Federal Economic Development Agency for Southern Ontario (Re), OIC 2022 39

Date: 2022-08-05
OIC file number: 5821-01383
Institution file number: A-2021-01

Summary

The complainant alleged that the Federal Economic Development Agency for Southern Ontario (FedDev Ontario) had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for information related to applications for funding from The Corporation of the Town of Niagara-on-the-Lake (Niagara-on-the-Lake) between January 2020 and April 2021. The complaint falls within paragraph 30(1)(a) of the Act.

Neither the institution nor the third parties to whom the information relates provided evidence or representations demonstrating that the requirements of the exemptions were met.

The complaint is well founded.

The Information Commissioner ordered the FedDev Ontario to disclose all information at issue.

The Federal Economic Development Agency for Southern Ontario gave notice that it would fully implement the order.

Complaint

[1]      The complainant alleged that Federal Economic Development Agency for Southern Ontario (FedDev Ontario) improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act. This was in response to an access request for information related to applications for funding from The Corporation of the Town of Niagara-on-the-Lake (Niagara-on-the-Lake) between January 2020 and April 2021. The complaint falls within paragraph 30(1)(a) of the Act.

[2]      During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the application of subsection 19(1) and the withholding of the “Project Total”, “Grant Total”, “Cost Exclusions” and “Project Total after exclusions” columns on page 27 of the records, for the third parties that did not receive funding.

Investigation

[3]      When an institution withholds information related to a third party, the third parties and/or the institution bear the burden of showing that refusing to grant access is justified.

[4]      FedDev Ontario withheld portions of the following three documents in response to the request:

• Portions of the Community Economic Development and Diversification Contribution Agreement dated August 13, 2020 (Contribution Agreement)
• All information related to parties who did not receive funding, in a table titled “Niagara-on-the-Lake Tourism Recovery Grant Final Grant List – Applicants to be notified 2020-10-27” (Grant List table)
• Portions of a 2-page document from Niagara-on-the-Lake titled “Financial Assistance to Tourism Sector”

[5]      The OIC sought representations from all of the third parties whose information was withheld, as well as FedDev Ontario. The majority of the third parties did not provide representations to the OIC. Of the five third parties that did respond to the OIC, none made any representations in support of the applied exemptions. FedDev Ontario indicated in its representations that it is now willing to disclose all of the information remaining at issue, and provided no representations in support of the exemptions.

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

[6]      Paragraph 20(1)(b) requires institutions to refuse to release 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).

[7]      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.

[8]      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 release the information.

[9]      In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information 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.

[10]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) to refuse to release information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[11]    FedDev Ontario applied paragraph 20(1)(b) throughout the records, in most cases concurrently with paragraphs 20(1)(c) and 20(1)(d), to withhold:

• general liability insurance amount;
• description of project milestones;
• total cash leveraged figure;
• total amount of funds dispersed to grant applicants;
• amount of funding spent on administration and outreach;
• all information related to excluded grant applicants;
• details related to the existing Discretionary Grant Committee; and
• details of the consequences where the full amount of grants is not expended.

[12]    I accept that some of the withheld information directly relates to funding, making it financial information meeting the first requirement of the exemption. Some of the information, however, does not clearly fit within the common definitions of financial, commercial, scientific or technical information. More specifically, the OIC questioned how the following information falls within these categories: description of project milestones, the operating name and legal name of excluded grant applicants, whether grant applications were excluded, the details related to the existing Discretionary Grant Committee and the details of the consequences where the full amount of grants is not expended.

[13]   The second requirement for this exemption is that the information be confidential. There are three criteria which must be met to establish confidentiality:

1. The information contained in the record is not available from other sources in the public domain or obtainable by observation or independent study by a member of the public acting on his or her own;
2. the circumstances in which the information originates and is communicated give rise to a reasonable expectation that it will not be disclosed;
3. the information, whether provided by law or supplied voluntarily, is communicated to the government within a relationship that is either fiduciary or not contrary to the public interest and that will be fostered for the public benefit by confidential communication. (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133; Air Atonabee Ltd. V. Canada (Minister of Transport) (1989), 27 C.P.R (3d) 180 (Fed T.D) at 197).

[14]   Regarding the first criterion for confidentiality, some of the information withheld under paragraph 20(1)(b) is either publicly available or can be determined based on the information disclosed within the records. For these reasons, I am not satisfied that the following information is objectively confidential:

• The total amount of the funding that was disbursed through grants;
• The amount of the funding that Niagara-on-the-Lake used for administration and outreach;
• The percentage of funds disbursed through grants versus used for administration and outreach;
• The details related to the existing Discretionary Grant Committee.

[15]   With regard to the second criterion for confidentiality noted above, the Federal Court has found that that “parties seeking government funds or contracts cannot expect the same degree of confidentiality as a party who is assisting government”. (AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189 at para 76, affirmed in 2006 FCA 241). Based on the evidence and representations before me, I am not convinced that any of the withheld information at issue meets this criterion.

[16]   For example, during the investigation, the OIC questioned whether there was a reasonable expectation that FedDev Ontario would not disclose the names of the third parties who applied for funding and their application statuses in the context of having sought government funding. However, the evidence and representations received were insufficient to establish a reasonable expectation of confidentiality in respect of this information.

[17]   Additionally, there is wording on page 23 of the Contribution Agreement that allows the Minister to make certain information public. This appears to allow the Minister to disclose the amount of the contribution, a description of general activities, project achievements and milestones, and a breakdown of the distribution of funding provided under all activities, among other things. I am not satisfied there is a reasonable expectation that FedDev Ontario would not disclose any such information.

[18]    With regard to the third criterion for confidentiality noted above, it is also not clear that the information at issue was communicated in the context of a relationship that would be fostered for public benefit by the communication’s confidentiality. The information pertains to the spending of public funds. In light of this, the relationship between Niagara-on-the-Lake and FedDev Ontario would seem to be fostered for public benefit by disclosure, not confidentiality. The representations and evidence before me do not demonstrate otherwise.

[19]    For example, the withheld information on page 29 relates to the actions Niagara-on-the-Lake may take should grant recipients not fulfill their contractual obligations. I find that there is a lesser expectation of confidentiality with this type of information, as it relates to the spending of public funds (see Canada (Minister of Public Works and Government Services) v. The Hi-Rise Group Inc., 2004 FCA 99, paras. 41-42).

[20]    The third requirement for the paragraph 20(1)(b) exemption is for the information to be “supplied” by the third party to the government institution. This inquiry is focussed on content rather than form. (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 156-159).

[21]    Within the contribution agreement between Niagara-on-the-Lake and FedDev Ontario, certain information withheld under paragraph 20(1)(b) does not appear to have been supplied to FedDev Ontario by Niagara-on-the-Lake, but rather negotiated:

• the amount of insurance required for the recipient on page 14;
• the project milestone descriptions on page 17; and
• the total cash leveraged on page 18.

[22]    The case law on this requirement indicates that negotiated terms are not “supplied” by a third party to a government institution within the meaning of the paragraph 20(1)(b) exemption. (see 131 Queen Street Limited v. Canada (Attorney General), 2007 FC 347, paras. 33, 35).

[23]    I accept that certain information was supplied to FedDev Ontario by Niagara-on-the-Lake (which, in turn, obtained this information from various third parties), so as to meet the third requirement for this exemption:

• the information in the Grant List table; and
• the information in the 2-page document from Niagara-on-the-Lake titled “Financial Assistance to Tourism Sector”.

[24]    Turning to the final requirement of paragraph 20(1)(b), I am not satisfied that the requirement is met, as none of the third parties provided representations confirming that they have consistently treated the withheld information as confidential.

[25]    Consequently, I find that none of the information at issue meets the requirements of paragraph 20(1)(b).

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

[26]    Paragraph 20(1)(c) requires institutions to refuse to release 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.

[27]    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.

[28]    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.

[29]    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 release the information.

[30]    In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information 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.

[31]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to release information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[32]    FedDev Ontario applied paragraph 20(1)(c) concurrently with paragraphs 20(1)(b) and 20(1)(d) to withhold:

• description of project milestones;
• total amount of funds dispersed to grant applicants;
• amount of funding spent on administration and outreach;
• all information related to excluded grant applicants;
• details related to the existing Discretionary Grant Committee; and
• details of the consequences where the full amount of grants is not expended.

[33]    Given that Niagara-on-the-Lake is a municipality, I am not convinced that there would be any material financial impact or harm to the municipality’s competitive position, should the information at issue be disclosed. For the other third parties, no third party has identified what harm would result from disclosure of the information related to it.

[34]    As previously outlined, some of this information is either publicly available or can be determined based on the information disclosed within the records. The exemption requires a clear and direct connection between disclosure of specific information and a risk of harm well beyond the merely possible or speculative (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206). In light of this, I am not satisfied that such information meets the test for exemption pursuant to paragraph 20(1)(c), as there would not be reasonable expectation of harm, where the information is already publicly available.

[35]    I find that the information does not meet the requirements of the exemption because no evidence or representations have been provided to demonstrate the nature of the prejudice, nor that there is a reasonable expectation that this prejudice could occur.

Paragraph 20(1)(d) : negotiations by a third party

[36]    Paragraph 20(1)(d) requires institutions to refuse to release information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

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

• A third party is or will be conducting contractual or other negotiations.
• Disclosing the information could interfere with those negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[38]    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 release the information.

[39]    In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information 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.

[40]    However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(d) to refuse to release information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[41]    FedDev Ontario applied paragraph 20(1)(d) concurrently with paragraphs 20(1)(b) and 20(1)(c) to withhold:

• description of project milestones;
• total cash leveraged figure;
• total amount of funds dispersed to grant applicants;
• amount of funding spent on administration and outreach;
• all information related to excluded grant applicants;
• dates associated with milestones under “Timelines/General Process”;
• details related to the existing Discretionary Grant Committee; and
• details of the consequences where the full amount of grants is not expended.

[42]    No evidence or representations have been provided to demonstrate that any of the third parties are, or will be, conducting contractual or other negotiations, nor that there is a reasonable expectation that disclosing the information could interfere with those negotiations. Interference in this context must be in the nature of obstruction (Canada Post Corp. v. National Capital Commission, 2002 FCT 700, para. 18.).

[43]    Consequently, I find that the information does not meet the requirements of the exemption.

Result

[44]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President of FedDev Ontario to:

1. Disclose all of the information withheld pursuant to paragraphs 20(1)(b), (c) and (d), with the exception of the “Project Total”, “Grant Total”, “Cost Exclusions” and “Project Total after exclusions” columns on page 27 of the records, as this information is out of scope.

FedDev Ontario must abide by the terms of subsection 37(4) when disclosing any records in response to my order.

On July 8, 2022, I issued my initial report to the President setting out my order.

On July 19, 2022, the Access to Information and Privacy Coordinator gave notice that FedDev Ontario would be fully implementing the order.

I have provided the following third parties with this report:

• Niagara-on-the-Lake Public Library
• Silversmith Brewing Company
• Virgil Community Hub / R&B Family Holdings
• Shaw Festival
• Kruise & Pullen Limited / Upper Canada Travel

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review within 35 business days after the date of this report. When they do not, third parties may apply for a review within the next 10 business days. The person who 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, this order takes effect on the 46th business day after the date of this report.