Digests

Canadian Tobacco Manufacturers Council v. M.N.R.

T-877-00

2003 FC 1037, Russell J.

8/9/03

53 pp.

Application for order requiring MNR (respondent) to refuse to disclose certain third party information and records (records) pursuant to Access to Information Act (Act), s. 44--Applicants also seeking order protecting confidentiality of records, including names of authors of records, which authors identified as applicants A and B in this proceeding pursuant to Federal Court Rules, 1998, rr. 151 and 152 and pursuant to Act, s. 47--Applicant, Canadian Tobacco Manufacturers' Council (CTMC), non-profit Canadian corporation--Applicant A (A), consulting firm specializing in statistical analysis--Applicant B (B), forensic consulting firm --Respondent joined by head of Canada Customs and Revenue Agency (CCRA)--Mr. Robert Cunningham added party and employed at Canadian Cancer Society--Mr. Cunningham made original access to information request subject of these proceedings--Information Commissioner of Canada (Information Commissioner) another added party-- Information Commissioner received complaint from Mr. Cunningham against CCRA on February 10, 1999--On July 5, 2000, Information Commissioner reported results of investigation to head of CCRA--In accordance with Act, s. 37, severed version of report provided to Mr. Cunningham-- In report, Information Commissioner concluded all records identified by CCRA relevant to access request--Information Commissioner also concluded records should not have been exempted pursuant to Act, s. 20(1) or 16 and recommended records be disclosed forthwith to requester, Mr. Cunningham --Lact of relevance not ground for exemption as exclusion of portion or record under Act and determining what is or is not relevant to request up to institution, however, this decision would normally be based on examination of each individual record to determine reasonableness of separating non-relevant from relevant information--Fact no obligation on institution to disclose irrelevant information to requester does not give third parties a right to prevent disclosure on grounds of irrelevancy--In context in which request was made and records produced, not incorrect for CCRA to conclude issues of controls, supply and demand intimately connected to issue of enhanced tax-paid markings--These matters also before Information Commissioner and he quite rightly concluded that "an unduly narrow interpretation of access request was taken and none of the records at issue should have been withheld on the basis that they were not relevant to the request"--Lack of relevance not ground for ordering non-disclosure in present application--In addition to relevancy, applicants argue records should be excluded under various exemptions appearing in s. 20(1)--Firstly, regarding exemptions under s. 20(1)(a), only issue on present facts whether applicants have shown information contains "something of 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"--Methodology something author had "honed over a number of confidential studies"-- Not sufficient to bring information within narrow technical sense of "trade secret" postulated by Strayer J. in Société Gamma Inc. v. Canada (Department of Secretary of State) (1994), 27 Admin. L.R. (2d) 102 (F.C.T.D.)--Author appears to be talking about way of handling data gained over years of experience--In coming to this conclusion, Court assumed word "technical" as used by Strayer J., has meaning close to "of or involving or concerned with mechanical arts and applied sciences"--In case at bar, evidence more suggestive of analytic know-how gleaned over years of considerable experience and not strong enough to suggest proprietary methodology that might fit within some extended definition of "technical"--Regarding exemptions under s. 20(1)(b), both Reports prepared in draft form for limited and knowledgeable audience and, as Transmittal Letters make clear, supplied to CCRA in confidence--Reasonable expectation of CTMC, A and B and CCRA, that records would be kept confidential and would not be exposed--Had applicants ever suspected disclosure might occur they would have removed names of consultants and would have also required substantiated exclusions from body of Reports--Draft provided for discussion purposes only, as Transmittal Letters indicate-- Entirety of Records not constituting information of commercial or financial nature--Only issue whether any portion can be said to qualify for exemption on this ground-- In addition to ostensible contents of both Reports, there is analytic methodology used to treat data and draw conclusions --This can be regarded as commercial information being used to produce Reports-- Having decided information not trade secret, issue whether information can be regarded as confidential within meaning of Act--No reason to dispute applicants' evidence that, in case of both reports, informationt provided by third parties who consistently treated analytical methodology as confidential-- Reports in draft form and forwarded by CTMC "on confidential basis" and with understanding that "circulation be limited to those directly involved in tobacco tax collection and enforcement"-- However, for reasons of public policy, information cannot be treated as confidential within measure of s. 20(1)(b)--Records have been submitted to government with view to addressing issues that may well affect, or may already have affected, government policy on tobacco--Not to allow public access would leave public with no means to respond and would completely thwart whole purpose of Act-- As to exemption under s. 20(1)(c), having reviewed applicants' evidence on reasonable expectation of financial loss or gain, and notwithstanding such evidence not subject of cross- examination, it remains speculative--Applicants, at best, merely express fears of what could happen--They do not establish reasonable expectation of probable harm within meaning of s. 20(1)(b)--In addition, if applicants' assertions records and relationship between CTMC and CCRA not exercise in lobbying taken at face value, difficult to see what loss of reputation they might have suffered from disclosure of materials aimed at improving law enforcement and deterring smuggling activities--Finally, regarding s. 20(1)(d), not established disclosure of records would obstruct or thwart contractual negotiations--Application entirely denied-- Access to Information Act, R.S.C., 1985, c. A-1, ss. 20, 44, 47 --Federal Court Rules, 1998, SOR/98-106, rr. 151, 152.