On October 10, 2007, following consultations that began in 2005, the Competition Bureau (the Bureau) published a new information bulletin outlining its policies on the communication of confidential information (the New Bulletin). The New Bulletin updates a previous information bulletin on the same subject (published in 1995) in order to provide more practical guidance and to reflect subsequent amendments to the Competition Act (the Act) as well as increasing international cooperation between competition authorities.
Confirming the bulletin issued in 1995, the Bureau states that its general policy is to minimize the extent to which confidential information is communicated outside the Bureau, and that it will be vigilant in avoiding the communication of confidential information unless it is specifically permitted by the Act, and even if it is permitted, will consider whether the disclosure is advisable or necessary.
According to the revised Bulletin, the Bureau's discretion to communicate confidential information is limited to four circumstances: (i) communication to a Canadian law enforcement agency (which the Bureau states is relatively rare and only happens where the receiving agency will respect the confidentiality of the information); (ii) communication for the purposes of administering or enforcing the Act; (iii) communication where the information has otherwise been made public; or (iv) communication authorized by the person who provided the information.
In order to administer and enforce the Act, the Bureau may share information with: international enforcement agencies; market participants such as customers, suppliers and competitors (although care will be taken to refrain from or to minimize the communication of confidential information when framing questions); industry, economic or legal experts retained by the Bureau; courts, when seeking authorization to use formal investigative powers or for the use of wiretaps; and the courts and the Competition Tribunal, when initiating and conducting formal enforcement proceedings.
The New Bulletin emphasizes that if it is necessary to use confidential information before the courts or the Competition Tribunal, efforts will be taken to prevent public disclosure of the information (such as sealing orders, confidentiality orders, confidential schedules and in camera proceedings), so long as this can be done without hindering the enforcement or administration of the Act.
With respect to the communication of confidential information to foreign competition authorities, the New Bulletin notes that the Bureau may initiate communications with a foreign authority or it may be contacted by a foreign authority. The Bureau will seek to maintain the confidentiality of information through formal international instruments (such as cooperation agreements or inter-agency arrangements) or assurances from the foreign authority. The New Bulletin also refers to Mutual Legal Assistance Treaties, which are administered through Canada's Department of Justice, and which allow foreign states to request assistance in obtaining evidence located in Canada. Most notable in the New Bulletin is the Bureau's emphasis on its policy of resisting legal actions by third parties to obtain access to confidential information in the Bureau's possession. The Bureau will oppose subpoenas for the production of information if compliance with them would potentially interfere with an ongoing examination or inquiry, or would otherwise adversely affect the administration or enforcement of the Act. The Bureau will also notify the parties who have provided information that an application for access to the information has been made.
The New Bulletin also refers to the Bureau's recently issued revised bulletin on the "Immunity Program." A summary of this program is contained elsewhere in this newsletter. In short, the Bureau will not disclose the identity of an immunity applicant unless disclosure is: necessary by law; required to obtain or maintain judicial authorization for the exercise of investigative powers; for the purpose of securing the assistance of a Canadian law enforcement agency; agreed to by the applicant or if the applicant has already made public disclosure; or necessary to prevent the commission of a serious criminal offence. In particular, the New Bulletin states that the Bureau will not disclose the identity of an immunity applicant or any information obtained from the applicant to any foreign law enforcement agency without the consent of the applicant.
Finally, the New Bulletin clarifies that before releasing "technical backgrounders" (which often disclose the Bureau's analysis of a merger in summary format), the Bureau will allow the affected parties to review the document in order to identify any confidential information (and suggest its removal). It also refers to the "whistleblowing" provision of the Act, stating that the Bureau will make "every effort" to protect the confidentiality of the identity of a whistleblower. Lastly, the New Bulletin addresses the circumstances under which confidential information can be shared with the Minister of Finance or the Minister of Transport in furtherance of their sector-specific merger review obligations for the financial service and transportation sectors, respectively (see sections 29.1 and 29.2 of the Act).