This article originally appeared in the Natural Voice, published by the Canadian Health Food Association
With the advent of the Natural Health Product Regulations in January 2004 and with the Organic Products Regulations coming into force in December 2008, CHFA members are increasingly corresponding with, and submitting information to, federal government agencies and regulators. One perhaps unanticipated implication of this for members is the potential disclosure of corporate information under the Access to Information Act.
What is an Access to Information Request?
The Access to Information Act is a federal statute that, among other things, allows members of the public to request information in federal government records.1 Anyone can fill out a form and request access to or copies of emails, inspection reports, memos, policies and all manner of other records in the possession of the government. This includes documents submitted to the government as well as documents created by government employees and includes electronic documents, photographs, drawings, videotapes, etc.
Although the underlying principle is to further government openness and accountability, it can also provide an access point for information about particular people, groups or companies (called "third parties") in the government's possession. Through this process anyone, be they competitors, customers, the media, or plaintiffs' lawyers is able to request access to information about third parties, which would not otherwise be publically available.
How do You Respond to An Access to Information Request?
The Act sets out a process that protects third parties from having particular kinds of highly sensitive information made public. Prior to disclosing a third party's information, the government agency will notify that third party that the request has been made and provide a copy of the records that are proposed to be disclosed. The third party then has an opportunity to submit in writing any objections it has to the disclosure of the records, in whole or in part. In order to prevent disclosure, the third party must demonstrate that the records in issue contain one or more of the following categories of non-disclosable information:
- Personal information;
- Trade secrets;
- Financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
- Information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
- Information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
Third party submissions should contain a detailed explanation as to why the information fits into one of these categories. It will generally not be sufficient to simply claim the protection of one of these exemptions without providing an explanation and justification for why it applies in the particular circumstances. Supporting documentation such as confidentiality policies or evidence of prejudice can be helpful.
Once the submissions are made, third parties are notified as to what, if anything, will be disclosed. Although in some cases the decision is made that all or none of the records will be disclosed, it is common for partially redacted versions to be disclosed. If third parties disagree with the decision, they are entitled to seek judicial review and the records will not be disclosed while that process is pending.
Is There Any Way to Avoid Access to Information Requests?
Although there is no way to ensure that your company's information will not be the subject of an access to information request, knowing about and understanding the regime can assist you in the event your information is the subject of a request. Here are some proactive steps you can take:
- If you wish to claim confidentiality over your information, you must demonstrate that you treat it confidentially yourself. Having a confidentiality policy in place and abiding by that policy can be a useful start.
- If you are submitting information to the government or a government agency (including Health Canada) with the expectation that the information will be kept confidential, mark that communication "confidential".
- Be judicious in your communications. Keeping in mind the possibility of disclosure, encourage corporate employees to take a moment to review anything they're submitting to ensure that the information it contains is correct, clear and not easily subject to misinterpretation.
- Appoint someone in your organization to be the Access to Information point person. The timeline within which submissions must be made is usually quite short so it's helpful to have someone who knows the basics about the process and can coordinate a response.