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Info Source Bulletin Number 27

Canadian Tobacco Manufacturers' Council, A and B (Confidential) v. Minister of National Revenue; Information Commissioner of Canada and Robert Cunningham (Added Parties)

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

File No.:	T-877-00
References:	2003 FC 1037; [2003] F.C.J. No. 1308 (QL)
Date of decision:	September 8, 2003
Before:	Russell J.
Sections of ATIA / PA:	*Ss. 2, 6, 20(1) and 44 Access to Information Act* (ATIA)**

Abstract

Relevancy is not a ground for exemption from disclosure available to a third party on a s. 44 application
Analytic know-how gleaned over years of experience not strong enough to suggest proprietary methodology
The test for whether information provided by a third party is confidential is an objective one
While confidentiality agreements may be taken into account, they cannot override or trump the express statutory provisions of the ATIA

Issues

Is relevancy a ground for exemption from disclosure available to a third party on a s. 44 application?
Are the reports in question trade secrets of a third party and thus entitled to exemption under para. 20(1)(a)?
Do the reports in question contain financial and commercial information supplied to a government institution by a third party that has been treated consistently in a confidential manner by the third party, thus entitling the applicants to exemption under para. 20(1)(b)?
Would the disclosure of the reports in question result in material financial losses to or prejudice the position of the applicants, entitling them to exemption under para. 20(1)(c)?
Would the disclosure of the reports in question interfere with contractual or other negotiations of the applicants, thus entitling them to exemption under para. 20(1)(d)?

Facts

The applicant, Canadian Tobacco Manufactures' Council (CMTC), met with the respondent, CCRA, to discuss how the applicant and its member companies could help to deter and reduce tobacco smuggling and contraband activities. CMTC agreed to commission two consulting firms, A and B, to conduct studies and prepare reports on contraband tobacco. A was to study trends in tobacco consumption in Ontario, Quebec, and British Columbia. B was to provide a summary of the current smuggling situation as it related to distribution and sale of contraband products in Canada, particularly in Quebec, Ontario, Manitoba, and British Columbia. Draft copies of the reports were delivered to CCRA on August 11, 1998, along with transmittal letters.

On October 8, 1998, the added party, Robert Cunningham, on behalf of the Canadian Cancer Society made a request under the Access to Information Act (ATIA) for "[r]ecords sent to and received from the tobacco industry...or their representatives, including the Canadian Tobacco Manufacturers' Council since February 1, 1998 with respect to marking/stamping on packages of tobacco products." CCRA advised that the information was exempted under para. 20(1)(b). Mr. Cunningham complained to the Information Commissioner on February 10, 1999, who then commenced an investigation.

On December 6, 1999, CCRA told the Information Commissioner that it would disclose, with CMTC's agreement, those portions of Report B specifically pertaining to the subject of Mr. Cunningham's request and noted that it agreed with CMTC that Report A was not relevant.

On March 30, 2000, CCRA gave the applicants notice under s. 28 of the intention to release the reports. Notice was given under s. 28 on April 14, 2000, to the President of CMTC of the intention to release the transmittal letters. Notice was then given the applicants on April 28, 2000, under para. 29(1)(a) that it had decided to release the transmittal letters and reports. The applicants commenced this proceeding under s. 44 on May 17, 2000.

On July 5, 2000, the Information Commissioner reported the results of his investigation to the head of CCRA, concluding that the records identified by CCRA (i.e. the reports and transmittal letters) were relevant to the request and should not have been exempted under subs. 20(1) or s. 16 and that they should be released to the requester, Mr. Cunningham.

Decision

The s. 44 application was denied.

Reasons

Issue 1

The wording of s. 6 contains no prohibition against disclosing documents that are not relevant to the request. In fact, s. 6 does not address the concept of relevancy. It merely stipulates that the request must be made in writing and must provide sufficient detail to allow identification of the record requested. It would take a substantial amount of reading in to conclude that this imposes an obligation on the government institution to refrain from disclosing information that is not relevant to the request. Bearing in mind the underlying objective of Parliament in enacting the Act, as embodied in s. 2, there is no exemption available to the applicants based upon relevancy. Exceptions to disclosure under the Act should be strictly construed: Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.) at para. 23 per McDonald J.A.

The fact that there is no obligation on an institution to disclose irrelevant information to a requester does not give third parties a right to prevent disclosure on the grounds of irrelevancy. Further, what the parties themselves may have said and done from time to time on the issue of relevancy is not determinative.

In any event, the records sought in this case under the ATIA do fall within the scope of the request. The level of tobacco demand and supply and a report on contraband are intimately related to the need for enhanced tax-paid markings, an anti-contraband measure.

Issue 2

Recognition of the discrete category of trade secret information, as defined in Société Gamma Inc. would not lead to the kind of blanket exemption alleged by the requester. The only issue on the present facts is whether the applicants have shown that the information contains "something of a technical nature...which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed by its mere disclosure" (per Strayer J. in Société Gamma Inc. v. Canada (Department of Secretary of State) (1994), 79 F.T.R. 42 at 45; 27 Admin L.R. (2d) 102 (F.C.T.D.).

In order to bring the information within the narrow technical sense of "trade secret" postulated by Strayer J. in Société Gamma Inc., it is not sufficient to show, as did the applicants here, that the methodology was a way of handling data gained over years of experience. In coming to this conclusion, it is assumed that the word "technical" as used by Strayer J., has a meaning close to "of or involving or concerned with the mechanical arts and applied sciences." Wider definitions of "technical" exist; Campbell J. appears to have taken a much broader approach in Pricewaterhouse Coopers, LLP v. Canada (Minister of Canadian Heritage) (2002), 211 F.T.R. 206; [2001] F.C.J. No. 1439 (QL) (F.C.T.D.), where he dismisses any distinction between methodology and the work product and finds the work done in that case to be "something of a technical nature" within Strayer J.'s definition of a trade secret in Société Gamma Inc. The Trial Judge here did not find himself at odds with the decision of Campbell J. in Pricewaterhouse. In the case at bar, the evidence is more suggestive of analytic know-how gleaned over years of considerable experience and is not strong enough to suggest a proprietary methodology that might fit within some extended definition of "technical."

Issue 3

According to the decision of the Federal Court in Air Atonabee Limited v. Canada (Minister of Transport) (1987), 27 F.T.R. 194 (F.C.T.D.), in order for para. 20(1)(b) of the Act to apply, the information in question must be:

financial, commercial, scientific, or technical information as those terms are commonly understood; and
confidential information, objectively confidential in a way that takes account of the information itself, its purposes, and the conditions under which it was prepared and communicated; and
supplied to a government institution by a third party; and
treated consistently in a confidential manner by the third party.

The data in Reports A and B were found not to be primarily commercial in nature, but the analytic methodology used to treat the data and draw the conclusions can be regarded as commercial information that is being used to produce the Reports. The issue is whether the analytic methodology can be regarded as confidential within the meaning of the Act.

In Brookfield LePage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services, 2003 FCT 254; [2003] F.C.J. No. 348 (QL) (F.C.T.D.), Layden-Stevenson J. cited the summary of authorities provided by MacKay J. in Air Atonabee:

...[W]hether information is confidential will depend upon its content, its purposes and the circumstances in which it is compiled and communicated, namely that:

the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on his own,
the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed, and
the information be communicated, whether required by law or supplied gratuitously, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by confidential communication.

Layden-Stevenson J. in Brookfield, at para. 16, held that whether information provided by a third party is confidential "must be established objectively." She further held:

The fact that the information has, to date, been kept confidential, is merely one aspect of the test. While there exists some inconsistency in the case law as to whether an express undertaking of confidentiality by government is determinative, the weight of judicial authority is to the effect that it is not possible to contract out of the Act [...].

In the final analysis, while confidentiality agreements may be taken into account, they cannot override or trump the express statutory provisions of the Act.

Here, the Trial Judge accepted the applicants' evidence that the analytic methodology had been treated consistently as confidential by both the third party and by the Minister. However, it is not possible to contract out of the Act. So it is difficult to see how a request that confidentiality be observed and the behaviour of the parties can be determinative in this case. The interests of the government and its need to nurture working relationships with organizations such as the CTMC are not necessarily coterminous with the interests of the public. The Act is there to ensure public access, subject to narrow exceptions. This may make life more difficult for parties such as CCRA, but this is not an argument for denying access. For reasons of public policy, this information cannot be treated as confidential within the measure of para. 20(1)(b). The records have been submitted to the government with a view to addressing issues that may well affect, or may already have affected, government policy on tobacco. Not to allow the public access would leave the public with no means to respond and would completely thwart the whole purpose of the Act.

Issue 4

The applicants' evidence on the reasonable expectation of financial loss or gain, notwithstanding that such evidence was not the subject of cross‑examination, remains speculative. The applicants, at best, merely express their fears of what could happen. They did not establish a reasonable expectation of probable harm. In addition, if the applicants' assertions that the records and the relationship between the CTMC and CCRA are not an exercise in lobbying are taken at face value, it is difficult to see what loss of reputation they might suffer from disclosure of materials aimed at improving law enforcement and deferring smuggling activities. If the records were partisan efforts at lobbying, this might be another matter, but the applicants say that the purpose of the Report was "to give CTMC and the governments involved in tax collection and enforcement the best possible independent overviews of contraband tobacco activity."

Issue 5

An examination of the evidence put forward by the applicants in this regard reveals that their fears are, once again, speculative in nature and this does not discharge the burden required to show that para. 20(1)(d) should be applied in their favour.

Comments

This decision was not appealed.