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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act
Siemens Canada Ltd. v. Minister of Public Works and
Government Services Canada
Indexed as: Siemens Canada Ltd. v. Canada
(Minister of Public Works and Government Services)
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File No.: |
T-587-00 |
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References: |
[2001] F.C.J. No. 1654 (QL) (F.C.T.D.) |
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Date of decision: |
November 5, 2001 |
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Before: |
McKeown J. |
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Section(s) of ATIA / PA: |
Ss. 24, 44 Access to Information Act (ATIA) |
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Other statute(s): |
Ss. 16, 30 Defence Production Act |
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Abstract
- S. 44 judicial review
- Application of s. 24 ATIA and s. 30 of the Defence Production Act (DPA) to documents that are part of the solicitation of a contract as opposed to documents that are part of the actual contract
Issue
Whether the documents should be exempt from disclosure by virtue of ss. 24 of the ATIA and 30 of the DPA.
Facts
This was a s. 44 application for judicial review of a decision of the Minister of Public Works and Government Services Canada (PWGSC) to release documents submitted by the applicant concerning PWGSC's solicitation for the provision of in-service support on Halifax and Iroquois class ships.
PWGSC distributed a Request for Proposals for the above-mentioned solicitation. The applicant submitted a proposal and was awarded the contract. After the contract was awarded to the applicant, one of the unsuccessful bidders made a request under the ATIA for records held by PWGSC in relation to the applicant's participation in the solicitation process.
The Access to Information and Privacy (ATIP) Coordinator informed the applicant that a request for information had been received and that the applicant had the right to make submissions to PWGSC as to why its documents should not be released.
The applicant first responded to the request for information by providing the ATIP Coordinator with a list of the documents that the applicant did and did not object to disclosing and the grounds under s. 20 of the ATIA on which it relied.
A few weeks later, the applicant withdrew its previous consent and adopted the position that none of the documents should be disclosed pursuant to subs. 24(1) of the ATIA on the ground, among others, that such disclosure would violate s. 30 of the Defence Production Act (DPA). The latter provision is incorporated by reference in Schedule II of the ATIA.
PWGSC notified the applicant that it had considered its various arguments and had determined that the documents were only partially exempt by virtue of subs. 19(1), and subparas. 20(1)(b) and (c) of the ATIA, and that subs. 24(1) did not apply.
Decision
The application for judicial review was allowed.
Reasons
The respondent argued that s. 30 of the DPA does not apply to the requested documents because they are part of the solicitation of the contract, and not part of the actual contract, and that it is only the contract itself that is considered to be the defence contract to which s. 30 may apply.
Pursuant to s. 30 of the DPA, "No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed without the consent of the person carrying on that business [...]". The Court held that the information had been obtained "under or by virtue of this Act", since the Minister derives his or her authority to conduct procurements, and to do all such things as appear to be incidental to such procurements, from s. 16 of the DPA. In the Court's view, it is irrelevant if the information constituted part of the actual contract, or was part of the solicitation. The information in question was all obtained by the Minister acting under the authority given by the DPA. Thus, section 1.5 of the Request for Proposals which states in part that "[...] Security clearance must be in place prior to award of Contract" does not take matters relating to security clearance outside s. 30. Therefore, the documents should not be disclosed since the applicant has not provided its consent.
Comments
The Federal Court of Appeal dismissed the Minister's appeal, thereby affirming the decision of the Motions Judge ([2002] F.C.J. No. 1475 (QL), A-700-01, judgement dated October 24, 2002). The FCA did not interpret s. 44 ATIA as limiting the jurisdiction of the Federal Court "such that s. 24 [ATIA] cannot be invoked by the party seeking to prevent disclosure". The FCA also agreed with the Motions Judge that the information in question was obtained under or by virtue of the Defence Production Act.
