ARCHIVED - Info Source Bulletin Number 29

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Mead Johnson Nutritionals a Division of Bristol-Myers Squibb Canada Co. and Attorney General of Canada

Indexed as: Mead Johnson Nutritionals v. Canada (Attorney General)

File No.:	T-1195-04; T-1196-04
Reference:	2005 FC 235
Date of decision:	February 14, 2005
Before:	Strayer D.J.
Sections of ATIA / PA:	Ss. 2, (1)(b) and (c), 27, 28, 44(1) Access to Information Act (ATIA)

Abstract

• Mere assertion by a third party that information was given with a reasonable expectation of confidence does not meet the para. 20(1)(b) requirement of confidentiality
• Third party, on a subs. 44(1) application, has no standing to raise a complaint that proposed disclosure goes beyond what was requested

Issues

1. With respect to the first application (T-1195-04), did CFIA err in failing to apply the exemptions in paras. 20(1)(b) and (c)?
2. With respect to the second application (T-1196-04), did CFIA err in proposing to disclose information that was not strictly sought in the request for access? If not, did CFIA err in failing to apply paras. 20(1)(b) and (c) to the record?

Facts

Mead Johnson ("the applicant") received two letters from the Canadian Food Inspection Agency ("CFIA") advising that CFIA had received two requests for access to certain records, some of which related to the applicant. The first request for access concerned information "regarding [the applicant's] marketing plans or activities with respect to its products...and regarding its legal position with respect to certain performance representations, including the interpretation of the Food and Drugs Act and its Regulations in relation to Mead Johnson's commercial activities". The second request for access concerned copies of IMS comments made by a certain individual.

CFIA advised the applicant as to the records it intended to release and gave the applicant an opportunity to state its views thereon. With respect to the applicant's second request, CFIA proposed to release IMS comments of an individual other than the one specified by the requester in his original request. The applicant objected and brought two applications for judicial review under sub. 44(1) of the ATIA, invoking paras. 20(1)(b) and (c) of the ATIA in support of its position, and seeking a declaration, in T-1196-04, that the record should not be released because it is not responsive to the request made to CFIA. The Court heard the two applications together.

Decision

The applications were dismissed.

Reasons

Issue 1 (T-1195-04)

It is well settled that the onus is on the third party who objects to disclosure, to prove that the disputed record comes within one of the exemptions in s. 20. Here, the Court was not satisfied that the third party, the applicant, had proved that the record in question was "confidential"

One of the accepted requirements for confidentiality, as enunciated in Air Atonabee Limited v. Canada (1989), 27 F.T.R. 194 (F.C.T.D.), at p. 210, is that "the information must originate and be communicated in circumstances giving rise to a reasonable expectation of confidence that it will not be disclosed". Whether a record is confidential must be determined on an objective basis including its content, purpose and the conditions under which it was communicated. The mere assertion by one party that the information is confidential is not determinative. Neither is the government institution's agreement that it should be confidential determinative of confidentiality.

In the present case, the applicant's meagre affidavit did not establish the elements of confidentiality. The affidavit stated that the information was treated as confidential by the applicant but did not elaborate how confidentiality was maintained. The affidavit simply stated that the records in question were provided to CFIA "in a reasonable expectation of confidence that those details would not be disclosed" and "in confidence and with a reasonable expectation that it would remain confident [sic]". The deponent of the affidavit did not state that she herself participated in such communications nor that she had ever been informed by people who did so participate. The documentary material attached as exhibits to the affidavit fell short of demonstrating that it was made clear to CFIA that communications were sent with the intention that they should be confidential, nor was there any documentary material from CFIA confirming confidentiality. The only relevant letter bearing on confidentiality was written by the applicant well after any of the communications sought to be protected in this case.

Further, the records in question here could not be seen as fundamentally concerned with either marketing or production but instead involved rather minor references to the applicant's position on certain regulatory matters, matters of public concern within the mandate of CFIA.

Issue 2 (T-1196-04)

The applicant had no standing to complain that the record proposed to be disclosed was not responsive to the request originally made by the requester. Clearly, the proposed disclosure was not within the terms of the original request. However, the Federal Court of Appeal in Saint John Shipbuilding v. Canada (1990), 67 D.L.R. (4^th) 315, held that a third party cannot object that the government institution is prepared to give more than was asked for. This reasoning proceeds on the basis that s. 2 of the ATIA states its purpose to be "that government information should be available to the public" and "that necessary exceptions to the right of access should be limited". Section 27 provides that where the head of a government institution intends to disclose "any record requested" and he has reason to think that it might contain third party information of a kind protected under s. 20, he must give written notice to the third party "of the request" and that he intends "to disclose the record". "The record" must be taken to refer back to the "record requested" referred to in subs. 27(1). Further, under s. 28 a third party is given the right to make representations "as to why the record...should not be disclosed". Again, the "record" must refer back to the "record requested" described in subs. 27(1). This means that a third party cannot complain if a government institution discloses records that were never requested which is what the applicant complained of here. The Court indicated its agreement in this respect with the conclusion of Russell J. in Canadian Tobacco Manufacturers' Council v. Canada, 2003 FC 1037 at para. 91.

With respect to para. 20(1)(b), the Court was no more satisfied in this application than in T-1195-04 that the evidence presented by the applicant demonstrated on a balance of probabilities that the material in question was confidential in an objective sense.

With respect to para. 20(1)(c), the Federal Court of Appeal has held that the standard of proof of harm is the demonstration of "a reasonable expectation of probable harm": Canada Packers Inc. v. Canada, [1989] 1 F.C. 47; Saint John Shipbuilding Ltd. v. Canada, supra. The Court was satisfied that the applicant's evidence did not reach this standard. It was certainly not self-apparent to look at the disputed record that its disclosure would likely result in any material harm to the applicant. The only evidence in support of its invocation of para. 20(1)(c) was the following paragraph which appeared in both its public and confidential record:

Details about consumer complaints with respect to any of Mead Johnson's products is information that Mead Johnson endeavours to keep out of the public domain and out of the hands of competitors, who may use this information to damage the goodwill of Mead Johnson and harm Mead Johnson's competitive position.

This passage was so lacking in specifics as to fall far short of establishing, on a balance of probabilities, a reasonable expectation of probable harm.

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