position of government institutions or negotiations by government institutions

[17] Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

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

Disclosing the information could injure the competitive position of a government institution.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[19] To claim this exemption with regard to contractual or other negotiations, institutions must show the following:

Contractual or other negotiations are under way or will be conducted in the future.
Disclosing the information could interfere with the negotiations.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

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

Does the information meet the requirements of the exemption?

[21] PAPA applied paragraph 18(b) concurrently with paragraph 18(a) to withhold amounts related to equipment rental.

[22] During the course of the investigation, PAPA conceded that the first piece of information withheld in the Port Alberni Port Authority Forklift rental agreement signed on June 3, 2021 (on page 1 of the records) does not meet the requirements of paragraphs 18(a) or 18(b). I agree that the information does not meet the requirements of paragraph 18(b).

[23] PAPA asserted that providing rental rates could injure its competitive advantage by providing privileged information to the public which opens up the possibility of price undercutting and loss of negotiation leverage. It added that these investor relations are associated with the economic interests of Canada as two percent of its revenue is remitted to the government.

[24] PAPA explained that it is in an ongoing agreement with the third party, and that it is currently in negotiations. PAPA added that the third party requested that their agreement remain confidential and refused to consent to disclosure given it is a private entity. PAPA explained that if it went against the company’s wishes, it would interfere with future negotiations with this company. PAPA asserted that there is a very reasonable expectation that this harm would occur in this competitive market.

[25] Interference, in the context of paragraph 20(1)(d), which uses the same wording as paragraph 18(b), has been interpreted in the courts as meaning “obstruction” – as indicated by the corresponding word for interference in the French version, “entraver”. (see Blood Band v. Canada (Minister of Indian Affairs and Northern Development), 2003 FC 1397, para. 49; Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.), paras. 24-25). Heightened competition flowing from disclosure is not enough for the requirements of the exemption to be met (see, for example: Burnbrae Farms Ltd. v. Canada (Canadian Food Inspection Agency), [2014] F.C.J. No. 1274).

[26] Based on PAPA’s representations, I accept that contractual negotiations were underway or would be conducted in the future at the time of the access request.

[27] However, I am not convinced that PAPA has established a clear link between the disclosure of the information and the alleged harms.

[28] Additionally, a simple assertion that its disclosure would interfere with negotiations is not sufficient to demonstrate how it would reasonably be expected to interfere with negotiations.

[29] I conclude that the information does not meet the requirements of paragraph 18(b).

Paragraph 18(c): government scientific or technical information obtained from research

[30] Paragraph 18(c) allows institutions to refuse to disclose scientific or technical information stemming from government research that, if disclosed, could jeopardize government researchers’ chance to publish their findings first.

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

The information is scientific or technical.
This information was obtained through research by a government employee or officer.
Disclosing the information could threaten the exclusive rights of government researchers to publish the results of their research first.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

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

Does the information meet the requirements of the exemption?

[33] It is unclear where paragraph 18(c) has been applied because it was noted in the response letter dated February 24, 2022, but it was not stamped on the records. As such, I could not definitively identify which portions of information were withheld under paragraph 18(c).

[34] The OIC has not received representations to explain how any of the information withheld throughout the records is scientific or technical, how it was obtained through research by a government employee or officer, and how disclosing the information could reasonably be expected to threaten the exclusive rights of government researchers to publish the results of their research first.

[35] Similarly, the OIC has not received representations to demonstrate how there is a reasonable expectation that this harm could occur.

[36] I conclude that the information contained within the records does not meet the requirements of paragraph 18(c).

Subsection 19(1): personal information

[37] Subsection 19(1) requires institutions to refuse to disclose personal information.

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

The information is about an individual—that is, a human being, not a corporation.
There is a serious possibility that disclosing the information would identify that individual.
The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[39] When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

The person to whom the information relates consents to its disclosure.
The information is publicly available.
Disclosure of the information would be consistent with section 8 of the Privacy Act.

[40] When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[41] PAPA applied subsection 19(1) to withhold the name of a company in lease No. FL159 between PAPA and the third party dated June 21, 2021 (on page 41 of the records).

[42] PAPA asserted that the third party’s name on page 41 is in relation to an individual’s workplace and could be considered a way to identify an individual.

[43] I find that the name of the third party alone does not constitute personal information. The Office of the Privacy Commissioner (OPC), which the OIC consulted pursuant to paragraph 35(2)(d), agreed that information about a company is generally not personal information unless an individual’s personal information is inextricably linked to information about the company. In this case, the name of the company itself does not seem to be linked to an identifiable individual. OPC added that if the information related to the employees is withheld, the name of the third party on page 41 could be disclosed without a risk of identifying the employees.

[44] I conclude that the information does not meet the requirements of subsection 19(1).

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

[45] 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).

[46] 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.

[47] 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?

[48] PAPA applied paragraph 20(1)(b) to withhold the third party’s name in lease No. FL159 between PAPA and the third party dated June 21, 2021, as well as the following information in section II (Leased Premises – Description) of Schedule “A” of that lease:

on page 39 of the lease (on page 44 of the records): the information beside the areas named “Shed 4”, “Shop” and “Forklift Bay”;
on page 40 of the lease (on page 45 of the records): the redacted information on a picture of the premises titled “Figure 1”.

In its representations to PAPA, the third party stated that it does not support the disclosure of the information since it is not legally obliged as a third party and is not subjected to the Act.

[49] The first requirement of the exemption is that the information be “financial”, “commercial”, “scientific” or “technical”.

[50] In the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada stated that that the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings. According to dictionary definitions, the word “commercial” means “concerned with or engaged in commerce”, “making or intended to make a profit.”

[51] I accept that the information about leased premises is commercial information.

[52] 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 is 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).

[53] No representations have been provided to demonstrate that the information is confidential by an objective standard.

[54] I am of the view that the third party’s name is not objectively confidential. Moreover, the fact that the third party contracted with PAPA is available to the public because its name has been disclosed elsewhere in the records, even though PAPA stated it had been disclosed by mistake. Finally, some information might be available to the public given a news release from the third party.

[55] With regard to the expectation of confidentiality, 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).

[56] Neither party has provided representations to demonstrate that the information was not publicly available or that the circumstances in which the information originates, and was communicated, give rise to a reasonable expectation that it will not be disclosed. In addition, no party has provided representations to demonstrate that this information was communicated within the context of a relationship that would be fostered for public benefit by the communications’ confidentiality.

[57] I conclude that the information does not meet the requirements of paragraph 20(1)(b).

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

[58] 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.

[59] 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.

[60] 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.

[61] 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?

[62] PAPA applied paragraph 20(1)(c) to withhold the following information in the lease No. FL159 between PAPA and the third party dated June 21, 2021:

on page 9 of the lease (page 14 of the records): a portion of the first sentence of section 4.6;
on page 41 of the lease (page 46 of the records): the three amounts in section IV (Basic Rent) of Schedule “A”.

[63] Paragraph 20(1)(c) requires evidence showing the financial impact disclosing the information would have on the third party and its competitive position, and how likely that impact would be. The third party and/or PAPA must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (see: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[64] The case law under the Act makes clear that a party resisting disclosure based on paragraph 20(1)(c) bears the onus of establishing in more than just a general way that there is a reasonable expectation of a probable harm described in paragraph 20(1)(c) occurring if the information is disclosed. (see: Les Viandes du Breton Inc. c. Canada (Department of Agriculture), 2000 CanLII 16764 (FC), at para 12). This requires that a party opposing disclosure demonstrate that the harm is reasonably probable and must be assessed based on facts and on the specific records at issue in an access request (see: Samsung Electronics Canada Inc. v. Canada (Health), 2020 FC 1103, at para 113).

[65] In its representations to PAPA during the processing of the request, the third party stated that it does not support the disclosure of the information since it is not legally obliged as a third party and is not subjected to the Act.

[66] No representations have been provided to explain how releasing this information could be reasonably expected to result in material financial loss or gain for the third party or injure its competitive position.

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

Outcome

[68] The complaint is well founded.

Order

I order the President and Chief Executive Officer of Port Alberni Port Authority to release all information related to company names and to amounts that was previously withheld under subsection 19(1) and paragraphs 18(a), 18(b), 20(1)(b) and 20(1)(c).

Initial report and notice from institution

On February 18, 2025, I issued my initial report to the President and Chief Executive Officer setting out my order.

On March 10, 2025, the President and Chief Executive Officer gave me notice that the Port Alberni Port Authority would be implementing the 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 Privacy Commissioner 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 Privacy Commissioner of Canada.