Case Summary and Outcome

The Canadian Federal Court of Appeal held that records of auditors’ working papers regarding a project involving the Canadian International Development Agency and a private corporation do not constitute “confidential third-party information” and “personal information”. The Court reasoned that the information requested was not “confidential information” because it had not been provided with an expectation of confidence nor was there a reasonable expectation of probable harm to the private company if it was disclosed. Further, the Court said that the “personal information” protection available under the Access to Information Act did not apply to cases relating to third parties performing services under contract for the government.

This case analysis was contributed by Right2Info.org.

Facts

The Ministers for International Cooperation and Foreign Affairs decided to release records of auditor’s working papers regarding a project involving the Canadian International Development Agency (CIDA) and SNC Lavalin Inc. (SNC), a private corporation (para. 4).

SNC challenged the release of the information under Section 44 of the Access to Information Act (ATI Act), on the ground that it included statements from minutes of a meeting that involved “confidential third party information” and “personal information”, covered by section 20(1) and section 19 of the ATI Act respectively.

SNC’s Section 20(1) claim relied on Section 20(1)(b), which protects confidential information provided to a government institution by a third party, and Section 20(1)(c), which protects information that could be financially damaging if disclosed.

Judge Gibson of the Federal Court upheld CIDA’s decision to disclose the records requested. SNC appealed.

Decision Overview

The Court found that the information was not “confidential information” under Section 20(1)(b) as the evidence provided by SNC was insufficient to reverse the lower court’s finding that the information was not provided with an expectation of confidence and that the relationship with SNC was neither a fiduciary one, nor one that would benefit the public through confidential communication. The Court also found that the information could not be protected under Section 20(1)(c) as there was insufficient evidence to create a reasonable expectation of probable harm to SNC, either by harming it financially or prejudicing its competitive position.

Finally, the Court did find, in accordance with a previous decision (H.J. Heinz Co. v. Canada), that Section 19’s protection of “personal information” can be invoked in the context of a corporate third party seeking to prevent disclosure. However, in this case, the information fell into an exemption allowing disclosure of relevant information regarding individuals performing services under contract for the government.