Section 18: Economic Interests of Canada

The Provisions

  • 18) The head of a government institution may refuse to disclose any record requested under this Act that contains
    1. Trade secrets or financial , commercial, scientific or technical information that belongs to the Government of Canada or a government institution and has substantial value or is reasonably likely to have substantial value;
    2. information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution;
    3. scientific or technical information obtained through research by an officer or employee of a government institution, the disclosure of which could reasonably be expectedto deprive the officer or employee of priority of publication; or
    4. information the disclosure of which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada or the ability of the Government of Canada to manage the economy of Canada or could reasonably be expected to result in an undue benefit to any person, including, without restricting the generality of the foregoing, any such information relating to
      1. the currency, coinage or legal tender of Canada,
      2. a contemplated change in the rate of bank interest or in government borrowing,
      3. a contemplated change in tariff rates , taxes, duties or any other revenue source,
      4. a contemplated change in the conditions of operation of financial institutions,
      5. a contemplated sale or purchase of securities or of foreign or Canadian currency, or
      6. a contemplated sale or acquisition of land or property.

Preliminary matters

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian Citizen or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the Federal Government. More specifically, our Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.

Paragraph 18(a) is a discretionary class exemption. This is a two step process. Once the head determines that the record or part thereof falls within the class described in the exemption, he/she must also exercise his/her discretion whether to disclose the information.

Paragraphs 18(b), (c), & (d) are discretionary injury exemptions. Applying these exemptions is also a two step process. First, the head must determine whether disclosure of the information in a record, or part thereof, could reasonably be expected to cause the prejudice enunciated in the exemption. Secondly, he/she must exercise his/her discretion whether to exempt or disclose the information.

The "Test"

At the present time, there has been no decision from the Federal Court of Canada on the criteria to be met in order for the provision to apply. However, there has been plenty of jurisprudence on section 20 that could be applied by analogy to this provision. The following will summarize the Offices' interpretation of that provision.

1) Paragraph (a):

a) Trade secrets:

'Trade secrets' is not a term of art in Canadian law nor is it defined in the Access to Information Act.1 As noted above, anything that would fall within the ambit of 20(1)(a) would also be covered by 20(1)(b). However the opposite isn't necessarily true. Some confidential, commercial, scientific or technical information could meet the requirements of 20(1)(b) but not constitute a trade secret.

What attributes/distinguishes trade secrets from other confidential commercial, scientific or technical information?

The claim for exemption under 20(1)(a) has been made on three occasions, it has been rejected in a summary like manner. In Intercontinental Packers Limited v. Minister of Agriculture (1987), 14 F.T.R. 142 the Federal Court briefly rejected the claim for exemption by stating that a general allegation that such secrets existed were not enough to establish the exemption. Similarly, the decision in Merck Frosst Canada Inc v. Minister of Health & Welfare, (1988), 22 C.P.R. (3d) 177; 20 F.T.R. 73; 20 C.I.P.R. 302 (T.D.), provides the guidance that when the alleged trade secret has already been disclosed, the exemption is not applicable.

More recently, Mr. Justice Strayer in Société Gamma Inc. v. Department of the Secretary of State, (April 27, 1994), T-1587-93 & T-1588-93 (F.C.T.D.) attempted to illustrate the difficulty as follows:

  • "One can, I think, conclude that in the context of subsection 20(1) trade secrets must have a reasonably narrow interpretation since one would assume that they do not overlap the other categories: in particular, they can be contrasted to "commercial...confidential information supplied to a government institution...treated consistently in a confidential manner..." which is protected under paragraph (b). In respect of neither (a) nor (b) is there a need for any harm to be demonstrated from disclosure for it to be protected. There must be some difference between a trade secret and something which is merely 'confidential' and supplied to a government institution. I am of the view that a trade secret must be something, probably of a technical nature, which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed by its mere disclosure."

    i) The Treasury Board Guidelines2 defines the term 'trade secret' as follows:

    "For a record to qualify under this paragraph as a trade secret, it must satisfy all of the criteria contained in the following list:

      (i) is or may be used in trade or business,
    (ii) is not generally known in that trade or business,
    (iii) has economic value from not being generally known, and
    (iv) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

The Treasury Board's interpretation is consistent with the one formulated in 1986 by the Alberta Institute of Law Research Reform (see definition below).3 However, the one formulated by Mr. Justice Strayer is much closer, if not indistinguishable4. At that time, the Institute of Law Research Reform made public a new proposal for the protection of trade secrets. It recommended a new legislation be enacted to give better defined legal protection to trade secrets. The Institute's proposed definition for trade secrets is often described as a comprehensive summary of the elements necessary for a finding of a trade secret in Canada.

 
ii) The Institute defined the term 'trade secret' as follows:

"Trade secret means information including but not limited to a formula, pattern, compilation, programme, method, technique or process, or information contained or embodied in a product, device or mechanism which

(i)  is or may be used in trade or business,

(ii) is not generally known in that trade or business,

(iii) has economic value from not being generally known, and

(iv) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

According to the Institute, there are four elements of trade secret protection:

  • Specificity: The information must be specific and ascertainable. For instance, general information on an area of technology does not constitute a trade secret.
  • Secrecy: To protect secrecy, any disclosure made of the trade secret must be restricted and contained. The owner must treat the information as confidential and it must always be clear that the owner regards the information as a secret. If the owner discloses the information under contract, it must be on appropriate terms and conditions as to secrecy protection and confidentiality. Consequently, the ease with which discovery is possible by those not in a contractual, confidential or fiduciary relation with the owner bears on the question of secrecy.

    The extent of employee knowledge also bears heavily on this question of secrecy. If there is unrestricted access to secret information by employees, the owner has probably failed to maintain the necessary element of control. If the access to the information is restricted to designated employees and there are appropriate safeguards in place, there is a greater chance of achieving trade secret status.

  • Commercial value: The trade secret must have a certain value which, in the hands of a competitor, would remove a competitive advantage enjoyed by the owner.
  • Not generally known to the public: This does not mean that the information be novel or that it be suitable subject matter for patent or copyright protection. It can be information that could be acquired from materials available to the public with the expenditure of time and effort

iii) The institute also described four categories of trade secrets.
  • Secret formulae and processes: Take, for example, the recipe formulae for Coke or Pepsi. In such cases the formula/recipe is secret. Only a small number of persons know the formula.
  • Technological Secrets: Every business uses a combination of labour, energy, and raw materials to produce some product or service. Faced with soaring costs for all three items, contemporary businesses rely on technology to reduce costs and increase productivity. The ability of an enterprise to do well or even survive in today's highly competitive climate is directly related to its success in acquiring, protecting and using modern technology. Knowledge of these processes is usually referred to as technological 'know-how'. If this know-how becomes available to other industry members, the enterprise is not necessarily lost, but its market competitiveness will be reduced. For example, some factories do not permit visitors to view assembly lines for fear of technological espionage.
  • Strategic business information: Business spends a good deal of time and money preparing internal marketing studies, industry forecasts, etc. This inside information forms the raw data on which other decisions, such as financing or marketing may be based. Disclosure of such information might alert competitors to a particular business strategy, or save them valuable start-up time or costs in assembling the information.
  • Compilations and Collations: This category relates to information as a product in and of itself. The value of the information lies in the collation, not the individual items, which can be publicly available. Secrecy in such cases is something of a misnomer. It applies because no one else has the equipment or know-how to collate the relevant information or has invested the time and resources required to do so.

b) Case Law:

The following constitutes an illustration of how trade secrets are interpreted in other jurisdictions:

Ontario

(Orders #M-29, M-37, M-65, P-418, P-420, M-94, P-500, P-561).

  • Subsections 17(1) of the Ontario Freedom of Information Act, R.S.O. 1990, Ch. F.31 is the equivalent to our paragraph 20(1)(a). In interpreting this provision, the Ontario Commissioner adopted the definition of 'trade secret' from the Institute of Law Research and reform.

The following constitutes some illustrations the application of this definition.

(Order 222)

  • The request involved information on bids of all contracts awarded by the Ministry. The Ministry of Culture and Communications exempted work plans, costing and overall proposal structures on the grounds that they constituted trade secrets. In his decision, Assistant Commissioner Tom Wright stated that while he agreed that the requested information constituted technical and commercial information, he could not agree that the information could constitute 'trade secrets'.

(Order M-29)

  • The requestor requested from the Etobicoke Board of Education any "information purchased by the institution from a research company". In his decision, Commissioner Wright stated that the research company did not provide sufficient information to support the position that the information was the subject of efforts which were reasonable to maintain its secrecy - which is a necessary element of the definition of 'trade secret'.

(Order M-65)

  • The Hamilton Board of Education received an access request to a proposal that was developed in conjunction with Apple Canada for an advanced technology secondary School. The records identified were a four-page document which outlined the conceptual framework for the development of a possible project and a one page 'letter of Intent'. The inquiry officer refused to qualify the information as trade secret since the connection between the information contained in the records and the commercial activities of Apple Canada was too remote.

(Order P-561)

  • The Commission found that information concerning the construction of the retractable roof of SkyDome was 'trade secret' information. The records showed unique construction processes and techniques together with testing procedures for the roof seals. The information represented an acquired body of knowledge, experience and skill relating to the development of certain techniques, methods and processes unique to the construction of the SkyDome structure. The Commission found that the knowledge base or learning curve, conferred proprietary rights on its owners. The information had economic value and was subject to efforts to keep it confidential. While the information was circulated to a construction management group, it was done so on express terms that it be kept confidential.

Quebec

Section 23 of An Act Respecting Access to Documents held by Public Bodies and the Protection of Personal Information also refers to the notion of industrial secrets... . That section reads as follows:

  • "23. No public body may release industrial secrets of a third person or confidential industrial, financial, commercial, scientific, technical or union information supplied by a third person and ordinarily treated by a third person as confidential, without his consent."

At the present time, only one decision is worth discussion for the purpose of this grid. In Récupération Portneuf Inc. c. Ministere de l'Environnement, [1991] C.A.I. 269 (C.Q.), the Commission stated that the fact that a document had inadvertently been misplaced in a public registry does not restrain the application of section 23 - i.e., the mistake does not affect the qualitative nature of the document.

While the decision demonstrate that the qualitative nature of a trade secret may not be inadvertently lost, we feel that in such circumstances it would be more difficult to substantiate that it was still a trade secret.

United States

In the United States, exemption 4, 5 U.S.C. @ 552(b)(4), justifies withholding of trade secrets. 4. This exemption applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential".5 Here again, there is not very much guidance as to the meaning of the term 'trade secret'.

In Public Citizen Health Research Group v. FDA, 704 F. 2d 1280, 1288 (D.C. Cir. 1983), the Court of Appeal for the District of Columbia Circuit has adopted a narrow 'Common Law' definition of the term trade secret that differs from the broad definition used in the restatement of torts ( i.e., that trade secret is a broad term extending to virtually any information that provides a competitive advantage). The D.C. Circuit's decision in that case represented a distinct departure from what until then had been almost universally accepted by the courts. The narrow definition provided described 'trade secrets' as "a secret, commercially valuable plan formula, process, or device that is used for the making, preparing, compounding or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort". This definition requires that there be a 'direct relationship' between the trade secret and the productive process.

The Court of Appeal for the tenth Circuit has expressly adopted the D.C. Circuit's narrow definition, finding it "more consistent with the policies behind the FOI than the broad Restatement definition."6 In so doing, the Court of Appeal noted that the adoption of the broader Restatement definition "would render superfluous" the remaining category of exemption 4 information because there would be no information falling within the latter category that would be outside the reach of the trade secret category.

c) Financial, commercial, scientific or technical information:

For the purpose of this section, it is sufficient that the information relate or pertain to matters of finance, commerce, science or technical matters, as those terms are commonly understood (see Air Atonabee Ltd. v. Minister of Transport (1989), 27 F.T.R. 194 (T.D.). Further, as M. Justice Rothstein explained in Canada Post Corporation v. Minister of Public Works et al. (June 3, 1993), T-2059-91, dictionary definitions can be considered in determining the meaning of a provision when the suggested meaning in the dictionary is consistent with the purpose of the Act.

These terms are defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

  • Finance: "1. the management of (esp. public) money. 2. monetary support for an enterprise. 3. (in pl.) the money resources of a State, company, or person... ."
  • Financial: "1. of finance... ."
  • Commerce: "1. financial transactions, esp. the buying and selling of merchandise, on a large scale... ."
  • Commercial: "1. of, engaged in, or concerned with, commerce. 2. having profit as a primary aim rather than artistic etc. value; philistine...."
  • Science: "1. a branch of knowledge conducted on objective principles involving the systematized observation of and experiment with phenomena, esp. concerned with the material and functions of the physical universe... ."

    "2a. systematic and formulated knowledge, esp. of a specified type or on a specified subject... ."

    "2b. the pursuit or principles of this."

    "3. an organized body of knowledge on a subject."

    "4. skilful technique rather than strength or natural ability."

    "5. archaic knowledge of any kind."

  • Scientific: "1a. according to rules laid down is an exact science for performing observations and testing the soundness of conclusions."

    "1b. systematic, accurate."

    "2. used in, engaged in, or relating to science."

    "3. assisted by expert knowledge."

  • Technic: "1a. technology."

    "1b. technical terms, details, methods, etc."

    "2. technique."

  • Technical: "1. of or involving or concerned with the mechanical arts and applied sciences."

    "2. of or relating to a particular subject or craft etc. or its techniques... ."

    "3. using technical language; requiring special knowledge to be understood... ."

d) Belongs to the Government of Canada or a Government institution:

This requirement indicates that the exemption provides for protection of proprietary information of the Government of Canada. It may include information that is patentable or that the government may want to licence. In order for the provision to apply, the institution claiming the proprietary interest must furnish proof of ownership or some similar legal right to the information.

Black's Law Dictionary, 6d. defines the term 'Government' as follows:

  • "'Government' consists of the machinery by which the sovereign power in a state expresses its will and exercise its functions; or the framework of political institutions, departments, and offices, by means of which the executive, judicial, legislative, and administrative business of the state is carried on ."

Note: Paragraph 18(a) does not apply to trade secret of financial, commercial scientific or technical information of a third party. Such information may however be covered by section 20. The effect of that different treatment would be that non-schedule I institutions would be subject to the 'product or environment testing override' [20(2)], and the 'public interest override' [20(6)], while Schedule I institutions would not.

e) Has substantial value or is reasonably likely to have substantial value:

This part of the test requires us to consider the classes or types of records based on their content - i.e., the information itself must have an intrinsic substantial value (i.e., it is not the expense that went into producing or preparing the information that is relevant, but the value of the information itself).

A marginal or nominal value would not be sufficient. What is required for that exemption to apply is that the information must have - or is likely to have, substantial value. We have not yet been able to identify any case law or doctrine that would help identify the meaning of 'substantial'. This meaning will probably vary with the circumstances.

The term 'value' itself is not defined in the act. Without restricting the scope of the exemption, the 'value' referred in this provision could be of commercial, market or monetary value, etc. For example, a research paper could be said to have monetary value if it is going to be published and sold or if it was key to a patent application.

This exemption may not be applied when the information is in the public domain through a bona fide publication by the media.7 As such, it is presumed that the information would lose its financial value when it becomes accessible to the public.

2) Paragraph (b):

  • a) Where disclosure could reasonably be expected to:

While there have been only a few Federal Court decision on the interpretation of this provision, there has been jurisprudence dealing with the prejudice portion of the test required under paragraphs 20(1)(c) & (d) which contains the same wording. Since legislative draughtsmen are supposed to respect the principle of uniformity of expression, each term contained in a statute should have one and only one meaning when it is used in similar circumstances. Therefore, the jurisprudence of the Federal Court of Canada made in the context of section 20 may also be applied in the context of this provision.

In Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.) the Court held that the test is whether, assuming use of the information, its disclosure would give rise to a reasonable expectation of probable harm. The burden of proof is on the party resisting disclosure8, and that to satisfy the requirement of this exemption, there must be evidence as to the way in which the information will cause harm and the degree of harm it will cause.9

The evidence of harm must be detailed, convincing and describe a direct causation between disclosure and harm. However, one must clearly distinguish between 'direct causation' and 'direct causality'; the former being the test to be applied under injury exemptions, the latter being explicitly rejected by the Court of Appeal in Canada Packers Inc. v. Minister of Agriculture et al., [1989] 1 F.C. 47 (C.A.). 'Direct causation' requires a direct causal link - the person resisting disclosure must bring specific evidence which would show that there is a link arising from the disclosure which would result in the harm. To put it another way, there must be some logical explanation to show why disclosure could lead to a particular identifiable harm. However, the person resisting disclosure does not have to prove a 'direct causality' (i.e., that the disclosure of the requested information would by itselfcause the specific harm). In other words, it is not necessary to prove that disclosure could result directly in producing the specific harm.

In Information Commissioner v. Immigration and Refugee Board (1997), 140 F.T.R. 140 the Federal Court Trial Division characterized the injury test in paragraph 16(1)(c) of the Act as a "confident belief", as follows:

The reasonable expectation of probable harm implies a confident belief. There must be a clear and direct link between the disclosure of specific information and the harm alleged. The Court must be given an explanation as to how or why the harm alleged would result from the disclosure of specific information. The more specific and substantiated the evidence, the stronger the case for confidentiality. It cannot refer to future investigations generally.

Where the harm foreseen by release of the records sought is one about which there can only be mere speculation or mere possibility of harm, the standard is not met. It must have an impact on a particular investigation, where it has been undertaken or is about to be undertaken. One cannot refuse to disclose information under paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act on the basis that to disclose would have a chilling effect on possible future investigation. (at paras. 40-45).

A high standard of proof is necessary to establish an exemption from disclosure on grounds of financial harm or contract interference.10 To prove harm, one must be able to trace, track, illustrate, show how disclosure of specific information could lead to the harm alleged.

Under the Act, the test is one of reasonably expected financial or competitive harm, regardless of whether the information disclosed is confidential per se (i.e., inherently). However, if the information is, in fact, confidential - this could increase the likelihood that it might be able to meet the test. The standard of proof for substantial competitive harm is evidence of substantial injury. Evidence that harm might result is pure speculation and is not good enough. The expectation of harm must be likely, but it need not be a certainty.11

Description of possible harm, even in substantial detail, is often insufficient in itself. At a minimum, there must be a clear linkage between the disclosure of specific information and the harm alleged. We must be given an explanation of how and why the harm alleged would result from disclosure of specific information. However, if it is self-evident that as a result of disclosure of the record:

  • harm will be done;
  • how (and when) it will be done; and
  • why it will be done, little explanation needs to be given.12

What you want is a clear, logical believable explanation of the harm that could be expected if the information is disclosed and the connection between the disclosure and the harm - i.e., the logical link.

Where inferences must be drawn, or the answers to any of these questions are not clear, then more explanation would be required. The more specific and substantiated the evidence, the stronger the case for the exemption. The more general the evidence or the less plausible (believable) the result, the more difficult it would be to be satisfied as to the linkage between disclosure of particulars documents and the harm alleged - i.e., the more difficult it will be to conclude that the test has been met.

The context surrounding the disclosure of the information is also relevant. The jurisprudence has establish certain specific conditions that could be taken into consideration when determining whether a reasonable expectation of harm would result from disclosure:

  • Use of the information: You must assume that the information would be used in assessing whether its disclosure would give rise to a reasonable expectation of harm.13 For example, what use would likely be made of the information by a competitor is a relevant factor to be considered. In what way would this use likely lead to harm? For example, what use would likely be made by the requestor or might be made by the requestor? These are relevant factors in determining how use could lead to the specific harm.
  • Availability of the information: It is relevant to consider if the information sought to be kept confidential is already available from sources otherwise available to the public and whether it could be obtained by observation or independent study by a member of the public acting on their own. For example, where the information requested is already available elsewhere to the public, there may be need for exemption under this exemption.14 The party alleging that the information is publicly available (i.e., even if it's us) has the burden of proof. Not only must the party prove that the withheld information is otherwise publicly available, but if it is government information, that the information was released from an official source.15
  • Press coverage: Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure.16 When the same or similar information has already been disclosed and received press coverage, no additional harm could be expected from the release of the requested information. Note however that a third party cannot claim that media would misinterpret the requested information and would cause prejudice to the third party. This argument has been found purely speculative.17
  • Time: Evidence of the period of time between the date of the confidential record and its disclosure is relevant.18 In some cases, the older the record, the less likely an injury could occur.
  • Other relevant documents: Each document must be considered on its own merit and in the context of all the documents requested for release since the total contents of the release may have a considerable bearing on the reasonable consequences of its disclosure.19 On the other hand, a single record may cause harm when disclosed but disclosure may result in no harm when disclosed in full context or with an explanation.

It is the probable consequences of disclosure which are most significant in determining whether a document or a portion thereof may be exempted under this section, not the nature of the document or the nature of the information contained in the document.

  • b) Prejudice the competitive position of a government institution:

This test has now been interpreted by the Federal Court.

It is our view that in order to be covered by this exemption, the government institution must have a defined market or business which would be adversely affected by the disclosure. The Royal Canadian Mint, the Canada Mortgage and Housing Corporation are examples of institutions that could be affected by disclosure of some information.

The injury does not have to be translatable into monetary value. Unlike the other tests under this exemption, the prejudice is not qualified - i.e., the Act does not say materially prejudice. Therefore, the only requirement is to show a reasonable probability that the disclosure of the requested information would cause some identifiable harm to the competitive position of a government institution. For example, perhaps an institution could show prejudice by proving that the institution enjoys a competitive advantage by the possession of the requested information.

There could be some situations where, for example, it is possible to perceive a prejudice but it is not possible to translate it in a monetary value. (e.g. the expertise of the employees of a government institution; the quality of products / services used, etc.). Such information is also covered by 18(b).

  • c) CASE LAW - Paragraph 18(b):

Hutton v. Canada (Minister of Natural Resources), (1997), 137 F.T.R. 110 (F.C.T.D.). Applicant requested access to records relating to studies conducted by the Canadian Explosive Research Laboratory on behalf of an outside company. The Court accepted the application of paragraph 18(b) and 20(1)(c), (d) to the records based on its finding that the C.E.R.L. made an express undertaking of confidentiality to the company and would be prejudiced in seeking outside revenues if it became known that they were unable to assure confidentiality to clients. The Court also applied paragraphs 20(1)(c) and (d) to the records based on the fact that the company for whom the report was done was involved in significant litigation and settlement negotiations which could be directly impacted by disclosure of the report.

3) Paragraph (c):

  • Scientific or technical: See sub-paragraph (a)(ii) above.
  • Obtained through research: The term 'research' means the systematic investigation into and study of material or sources in order to establish facts and search new conclusions.
  • Officer or employee of a government institution: The exemption does not cover researchers employed under contract with a government institution or researchers from organizations not covered by the Act.
  • Disclosure could reasonably be expected: Here again, it is the consequences of disclosure which are most significant in determining whether a document is exempt under paragraph (c), and not the nature of the document or the information contained in the document. For further explanations, see sub-paragraph (b) (i) above where this test was further defined.
  • Deprive of priority of publication: Information obtained through research by a researcher may only be expected if the researcher intends to publish the information and disclosure would deprive the research of priority of publication.

4) Paragraph (d):

  • a) Disclosure could reasonably be expected:

Here again, it is the consequences of disclosure which are most significant in determining whether a document is exempt under paragraph (d), and not the nature of the document or the information contained in the document. While it may be expected that information relating to one or more of the matters referred to in sub-paragraphs (i) to (vi) would, at least if prematurely disclosed, result in a consequence within paragraph (d), whether this would be so in a particular case would depend upon such factors as the nature of the information, whether it related to decisions already taken or yet to be taken and the external circumstances. For further explanations, see sub-paragraph (b)(i) above where this test was further defined.

  • b) Materially injurious:

To meet the test in paragraph (d), the disclosure of the document must be expected to have the effect of hindering or defeating government economic or financial policies or to make it more difficult to put those policies into effect or to continue with those policies. The exemption may apply to information of a purely factual character, as well as to information dealing with plans or policies.

Paragraph (d) is primarily concerned with circumstances where the premature disclosure of information would likely have one or more of the consequences referred to in that paragraph; i.e.:

  • "1. injury to the financial interests of the government."
  • "2. injury to the ability of the government to manage the economy" or
  • "3. result in an undue benefit to any person."

There are three alternative tests in this provision, and it would be sufficient for the government to meet one of the tests for the exemption to apply. For example, the premature disclosure of a document which would suggest some change in the rate of bank interest would, if disclosure under the Act to a person in a position to take advantage of the information, give that person an undue advantage over others who did not obtain access to the information, under the Access to Information Act. Paragraph (d) may also apply to information of a factual kind where, for example, the assembling of certain factual information would reasonably lead to point to the direction of thinking in terms of policy.

  • c) Financial interests of the government of Canada:

The term 'Financial interests' refers to the financial position of the government of Canada. It includes the management of assets and liabilities, and the ability of the government to protect its own interests in financial transactions with third parties. The financial interests of the government also include the ability to collect taxes, generate revenues, etc. Harm to the financial interests of the government could involve monetary loss, or loss of assets with a monetary value.

This term will not apply to support the exemption of information revealing the availability of a legitimate tax deduction, notwithstanding the loss in tax revenue that would result from disclosure. (See Canadian Council of Christian Charities v. Canada (Minister of Finance), May 19, 1999, unreported F.C.T.D. [to be confirmed].

  d) Ability of the Government of Canada to manage the economy of Canada:

This part of the exemption refers to broader interests of the government in managing the production, distribution, and consumption of goods and services. Harm to the ability of the government to manage the economy would damage or cause detriment to the economic policies or activities for which the government is responsible.

The government of Canada is responsible for managing many aspects of the country's economic activities in the interests of the citizens of Canada, by ensuring that an appropriate economic infrastructure is in place and by felicitating and regulating the activities of the marketplace.

The ability of the government of Canada to manage the economy, depends on a range of activities, including fiscal and economic policies, taxation, economic and business development initiatives.

  • e) Undue benefit to any person:

The term 'undue' is defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

  • undue: "not owed or suitable, excessive, disproportionate".

This exemption cannot be relied upon where the harm would not result from the disclosure of the records, but rather from the potential misuse of the records on disclosure. (See Ontario Orders #154, M-117.)

  • f) Including, without restricting the generality of the foregoing:

The use of 'including' means that the list which follows (sub-paragraphs (i) to (vi) provides examples of the types of information, the release of which could likely be harmful to the financial and economic interests of the government of Canada, or expected to result in an undue benefit to a person.

The list does not cover every type of information which could reasonably be expected to cause such harm. Information not explicitly listed but which is similar in type to the information listed and meets the harm test set out in paragraph 18(d), would be covered by the exemption. For example, economic forecasts are not in the paragraph (d) list but may, in certain circumstances, be exempt under section 18), where it can be shown that their disclosure would, or could reasonably be expected to have the substantial adverse effect referred to in that section.

The fact that information belongs to one of the categories listed is not sufficient in itself to establish that it meets the harm test set out in paragraph (d). Although there is a possibility that the disclosure of information in these categories would harm the financial or economic interests of Canada, the head of the government institution must have reasonable grounds to expect harm in order to apply the exemption. One must not forget that the test under this provision is one of injury or probable injury and that the descriptive paragraphs which follow are illustrative only. They are non-exhaustive description of the kinds of documents the disclosure of which might be found to be injurious to the specific interests listed.

  • g) Review Under Section 50

The paragraph 18(1)(d) exemption is judicially received under section 50 of the Act which provides that:

  • "Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of section 14 or 15 or paragraph 16 (1)(c) or (d) or 18 (d), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the record or part there of, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such order as the Court deems appropriate".

In X v. Canada (Minister of National Defence), [1992] 1 F.C. 77 at 106, Mr. Justice Denault, in interpreting this section, has stated that it authorizes the Court to "disclose information if the head of the government institution ... did not have reasonable grounds upon which to refuse disclosure".

Therefore, in determining whether the exemption under section 15 is justified, we must determine whether the head had reasonable grounds to believe that the release of the information exempted could lead to the particular harm.

Notwithstanding the higher standard for interference with a head's decision under section 50, it is very much part of the role of our office to determine the reasonableness of the head's conclusion that disclosure would lead to the injury set out in the exemptions subject to section 50 review. Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000, was a case concerning paragraph 22(1)(b) of the Privacy Act, (the parallel provision to paragraph 16(1)(c) of the Access to Information Act), which is in turn subject to review under section 49 of the Privacy Act (section 50 Access to Information Act), the Federal Court of Appeal overturned the Trial Judge's conclusion that he could not substitute his views on injury for the decision of the institution head and instead directed a closer scrutiny of the reasonableness of the institution's determination that the injury described in the exemption would be caused by disclosure:

Furthermore, the reviewing judge concluded at page 36 of his decision that "the Court cannot substitute its views for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury." We would add, however, that it is very much part of the Court's role under section 49 [section 50 Access to Information Act] to determine the reasonableness of the grounds on which disclosure was refused by CSIS. That being the case, the reviewing judge, in our view, should have scrutinized more closely whether the release of information, particularly information that is over 20 years old, could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and, therefore, whether CSIS had a reasonable ground to refuse to disclose. (Emphasis added).

 

 

Table of Authorities

Trade secrets

Canada

Intercontinental Packers Limited v. Minister of Agriculture (1987), 14 F.T.R. 142.

Merck Frosst Canada Inc. v. Minister of Health & Welfare, (1988), 22 C.P.R. (3d) 177;

Société Gamma Inc. v. Department of the Secretary of State, (April 27, 1994), T-1587-93 & T-1588-93 (F.C.T.D.) .

Ontario

Orders #M-29, M-37, M-65, P-222, P-418, P-420, M-94, P-500, P-561.

Quebec

Récupération Portneuf Inc. c. Ministere de l'Environnement, [1991] C.A.I. 269 (C.Q.).

United States

Anderson v. HHS, 907 F. 2d 936, 944 (10th Cir. 1990).

Public Citizen Health Research Group v. FDA, 704 F. 2d 1280, 1288 (D.C. Cir. 1983).

Financial, commercial, scientific or technical information

Canada

Air Atonabee Ltd. v. Minister of Transport (1989), 27 F.T.R. 194 (T.D.).

Has substantial value or is reasonably likely to have substantial value

Ontario

Orders # 87, P-270.

Disclosure could reasonably be expected

Canada

Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.).

Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47 (C.A.).

Information Commissioner of Canada v. Prime Minister of Canada, [1993] 1 F.C. 427 (T.D.).

Matol Botanique International Inc. v. Canada (Department of National Health and Welfare) (June 3, 1994), T-2916-90 (F.C.T.D.):

Merck Frosst Canada Inc. v. Minister of Health & Welfare, (1988), 22 C.P.R. (3d) 177; 20 F.T.R. 73; 20 C.I.P.R. 302 (T.D.)

Northern Cruiser Company Limited v. R (September 12, 1991) No.T-109-90 (F.C.T.D.); confirmed by F.C.A. (August 28, 1995), A-1039-91.

Ottawa Football Club v. Minister of Fitness and Amateur Sports, [1989] 2 F.C. 480, 24 F.T.R. 62, 23 C.P.R. (3d) 297 (F.C.T.D.).

Piller Sausages and Delicatessens Limited v. Minister of Agriculture at al. (1987), 14 F.T.R. 118 (T.D.)

Review under Section 50

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77, 46 F.T.R. 206 (TD).

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.).

United States

Fensterwald v. CIA, 443 F. Supp. 667 (D.D.C. 1978).

Fisher v. Dep't of Justice, 772 F. Supp. 7, 11 (D.D.C. 1991).

Founding Church of Scientology, Inc. v. NSA, 197 App. D.C. 305, 610 F.2d 824, 831-32 (D.C. Cir. 1979).

Simmons v. Dep't of Justice, 796 F.2d 709, 712 (4th Cir. 1986).

Sirota v. CIA, 3 G.D.S. para. 83,261 (S.D.N.Y. 1981).

State v. City of Cleveland, Civil No. 59571 (Ohio App. Aug. 27, 1992).

Undue benefit to any person

Ontario

Orders #154, M-117

Endnotes

1. C. H. McNairn & C.D. Woodbury, Government Information: Access and Privacy, Carswell, 1991.

2. Treasury Board Manual Access to Information Volume, Treasury Board of Canada, December 1, 1993, Chap 2-8 at 26.

3. The Institute of Law Research and Reform, Alberta and a Federal-Provincial Working Party, Trade Secrets, (Report No. 46, July 1986).

4. The interpretation of the Institute (and of Mr. Justice Strayer) is much narrower than the Treasury Board's interpretation and is preferred by this office. For example, The T.B. interpretation does not require the trade secret to have obtained its economic value from not being generally known, nor does it require that the efforts taken to protect the information be reasonable under the circumstances.

5. 5 U.S.C. § 552.

6. Anderson v. HHS, 907 F. 2d 936, 944 (10th Cir. 1990).

7. For example, see Ontario Orders # 87 & P-270.

8. Northern Cruiser Company Limited v. R (September 12, 1991) No.T-109-90 (F.C.T.D.), confirmed by F.C.A. (August 28, 1995), A-1039-91.

9. Merck Frosst Canada Inc. v. Minister of Health & Welfare, (1988), 20 F.T.R. 73 (T.D.); Information Commissioner of Canada v. Prime Minister of Canada,[1993] 1 F.C. 427 (T.D.)

10. Piller Sausages and Delicatessens Limited v. Minister of Agriculture at al. (1987), 14 F.T.R. 118 (T.D.).

11. Ibid.

12. Information Commissioner of Canada v. Prime Minister [1993] 1 F.C. 427 (T.D.)

13. Air Atonabee Ltd. v. Minister of Transport, (1989), 27 F.T.R. 194 at 216.

14. State v. City of Cleveland, Civil No. 59571 (Ohio App. Aug. 27, 1992): Section 149.43(a)(2)(d) of the Ohio Public Records Act exempts information which would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness or a confidential information source. The respondents claimed this exemption for records relating to the identity of police informants. The court recognized that incarcerated informants incur a high degree of risk to their physical safety after providing information to the police. However, if an informant discloses his identity by testifying at trial, then it is doubtful that redacting the records relating to that informant will enhance his security.

15. Fisher v. United States DOJ, 772 F. Supp. 7 (D.C. Col. August 15, 1991): In this case, the plaintiff's primary complaint was that much of the requested information allegedly had been released to the news media, and he contends that therefore he is entitled to this information. However, the plaintiff failed to provide evidence that the media coverage was the result of a release of the requested information by the government to the press. Nor did the plaintiff demonstrate that any of the withheld information has been the subject of publicity so widespread as to warrant disclosure under the FOIA. See Founding Church of Scientology, Inc. v. NSA, 197 App. D.C. 305, 610 F.2d 824, 831-32 (D.C. Cir.1979). Moreover, the Court found that even assuming that some of the withheld information has appeared in the press, the nondisclosure was not proper because a disclosure from an official source of information previously released by an unofficial source would confirm the unofficial information and therefore cause harm to third parties. See Simmons v. Dep't of Justice, 796 F.2d 709, 712 (4th Cir. 1986) ("release from an official source naturally confirms the accuracy of the previously leaked information"). Furthermore, public disclosure of some information does not necessitate the disclosure of additional information that is otherwise properly exempt from disclosure. Sirota v. CIA, 3 G.D.S. para. 83,261 (S.D.N.Y. 1981)(citing Fensterwald v. CIA, 443 F. Supp. 667 (D.D.C. 1978).

The plaintiff also contended that during the sixteen-week trial in which he was a co-defendant, information withheld by the defendants was disclosed. However, the plaintiff failed to reference a single document withheld by the defendants in whole or in part which might fall within this category, and has not demonstrated that any of the withheld information has been so publicized as to warrant disclosure under the FOIA. See Founding Church of Scientology, 610 F.2d at 831-32.

16. See Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47 (C.A.) where the Court found that the evidence did not sustain the appellant's fear of unfair press coverage or its impact, rejecting evidence of previous press reports which related to products rather that on the condition of the plants which was the subject of the report at issue. See also Ottawa Football Club v. Minister of Fitness and Amateur Sports, [1989] 2 F.C. 480, 24 F.T.R. 62, 23 C.P.R. (3d) 297 (F.C.T.D.) where the Court found that since most of the information contained in the requested documents already made press coverage, no additional harm could be expected from the release of the requested information.

17. See Mathol Botanique International Inc. v. Canada (Department of National Health and Welfare) (June 3, 1994), T-2916-90 (F.C.T.D.): While the Court found that sometimes the media is biased in the way it informs the public, it could not infer bad faith upon the media without any evidence to this effect.

18. Ottawa Football Club, supra where the judge considered that the record was three years old when assessing the likelihood of harm resulting from disclosure.

19. Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47 (C.A.).

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