Process: Investigating complaints involving the exemption for third-party information
(Effective April 1, 2019)
Certain kinds 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 apply the exemption properly—and withhold the information at issue—institutions must show that the information is of the type section 20 covers. This includes: third parties’ trade secrets, confidential financial, commercial, scientific and technical information supplied by the third party to the institution, and information the disclosure of which could result in one of the harms listed in section 20. In addition, institutions must consider whether any of the exceptions that allow for disclosure of third party information set out in subsections 20(2), (5) or (6) apply. When responding to requests for records that include third party information, institutions must follow the process set out in sections 27 and 28 for consulting relevant third parties, and decide whether section 20 applies to the information (as per the decision in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3,  1 S.C.R. 23 at paras. 75-84). If, after consulting, institutions intend to disclose the information, and a third party objects, the third party may challenge this decision before the Federal Court. In these circumstances, the Court decides whether the exemption applies; the matter does not come to the OIC for investigation.
When requesters complain to the Information Commissioner about institutions’ use of section 20 (third-party information) to withhold records, the Office of the Information Commissioner (OIC) follows the steps below to determine whether the exemption was properly applied.
The OIC notifies the institution of the complaint (section 32) and requests the documentation associated with the request that the OIC requires to begin its investigation. (See Information Commissioner’s Guidance, Process: Initial request for documentation from institutions.) The institution must also provide the OIC with a list of all relevant third parties, whether or not they were consulted during the processing of the request (section 33).
The investigator holds initial discussions with the complainant, the institution and the third party as applicable, and conducts a preliminary analysis of the records.
When the OIC is not satisfied that the institution has applied section 20 properly, the investigator gives both the third party and the institution a reasonable opportunity to state their positions on the matter. In general, the OIC will request representations from the third party first, before requesting representations from the institution, subject to the particular circumstances of the investigation.
An institution sometimes changes its position on section 20 during an investigation and decides that it is prepared to disclose third-party information it had originally decided to withhold. However, it may not disclose additional information during the investigation. An institution may only make a new decision to disclose information withheld under section 20 after receiving the OIC’s formal recommendation to disclose (section 37). This is in order to respect third parties’ rights and ensure that they are able to challenge the institution’s decision in Court, under section 44 of the Act. See Porter Airlines Inc. v. Canada (Attorney General), 2013 FC 780.
3. Communications with third parties
The Act does not provide a legal mechanism for institutions to independently communicate with third parties regarding the request under complaint while the OIC’s investigation is in progress. Sections 27 and 28 of the Act only provide the mechanism for institutions to consult with third parties before deciding whether section 20 applies.
Generally, when the OIC seeks representations from a third party, the third party will have already received a copy of the relevant records during the section 27 consultation process. The third party can refer to these records when preparing its representations to the OIC.
However, there may be rare instances when the third party was not consulted under section 27 or cannot locate the records provided to it as part of the consultation. In these circumstances, the OIC will confirm with the institution the specific records that are at issue regarding the third-party exemption. The OIC will then ask the institution to prepare a copy of these records, with any applicable severances, The OIC will then attach them to its request for the third party’s representations. The OIC will not release records to the third party without the written permission of the institution.
4. Formal recommendations
If, after considering all of the representations and all other evidence received, the OIC is not satisfied that section 20 has been properly applied, it will send its findings and formal recommendations to the institution (subsection 37(1)). No additional disclosure of third-party information may be done by the institution during the investigation, until the OIC issues its recommendations.
When institutions decide to follow the OIC’s recommendation to disclose, they must notify the third party and the requester (section 29), and report back to the OIC (subsection 37(4)). The institution can then disclose the information, unless the third party files an application for judicial review (section 44). In that case, the Federal Court decides on the applicability of exemptions raised by the third party.
When the OIC receives the institution’s response to its recommendation, it then sends its report of findings to the complainant and the third party (subsection 37(2)).