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Info Source Bulletin Number 29
Merck Frosst Canada & Co. v. Minister of Health of Canada
Indexed as: Merck Frosst Canada & Co. v. Canada
(Minister of Health)
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File No.: |
A-515-04 |
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Reference: |
2005 FCA 215 |
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Date of decision: |
June 7, 2005 |
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Before: |
Desjardins, Noël and Pelletier JJ.A. |
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Sections of ATIA / PA: |
Ss. 20(1)(b), (c),(d), 25, 44 Access to Information Act (ATIA) |
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Abstract
- Information available in the public domain is not confidential
- The form in which the information is provided does not make it confidential
Issue
Whether the Federal Court Judge erred in law in concluding that the records at issue fell within the exemption provided for in para. 20(1)(b) of the ATIA because the information they reflect did not appear as such in the public domain
Facts
This is an appeal by the Minister of Health from a decision of Harrington J. of the Federal Court not to disclose any part of the recrods requested on the ground that the records in their entirety were protected under subs. 20(1), except where the notice of compliance is concerned (2004 FC 959).
Health Canada received a request for access to records under the ATIA relating to the review of Merck Frosst's new drug submission for the asthma drug Singulair, newly approved and marketed. The documentation requested was as follows: notice of compliance, comprehensive summary, reviewers' notes and correspondence between Health Canada and Merck Frosst concerning the review of the new drug submission.
Harrington J. concluded that the comprehensive summary was fully excluded from the disclosure because it is essentially confidential third party information. In addition, with respect to the comprehensive summary, the reviewers' notes and the correspondence, the Court decided that the content and intent of the documentation as well as the circumstances surrounding its compilation and communication demonstrate that it is confidential. Finally, the Court decided that even if some information appears to be in the public domain, the question was not really whether or not there was public information regarding Singulair, but rather whether the information as outlined in the new drug submission is in the public domain. Harrington J. concluded that considering that the information contained in the records was not available as such in the public domain, the right to confidentiality was not lost.
Decision
The appeal is allowed, the Federal Court Judge's decision is reversed and the matter is referred back to the Federal Court in accordance with subpara. 52(b)(ii) of the Federal Courts Act for redetermination before another judge.
Reasons
As soon as information is in the public domain, it is no longer confidential even if the form in which it is provided is different. Relying on the form in which the information is provided to conclude that a record complies with the criteria of para. 20(1)(b) is necessarily contrary to the spirit of the ATIA and case law to date on this point. What is of concern is the information. The form in which it is provided cannot prevent its disclosure.
Nor could the Judge conclude that the reviewers' notes and the correspondence between the parties were not to be disclosed in accordance with para. 20(1)(b). The information contained in the reviewers' notes reflect certain information not coming from Merck Frosst and the fact that the notes were drafted in response to Merck Frosst's request is without consequence.
The Court of Appeal concludes that the interests of justice would not be properly served if it were to conduct its own review of the records at issue. It therefore orders that the matter be referred back to the Federal Court for redetermination before another judge in accordance with these reasons.
