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Info Source Bulletin Number 27

Geophysical Service Inc. v. Chairman, Canada-Nova Scotia Offshore Petroleum Board; Geophysical Service Inc. v. Chairman, Canada-Newfoundland Offshore Petroleum Board; Geophysical Service Inc. v. Chairman, National Energy Board

Indexed as: Geophysical Service Inc. v. Canada-Newfoundland and Offshore Petroleum Board

File Nos.:	T-2101-00, T-2102-00, T-2100-00
References:	2003 FCT 507; [2003] F.C.J. No. 665 (QL)
Date of decision:	April 25, 2003
Before:	Gibson J.
Sections of ATIA / PA:	Ss. 19, 20(1)(c) and 24 Access to Information Act (ATIA)

Abstract

Application of exemptions after Information Commissioner's investigation not permitted
General policy of non-disclosure insufficient evidence to warrant application of para. 20(1)(c)
Section 119 Canada-Newfoundland Atlantic Accord Implementation Act and s. 122 Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, incorporated into s. 24 of the ATIA, do not prevent release of requested information
Personal information not including the names, positions, or titles of individuals that are acting only as employees of corporations

Issues

Can government institutions apply mandatory exemptions after the Information Commissioner has completed his investigation?

Can the government institutions' policy of non-disclosure be sufficient evidence to warrant the application of para. 20(1)(c)?

Does s. 119 of the Canada-Newfoundland Atlantic Accord Implementation Act or s. 122 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, both of which are incorporated into s. 24 of the ATIA, apply to exempt the names of the people who request information from a facility in the nature of a library maintained in accordance with those Acts?

Are the names, positions, and titles of individuals acting only in their capacity as employees of corporations personal information for the purpose of s. 19?

Facts

The applicant is required to deposit with the appropriate respondent geophysical seismic data it collects in accordance with a licence issued by the appropriate respondent Board. Which respondent receives which data is determined by the physical jurisdiction that the seismic data concern. In turn, the respondents make the seismic data available to third parties, after the expiry of a certain amount of time set by law or by policy, without consultation with or consent of the applicant.

The applicant made three requests for information—one to each of the three respondents. Each request was similar. The requests were for the names and addresses of all third parties who had, within a certain period of time, requested and been granted access to information concerning or provided by the applicant to the respondent, together with details of the information provided.

The Canada-Newfoundland Board applied the exemptions contained in ss. 19, 20(1), and 24 of the ATIA. Section 24 incorporates s. 119 of the Canada-Newfoundland Atlantic Accord Implementation Act, which provides that information provided to the Board for certain purposes is privileged and shall not be disclosed without the consent of the person who provided it except under certain specified conditions.

The National Energy Board applied only the exemption found in para. 20(1)(c) of the ATIA.

The Canada-Nova Scotia Board applied the exemptions found in para. 20(1)(c) and s. 24 of the ATIA. Section 24 of the ATIA incorporates s. 122 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, which essentially contains the same terms as subs. 119 of the Canada-Newfoundland Atlantic Accord Implementation Act.

The applicant complained to the Information Commissioner, who, after his investigation, found that the exemptions had been properly applied. The applicant then filed, pursuant to s. 41 of the ATIA, to have the Federal Court review the matter.

Decision

The application was allowed. The records were ordered released.

Reasons

Issue 1

Once all three Court applications were consolidated, the two respondents who had not relied on s. 19 attempted to rely on the application of this exemption by virtue of the fact that the Canada-Newfoundland Board had relied on it. Similarly, the National Energy Board also attempted to rely on the application of s. 24 (which incorporates s. 101 of the Canada Petroleum Resources Act). However, these exemptions were not before the Information Commissioner when he enquired into the applicant's complaints in relation to those respondents.

The general principles cited in Rubin v. Canada (Minister of Health) (2001), 14 C.P.R. (4^th) 1 (F.C.T.D); aff'd, [2003] F.C.J. No. 103 (QL) (F.C.A) required that exceptions to the right of access should be limited and specific and that the burden lies on the party opposing disclosure. Further, in Rubin, the Court indicated that the specific provision which will be relied upon by the institution must be indicated to the requester before the complaint is made to the Information Commissioner. For these reasons, and on the facts of this case, the Court found that the applicant was denied the right of complaint to the Information Commissioner in respect of a range of bases of exemption from disclosure that the National Energy Board and the Canada-Nova Scotia Board now attempt to rely on. Therefore, the additional reliance on those exemptions, being claimed after the Information Commissioner's investigation, must be dismissed. Similarly, a late additional request by the applicant for supplemental information is similarly dismissed for the same reasons. If the access request was not and could not have been before the Information Commissioner, then the Court is precluded from considering that request on an application under s. 41 of the ATIA.

Issue 2

It is not sufficient for an institution from which the names of third parties who request or borrow information and the description of requested or borrowed information are sought to rely upon a general assertion that disclosure of such information 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. Exemption from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record. In this case, one of the respondents' evidence indicated that it was a policy decision that it will not release the requested information because it could result in financial loss or gain to another party. Further, the evidence indicated that one of the respondents relied upon its general knowledge of the oil and gas industry and the secretive nature of participants in that industry to speculate, rather than to demonstrate, probable harm as a reasonable expectation. This evidence indicates an error on the part of the respondent in failing to examine each request on an individualized basis, and an error in relying on a generalized policy to withhold information.

Issue 3

Section 24 of the ATIA incorporates, by reference, s. 119 of the Canada‑Newfoundland Atlantic Accord Implementation Act. Together, these sections work to exempt from release information or documentation provided for the purposes of Part II or Part III, or any regulation made under either of those Parts, of the Canada-Newfoundland Atlantic Accord Implementation Act.

The exact same analysis would be applicable with respect to the analogous provision (s. 122) found in the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act. The analogous claim being raised late by the National Energy Board was dismissed because of its late application (see Issue 1).

The information requested by the applicant, namely, the names of those who had borrowed information from the respondents along with a description of the borrowed information, is not information provided to the respondents for the purposes of Part II or III of the Canada-Newfoundland Atlantic Accord Implementation Act or any regulation made under either of those parts. Rather, the requested information was information provided for the purposes of the maintenance and operation of a facility in the nature of a library as required by s. 22 of the Canada-Newfoundland Atlantic Accord Implementation Act.

The types of people who borrow information can be from academic institutions, private individuals, or exploration companies. Indeed, it is entirely possible that they might be institutions that were neither academic in nature nor exploration companies. Their names, as borrowers of documentation, and the link of their names to the borrowed information, could hardly be said to be information provided for the purpose of management of petroleum resources, of administration or enforcement of the statutory scheme, or for the safe and prudent conduct of petroleum operations. By contrast, s. 22 of the Canada‑Newfoundland Atlantic Accord Implementation Act obliges the respondent to establish, maintain, and operate a facility in the nature of a library. The collection of the names of those who borrow the documentation within the library is part of the obligation under s. 22. Thus, the requested information was not subject to s. 119 of the Canada-Newfoundland Atlantic Accord Implementation Act and it cannot be exempt from disclosure by virtue of s. 24 of the ATIA.

Issue 4

Section 19 of the ATIA operates to exempt from release "personal information" as defined in the Privacy Act. However, the respondent cannot succeed on its claim for an exemption from disclosure on the basis of s. 19. First, Tridel Corp v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185 (F.C.T.D.) is the authority for the proposition that a corporation cannot be an "identifiable individual" for the purposes of the definition of "personal information." Further, there was no basis to conclude that the names of requesters linked to the information requested would constitute "personal information." If the requesters are corporations or unincorporated bodies, they are not "identifiable individuals." If the requesters are "identifiable individuals" and are acting only as employees of corporations or the like, and nothing more than their position or title with the corporation is identified, then the disclosure of their names together with that information alone does not constitute disclosure of "personal information."