Federal Court Decisions

                                                                                                                                                                       

Date: 20030908

Docket: T-877-00

    Citation: 2003 FC 1037   

Ottawa, Ontario, this 8^th day of September, 2003                                                        

Present:           The Honourable Mr. Justice James Russell                                      

BETWEEN:

                              CANADIAN TOBACCO MANUFACTURERS' COUNCIL

A and B (Confidential)

Applicants

- and -

MINISTER OF NATIONAL REVENUE

Respondent

INFORMATION COMMISSIONER OF CANADA and

ROBERT CUNNINGHAM

Added Parties

                                               REASONS FOR ORDER AND ORDER

I. APPLICATION

[1]                 This is an application for an Order requiring the Respondent to refuse to disclose certain third party information and records (the "Records") pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act"). The Applicants also seek an Order protecting the confidentiality of the Records, including the names of the authors of the Records, which authors are identified as Applicants A and B in this proceeding pursuant to Rule 151 and 152 of the Federal Court Rules, 1998 and pursuant to section 47 of the Act.

II. BACKGROUND

[2]                 The Applicant, the Canadian Tobacco Manufacturers' Council ("CTMC"), is a non-profit Canadian corporation established informally in 1963. In 1982 it became an incorporated non-profit organization.

[3]                 Applicant A ("A"), is a consulting firm specializing in statistical analysis.

[4]                 Applicant B ("B"), is a forensic consulting firm.

[5]                 The Respondent is the Minister of National Revenue and the head of the Canada Customs and Revenue Agency ("CCRA").

[6]                 Mr. Robert Cunningham is an added party and is employed at the Canadian Cancer Society. He is the individual who made the original access to information request that is the subject of these proceedings.

[7]                 The other added party is the Information Commissioner of Canada (the "Information Commissioner"). The Information Commissioner received a complaint from Mr. Cunningham against the CCRA on February 10, 1999.

III. SIGNIFICANT EVENTS

[8]                 On February 17, 1998, the CTMC was asked by the CCRA to attend a meeting to discuss various aspects of contraband tobacco activity in Canada. The president of the CTMC, Mr. Robert Parker, attended two such meetings the purpose of which was to determine what the CTMC and its member companies could do to assist the CCRA and provincial governments to deter and reduce tobacco smuggling and contraband activities. The meetings were held in private.

[9]                 After three meetings, the CTMC agreed to commission A and B to conduct studies and prepare reports on contraband tobacco. A's mandate was to carry out a study of trends in tobacco consumption in Ontario, Quebec and British Columbia. B's assignment was to provide a summary of the current smuggling situation as it related to the distribution and sale of contraband products in Canada. B was requested to concentrate on smuggling in the provinces of Ontario and Quebec, which have relatively low tobacco taxes, as well as the provinces of Manitoba and British Columbia, which have relatively high tobacco taxes.

[10]            On August 5, 1998, B completed a draft report (the "B Report") and on August 6, 1998, A delivered its draft report (the "A Report") to CTMC. On August 11, 1998, CTMC sent draft copies of both Reports to Mr. Bill McCloskey, Assistant Deputy Minister at CCRA in the policy and legislation branch. CTMC also sent draft copies of the Reports to Sandra Extence, Director General of CCRA in the excise, duties and taxes division. Accompanying letters (the "Transmittal Letters") stated that the conclusions were preliminary and not necessarily representative of the Applicants and asked that the Reports be kept confidential.

[11]            On October 8, 1998, Mr. Cunningham, on behalf of the Canadian Cancer Society, made a request under the Act directed to the CCRA for the following:

Records sent to and received from the tobacco industry (including manufacturers, importers, wholesalers, retailers) or their representatives, including the Canadian Tobacco Manufacturers' Council since February 1, 1998 with respect to marking/stamping on packages of tobacco products.

[12]            On February 9, 1999, Mr. Bill McCloskey wrote to Mr. Cunningham and advised him that the information requested was "exempt under paragraph 20(1)(b) of the Act as this information is considered confidential information of third parties."

[13]            On February 10, 1999, Mr. Cunningham made a complaint to the Information Commissioner against the CCRA concerning its response to his request.

[14]            On March 1, 1999, the CCRA was provided with a summary of the complaint and was notified of the Information Commissioner's intention to investigate the complaint.

[15]            Letters from the CCRA to the Information Commissioner dated April 12, 1999 and June 15, 1999, took the position that the requested information was exempt from disclosure under paragraph 20(1)(b) of the Act and noted that there were "documents in the case file that fell outside the actual subject matter of the request."

[16]            On June 30, 1999, the CTMC wrote to the Information Commissioner in response to its invitation for representations. Included in the representations were letters from the CTMC's general counsel, from the President of B, and from the principal of A.

[17]            On December 6, 1999, the CCRA made further representation to the Information Commissioner in which it proposed to disclose, with CTMC's agreement, those portions of the B Report that contain information specifically pertaining to the subject matter of Mr. Cunningham's request, that is "marking/stamping on packages of tobacco." The CCRA extracted portions from the B Report that it proposed to disclose, subject to further extractions resulting from the application of sections 16(1)(c), 16(2) and 20(1)(b) of the Act. The CCRA also noted that it agreed with the CTMC that the A Report had no relevance to Mr. Cunningham's request and that its disclosure was unwarranted.

[18]            On February 11, 2000, Mr. Robert Parker, president of CTMC, the President of B and the Principal of A, appeared before the Deputy Commissioner to give evidence.

[19]            On March 30, 2000, pursuant to section 28 of the Act, the Applicants were provided with notice of the intention of the CCRA to release the Reports.

[20]            On April 14, 2000, pursuant to section 28 of the Act, the President of the CTMC was provided with notice of the intention of the CCRA to release the Transmittal Letters.

[21]            On April 28, 2000, the CCRA gave the Applicants notice under paragraph 29(1)(b) of the Act that it had decided to release the Transmittal Letters and the Reports.

[22]            On May 17, 2000, the Applicants commenced this proceeding under section 44 of the Act for an order requiring CCRA to refuse to disclose the Transmittal Letters and the Reports.

[23]            On July 5, 2000, the Information Commissioner reported the results of his investigation to the head of the CCRA. In accordance with section 37 of the Act, a severed version of his report was provided to Mr. Cunningham. In his report, the Information Commissioner concluded that all the Records identified by the CCRA were relevant to the access request. The Information Commissioner also concluded that the Records should not have been exempted pursuant to sections 20(1) or 16 of the Act and recommended that the Records be disclosed forthwith to the requester, Mr. Cunningham.

IV. ISSUES FOR CONSIDERATION

[24]            The Applicants submit that the Records should not be disclosed because:

1)       They are not relevant to the subject matter of the request, that is, "the marking/stamping on packages of tobacco products"; and

2)      They contain:

a)    trade secrets of the Applicants under paragraph 20(1)(a) of the Act;

b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by the Applicants and that is treated consistently in a confidential manner by the Applicants under paragraph 20(1)(b) of the Act;

c)    information, the disclosure of which could reasonably be expected to result in material financial loss, or could reasonably be expected to prejudice the competitive position of the Applicants under paragraph 20(1)(c) of the Act;

d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of the Applicants under paragraph 20(1)(d) of the Act.

V. SUBMISSIONS

a)    Applicants' Submissions

Issue 1: Relevancy

[25]       The Applicants submit that section 6 of the Act imposes an obligation on the requester of information to state precisely what he or she is seeking. The section also requires the relevant government department to disclose only those documents relevant to the information requested. Mr. Cunningham indicated that he was seeking information in relation to "marking/stamping on packages of tobacco products."

[26]       The Applicants submit that the A Report does not mention, consider or relate to markings or stampings on packages of tobacco products. There is no basis for concluding that the A Report is relevant or responsive to the request made by Mr. Cunningham for information. Hence it should not be disclosed. The fact that the A Report is mentioned in an irrelevant portion of the B Report and in the Transmittal Letters does not make it relevant to the request.

[27]       The Applicants submit that only section 4 and appendix D of the B Report deal with the subject of tobacco package markings. These are the only sections that are relevant to the request and these portions of the B Report should not be disclosed because they fall within section 20(1) of the Act as specific exemptions.

[28]       The Applicants submit that the Transmittal Letters do not mention the subject of stamping or marking on packages of tobacco products, so they are not relevant to Mr. Cunningham's request.

Issue 2: Exemptions

[29]       The Applicants submit that the Records are entitled to protection under paragraphs 20(1)(a), (b), (c) and (d), including those parts that relate to marking and stampings.

section 20(1)(a) - trade secrets

[30]       The Applicants submit that A's unique methodology, manifested in the A Report, of exploiting major social surveys to develop an estimate of actual consumption, is a trade secret belonging to A.

section 20(1)(b) - confidential, financial, commercial, scientific or technical information

[31]       The Applicants submit that the test for confidentiality has to do with the content of the information, its purpose and the conditions under which it was prepared and communicated, not the number of people to whom the information may have been available: Montana Band of Indians and Ministry of Indian and Northern Affairs, (1988), 51 D.L.R., (4^th), 306 (F.C.T.D.), at page 318. Both Reports were prepared in draft form for a limited and knowledgeable audience and were supplied to the CCRA in confidence. The A Report contains information that is primarily industry data provided by industry participants on a confidential basis. It constitutes "financial" and "commercial" information for the purposes of paragraph 20(1)(b) of the Act. The B Report describes B's procedure and methodology used in report preparation. These matters are confidential to B and are provided only to clients on a confidential basis. Such information is not available from other sources. The information has been treated as confidential information by all relevant parties.

[32]       The Applicants submit that the government has a duty to act in good faith regarding confidential information received by it. There is a public interest in fostering the confidential nature of government's relationships with third parties such as the CTMC: Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.) at p. 675.

[33]       Paragraph 20(1)(b) of the Act requires the government to consider itself bound by its undertakings to act confidentially whenever a third party has consistently treated the information as confidential. The CCRA may only be released from its agreement to keep records confidential where it is in the public interest "as it relates to public health, safety or protection of the environment": Canada (Information Commissioner), supra, at p. 676; Keddy v. Canada (Atlantic Canada Opportunities Agency) (1993), 50 C.P.R. (3d) 484 (F.C.T.D.) at p. 490; Canada (Information Commissioner v. Atlantic Canada Opportunities Agency, [1996] F.C.J. No. 332; revsd; (1999) 250 N.R. 314 (F.C.A.).

Sections 20(1)(c) and (d) - Material financial loss, prejudice to competitive position or interference with contractual negotiations:

[34]       The Applicants also argue that disclosure of the Reports would materially assist competitors of A and B in bidding against them in the future. Their competitors would have access to confidential methodologies. Furthermore, A and B would have their reputations harmed if it became publically known that they had done work for the tobacco industry.

[35]       The Transmittal Letters are also protected under section 20(1) because they contain information that is entitled to protection including references to methodologies and discussions of draft conclusions as well as the identities of A and B.

b)    Respondent's Submissions:

[36]       The Respondent submits that it has treated the Records in a confidential manner in that they have not been released to the public. However, the Reports have been submitted to other government representatives and law enforcement agencies and there was no explicit undertaking of confidentiality provided to the Applicants by CCRA.

[37]       The Respondent submits that the purpose of the Act is to provide the public with a right of access to the information in the records of the government and that exceptions to the right of access should be limited and specific: Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47, at 60 (F.C.A.); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at 427-428, para. 50-52.

[38]       The basic principle of the Act has been held to be that public access should not be frustrated by the courts except in the clearest of circumstances. A heavy burden of persuasion rests upon the party resisting disclosure: Maislin Industries Limited v. The Honourable Minister for Industry, Trade and Commerce, Regional Economic Expansion (now the Honourable Minister for Regional and Industrial Expansion) and Iain Hunter, [1984]_1 F.C. 939, at 943 (F.C.A.); Rubin v. Canada (Mortgage and Housing Corp.), [1989] 1 F.C. 265, at 276 (F.C.A.); Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 at 441 (F.C.T.D.). The standard of proof in reviewing exemptions under subsections 20(1) (a), (b), (c) and (d) is a balance of probabilities: Tridel Corp. v. Canada Mortgage and Housing Corp., [1996] 115 F.T.R. 185, at 196 (F.C.T.D.); Northern Cruiser Co. v. Canada, [1995] F.C.J. No. 1168.

Issue 1: Relevancy

[39]       The Respondent submits that the Applicants accept that section 4 and Appendix D of the B Report are captured by the request. In the Respondent's submission, since the Reports and Transmittal Letters were provided to the CCRA in one package, they should be considered to be all within the scope of the request. Since the Transmittal Letters referred to both Reports, the A Report should also come within the scope of the request.

Issue 2: Exemptions

section 20 (1)(a) - trade secrets

[40]       The wording of section 20(1)(a) requires that the term "trade secrets" be given a reasonably narrow interpretation. It must be something of a technical nature: Société Gamma Inc. v. Canada (Department of Secretary of State), [1994] F.C.J. No. 589. The Applicants have only provided general statements as to the value of each Report to its author. The evidence does not indicate that there is a technical trade secret that is closely guarded or that it is peculiar to the Applicants. Whether the information in dispute is a trade secret is a conclusion the Court must arrive at based on the evidence provided. The Applicants have not met the burden imposed upon them in this respect: SNC-Lavalin v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113, at 127 (F.C.T.D.); Canadian Broadcasting Corporation v. National Capital Commission, [1998] F.C.J. No. 676 at para. 25 (F.C.T.D.).

section 20(1)(b) - confidential, financial, commercial, scientific or technical information

[41]       The Respondent submits that in applying section 20(1)(b) of the Act, the information must be:

1)      financial, commercial, scientific or technical information as those terms are commonly understood;

2)      confidential information in its nature by some objective standard which takes account of the information, its purposes and the conditions under which it was prepared and communicated;

3)      supplied to a government by a third party; and

4)      treated consistently in a confidential manner by the third party: Air Atonabee Limited v. Canada (Minister of Transport) (1987), 27 F.T.R. 194 at 207 (F.C.T.D.).

[42]       Whether information is confidential under section 20(1)(b) of the Act must be established objectively: Société Gamma Inc., supra, at 46; Maislin Industries Ltd., supra, at 947. The fact that the government and the third party may have, to date, kept the information in question as confidential is merely one aspect of the test, Société Gamma. An express promise of confidentiality is not determinative of the applicability of the subsection: Information Commissioner v. President of Atlantic Opportunities Agency (1999), 250 N.R. 314 (F.C.A.); Keddy, supra; Occam Marine Technologies Limited v. Canada (National Research Council), [1998] F.C.J. No. 1502 (F.C.T.D.).

[43]       In this case, the Reports were voluntarily circulated to a limited group of governments and enforcement agencies by the CCRA. Furthermore, in the Respondent's submission, the records do not contain commercial or financial information. They are analytical reports that contain some statistical analysis and commentary by the authors. There is no commercial or financial information in the Reports as those terms are commonly used.

[44]       The Respondents submit that the Applicants have not demonstrated that the Records are confidential by an objective standard. The evidence is general and generic. There is little to support the contention that the Transmittal Letters are objectively confidential.

section 20(1)(c) - material financial loss, prejudice to competitive position

[45]       The Respondents submit that there is no reasonable expectation of probable harm under section 20(1)(c) of the Act: Canada Packers, supra, at 60; Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services), [1990] 107 N.R. 89, at 91 (F.C.A.); Société Gamma Inc., supra, at 46. Information is exempt from disclosure pursuant to section 20(1)(c) where disclosure could reasonably be expected to result in material financial loss or gain to a third party or where the disclosure of the information could reasonably be expected to prejudice the competitive position of the third party: Air Atonabee, supra, at 207; Timiskaming Indian Bank v. Canada (Minister of Indian and Norther Affairs), [1997] F.C.J. No. 676 at para 55-59 (F.C.T.D.). The test has not been met by the Applicants, who merely affirm that there will be loss: SNC-Lavalin,supra, at 127; Canadian Broadcasting Corporation, supra, at para. 25. At best, the evidence is speculative in that it suggests that confidential sources might not provide information to A or B in the future if the Records are released.

section 20(1)(d) - interference with contractual negotiations

[46]       The Respondents submit that disclosure will not result in interference to contractual negotiations under section 20(1)(d). This section requires that there is a probability that the disclosure will obstruct contractual or other negotiations: Saint John Shipbuilding, supra, at p. 91. There is no evidence of interference with specific contractual negotiations if the Records are released. The strongest evidence put forward by the Applicants is that A has in the past been criticized for having the tobacco industry as a client.

c) Information Commissioner's Submissions:

Issue 1: Relevancy

[47]       The Information Commissioner submits that, contrary to the Applicant's submissions, "relevance" is not an exemption which may be invoked by a third party to prevent the disclosure of information under the Act: X v. Canada (Minister of National Defence), [1992]_F.C.J. No. 1006 (F.C.T.D.); Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 at 301-302 (F.C.T.D.). Section 6 of the Act requires that the requester provide a sufficient level of detail in a request to enable an experienced employee of the institution to identify the material requested with a reasonable effort. The CCRA identified the Report and the Transmission Letters as relevant.

[48]       The Information Commissioner submits that testimony before the Deputy Commissioner indicated that the Records were provided to the CCRA in the context of a lobbying effort on behalf of the tobacco industry to avoid the imposition of onerous new stamping and marking requirements aimed at reducing contraband tobacco sales. Therefore, the Records are related to the marking and stamping of tobacco products.

[49]       Furthermore, the Information Commissioner submits that the Applicants have admitted that portions of the B Report are relevant and the case law indicates that where portions of a record are relevant to an access request, the entire record must be released unless it is demonstrated that the other portions are exempt: X, supra, at para 42. This Court should defer to the expert determination by the CCRA that the Records are relevant to the request.

Issue 2: Exemptions

[50]       The Information Commissioner adopts the Respondent's submission and adds that there are no trade secrets in the B Report.

[51]       The Information Commissioner argues that this court should not consider hearsay evidence regarding information provided by an officer of B. Furthermore, the Information Commissioner submits that, contrary to the Applicants' submissions, B was prepared, on December 15, 1999, to release the B Report in its entirety subject to limited severance.

[52]       The Information Commissioner submits that there is no evidence that the B Report constitutes "objectively confidential" information.

[53]       Furthermore, there is no evidence, beyond generic assertions, that the A Report contains confidential commercial information. The A Report is based almost entirely on publically available statistics. The information obtained by the three member companies of CTMC is aggregated and not presented in relation to any particular company. There is also no evidence that the methodology used in the A Report is objectively confidential. The Information Commissioner submits that the Transmittal Letters do not contain any confidential commercial information.

[54]       In response to the Applicants' submission that a release of the Reports will result in prejudice against the authors, the Information Commissioner submits that the Reports are clearly marked as drafts and there would be no resulting prejudice.

[55]       The Information Commission adds that it is public knowledge that B has worked for the tobacco industry, both in this case and in the past. A has also admitted that persons in the anti-tobacco lobby in Health Canada and in Statistics Canada know that it and its principal have done work for the tobacco industry in the past.

[56]       The Information Commissioner submits that, in the event that the Records are found not to be exempt, the Court should direct that the Respondent consider exercising his discretion to disclose the requested records pursuant to section 20(6) of the Act.

d)    Added Party Robert Cunningham's Submissions:

[57]       Mr. Cunningham did not have access to the confidential record in preparing his submissions.    His submissions are in reply to the public versions of the submissions made by the other parties.

[58]       Those submissions of Mr. Cunningham that are not duplicative of the submissions of the Respondents and the Information Commissioner are set out below.

[59]       Mr. Cunningham submits that, according to the Federal Court of Appeal in Saint John Shipbuilding Ltd., supra, at p. 91, a third party bringing an application under section 44 of the Act does not have standing to argue that the records proposed to be released are different from what was requested. Mr. Cunningham submits that, in any event, the Records are relevant to his request because the level of tobacco demand and supply and a report on contraband are intimately related to the need for enhanced tax-paid markings (a well-recognized anti-contraband measure).

[60]       With respect to the trade secret argument under section 20(1)(a), Mr. Cunningham submits that almost any consultant's report prepared for or submitted to government has an approach, format, methodology or content that could be claimed to be unique. To accept the Applicants' argument would be tantamount to the Court approving that the vast majority of reports provided to government are exempt from disclosure.

[61]       With respect to the Applicants' argument that the CTMC keeps the names of its suppliers confidential, Mr. Cunningham submits that there have been instances in the past where this has not been the case.

[62]       Mr. Cunningham submits that one aspect of determining whether the information is confidential involves a consideration of the public interest: Air Atonabee, supra, at p. 210. He submits that it is contrary to the public interest for industries to be able to lobby government in secret. In this case, the CTMC was attempting to influence the content of tax-paid marking requirements for tobacco packaging. Allowing a large powerful industry to lobby in secret is completely contrary to the rationale underlying the Act.

[63]       Mr. Cunningham disputes that the Records have been treated consistently in a confidential manner by the relevant third party.

[64]       With respect to the Applicants' claim that they would lose business if their names were disclosed in association with work for the tobacco industry, Mr. Cunningham submits that this was a risk that they surely calculated when they made their decision to prepare the Reports and it is just as likely that such disclosure would bring additional business their way.

[65]       With respect to the Applicants' section 20(1)(d) claim for exemption, Mr. Cunningham submits that the Applicants must demonstrate that the disclosure will obstruct actual negotiations, and not merely heighten competition: Société Gamma Inc., supra, at p.47.

[66]       Mr. Cunningham submits that the purpose of the Reports was to influence government's policy regarding tax-markings for tobacco products. This was highlighted by the fact that the CTMC submitted the Reports following the Minister of National Revenue's February 13, 1998 announcement that Revenue Canada would be "assessing whether enhanced stamping requirements for tobacco products would be effective in further improving the ability of enforcement agencies to combat tobacco smuggling." Mr. Cunningham submits that the CCRA's decision not to enhance tax-stamping on tobacco products stems in part from the Reports in question.

[67]       Mr. Cunningham argues that there is no doubt that there is a strong connection between contraband tobacco and public health: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at pp.242-245. This provides strong incentive for disclosure in this case.

[68]       Mr. Cunningham also submits that if disclosure in full is not allowed, this Court should allow for partial disclosure pursuant to section 25 of the Act.

[69]       Finally, Mr. Cunningham requests that should the Court dismiss this application, it will no longer be necessary to preserve the confidentiality of the Records. Further, it will no longer be necessary to preserve as confidential the affidavits of the Applicants and the Minister, transcripts of examinations on the affidavits, or the application record of the Applicants and the Minister, all of which have been confidential so far because they contained reference to alleged confidential information. Mr. Cunningham requests an order declaring that such documents are no longer confidential pursuant to Prothonotary Lafrenière's Order that the information was to be filed in a sealed form, "until ordered otherwise by this Court" and subsection 29(1) of the Federal Court Rules, 1998.

VI. RELEVANT LEGISLATION:

Access to Information Act, R.S.C. 1985, c. A-1

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government. (2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public. 6. A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record. 20.(1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains (a) trade secrets of a third party; (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party; (c) information the disclosure of which 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; or (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. [...] (6) The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party. [...] 25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. [...] 28.(1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof, [...] (b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party. [...] 41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow. 42.(1) The Information Commissioner may (a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record; (b) appear before the Court on behalf of any person who has applied for a review under section 41; or (c) with leave of the Court, appear as a party to any review applied for under section 41 or 44. (2) Where the Information Commissioner makes an application under paragraph (1)(a) for a review of a refusal to disclose a record requested under this Act or a part thereof, the person who requested access to the record may appear as a party to the review. [...] 44.(1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter. [...] 47.(1) In any proceedings before the Court arising from an application under section 41, 42 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of (a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; or (b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Act, does not indicate whether it exists. (2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof. [...] 51. Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate. Federal Court Rules, 1998 29. (1) Subject to subsection (2) and rule 30, hearings of the Court, other than pre-trial or dispute resolution conferences, shall be open and accessible to the public.		2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif. (2) La présente loi vise à compléter les modalités d'accès aux documents de l'administration fédérale; elle ne vise pas à restreindre l'accès aux renseignements que les institutions fédérales mettent normalement à la disposition du grand public. 6. La demande de communication d'un document se fait par écrit auprès de l'institution fédérale don't relève le document; elle doit être rédigée en des termes suffisamment précis pour permettre à un fonctionnaire expérimenté de l'institution de trouver le document sans problèmes sérieux. 20. (1) Le responsable d'une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant : a) des secrets industriels de tiers; b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers; c) des renseignements don't la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité; d) des renseignements don't la divulgation risquerait vraisemblablement d'entraver des négociations menées par un tiers en vue de contrats ou à d'autres fins. [...] (6) Le responsable d'une institution fédérale peut communiquer, en tout ou en partie, tout document contenant les renseignements visés aux alinéas (1)b), c) et d) pour des raisons d'intérêt public concernant la santé et la sécurité publiques ainsi que la protection de l'environnement; les raisons d'intérêt public doivent de plus justifier nettement les conséquences éventuelles de la communication pour un tiers : pertes ou profits financiers, atteintes à sa compétitivité ou entraves aux négociations qu'il mène en vue de contrats ou à d'autres fins. [...] 25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux. [...] 28(1) Dans les cas où il a donné avis au tiers conformément au paragraphe 27(1), le responsable d'une institution fédérale est tenu: [...] b) de prendre dans les trente jours suivant la transmission de l'avis, pourvu qu'il ait donné au tiers la possibilité de présenter des observations conformément à l'alinéa a), une décision quant à la communication totale ou partielle du document et de donner avis de sa décision au tiers. [...] 41. La personne qui s'est vu refuser communication totale ou partielle d'un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l'information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l'expiration du délai, le proroger ou en autoriser la prorogation. 42. (1) Le Commissaire à l'information a qualité pour : a) exercer lui-même, à l'issue de son enquête et dans les délais prévus à l'article 41, le recours en révision pour refus de communication totale ou partielle d'un document, avec le consentement de la personne qui avait demandé le document; b) comparaître devant la Cour au nom de la personne qui a exercé un recours devant la Cour en vertu de l'article 41; c) comparaître, avec l'autorisation de la Cour, comme partie à une instance engagée en vertu des articles 41 ou 44. (2) Dans le cas prévu à l'alinéa (1)a), la personne qui a demandé communication du document en cause peut comparaître comme partie à l'instance. [...] 44. (1) Le tiers que le responsable d'une institution fédérale est tenu, en vertu de l'alinéa 28(1)b) ou du paragraphe 29(1), d'aviser de la communication totale ou partielle d'un document peut, dans les vingt jours suivant la transmission de l'avis, exercer un recours en révision devant la Cour. [...] 47. (1) À l'occasion des procédures relatives aux recours prévus aux articles 41, 42 et 44, la Cour prend toutes les précautions possibles, notamment, si c'est indiqué, par la tenue d'audiences à huis clos et l'audition d'arguments en l'absence d'une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque : a) des renseignements qui, par leur nature, justifient, en vertu de la présente loi, un refus de communication totale ou partielle d'un document; b) des renseignements faisant état de l'existence d'un document que le responsable d'une institution fédérale a refusé de communiquer sans indiquer s'il existait ou non. (2) Dans les cas où, à son avis, il existe des éléments de preuve touchant la perpétration d'infractions fédérales ou provinciales par un cadre ou employé d'une institution fédérale, la Cour peut faire part à l'autorité compétente des renseignements qu'elle détient à cet égard. [...] 51. La Cour, dans les cas où elle conclut, lors d'un recours exercé en vertu de l'article 44, que le responsable d'une institution fédérale est tenu de refuser la communication totale ou partielle d'un document, lui ordonne de refuser cette communication; elle rend une autre ordonnance si elle l'estime indiqué.                    Règles de la cour fédérale, 1998 29. (1) Sous réserve du paragraphe (2) et de la règle 30, les audiences de la Cour, sauf les conférences de règlement des litiges et les conférences préparatoires à l'instruction, sont publiques et les lieux où elles sont tenues sont accessibles à tous.

VII. ANALYSIS

CONTEXT AND BACKGROUND

[70]            Mr. Cunningham's request of October 8^th, 1998, to the CCRA asked for disclosure of the following:

All records sent to and received from the tobacco industry (including manufactures, importers, wholesalers, retailers) or their representatives, including the Canadian Tobacco Manufacturer's Council, since February 1^st, 1998 with respect to marking/stamping on packages of tobacco products.

[71]       The request was prompted by a history of concern by the Canadian Cancer Society over the inadequacy of tax-paid markings that appear on the tear strip of the cellophane portion of a cigarette package. The problem with this is that the marking disappears once the cellophane is removed and it is relatively easy to unwrap and replace the tear strip of a package of cigarettes intended for export or for sale in a low-tax Canadian province. This makes the inter-provincial and international smuggling of cigarettes easier.

[72]       Health organizations, such as the Canadian Cancer Society, have an obvious interest in combatting the trade in contraband cigarettes. They feel the situation could be improved if the tax-paid marking were to appear directly on packages of cigarettes. Put simply, tax-paid markings on packages would significantly constrain the ability of smugglers to operate and would protect the health gains represented by government tax policies. Needless to say, the tobacco industry and its representatives disagree.

[73]       On behalf of the Canadian Cancer Society, Mr. Cunningham has been a strong advocate of tax-paid markings on cigarette packages, as well as other measures aimed at discouraging the trade in contraband cigarettes and the trade in cut-rate tobacco products.

[74]       In a letter dated October 6, 1998, representatives of the Canadian Cancer Society, the Non-Smokers' Rights Association and the Canadian Lung Association wrote to The Honourable Herb Dhaliwal, Minister of National Revenue, in response to the Ministers' February 13, 1998 announcement that "Revenue Canada would be assessing whether enhanced stamping requirements for tobacco products would be effective in further improving the ability of enforcement agencies to combat tobacco smoking." Health organizations had applauded this initiative by the government but had become frustrated because they felt they had been excluded from the discussions that government was holding with representatives of the tobacco industry. The letter to Minister Dhaliwal expressed this frustration as follows:

[...]

Since then, your department has conducted consultations with tobacco manufacturers. Apparently as a result of these discussions, the department has no plans to recommended enhanced stamping/marking requirements. We believe that such a decision would be a serious, unfortunate and avoidable mistake. We also believe that only one side on this issue -- that of manufacturers has been adequately heard.

The health community has wanted to be a part of these discussions, and has wanted to respond to manufacturer submissions, but has not been able to do so. In one case, although Canadian Cancer Society lawyer Rob Cunningham expressed his desire to participate in a scheduled meeting on tax-paid markings, he was not invited to participate. As well, we understand that private sector experts on package markings have had difficulty communicating information to Revenue Canada.     

[75]       Mr. Cunningham's request to the CCRA for "records sent to and received from the tobacco industry ... with respect to marking/stamping on packages of tobacco product" was made in the context of the political and public debate over the need for enhanced stamping requirements for tobacco products to combat smuggling. The request was initially refused by the CCRA. Mr. Cunningham then complained to the Information Commissioner who conducted an investigation into the matter and concluded as follows in a decision Dated July 5, 2000:

Summary of Findings

First, I find that the decision to deny access to the requested records was not properly taken by an official having delegated authority to invoke exemptions under the Act. Second, I find that an unduly narrow interpretation of the 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. Finally, I find that the exemption relied upon by CCRA and those raised by third parties do not apply in this case to justify secrecy.

[76]       Even before the Information Commissioner's decision, however, the CCRA changed its mind and gave the appropriate notifications that it intended to reference the Reports and the Transmittal Letters in response to Mr. Cunningham's request. Hence, these proceedings under section 44 of the Act by the Applicants to restrain the CCRA from doing so. The Applicants are concerned that any such release would result in the disclosure of confidential and proprietary information and, in addition, would reveal the identity of the authors of the Reports to their significant detriment.

VIII    STANDARD OF REVIEW AND ONUS OF PROOF

[77]       The standard of review for an application under section 44 of the Act, where exemptions under section 20 are claimed, is correctness. Section 44 provides as follows:

44. (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.

[78]       The use of the word "shall" in Section 20 suggests that no deference will be accorded to decisions of the heads of Government Institutions who decide to disclose records.

[79]       Section 44 applies where a third party brings a review proceeding and claims that the records in question are exempt from disclosure. In such a situation, the onus of proof rests with the party resisting disclosure.

[80]       It is the court's role to consider these decisions on a de novo basis, including a detailed review of the documents in issue, should this be necessary.

Air Atonabee Ltd. v. Canada (Minister of Transport) (1987), 27 F.T.R. 194 (F.C.T.D.) at p. 206.

IX      RELEVANCY

[81]       To begin with, the Applicants point out that only a small part of Report B (the section dealing with Tobacco Package Markings and Appendix D) is even relevant to Mr. Cunningham's request. Report A, the balance of Report B and the Transmittal Letters do not refer to "marking/stamping on packages of tobacco products." So, a mere six pages of Report B, together with Appendix D are relevant to the request and, the Applicants argue, these portions qualify for the exemptions from disclosure contained in section 20(1) of the Act.

[82]       To place the issue in context for the Applicants, the President of the CTMC gave evidence of a series of meetings with the CCRA representatives prior to the Reports being commissioned:

[...] This series of meetings started after a group of anti-tobacco organizations proposed to the minister a suggestion they'd been making before in other places in government, that the industry be required to put on-place markings on every package of tobacco product sold in Canada, indicating "only for sale in " and the names of the province, as opposed to putting it on tear strips. And the reason for that proposal, in our view, was that it was known to be enormously expensive and complicated for the manufacturers and for wholesalers to deal with and, in our view, and based on the best advise we could get, would have no impact whatever on contraband activity.

Nevertheless the minister's request -- I think it was strong that a request -- that this department examine this issue resulted in our meeting and provincial revenue departments meeting with Revenue Canada. It very quickly became apparent that no one of at the official level, whether in law enforcement or revenue authorities, and certainly not the industry, agreed with the notion that on-pack indicia was helpful in fighting contraband, but the industry wished to cooperate with government in reducing contraband, as indeed they had been for a number of years prior to that. And so the discussions continued on the basis that, since that did not appear to work, what might work.

And one of the things that the discussions quickly disclosed was that there was not a common data base or understanding about the size of the contraband market, the methods used, the percentage that was attributable to interprovincial illegal trade versus international illegal trade, et cetera. To provide more information to the authorities to, first of all, measure it and, secondly, try and develop methods of managing, countering the problem we commissioned, with their agreement, on the basis that it would be confidential, the reports [...] . And the reason there is so little reference to on-pack indicia in these reports, only that five pages, is precisely that; that we were not discussing on-pack printing. In fact, we were discussing anything but that.

[83]       In other words, the Applicants say that, after the initial meetings, it was quickly realized that tax-paid markings on cigarette packages were not a viable solution and the parties moved on to other topics and the eventual commissioning of the Reports to deal with those other topics.

[84]       It is noteworthy that, when Mr. Cunningham first made his disclosure request, the CCRA took the same position as the Applicants in refusing disclosure.

[85]       The Applicants describe the relationship between the CTMC and the CCRA as one of continuing mutual interest to improve law enforcement and to deter and reduce smuggling. It was not an exercise in lobbying.

[86]       The Applicants point out that section 6 of the Act imposes an obligation on the requester (in this case Mr. Cunningham) to state precisely what information he or she is seeking. The Applicants also take the position that section 6 requires the government department to search for and disclose only those documents relevant to the information required. Section 6 reads as follows:

6. A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record.

6. La demande de communication d'un document se fait par écrit auprès de l'institution fédérale dont relève le document; elle doit être rédigée en des termes suffisamment précis pour permettre à un fonctionnaire expérimenté de l'institution de trouver le document sans problèmes sérieux.

[87]            In support of this position, the Applicants have referred me to the words of Heald D.J. in

Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (F.C.T.D.):

71 The applicant's request for information of January 15, 1992, by Mr. Eric Vernon of the Canadian Jewish Congress, specifically requested information as to Mr. Sokolov's "current immigration status". [See Note 50 below] Section 6 of the Act requires the request for information to be in writing and to "provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record". [See Note 51 below] Furthermore, section 49 of the Act only applies when the Minister has refused to "disclose a record requested under this Act". It is my interpretation of the Act that the government institution is only obliged to search for documents relevant to the request, and is likewise only obliged to disclose relevant information. Justice Denault of this Court stated the following in regards to section 6 in the decision of X, supra, at page 87:

Section 6 imposes an obligation on the applicant to state precisely what he is seeking and a corresponding obligation is imposed on the Canadian institution to make all efforts to locate and identify documents relevant to the request. [See Note 52 below],

72 However, Justice Denault did state later in the same decision that "[t]he fact that information is not directly related to an access request is not a basis for exemption under the Act". [See Note 53 below] With all due respect, I find that in the circumstances of the case at bar, if there was a document in the secret record that did not pertain to Mr. Sokolov's current immigration status, then it is not a record that has been requested, and thus there is no obligation on the respondent to disclose it.

73 I have reviewed the documents that the respondent claimed were irrelevant and contained no information and I agree with the decision of the respondent not to disclose these documents. They are irrelevant and do not contain any meaningful information, notwithstanding they do not contain any information pertaining to the request of the applicant. I find it is not reasonable to sever these documents and release them. Severance of these documents would result in the release of "disconnected snippets of information", which is not the purpose of section 25 of the Act. Furthermore, as discussed above, I interpret the Act as only requiring the respondent to search for and disclose those documents relevant to the information requested by the applicant. In addition, as was mentioned above, with respect to a small number of pages that the respondent claimed were exempt on the sections 19 or 23 basis, I find they fall under the category of irrelevant documents, and I uphold the Minister's decision to refuse disclosure, on this basis. Therefore, I find the following pages of the secret record are irrelevant to the information requested by the applicant, and the respondent need not disclose them to the applicant: 259, 269, 273, 294, 296, 298-300, 311, 328, 336-337, 339-343, 348, 364, 421-422, 433, 435-437.

[88]       Similarly, in Cistel Technology Inc. v. Canada (Correctional Service), [2002] F.C.J. No. 328 (F.C.T.D.) the Court held as follows:

[para7]      Cistel submits that of the documents produced by the respondent, the payment voucher and the task request/authorization do not come within the scope of the request. I agree. In my view, in the circumstances of this case, they are not invoices, and should not be disclosed pursuant to this request.

[89]       Mr. Cunningham, the requester in this case, argues that the Applicants do not have standing to assert that the records proposed to be released are different from the records requested and he relies upon the following words of Hugessen J.A. in Saint John Shipbuilding Ltd., supra, at p. 91:

The appellant suggested that the material ordered to be released was in some respects different from what had been requested; the short answer to that is that the appellant's interest, as third party intervener in a request for information, is limited to those matters set out in s.20(1), and it has no status to object that the Government may have given more or less than it was asked for.

[90]       The Information Commissioner takes the position that it is not the role of a third party to decide what is and what is not relevant to a particular request for information. While a government institution is not obliged to retrieve and disclose documents that are not relevant to an access request, "relevance" is not an exemption which may be invoked by a third party.

[91]       In the Canadian Jewish Congress, supra, case relied upon by the Applicants the issue was the Ministers' refusal to disclose on the basis of irrelevance, and in Cistel Technology Inc., supra, McKeown J. agreed that a payment voucher and a task request/authorization did not come within the scope of the request and so did not have to be disclosed, but he provides no real discussion or authority for this decision. The wording of section 6 contains no prohibition against disclosing documents that are not relevant to the request. In fact, section 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 section 2, I find there is no exemption available to the Applicants based upon relevancy. This Court has expressed the view that exceptions to disclosure under the Act should be strictly construed in Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.) at para. 23 per McDonald J.A.:

In my opinion, therefore, all exemptions must be interpreted in light of this clause [s.2(1)]. That is, all exemptions to access must be limited and specific. This means that where there are two interpretations open to the Court, it must, given Parliament's stated intention, choose the one that infringes on the public's right to access the least. It is only in this way that the purpose of the Act can be achieved. It follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act.

[92]       The Respondent cites the apparently conflicting decisions of this Court in H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2003] F.C.J. No. 344 (F.C.T.D.), and SNC-Lavalin v. Canada (Minister of Public Works) [1994], F.C.J. No. 1059 (F.C.T.D.) on the issue of whether a third party may raise exemptions other than those referred to in section 20 and frankly concedes that there is no present authority that completely rationalizes third party rights in this context.

[93]       However, in the present case, the Applicants are asking that section 6 of the Act be read to contain a prohibition against the disclosure of irrelevant information that a third party can rely upon as though it were an exemption to disclosure allowed under the Act. A Treasury Board of Canada note of December 4, 1992 makes it clear that "[l]ack of relevance is not a ground for exemption as exclusion of a portion of a record under the Act" and " [d]etermining what is or is not relevant to a request is, of course, up to the institution, however this decision would normally be based on an examination of each individual record to determine the reasonableness of separating the non-relevant from the relevant information." I find no authority in either Canadian Jewish Congress, supra, or Cistel, supra, that would justify my adopting the interpretation of section 6 put forward by the Applicants. 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. In the event that I should be wrong in this regard, I find, for the reasons that follow, that the Information Commissioner was correct in concluding that the Records were, in any event, relevant to Mr. Cunningham's request. In the context in which the request was made and the Records produced it was not incorrect for the CCRA to conclude that issues of controls, supply and demand were intimately connected to the issue of enhanced tax-paid markings. Of course, it is possible to take a narrow interpretation of relevancy and say that the request only dealt with stamping and marking but, in the context in which the request was made, it also makes eminent sense to regard marking and stamping issues as part of a broader concern with contraband and smuggling. In the words of Mr. Kenneth Kyle, Director of Public Issues for the Canadian Cancer Society:

[16.]     In any event, the Records sought in this case under the AIA 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. The pertinence of this information is explained by the public policy debate that was under way at the time the access request was made, and by the responses to two undertakings arising from the examination of Kenneth Kyle, Director of Public Issues for the Canadian Cancer Society.

[94]       The Applicants advanced strong arguments that, based upon evidence provided by the Applicants and officials of CCRA, the Applicants and the CCRA had themselves taken the position from time to time that the Records, or at least most of them, were not relevant to the subject matter of the request, and had acted as though relevancy was a consideration under section 6 of the Act. I do not find, however, that what the parties themselves may have said and done from time to time on the issue of relevancy to be determinative.

[95]       These matters were also before the Information Commissioner and he, quite rightly in my opinion, concluded that "an unduly narrow interpretation of the 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." Hence, I do not regard lack of relevance as a ground for ordering non-disclosure in this application.

X    EXEMPTIONS

[96]       In addition to relevancy, the Applicants argue that the Records should be excluded under the various exemptions that appear in section 20 (1) of the Act.

A. 20(1)(a)                        Trade Secrets of a Third Party

[97]       The Applicants argue that a trade secret is information that is proprietary and guarded very closely by, and has a peculiar value to, its owner. Harm to the owner is presumed by its mere disclosure but, in any event, there is no requirement that harm be demonstrated to attract the exemption under section 20(1)(a).   

[98]       The Applicants' position is that the trade secret component of the A Report resides in its unique methodology of exploiting major social surveys to develop an estimate of actual consumption and then comparing actual consumption to tax-paid sales to develop an estimate of the underground economy. This procedure includes specific insights and methodologies developed from econometric analyses and no other consultant or firm has developed or exploited the same or similar methodologies. Hence, any disclosure of the A Report would make the methodologies available to competitors in the field of statistical analysis.

[99]       Report B, according to the Applicants, also contains propriety procedures, methodologies and techniques of analysis of unique value to B and which B have consistently kept secret.

[100] The Respondent argues that, given the wording of section 20(1)(a), the term "trade secret" must be given a reasonably narrow interpretation and relies upon the following passage from the judgment of Strayer J. in Société Gamma Inc., supra, at para. 7 (QL):

[...]There is unfortunately no authoritative jurisprudence on what is a "trade secret" for the purposes of the Access to Information Act. One can, I think, conclude that in the context of subsection 20(1) trade secrets must have a reasonably narrow interpretation since one would assume that they do not overlap the other categories: in particular, they can be contrasted to "commercial . . . confidential information supplied to a government institution . . . treated consistently in a confidential manner . . . " which is protected under paragraph (b). In respect of neither (a) nor (b) is there a need for any harm to be demonstrated from disclosure for it to be protected. There must be some difference between a trade secret and something which is merely "confidential" and supplied to a government institution. I am of the view that a trade secret must be something, probably of a technical nature, [See Note 3 below] 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. [...]

[101] The Respondent alleges that, with respect to Report A, the Applicants have provided no evidence to support a trade secret finding and, with respect to Report B, the Applicants simply provide general statements as to the value of the Report to its owner and do not really address the technical nature of the information, how it is closely guarded, or its peculiar nature.

[102] Mr. Cunningham takes the position that the Applicants have not met the burden of proving that the methodology in Report A is actually "secret" because it has been forwarded to other governments across Canada as well as law enforcement agencies and the degree of subsequent dissementation is unknown. Further, any consultant's report prepared for or submitted to government could be said to have an approach, format, methodology or content that is unique. Hence, to accept the Applicants' arguments on proprietary methodology in Report "A" would be tantamount to Court approval that the vast array of reports provided to government should be exempt from disclosure.

[103] I cannot agree with Mr. Cunningham in this regard. Recognition of the discrete category of trade secret information, as defined in Société Gamma Inc., supra, by Strayer J., would not lead to the kind of blanket exemption he alleges. 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."

[104] When asked to comment upon these aspects of Report "A", the author gave evidence that "[i]t is very technical in terms of both the type of data used and things like that, and is not normally easily understood by anybody except somebody who works actively with the data." The methodology is something the author had "honed over a number of confidential studies...." His principal concern was that some of the data had been given to him in confidence "and is not something I have the legal authority or right to release because it was provided absolutely in confidence to me and is not available, to the best of my knowledge, in any public form."

[105] This is not sufficient to bring the information within the narrow technical sense of "trade secret" postulated by Strayer J. in Société Gamma Inc., supra. The author appears to be talking about a way of handling data gained over years of experience. In coming to this conclusion, I am assuming 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." I am well aware that wider definitions of "technical" exist and that Campbell J. appears to have taken a much broader approach in Pricewaterhouse Coopers, LLP v. Canada (Minister of Canadian Heritage), [2001] F.C.J. 1439 (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., supra. This is not to say that I feel myself to be at odds with the decision of Campbell J. in Pricewaterhouse, supra. 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."

[106] Similarly, I find no evidence on the materials before me concerning Report B and the Transmittal Letters to bring them within the terms of the discrete and narrow "trade secret" category of section 20(1)(a).

B. Section 20(1)(b)

[107] The Applicants' strongest argument is that the Records 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.

[108] Both Reports were prepared in draft form for a limited and knowledgeable audience and, as the Transmittal Letters make clear, were supplied to the CCRA in confidence.

[109] The Applicants argue that Report A contains information that is primarily industry data provided to A by industry participants on a confidential basis for the purpose of compiling the Report. This data is financial and commercial in nature. In addition, the Reports are also the confidential commercial property of the CTMC, an organization that keeps the names of the consultants it uses confidential because of the prejudice they would suffer as a result of doing work for the tobacco industry.

[110] The Applicants also allege that Report B was also never intended for public distribution and describes confidential procedures and methods used in the preparation of the Report. This information is not available from other sources and has been consistently treated as confidential by B, both as regards the Report as a whole and those portions dealing with markings and stampings in particular.

[111] The Applicants point out that the government has a duty to act in good faith regarding confidential information received by it because of the public interest in fostering relationships with parties such as the CTMC.

[112] The reasonable expectation of the CTMC, A and B and the CCRA, was that the Records would be kept confidential and would not be exposed. Had the Applicants ever suspected that disclosure might occur they would have removed the names of the consultants and would have also required substantiated exclusions from the body of the Reports. The drafts were provided for discussion purposes only, as the Transmittal Letters make clear.

[113] The Applicants argue that the Reports have only been circulated to a controlled and knowledgeable group of people, and there is no evidence that this group has not kept them confidential.

[114] The Respondent correctly points out that the decision of this Court in Air Atonabee, supra, establishes that, in order for section 20(1)(b) of the Act to apply, the information in question must be:

1) financial, commercial, scientific or technical information as those terms are commonly understood; and

2) 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

3) supplied to a government institution by a third party; and

4) treated consistently in a confidential manner by the third party.

[115] The CCRA accepts that the Applicants in this case provided the Records to it in confidence. The Minister, however, disputes that the Records contain commercial or financial information and insists that both Reports are merely analytical and describe general trends related to the tobacco industry together with some statistical analysis and commentary by the authors. The Transmittal Letters merely provide an overview of the Reports and, as such, cannot be said to contain financial or commercial information.

[116] In addition, the Respondent argues that the Applicants have not demonstrated that the Records are confidential by any objective standard and, even if the contents of the Reports were held to be confidential, the Transmittal Letters would not qualify.

[117] The affidavit evidence merely claims confidentiality on a general and generic basis; it doesn't provide the specifics needed to establish objective confidentiality.

[118] The Information Commissioner supports the Respondent's position and points out further that Report A is almost entirely based on statistics obtained from Statistics Canada and Health Canada. This is information that is publically available. Where Report A uses provincial sales data compiled by the three member companies of the CTMC the data is used in an aggregated form and is not presented in relation to any particular company.

[119] Mr. Cunningham goes further and points out that the principal purpose of forwarding the Reports to CCRA was to influence government policy. This is not a case where the information was prepared for an independent business purpose and subsequently transmitted to government. Indeed, the tobacco industry has a long history of publically releasing reports related to contraband as part of an active public relations and lobbying campaign to influence government tobacco tax policy. So, for the industry to claim that these Reports are confidential is completely inconsistent with past practice and their obvious purpose.

[120] I cannot accept the entirety of the Records as constituting confidential information of a commercial or financial nature. The only issue is whether any portion can be said to qualify for exemption on this ground. A review of the Reports and the evidence filed reveals the following:

1. Report "A" contains no financial or commercial information as those terms are commonly used, both as regards the methodology used and the data subjected to analysis. The information it contains relates to smoking trends and the consumption of tobacco products, tax paid supplies, the existence of markets for untaxed tobacco products, volume estimates and some caveats and conclusions based upon data in such categories. This data certainly has a commercial aspect to it but, in this context, is not primarily commercial in nature. If I am wrong in this regard, then I hold the information is not confidential for the reasons given below.

2.      Report "B", likewise, contains both commercial and financial data but, once again, it is aggregated to show general trends and provide a basis for analysis of smuggling and illicit distribution of tobacco in Canada. This is not information gathered for a financial or commercial purpose but is data culled from commercial activities and put to use for other purposes. If I am wrong in this regard, then I hold the information is not confidential for the reasons given below.          

3.      In addition to the ostensible contents of both Reports, there is the analytic methodology used to treat the data and draw the conclusions. This can be regarded as commercial information that is being used to produce the Reports. The issue is whether, having decided it is not a trade secret, it can be regarded as confidential within the meaning of the Act.

[121] Layden-Stevenson J., had occasion to review the jurisprudence on confidentiality in this context in Brookfield LePage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services), [2003] F.C.J. No. 348 (F.C.T.D.) where she cited the summary of authorities provided by MacKay J. in Air Atonabee, supra:

[para13]      In Air Atonabee, MacKay J. reviews the authorities with respect to confidentiality and concludes that:

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

a) 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,

b) that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed, and

c) that 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.

[122] Layden-Stevenson J. assumed on the facts before her that the information had been provided by a third party that had consistently treated the records as confidential. She was also prepared to assume that the information was commercial. She then went on as follows:

[...] But are they confidential?

[para16]      The answer to that question must be established objectively: Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 FDR 42 (T.D.) (Société Gamma); Maislin; Air Atonabee. 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 caselaw 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: Société Gamma; Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 FDR 264 (Canadian Broadcasting); St. Joseph Corporation v. Canada (Public Works and Government Services) (2002), 218 FDR 41 (St. Joseph); Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.) (Ottawa Football); Canada (Information Commissioner) v. Atlantic Canada Opportunities Agency (1999), 250 NR 314 (F.C.A.).

[para17]      In the final analysis, while confidentiality agreements may be taken into account, they cannot override or trump the express statutory provisions of the Act. I rely on the following excerpt from Ottawa Football in this regard and adopt the comments in their entirety:

[I]t is not enough to state that their submission is confidential in order to make it so in an objective sense. Such a principle would surely undermine much of the purpose of this Act which in part is to make available to the public the information upon which government action is taken or refused. Nor would it be consistent with that purpose if a Minister or his officials were able to exempt information from disclosure simply by agreeing when it is submitted that it would be treated as confidential.

[...]

[para19]      I conclude that the redacted records that remain in dispute cannot be regarded, on an objective standard, as confidential. After a detailed and cautious review of the material, I find that it consists of generic and general information. I also find, in accordance with the reasoning of MacKay J. in Promaxis Systems Inc. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4th) 204 (F.C.T.D.) that, for reasons of public policy, the information is not confidential information within the meaning of paragraph 20(1)(b), however it may have been treated and considered by BLJC.

[123] On the facts before me, I have no reason to dispute the Applicants evidence that, in the case of both reports the information was provided by third parties who had consistently treated the analytical methodology as confidential. What is more, I am prepared to accept that the minister has treated this information as confidential to date and that distribution has been confined to a controlled and knowledgeable group of people. The Reports were in a draft form and were forwarded by the CTMC "on a confidential basis" and with the understanding that "circulation be limited to those directly involved in tobacco tax collection and enforcement."

[124] However, as the authorities reviewed by Layden-Stevenson J. establish, 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. To use the words of Layden-Stevenson J. again, these matters cannot be allowed to "override or trump the express statutory provisions of the Act." 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 the 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 section 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.

C. Section 20(1) (c)

[125] The Applicants argue that disclosure of the methodology in Report A would reasonably assist A's competitors in bidding against A on future assignments. Hence, such disclosure could reasonably be expected to result in material financial losses or gains to a third party, or could reasonably be expected to prejudice the competitive position of A within the meaning of the exemption contained in section 20(1)(c) of the Act.

[126] In fact, the Applicants say, disclosure of the identify of A and its principal will prejudice A's future ability to bid successfully for other business because there are organizations, both inside and outside government, who are not willing to conduct business with those who have worked for the tobacco industry. The disclosure of sources will further inhibit future business.

[127] Similarly, disclosure of Report B will allow B's competitors to access and use B's methodology and techniques so that competitors will be able to use them without any effort or expense on their part and to the prejudice of B's competitive position. In addition, and like A, B has intentionally not disclosed recent work for the tobacco industry for fear that this might prejudice future business. Disclosure of the Transmittal Letters could have a similar result.

[128] The Applicants further point out that the evidence on this issue from both A and B was uncontradicted and should be accepted.

[129] The Respondent takes the position that the Applicants have not demonstrated a reasonable expectation of probable harm within the meaning of section 20(1)(c); they merely assert that harm will occur if disclosure is allowed and the evidence is, at best, merely speculative.

[130] The words of Gibson J. in SNC Lavalin Inc. v. Canada (Minister for International Co-operation), [2003] F.C.J. No. 870 (F.C.T.D.) are helpful in this regard:

[...]It is simply not sufficient for the Applicant to establish that harm might result from disclosure. Speculation, no matter how well informed, does not meet the standard of reasonable expectation of material financial loss or prejudice to the Applicant's competitive position.

[131] Having reviewed the Applicants evidence on the reasonable expectation of financial loss or gain, and notwithstanding that such evidence was not the subject of cross-examination, it remains speculative. The Applicants, at best, merely express their fears of what could happen. They do not establish a reasonable expectation of probable harm within the meaning of section 20(1)(b). In addition, if the Applicants assertions that the Records and the relationship between the CTMC and the 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."

D.           Section 20(1)(d)

[132] Finally, for much the same reasons as were expressed in relation to section 20(1)(c), the Applicants argue that disclosure of the Records could reasonably be expected to interfere with contractual or other negotiations.

[133] As the Respondent points out, the Applicants are obliged to show that there is a probability, and not a mere possibility or speculation, that the disclosure of the information might interfere with contractual or other negotiations: Saint John Shipbuilding Ltd., supra. In order to distinguish the grounds in section 20(1)(d) from section 20(1)(c) the Applicants have to show some obstruction or thwarting of contractual negotiations.

[134] 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 section 20(1)(d) should be applied in their favour.

ORDER

THIS COURT ORDERS THAT:

1.             The Application is denied in its entirety.

2.             The Respondents and added parties shall have their costs on this application.

                                                                                                                   

                       "James Russell"                  

                                                                                                      J.F.C.C.                     

             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              T-877-00

STYLE OF CAUSE: CANADIAN TOBACCO MANUFACTURERS' COUNCIL

A and B ( Confidential)

Applicants

- and -

MINISTER OF NATIONAL REVENUE

Respondent

-and-

INFORMATION COMMISSIONER OF CANADA and

ROBERT CUNNINGHAM

Added Parties

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:          MONDAY JUNE 2ND, 2003   

REASONS FOR ORDER BY:                       RUSSELL J.

DATED:                          SEPTEMBER 8, 2003

APPEARANCES BY:             Mr. Christopher J. Matthews

For the Applicant

Mr Christopher Rupar

For the Respondent

Mr Daniel Brunet

For the Information Commissioner

Mr Robert Cunningham

For Robert Cunningham

                                                                                                                   

SOLICITORS OF RECORD:        FRASER, MILNER CASGRAIN

Toronto, Ontario

For the Applicant DEPARTMENT OF JUSTICE

Ottawa, Ontario

For the Respondent

OFFICE OF THE INFORMATION COMMISSIONER

Ottawa, Ontario

ROBERT CUNNINGHAM

Ottawa, Ontario

For the Added Parties

FEDERAL COURT OF CANADA

                                       Date: 2003

       Docket: T-877-00

BETWEEN:

CANADIAN TOBACCO MANUFACTURERS'COUNCIL, A and B (Confidential)

Applicant

- and -

MINISTER OF NATIONAL REVENUE

Respondent

-and-

INFORMATION COMMISSIONER OF CANADA and ROBERT CUNNINGHAM

Added Parties

                                                   

REASONS FOR ORDER