Section 18: The Questions

 

Paragraph -- 18(a)
Statement of Test to be Met
Trade Secrets Record:
  • must describe a formula, pattern, compilation, programme, method, technique, process that has commercial or industrial application and economic value from not being known
  • must be secret
  • reasonable efforts must be taken to maintain its secrecy
Relevant Questions Departmental Response Assessment
Identify what the record describes.

Does the information in the record represent a [method/formula/technique/process] of making a product?

Where did the information in the record come from?

If it is a compilation of information from various sources, ask:

  • What the sources of the information are?
  • How did the institution get permission to use the source?
  • Are the sources available to others?
  • Has the information ever been compiled in this manner before (to their knowledge)?

What does the government institution do with the compilation or use it for?

  • Does it distribute the compilation to others?
    • Who?
    • For what purpose?
  • Does it sell it?

How can the [method, formula, compilation, technique, process] be used or applied?

What is the market for the process or product?

  • Who uses it?
  • What is it used for?
  • Does the government institution sell this product?
  • Are there private sector organizations or universities which generate similar products?
  • Are the methods they use known?

Does the government institution participate in groups with organizations/individuals outside the government in this area?

  • What kind of participation?
  • Does the government institution exchange information with such groups?
  • What kind of information?

Does the government institution make similar or other products/compilations than the ones described in the record?

Is the information describing the methods used for making these products or compilations distributed?

To whom are these agreements attaching conditions to the use of this information

  • ask to see agreements

Is the government institution or officer applying for patent, trademark, industrial design or copyright protection with respect to the [method, process, and technique] described in the record?

Where does the institution keep the records?

Are they separate from other records?

What security measures are in place with respect to storage of records?

If the records are computer accessible, how can they be accessed?

Have there been previous requests for access to the records?

What response was given to such requests?

Have the method, technique been described in other documents, and professional or scientific papers?

  • If so, ask to see the papers.
  • Who was in attendance at conference?
  • What market is publication directed at?
   
Statement of Test to be Met
Financial, commercial, scientific or technical information
Relevant Questions Departmental Response Assessment
Financial/Commercial - what does the record describe?

Commercial - what activity of the government institution does the information relate to?

  • Is this a sales activity?
  • Is it a revenue generating activity?
  • Does it relate to purchasing, tendering, or leasing activity by the government institution?
  • Does it relate to government guarantees provided to lending institutions?
  • Does it relate to lending activity by the government institution?
  • Does it represent the administration of grants or assistance by the government institution?
  • Has any security been taken in respect of the activity described?

Scientific/Technical - what does the record describe?

What type of work or activity is involved?

What is the subject matter of this work or activity?

Where is the work performed?

  • in a lab
  • in a production facility
  • a research facility

What is the purpose or objective of the government institution (i.e., statutory purpose) [investigator to assess whether it relates to scientific/technical]?

   
Statement of Test to be Met
Information must belong to the Government of Canada or a government institution
  • institution must show legal incidents of ownership of the information
  • information in the public domain loses its incidents of ownership
Relevant Questions Departmental Response Assessment
Has the Government of Canada or government institution applied for the following types of protection of the information against use by others:
  • trademark registration
  • patent registration
  • copyright registration
  • industrial design registration
  • medical devices approval

Food and Drug Act registration/approvals

Does the Government of Canada/government institution licence others to use the information?

Does the Government of Canada/government institution licence others to carry out the [sales, purchase, etc] activity to which the information relates?

Ask to see licence or other such agreements.

Has the information been used for?

  • seminars
  • publication in journals, periodicals, papers
  • speeches

Has there been any media or magazine reporting about the activity represented by the information.

  • [ask to see such paper records of proceedings, transcripts, and articles]?

With respect to financial/commercial information

  • Does this information get included in the annual report of the institution?
  • Is it included in the Estimates?
  • What was the spending authority for the expenditures represented in the record?
  • Was this information provided to any House of Commons committee?
  • Is the information available to third parties (stakeholders, etc.)?

Where was information generated/who generated it?

  • in government facilities
  • in university facilities
  • by government institution or by a third party (i.e., Indian Band)

Was information generated pursuant to a contract with a third party?

  • If so, ask to see contract.

Does contract confer proprietary rights?

  • To whom?

Was information generated by outside party and provided to government institution?

Was there a delegation of authority requiring the outside party to generate the information?

Was the outside party required to generate the information under terms of funding, loans, grants, etc.?

   
Statement of Test to be Met
Has or is reasonably likely to have substantial value?
Relevant Questions Departmental Response Assessment
What can the government institution do with the information?
  • Does it sell it?
    • How much annual revenue is received?
  • Does it licence use of the information?
    • How much annual revenue is received?

Can the institution quantify the value to it of use of the information?

Does possession of the information create a competitive or commercial advantage for the government institution?

  • Describe the advantage.

Does the institution presently contemplate marketing the information or activity described?

  • Is there a marketing plan?
  • Is there approval or statutory authority?

Are there forecasts of revenue to be generated from the activity?

  • How much revenue is forecast?

What revenue does the institution generate from other activities, if any?

  • [Compare these numbers to determine whether the value is substantial]
   
Paragraph -- 18(b)
Statement of Test to be Met

Government institution must have a 'competitive position'. Government institution must be the entity prejudiced by disclosure:

  • Ensure that the entity who claims the prejudice is a government institution (not a Crown corporation or privatized body)
Relevant Questions Departmental Response Assessment
What kind of activity does the information describe or relate to?

What activity is the government institution engaged in?

What are the purposes or objects of the government institution?

Are there others outside government that engage in similar activities?

Does the government institution sell products or offer services also offered by others?

  • In the same areas?
  • To the same customers/buyers?

Where does the government institution get its funding for the activity described or related to the information?

Are there others who also receive funding for this activity by government?

  • Who?

What is the market for the activity related to the information?

Are others providing or selling goods or services in this market?

Can the government institution describe what resources (i.e., funding people, research contracts, consulting contracts, audit work) it competes for in this market?

Does the government institution provide services or goods to other institutions or the private sector under contract?

  • Do others compete with the institution to do so?

Is the government institution currently engaged in contractual negotiations with respect to the activity described/related to the information?

What is the status of those negotiations?

How does the information relate to the negotiations?

   
Statement of Test to be Met
  • The competitive position of the government must be prejudiced by disclosure.
  • There must be a reasonable expectation that such prejudice will occur.
  • Investigator must assess reasonableness of the assertion of harm caused by disclosure.
Relevant Questions Departmental Response Assessment
How would the information assist a competitor?

How would it assist a contractor or 'customer' of the institution?

How will this harm the position of the government institution?

Has the government institution given an undertaking of confidentiality to an outside client or customer?

Is the confidentiality undertaking required given the nature of the services being performed i.e. opinion evidence, expert reports, etc.?

Why is the confidentiality undertaking necessary to the relationship between the government institution and its client?

Assess the content of the information against the claim for confidentiality - is the information sensitive in nature?

Has it been referred to in papers, publications, and speeches, in the media?

Has it been disclosed to contractors/suppliers?

Are there any examples of prior disclosure?

  • What prejudice/harm did these disclosures create?

Is the requestor a potential competitor or contractor with the government institution?

  • Describe why/in what respect?

Describe how disclosure could assist a requestor in its dealings with the government institution.

Would a competitor/requestor/contractor be assisted with this information on its own or would other information be required?

  • If so, what kind of other information?
  • Is the other information contained in annual reports or other public documents, House of Commons Committees, estimates, etc.?
  • Is the other information disclosed to those outside the institution
    • Who?
    • For what purpose
    • Do those persons maintain it in confidence?
   
Paragraph -- 18(c)
Statement of Test to be Met
  • Scientific or technical information obtained through research by an officer or employee of a government institution.
Relevant Questions Departmental Response Assessment
Scientific/Technical - what does the record describe?

What type of work or activity is involved?

What is the subject matter of this work or activity?

Where is the work performed?

  • in a lab
  • in a production facility
  • a research facility

Obtained through research

Does the information represent the results of a study or research activity?

Ask to see a research proposal or monograph relating to the information.

What was the source of funding for the research/what was the purpose of the funding program [assess whether the funding program was for scientific or technical research]?

What did the research relate to?

Who did the research?

Are they employed or appointed as an officer of the government institution?

What position do they have?

  • How long have they been in this position?
  • Did they hold any other position while doing this research?
    • What position?

Was the research performed in premises owned by the government?

  • Where?

If not, where was it performed?

What arrangement was put in place with X to perform the research?

  • Ask to see proposal/agreement.

Was the researcher seconded to this other institution, on interchange or did they assume a chair or other position (visiting professor, etc.) while performing the research?

   
Statement of Test to be Met
Disclosure would deprive the officer or employee of priority of publication.
  • Publication must be planned.

There is a reasonable expectation that this will occur.

  • Investigator must assess the reasonableness or likelihood of this happening.
Relevant Questions Departmental Response Assessment
Is the research being done for a particular publication?

Does the researcher intend to seek publication of the research?

  • Where?
  • When?

Who will author the article or published material?

What stage is the research at?

Is it close to the stage where it would be eligible for publication?

Has it been accepted for publication?

Has it had peer vetting/examination?

  • When
  • Is this planned/completed
    • Where was this done/who did it?

Are there others performing research on the same matter?

  • Where?

What stage is their research (if known)?

  • Could they use the results of this research?
  • How?

Has there been prior release of these research results?

  • Symposia, seminars, presentations?
  • To whom?

Has the research been used in other publications?

  • If so, where (ask to see it)?
  • By the government employee?
  • By others?

Has patent, industrial design or copyright protection been sought relating to the research by the employee or government institution?

Where is the research materials, information kept?

Are there measures to keep it locked, separate from other files?

   
Paragraph -- 18(d)
Statement of Test to be Met
  • Disclosure could be injurious to financial interest of Government of Canada or to ability of the Government of Canada to manage the economy

Financial Interest of Government of Canada.

Relevant Questions Departmental Response Assessment
How does the information relate to the economic, financial or monetary policies of the Government of Canada?

How does it relate to the government's financial interests?

Whose financial interests are concerned - Government or third party?

Is a contemplated expenditure involved?

Does the information concern assets or liabilities of the government?

  • Describe these.

Does the information relate to taxation measures, revenue collection measures?

  • How?

Does the information relate to transactions or negotiations in which the government is involved?

  • Specify, are these current or concluded?
   
Statement of Test to be Met
  • Disclosure could be injurious to financial interest of Government of Canada or to ability of the Government of Canada to manage the economy.

Ability of the Government of Canada to manage the economy of Canada.

Relevant Questions Departmental Response Assessment
How does the information relate to management of the economy?

Are there impending economic or fiscal measures described in the record?

  • What are these?

Does the document deal with contemplated changes or allocations in the social security system, tax system, and regional development/equalization payments?

Does the record relate to changes in economic indicators?

Does the government generate this information?

   
Statement of Test to be Met
  • disclosure would be injurious
  • injury must be material
  • is there a reasonable expectation this will occur?
Relevant Questions Departmental Response Assessment
What harm is anticipated from disclosure?

How will this affect the financial interests of the government/ or the government's ability to manage the economy (per above)?

Does the information relate to implementation of Budget measures?

  • Ask to see description of measures contained in the Budget.

Have the measures been discussed in other documentation/forum?

  • Industry/other consultations
  • Shareholder communications/correspondence
  • Contained in tender documents, RFPs
  • Speeches

Has there been disclosure in the past of this kind of information?

What harm resulted?

To whom has the information been circulated?

  • Anyone outside government?

Are the transactions to which the information relates concluded?

  • At what stage are they?

How current is the information?

Has the measure, policy or transaction been discussed in:

  • Annual reports?
  • Estimates?
  • House of Commons committees?

Have there been superseding measures (Budgets, change in government, changes in legislation introduced)?

  • Do these 'date' the information?
  • Is the subject matter being actively considered?

What is the value of the assets involved?

What amounts of money are involved?

What is the amount of potential liability?

What is the potential financial impact?

Will disclosure hinder implementation of a policy or measure?

  • How?

What benefit could be derived by those outside government from disclosure of the information?

Note that information revealing the existence or identity of a legitimate tax deduction will not meet the injury test.

If the information is related to a transaction:

  • Has there been disclosure in tender documents, RFPs?
  • Are there ongoing negotiations?
  • Is there a bidding process or competition among suppliers/vendors/purchasers dealing with the government?
  • How much money is involved in the transaction?

Is the measure or policy referred to in the information aimed at an individual company or entity?

Have there been prior consultations concerning the measure/policy?

How would disclosure enhance the position of a person/entity?

How would disclosure to one disadvantage others subject to the measure or policy?

Is the transaction subject to notification requirements (i.e., bankruptcy, seizures)?

   
Statement of Test to be Met
Does the information relate to:
(i) currency, coinage, legal tender of Canada?
(ii) contemplated change in rate of bank interest, in government borrowing?
(iii) contemplated changes in tariff rates, taxes, duties or other revenue sources?
(iv) contemplated change in conditions of operation of financial institutions?
(v) contemplated sale/purchase of securities or of foreign or Canadian currency?
(vi) contemplated sale or acquisition of land or property?
Relevant Questions Departmental Response Assessment
Are any of sub-paragraphs (i) through (vi) being relied on by the institution?

Does the information refer to a change in the matters referred to in sub-paragraphs (ii), (iii) (iv)?

  • What is the change?
  • When is it intended to take place?
  • Has the change been decided upon?
  • What level of approval has been obtained?
  • Is the change one of a number of options?
  • Are these still being considered? [see questions in consultations above]

If information relates to a contemplated sale or purchase (as in sub-paragraphs (v) or (vi):

  • Has a decision been taken to complete the transaction?
  • What stage is the transaction at?

See above for questions relating to material injury or undue benefit resulting from disclosure.

   
  • The kind of injury identified in the text of the section.
  • The intent of the section.
  • The intent of the Act.

Relevant QuestionsDepartmental ResponseAssessmentHas the [head of the] government institution considered disclosing the record?

  • Why was it decided not to disclose?
  • Has the institution considered whether sub-paragraphs (i), (ii) (iii) or (v) could apply (as relevant) favouring disclosure?
  • This assessment must go beyond concluding that the information is described in section 18.
  • The kind of injury identified in the text of the section.
  • The intent of the section.
  • The intent of the Act.
Paragraph - 18
Statement of Test to be Met
Section 18 is a discretionary exemption.

The government institution is required to:

1. Consider disclosing the record notwithstanding it is described by section 18.
2. To consider disclosure in light of

Relevant QuestionsDepartmental Response AssessmentHas the [head of the] government institution considered disclosing the record?

  • Why was it decided not to disclose?
  • Has the institution considered whether sub-paragraphs (i), (ii) (iii) or (v) could apply (as relevant) favouring disclosure?
  • This assessment must go beyond concluding that the information is described in section 18.
Relevant factors in this assessment by a head could include:
(i) Whether there has been disclosure in the past.
(ii) Whether there has been disclosure to some groups, excluding others to the detriment.
(iii) Whether disclosure could have the effect of stabilizing, reassuring markets or would have a neutral impact in current circumstances.
(iv) Whether disclosure would have a chilling effect in the supply of similar information to the government from other governments, or third party.
(v) Whether disclosure would encourage the reciprocal supply of information, e.g. from universities doing similar research to the benefit of the government institution.
(vi) Whether disclosure would discourage government employees doing research from trying to obtain publication or doing other research.
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