Process: Investigating complaints involving the exemption for third-party information (Complaints received by the OIC on or after June 21, 2019 - subjected to orders, recommendations or both)
Certain types of third-party information, described in section 20 of the Access to Information Act, must be protected from disclosure.
A third party is “[…] any person, group of persons or organization other than the person that made the request or a government institution[…]” (section 3).
To withhold information from disclosure under section 20, institutions must show that the information is of one of the following types:
- third parties’ trade secrets;
- confidential financial, commercial, scientific or technical information supplied by the third party to the institution;
- information related to emergency management plans supplied by the third party to the institution;
- information the disclosure of which could reasonably be expected to have a material financial impact on a third party or harm its competitive position; or
- information the disclosure of which could reasonably be expected to interfere with the contractual or other negotiations of a third party.
When the information is of the type covered by section 20 (third-party information) and the third party to whom it relates consents to its disclosure, institutions must then reasonably exercise their discretion to decide whether to release the information (subsection 20(5)).
Institutions must also reasonably exercise their discretion to decide whether to release third-party information —except third parties’ trade secrets— 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 (subsection 20(6)).
When responding to access requests for records that contain or might contain third-party information, institutions must follow the process set out in sections 27 and 28 for notifying relevant third parties (for guidance on when institutions must notify third parties, see Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3 at paras. 75-84).
If institutions decide to disclose the information, and third parties object, third parties may apply to the Federal Court for a review of institutions’ decisions to disclose the information (section 44). The matter does not come to the Office of the Information Commissioner (OIC) for investigation.
If institutions decide to withhold records under section 20, access requesters may complain to the Information Commissioner (section 30). When this is the case, the OIC generally follows the steps below to determine whether institutions properly applied the exemption.
1. Notice of Intention to Investigate
The OIC notifies institutions of the substance of the complaint and of its intention to investigate (section 32). The OIC also asks institutions to provide documentation related to the access request that the OIC needs to begin its investigation. (See Information Commissioner’s Guidance, Process: Initial request for documentation from institutions.)
Upon receipt of the OIC’s notice of intention to investigate, institutions must advise the OIC of any third parties that institutions have notified under section 27 or that institutions would have notified if they had intended to disclose the records (section 33).
2. Preliminary Review
OIC investigators hold initial discussions with complainants, institutions and third parties, as applicable, and conduct a preliminary analysis of the records withheld by institutions.
3. Representations from the parties
During the investigation, the OIC will give complainants and institutions a reasonable opportunity to make representations on the matters under investigation (paragraphs 35(2) (a) and (b)).
When the Information Commissioner intends to order or recommend disclosure of information that might be of the types covered by section 20, third parties are entitled to a reasonable opportunity to make representations (paragraph 35(2)(c)).
In general, the OIC will request representations from third parties first, before requesting representations from institutions and complainants, depending on the particular circumstances of the investigation. When it is necessary to carry out the investigation, the OIC has the authority to provide the parties’ representations (in full or in part) to the other parties.
Records that belong or relate to third parties or that were supplied by them to institutions should already be in the third parties’ possession following the section 27 notification process. Third parties can refer to these records when making their representations to the OIC.
If institutions did not notify third parties under section 27 or if third parties cannot locate the records provided to them during the notification process, the OIC may provide records to third parties. Before providing any records to third parties, the OIC will do the following:
- ask institutions to identify the records that are at issue regarding the third-party exemption —that is, records that belong or relate to third parties or that were supplied by them to institutions;
- ask institutions to prepare a copy of these records, with any other applicable severances; and
- provide these records along with the OIC’s request seeking third parties’ representations.
During investigations, institutions sometimes change their position on the applicability of section 20 to information they had originally decided to withhold and are now prepared to disclose it. However, institutions may not disclose information previously withheld under section 20 before they receive the Information Commissioner’s Final Report and until the expiry of the period for third parties to apply to the Federal Court for a review. (See Porter Airlines Inc. v Canada (Attorney General), 2013 FC 780).
4. Notice to Third Parties
When the Information Commissioner intends to make orders requiring institutions to disclose records or part of a record that might contain information of the types covered by section 20, she will make every reasonable effort to give third parties a written notice of her intention (subsection 36.3(1)).
The Information Commissioner will not give a written notice when she makes recommendations to institutions without any order.
Within 20 days after the written notice is given, third parties may make representations to the Information Commissioner as to why the records or part of a record should not be disclosed (paragraph 36.3(2)(c)).
5. Initial Report
The Information Commissioner will provide institutions with an Initial Report only when she finds that complaints are well founded and makes orders, recommendations or both.
The Initial Report contains the Information Commissioner’s findings, any orders she intends to make, and any recommendations she makes. It also sets out the period within which the notice from institutions under paragraph 37(1)(c) (see point 6 below) should be given.
6. Notice from Institutions
Within the period provided in the Initial Report, institutions have to give notice to the Information Commissioner of the action they have taken or propose to take to implement her orders and recommendations or the reasons why they will not take any action (paragraph 37(1)(c)).
When the notice from institutions to the Information Commissioner indicates that institutions will disclose the records or parts of the records, they can only give access to the complainant after the expiry of the timelines for third parties to apply for a review in Federal Court (subsection 41(3)), and if no person applies for a review (subsection 37(4)).
7. Final Report
The Final Report sets out the results of the Information Commissioner’s investigation and any orders and recommendations she makes.
The Final Report is provided to complainants and institutions (paragraphs 37(2)(a) and (b)). It will also be provided to third parties if they were entitled to make, and made, representations to the Information Commissioner under paragraph 35(2)(c) (paragraph 37(2)(c)).
When the Information Commissioner does not issue an Initial Report to institutions, the Final Report is issued at any time after the completion of the Information Commissioner’s investigation.
When the Information Commissioner issues an Initial Report, the Final Report is issued either: after the Information Commissioner receives the notice from institutions under paragraph 37(1)(c), or after the time within which the notice is to be given has passed (subsection 37(2)).
Once the Final Report is issued, institutions can only give the complainant access to the record, or part of it, after the expiry of the timelines for third parties to apply for a review in Federal Court (subsection 41(3)), and if no person applies for a review (subsection 37(4)).