Canadian Tobacco Manufacturers' Council v. Canada (Minister of National Revenue)

Canadian Tobacco Manufacturers' Council v. Canada (Minister of National Revenue)
Court (s) Database
Federal Court Decisions
Date
2003-09-08
Neutral citation
2003 FC 1037
File numbers
T-877-00
Notes
Digest
Decision Content
Date: 20030908
Docket: T-877-00
Citation: 2003 FC 1037
Ottawa, Ontario, this 8th day of September, 2003
Present: The Honourable Mr. Justice James Russell
BETWEEN:
CANADIAN TOBACCO MANUFACTURERS' COUNCIL
A and B (Confidential)
Applicants
- and -
MINISTER OF NATIONAL REVENUE
Respondent
INFORMATION COMMISSIONER OF CANADA and
ROBERT CUNNINGHAM
Added Parties
REASONS FOR ORDER AND ORDER
I. APPLICATION
[1] This is an application for an Order requiring the Respondent to refuse to disclose certain third party information and records (the "Records") pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act"). The Applicants also seek an Order protecting the confidentiality of the Records, including the names of the authors of the Records, which authors are identified as Applicants A and B in this proceeding pursuant to Rule 151 and 152 of the Federal Court Rules, 1998 and pursuant to section 47 of the Act.
II. BACKGROUND
[2] The Applicant, the Canadian Tobacco Manufacturers' Council ("CTMC"), is a non-profit Canadian corporation established informally in 1963. In 1982 it became an incorporated non-profit organization.
[3] Applicant A ("A"), is a consulting firm specializing in statistical analysis.
[4] Applicant B ("B"), is a forensic consulting firm.
[5] The Respondent is the Minister of National Revenue and the head of the Canada Customs and Revenue Agency ("CCRA").
[6] Mr. Robert Cunningham is an added party and is employed at the Canadian Cancer Society. He is the individual who made the original access to information request that is the subject of these proceedings.
[7] The other added party is the Information Commissioner of Canada (the "Information Commissioner"). The Information Commissioner received a complaint from Mr. Cunningham against the CCRA on February 10, 1999.
III. SIGNIFICANT EVENTS
[8] On February 17, 1998, the CTMC was asked by the CCRA to attend a meeting to discuss various aspects of contraband tobacco activity in Canada. The president of the CTMC, Mr. Robert Parker, attended two such meetings the purpose of which was to determine what the CTMC and its member companies could do to assist the CCRA and provincial governments to deter and reduce tobacco smuggling and contraband activities. The meetings were held in private.
[9] After three meetings, the CTMC agreed to commission A and B to conduct studies and prepare reports on contraband tobacco. A's mandate was to carry out a study of trends in tobacco consumption in Ontario, Quebec and British Columbia. B's assignment was to provide a summary of the current smuggling situation as it related to the distribution and sale of contraband products in Canada. B was requested to concentrate on smuggling in the provinces of Ontario and Quebec, which have relatively low tobacco taxes, as well as the provinces of Manitoba and British Columbia, which have relatively high tobacco taxes.
[10] On August 5, 1998, B completed a draft report (the "B Report") and on August 6, 1998, A delivered its draft report (the "A Report") to CTMC. On August 11, 1998, CTMC sent draft copies of both Reports to Mr. Bill McCloskey, Assistant Deputy Minister at CCRA in the policy and legislation branch. CTMC also sent draft copies of the Reports to Sandra Extence, Director General of CCRA in the excise, duties and taxes division. Accompanying letters (the "Transmittal Letters") stated that the conclusions were preliminary and not necessarily representative of the Applicants and asked that the Reports be kept confidential.
[11] On October 8, 1998, Mr. Cunningham, on behalf of the Canadian Cancer Society, made a request under the Act directed to the CCRA for the following:
Records sent to and received from the tobacco industry (including manufacturers, importers, wholesalers, retailers) or their representatives, including the Canadian Tobacco Manufacturers' Council since February 1, 1998 with respect to marking/stamping on packages of tobacco products.
[12] On February 9, 1999, Mr. Bill McCloskey wrote to Mr. Cunningham and advised him that the information requested was "exempt under paragraph 20(1)(b) of the Act as this information is considered confidential information of third parties."
[13] On February 10, 1999, Mr. Cunningham made a complaint to the Information Commissioner against the CCRA concerning its response to his request.
[14] On March 1, 1999, the CCRA was provided with a summary of the complaint and was notified of the Information Commissioner's intention to investigate the complaint.
[15] Letters from the CCRA to the Information Commissioner dated April 12, 1999 and June 15, 1999, took the position that the requested information was exempt from disclosure under paragraph 20(1)(b) of the Act and noted that there were "documents in the case file that fell outside the actual subject matter of the request."
[16] On June 30, 1999, the CTMC wrote to the Information Commissioner in response to its invitation for representations. Included in the representations were letters from the CTMC's general counsel, from the President of B, and from the principal of A.
[17] On December 6, 1999, the CCRA made further representation to the Information Commissioner in which it proposed to disclose, with CTMC's agreement, those portions of the B Report that contain information specifically pertaining to the subject matter of Mr. Cunningham's request, that is "marking/stamping on packages of tobacco." The CCRA extracted portions from the B Report that it proposed to disclose, subject to further extractions resulting from the application of sections 16(1)(c), 16(2) and 20(1)(b) of the Act. The CCRA also noted that it agreed with the CTMC that the A Report had no relevance to Mr. Cunningham's request and that its disclosure was unwarranted.
[18] On February 11, 2000, Mr. Robert Parker, president of CTMC, the President of B and the Principal of A, appeared before the Deputy Commissioner to give evidence.
[19] On March 30, 2000, pursuant to section 28 of the Act, the Applicants were provided with notice of the intention of the CCRA to release the Reports.
[20] On April 14, 2000, pursuant to section 28 of the Act, the President of the CTMC was provided with notice of the intention of the CCRA to release the Transmittal Letters.
[21] On April 28, 2000, the CCRA gave the Applicants notice under paragraph 29(1)(b) of the Act that it had decided to release the Transmittal Letters and the Reports.
[22] On May 17, 2000, the Applicants commenced this proceeding under section 44 of the Act for an order requiring CCRA to refuse to disclose the Transmittal Letters and the Reports.
[23] On July 5, 2000, the Information Commissioner reported the results of his investigation to the head of the CCRA. In accordance with section 37 of the Act, a severed version of his report was provided to Mr. Cunningham. In his report, the Information Commissioner concluded that all the Records identified by the CCRA were relevant to the access request. The Information Commissioner also concluded that the Records should not have been exempted pursuant to sections 20(1) or 16 of the Act and recommended that the Records be disclosed forthwith to the requester, Mr. Cunningham.
IV. ISSUES FOR CONSIDERATION
[24] The Applicants submit that the Records should not be disclosed because:
1) They are not relevant to the subject matter of the request, that is, "the marking/stamping on packages of tobacco products"; and
2) They contain:
a) trade secrets of the Applicants under paragraph 20(1)(a) of the Act;
b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by the Applicants and that is treated consistently in a confidential manner by the Applicants under paragraph 20(1)(b) of the Act;
c) information, the disclosure of which could reasonably be expected to result in material financial loss, or could reasonably be expected to prejudice the competitive position of the Applicants under paragraph 20(1)(c) of the Act;
d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of the Applicants under paragraph 20(1)(d) of the Act.
V. SUBMISSIONS
a) Applicants' Submissions
Issue 1: Relevancy
[25] The Applicants submit that section 6 of the Act imposes an obligation on the requester of information to state precisely what he or she is seeking. The section also requires the relevant government department to disclose only those documents relevant to the information requested. Mr. Cunningham indicated that he was seeking information in relation to "marking/stamping on packages of tobacco products."
[26] The Applicants submit that the A Report does not mention, consider or relate to markings or stampings on packages of tobacco products. There is no basis for concluding that the A Report is relevant or responsive to the request made by Mr. Cunningham for information. Hence it should not be disclosed. The fact that the A Report is mentioned in an irrelevant portion of the B Report and in the Transmittal Letters does not make it relevant to the request.
[27] The Applicants submit that only section 4 and appendix D of the B Report deal with the subject of tobacco package markings. These are the only sections that are relevant to the request and these portions of the B Report should not be disclosed because they fall within section 20(1) of the Act as specific exemptions.
[28] The Applicants submit that the Transmittal Letters do not mention the subject of stamping or marking on packages of tobacco products, so they are not relevant to Mr. Cunningham's request.
Issue 2: Exemptions
[29] The Applicants submit that the Records are entitled to protection under paragraphs 20(1)(a), (b), (c) and (d), including those parts that relate to marking and stampings.
section 20(1)(a) - trade secrets
[30] The Applicants submit that A's unique methodology, manifested in the A Report, of exploiting major social surveys to develop an estimate of actual consumption, is a trade secret belonging to A.
section 20(1)(b) - confidential, financial, commercial, scientific or technical information
[31] The Applicants submit that the test for confidentiality has to do with the content of the information, its purpose and the conditions under which it was prepared and communicated, not the number of people to whom the information may have been available: Montana Band of Indians and Ministry of Indian and Northern Affairs, (1988), 51 D.L.R., (4th), 306 (F.C.T.D.), at page 318. Both Reports were prepared in draft form for a limited and knowledgeable audience and were supplied to the CCRA in confidence. The A Report contains information that is primarily industry data provided by industry participants on a confidential basis. It constitutes "financial" and "commercial" information for the purposes of paragraph 20(1)(b) of the Act. The B Report describes B's procedure and methodology used in report preparation. These matters are confidential to B and are provided only to clients on a confidential basis. Such information is not available from other sources. The information has been treated as confidential information by all relevant parties.
[32] The Applicants submit that the government has a duty to act in good faith regarding confidential information received by it. There is a public interest in fostering the confidential nature of government's relationships with third parties such as the CTMC: Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.) at p. 675.
[33] Paragraph 20(1)(b) of the Act requires the government to consider itself bound by its undertakings to act confidentially whenever a third party has consistently treated the information as confidential. The CCRA may only be released from its agreement to keep records confidential where it is in the public interest "as it relates to public health, safety or protection of the environment": Canada (Information Commissioner), supra, at p. 676; Keddy v. Canada (Atlantic Canada Opportunities Agency) (1993), 50 C.P.R. (3d) 484 (F.C.T.D.) at p. 490; Canada (Information Commissioner v. Atlantic Canada Opportunities Agency, [1996] F.C.J. No. 332; revsd; (1999) 250 N.R. 314 (F.C.A.).
Sections 20(1)(c) and (d) - Material financial loss, prejudice to competitive position or interference with contractual negotiations:
[34] The Applicants also argue that disclosure of the Reports would materially assist competitors of A and B in bidding against them in the future. Their competitors would have access to confidential methodologies. Furthermore, A and B would have their reputations harmed if it became publically known that they had done work for the tobacco industry.
[35] The Transmittal Letters are also protected under section 20(1) because they contain information that is entitled to protection including references to methodologies and discussions of draft conclusions as well as the identities of A and B.
b) Respondent's Submissions:
[36] The Respondent submits that it has treated the Records in a confidential manner in that they have not been released to the public. However, the Reports have been submitted to other government representatives and law enforcement agencies and there was no explicit undertaking of confidentiality provided to the Applicants by CCRA.
[37] The Respondent submits that the purpose of the Act is to provide the public with a right of access to the information in the records of the government and that exceptions to the right of access should be limited and specific: Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47, at 60 (F.C.A.); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at 427-428, para. 50-52.
[38] The basic principle of the Act has been held to be that public access should not be frustrated by the courts except in the clearest of circumstances. A heavy burden of persuasion rests upon the party resisting disclosure: Maislin Industries Limited v. The Honourable Minister for Industry, Trade and Commerce, Regional Economic Expansion (now the Honourable Minister for Regional and Industrial Expansion) and Iain Hunter, [1984]_1 F.C. 939, at 943 (F.C.A.); Rubin v. Canada (Mortgage and Housing Corp.), [1989] 1 F.C. 265, at 276 (F.C.A.); Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 at 441 (F.C.T.D.). The standard of proof in reviewing exemptions under subsections 20(1) (a), (b), (c) and (d) is a balance of probabilities: Tridel Corp. v. Canada Mortgage and Housing Corp., [1996] 115 F.T.R. 185, at 196 (F.C.T.D.); Northern Cruiser Co. v. Canada, [1995] F.C.J. No. 1168.
Issue 1: Relevancy
[39] The Respondent submits that the Applicants accept that section 4 and Appendix D of the B Report are captured by the request. In the Respondent's submission, since the Reports and Transmittal Letters were provided to the CCRA in one package, they should be considered to be all within the scope of the request. Since the Transmittal Letters referred to both Reports, the A Report should also come within the scope of the request.
Issue 2: Exemptions
section 20 (1)(a) - trade secrets
[40] The wording of section 20(1)(a) requires that the term "trade secrets" be given a reasonably narrow interpretation. It must be something of a technical nature: Société Gamma Inc. v. Canada (Department of Secretary of State), [1994] F.C.J. No. 589. The Applicants have only provided general statements as to the value of each Report to its author. The evidence does not indicate that there is a technical trade secret that is closely guarded or that it is peculiar to the Applicants. Whether the information in dispute is a trade secret is a conclusion the Court must arrive at based on the evidence provided. The Applicants have not met the burden imposed upon them in this respect: SNC-Lavalin v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113, at 127 (F.C.T.D.); Canadian Broadcasting Corporation v. National Capital Commission, [1998] F.C.J. No. 676 at para. 25 (F.C.T.D.).
section 20(1)(b) - confidential, financial, commercial, scientific or technical information
[41] The Respondent submits that in applying section 20(1)(b) of the Act, the information must be:
1) financial, commercial, scientific or technical information as those terms are commonly understood;
2) confidential information in its nature by some objective standard which takes account of the information, its purposes and the conditions under which it was prepared and communicated;
3) supplied to a government by a third party; and
4) treated consistently in a confidential manner by the third party: Air Atonabee Limited v. Canada (Minister of Transport) (1987), 27 F.T.R. 194 at 207 (F.C.T.D.).
[42] Whether information is confidential under section 20(1)(b) of the Act must be established objectively: Société Gamma Inc., supra, at 46; Maislin Industries Ltd., supra, at 947. The fact that the government and the third party may have, to date, kept the information in question as confidential is merely one aspect of the test, Société Gamma. An express promise of confidentiality is not determinative of the applicability of the subsection: Information Commissioner v. President of Atlantic Opportunities Agency (1999), 250 N.R. 314 (F.C.A.); Keddy, supra; Occam Marine Technologies Limited v. Canada (National Research Council), [1998] F.C.J. No. 1502 (F.C.T.D.).
[43] In this case, the Reports were voluntarily circulated to a limited group of governments and enforcement agencies by the CCRA. Furthermore, in the Respondent's submission, the records do not contain commercial or financial information. They are analytical reports that contain some statistical analysis and commentary by the authors. There is no commercial or financial information in the Reports as those terms are commonly used.
[44] The Respondents submit that the Applicants have not demonstrated that the Records are confidential by an objective standard. The evidence is general and generic. There is little to support the contention that the Transmittal Letters are objectively confidential.
section 20(1)(c) - material financial loss, prejudice to competitive position
[45] The Respondents submit that there is no reasonable expectation of probable harm under section 20(1)(c) of the Act: Canada Packers, supra, at 60; Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services), [1990] 107 N.R. 89, at 91 (F.C.A.); Société Gamma Inc., supra, at 46. Information is exempt from disclosure pursuant to section 20(1)(c) where disclosure could reasonably be expected to result in material financial loss or gain to a third party or where the disclosure of the information could reasonably be expected to prejudice the competitive position of the third party: Air Atonabee, supra, at 207; Timiskaming Indian Bank v. Canada (Minister of Indian and Norther Affairs), [1997] F.C.J. No. 676 at para 55-59 (F.C.T.D.). The test has not been met by the Applicants, who merely affirm that there will be loss: SNC-Lavalin,supra, at 127; Canadian Broadcasting Corporation, supra, at para. 25. At best, the evidence is speculative in that it suggests that confidential sources might not provide information to A or B in the future if the Records are released.
section 20(1)(d) - interference with contractual negotiations
[46] The Respondents submit that disclosure will not result in interference to contractual negotiations under section 20(1)(d). This section requires that there is a probability that the disclosure will obstruct contractual or other negotiations: Saint John Shipbuilding, supra, at p. 91. There is no evidence of interference with specific contractual negotiations if the Records are released. The strongest evidence put forward by the Applicants is that A has in the past been criticized for having the tobacco industry as a client.
c) Information Commissioner's Submissions:
Issue 1: Relevancy
[47] The Information Commissioner submits that, contrary to the Applicant's submissions, "relevance" is not an exemption which may be invoked by a third party to prevent the disclosure of information under the Act: X v. Canada (Minister of National Defence), [1992]_F.C.J. No. 1006 (F.C.T.D.); Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 at 301-302 (F.C.T.D.). Section 6 of the Act requires that the requester provide a sufficient level of detail in a request to enable an experienced employee of the institution to identify the material requested with a reasonable effort. The CCRA identified the Report and the Transmission Letters as relevant.
[48] The Information Commissioner submits that testimony before the Deputy Commissioner indicated that the Records were provided to the CCRA in the context of a lobbying effort on behalf of the tobacco industry to avoid the imposition of onerous new stamping and marking requirements aimed at reducing contraband tobacco sales. Therefore, the Records are related to the marking and stamping of tobacco products.
[49] Furthermore, the Information Commissioner submits that the Applicants have admitted that portions of the B Report are relevant and the case law indicates that where portions of a record are relevant to an access request, the entire record must be released unless it is demonstrated that the other portions are exempt: X, supra, at para 42. This Court should defer to the expert determination by the CCRA that the Records are relevant to the request.
Issue 2: Exemptions
[50] The Information Commissioner adopts the Respondent's submission and adds that there are no trade secrets in the B Report.
[51] The Information Commissioner argues that this court should not consider hearsay evidence regarding information provided by an officer of B. Furthermore, the Information Commissioner submits that, contrary to the Applicants' submissions, B was prepared, on December 15, 1999, to release the B Report in its entirety subject to limited severance.
[52] The Information Commissioner submits that there is no evidence that the B Report constitutes "objectively confidential" information.
[53] Furthermore, there is no evidence, beyond generic assertions, that the A Report contains confidential commercial information. The A Report is based almost entirely on publically available statistics. The information obtained by the three member companies of CTMC is aggregated and not presented in relation to any particular company. There is also no evidence that the methodology used in the A Report is objectively confidential. The Information Commissioner submits that the Transmittal Letters do not contain any confidential commercial information.
[54] In response to the Applicants' submission that a release of the Reports will result in prejudice against the authors, the Information Commissioner submits that the Reports are clearly marked as drafts and there would be no resulting prejudice.
[55] The Information Commission adds that it is public knowledge that B has worked for the tobacco industry, both in this case and in the past. A has also admitted that persons in the anti-tobacco lobby in Health Canada and in Statistics Canada know that it and its principal have done work for the tobacco industry in the past.
[56] The Information Commissioner submits that, in the event that the Records are found not to be exempt, the Court should direct that the Respondent consider exercising his discretion to disclose the requested records pursuant to section 20(6) of the Act.
d) Added Party Robert Cunningham's Submissions:
[57] Mr. Cunningham did not have access to the confidential record in preparing his submissions. His submissions are in reply to the public versions of the submissions made by the other parties.
[58] Those submissions of Mr. Cunningham that are not duplicative of the submissions of the Respondents and the Information Commissioner are set out below.
[59] Mr. Cunningham submits that, according to the Federal Court of Appeal in Saint John Shipbuilding Ltd., supra, at p. 91, a third party bringing an application under section 44 of the Act does not have standing to argue that the records proposed to be released are different from what was requested. Mr. Cunningham submits that, in any event, the Records are relevant to his request because the level of tobacco demand and supply and a report on contraband are intimately related to the need for enhanced tax-paid markings (a well-recognized anti-contraband measure).
[60] With respect to the trade secret argument under section 20(1)(a), Mr. Cunningham submits that almost any consultant's report prepared for or submitted to government has an approach, format, methodology or content that could be claimed to be unique. To accept the Applicants' argument would be tantamount to the Court approving that the vast majority of reports provided to government are exempt from disclosure.
[61] With respect to the Applicants' argument that the CTMC keeps the names of its suppliers confidential, Mr. Cunningham submits that there have been instances in the past where this has not been the case.
[62] Mr. Cunningham submits that one aspect of determining whether the information is confidential involves a consideration of the public interest: Air Atonabee, supra, at p. 210. He submits that it is contrary to the public interest for industries to be able to lobby government in secret. In this case, the CTMC was attempting to influence the content of tax-paid marking requirements for tobacco packaging. Allowing a large powerful industry to lobby in secret is completely contrary to the rationale underlying the Act.
[63] Mr. Cunningham disputes that the Records have been treated consistently in a confidential manner by the relevant third party.
[64] With respect to the Applicants' claim that they would lose business if their names were disclosed in association with work for the tobacco industry, Mr. Cunningham submits that this was a risk that they surely calculated when they made their decision to prepare the Reports and it is just as likely that such disclosure would bring additional business their way.
[65] With respect to the Applicants' section 20(1)(d) claim for exemption, Mr. Cunningham submits that the Applicants must demonstrate that the disclosure will obstruct actual negotiations, and not merely heighten competition: Société Gamma Inc., supra, at p.47.
[66] Mr. Cunningham submits that the purpose of the Reports was to influence government's policy regarding tax-markings for tobacco products. This was highlighted by the fact that the CTMC submitted the Reports following the Minister of National Revenue's February 13, 1998 announcement that Revenue Canada would be "assessing whether enhanced stamping requirements for tobacco products would be effective in further improving the ability of enforcement agencies to combat tobacco smuggling." Mr. Cunningham submits that the CCRA's decision not to enhance tax-stamping on tobacco products stems in part from the Reports in question.
[67] Mr. Cunningham argues that there is no doubt that there is a strong connection between contraband tobacco and public health: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at pp.242-245. This provides strong incentive for disclosure in this case.
[68] Mr. Cunningham also submits that if disclosure in full is not allowed, this Court should allow for partial disclosure pursuant to section 25 of the Act.
[69] Finally, Mr. Cunningham requests that should the Court dismiss this application, it will no longer be necessary to preserve the confidentiality of the Records. Further, it will no longer be necessary to preserve as confidential the affidavits of the Applicants and the Minister, transcripts of examinations on the affidavits, or the application record of the Applicants and the Minister, all of which have been confidential so far because they contained reference to alleged confidential information. Mr. Cunningham requests an order declaring that such documents are no longer confidential pursuant to Prothonotary Lafrenière's Order that the information was to be filed in a sealed form, "until ordered otherwise by this Court" and subsection 29(1) of the Federal Court Rules, 1998.
VI. RELEVANT LEGISLATION:
Access to Information Act, R.S.C. 1985, c. A-1
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.
6. A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record.
20.(1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(b) 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;
(c) 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
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
[...]
(6) The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party.
[...]
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
[...]
28.(1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,
[...]
(b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party.
[...]
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
42.(1) The Information Commissioner may
(a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record;
(b) appear before the Court on behalf of any person who has applied for a review under section 41; or
(c) with leave of the Court, appear as a party to any review applied for under section 41 or 44.
(2) Where the Information Commissioner makes an application under paragraph (1)(a) for a review of a refusal to disclose a record requested under this Act or a part thereof, the person who requested access to the record may appear as a party to the review.
[...]
44.(1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.
[...]
47.(1) In any proceedings before the Court arising from an application under section 41, 42 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; or
(b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Act, does not indicate whether it exists.
(2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof.
[...]
51. Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate.
Federal Court Rules, 1998
29. (1) Subject to subsection (2) and rule 30, hearings of the Court, other than pre-trial or dispute resolution conferences, shall be open and accessible to the public.
2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
(2) La présente loi vise à compléter les modalités d'accès aux documents de l'administration fédérale; elle ne vise pas à restreindre l'accès aux renseignements que les institutions fédérales mettent normalement à la disposition du grand public.
6. La demande de communication d'un document se fait par écrit auprès de l'institution fédérale don't relève le document; elle doit être rédigée en des termes suffisamment précis pour permettre à un fonctionnaire expérimenté de l'institution de trouver le document sans problèmes sérieux.
20. (1) Le responsable d'une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant :
a) des secrets industriels de tiers;
b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers;
c) des renseignements don't la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité;
d) des renseignements don't la divulgation risquerait vraisemblablement d'entraver des négociations menées par un tiers en vue de contrats ou à d'autres fins.
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(6) Le responsable d'une institution fédérale peut communiquer, en tout ou en partie, tout document contenant les renseignements visés aux alinéas (1)b), c) et d) pour des raisons d'intérêt public concernant la santé et la sécurité publiques ainsi que la protection de l'environnement; les raisons d'intérêt public doivent de plus justifier nettement les conséquences éventuelles de la communication pour un tiers : pertes ou profits financiers, atteintes à sa compétitivité ou entraves aux négociations qu'il mène en vue de contrats ou à d'autres fins.
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25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.
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28(1) Dans les cas où il a donné avis au tiers conformément au paragraphe 27(1), le responsable d'une institution fédérale est tenu:
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b) de prendre dans les trente jours suivant la transmission de l'avis, pourvu qu'il ait donné au tiers la possibilité de présenter des observations conformément à l'alinéa a), une décision quant à la communication totale ou partielle du document et de donner avis de sa décision au tiers.
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41. La personne qui s'est vu refuser communication totale ou partielle d'un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l'information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l'expiration du délai, le proroger ou en autoriser la prorogation.
42. (1) Le Commissaire à l'information a qualité pour :
a) exercer lui-même, à l'issue de son enquête et dans les délais prévus à l'article 41, le recours en révision pour refus de communication totale ou partielle d'un document, avec le consentement de la personne qui avait demandé le document;
b) comparaître devant la Cour au nom de la personne qui a exercé un recours devant la Cour en vertu de l'article 41;
c) comparaître, avec l'autorisation de la Cour, comme partie à une instance engagée en vertu des articles 41 ou 44.
(2) Dans le cas prévu à l'alinéa (1)a), la personne qui a demandé communication du document en cause peut comparaître comme partie à l'instance.
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44. (1) Le tiers que le responsable d'une institution fédérale est tenu, en vertu de l'alinéa 28(1)b) ou du paragraphe 29(1), d'aviser de la communication totale ou partielle d'un document peut, dans les vingt jours suivant la transmission de l'avis, exercer un recours en révision devant la Cour.
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47. (1) À l'occasion des procédures relatives aux recours prévus aux articles 41, 42 et 44, la Cour prend toutes les précautions possibles, notamment, si c'est indiqué, par la tenue d'audiences à huis clos et l'audition d'arguments en l'absence d'une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :
a) des renseignements qui, par leur nature, justifie