Part 1: Canadian Government – Access to Information
This is the first part of our series reporting on the potential for companies to seek access to information about business competitors held by governments in Canada and the United States.
In Canada, businesses that interact with Government Institutions as defined in the Access to Information Act may be subject to an access to information (ATIA) request. An ATIA request requires Government Institutions to disclose the records submitted to or created by the Government Institutions, even if held only temporarily. As such, an ATIA request may be used in Canada to gain information about competitors.
Pursuant to the Act, any person who is a Canadian citizen or a permanent resident of Canada has a right to, and shall, on request, be given access to any record under the control of a Government Institution. The Act defines “Government Institution” as any department or ministry of the Government of Canada or any parent Crown corporation or its wholly owned subsidiaries, as listed in Schedule 1 to the Act. The Act defines “records” as any documentary material, regardless of the medium or form. The term record captures any machine readable record (such as email and text messages) and any physical medium that can be written or etched upon.
Each province has its own ATIA legislation that applies to provincial institutions. Provincial institution obligations and exemptions can vary and may be more onerous than the federal Act; as such, different considerations and safeguards may apply.
The Act applies to only records that are in the possession of Government Institutions, not information. Therefore, images viewed, but not copied or downloaded are not subject to ATIA disclosure (as noted above, emails are considered records subject to ATIA disclosure). An information sharing system that does not allow for copying or downloading of information, may be used to protect information, however, any notes related thereto may be subject to disclosure.
Exemptions from Disclosure
The head of a Government Institution may refuse to disclose any record if it falls under any of the exemptions enumerated under the Act, including: records obtained in confidence from other governments (s. 13); records whose release would injure federal-provincial affairs (s. 14); records whose release would injure the international affairs or defence of Canada or its allies (s. 15); records relating to law enforcement, investigations and security (s. 16); records that would threaten the safety of individuals (s. 17); records whose release could prejudice the economic interests of Canada (s. 18); personal information as defined by Section 3 of the Privacy Act (s. 19); advice, deliberations, recommendations or plans developed for Government Institutions or ministers of the Crown (s. 21); testing or auditing procedures that would prejudice results of said procedures (s. 22); records that are subject to solicitor-client privilege (s. 23); records that are subject to other statutory restrictions (s. 24); and information that will subsequently be published by a Government Institution (s. 26).
AITA disclosure does not apply to information excluded under the Act, including: material that is published or available for purchase or on exhibition for public reference (s. 68); information under the control of the Canadian Broadcasting Corporation as it relates to journalistic or programming activities (s. 68.1); information under the control of Atomic Energy of Canada Limited other than general administrative/operational information (s. 68.2); and confidences of the Queen’s Privy Council for Canada (s. 69).
It is up to the Government Institution to determine whether or not to apply the exemption. However, section 44 of the Act allows any third party who has been notified of potential disclosure twenty days to make an application to have the matter judicially reviewed. An applicant needs to prove that a statutory exemption applies to the records on a balance of probabilities (Merck Frosst Canada Ltd. v. Canada (Health)). It is then up to the court to determine whether disclosure of the records should occur.
An exemption may be overridden if the public interest would outweigh the harm from disclosure. The information can also be disclosed if the third party consents to disclosure of the information or if the information is already publicly available. In some instances, a contract with a Government Institution may already provide consent to that Government Institution to disclose certain records.
Exemptions for Businesses
Section 20 of the Act provides the exception most salient for businesses. Under section 20(1), a Government Institution shall refuse to disclose any record requested that contains: trade secrets of a third party, confidential information that is treated as such by a third party, information that could reasonably be expected to cause material financial loss or gain to a third party and information that could reasonably be expected to interfere with the negotiations of a third party.
In order to trigger the section 20(1) exemptions, records should be marked as confidential and proprietary. The Government Institution may inquire whether the information is actually treated as confidential and proprietary to determine whether section 20(1) will be applied. If a Government Institution intends to disclose a record that it has reason to believe may contain information subject to a section 20(1) exemption, it must notify the third party (s. 27.1) and it must allow the third party twenty days to represent in writing why the record should not be disclosed (s. 28).
The author would like to thank Gianrico DePasquale and Roseanna Dat, students-at-law enrolled under the Law Practice Program of the Law Society of Upper Canada under placement with Fasken Martineau, for their research and contributions to this post.