Digests

Geophysical Service Inc. v. Canada-Newfoundland Offshore Petroleum Board

T-2100-00, T-2101-00, T-2102-00

2003 FCT 507, Gibson J.

25/4/03

55 pp.

Three applications under Access to Information Act (AIA), s. 41--Geophysical Service Inc., in business of collecting geophysical seismic data, applicant on each of three applications against three respondents, namely, Canada-Newfoundland Offshore Petroleum Board (CNB), National Energy Board (NB) and Canada-Nova Scotia Offshore Petroleum Board (CNSB)--In each case, applicant seeking order pursuant to AIA, s. 49, requiring relevant Board or Chairman of relevant Board to disclose to applicant information requested (names of third parties having been granted access to information concerning or provided by applicant to Board, together with details of information provided)--Issues whether respondents justified by AIA, s. 20(1)(c) in refusing to disclose information requested by applicant on ground disclosure could reasonably be expected to result in material financial loss to or to prejudice competitive advantage of third party; whether names of parties accessing geophysical information provided by applicant privileged; whether Chairman of Canada-Newfoundland Board erred in concluding such names "personal information" pursuant to AIA, s. 19(1)--General principles applying in judicial review under s. 41 found in Rubin v. Canada (Minister of Health) (2001), 14 C.P.R. (4th) 1 (F.C.T.D.)-- Onus resting on respondent to convince Court, with direct evidence, material requested by applicant should not be disclosed and material requested can benefit from exemptions set out in s. 20(1)--All of bases of exemptions claimed in present matter mandatory in nature--If exemption provision mandatory, then only one type of decision: factual decision as to whether material requested comes within description of exempting provision--Considering late-claimed bases for exemption from disclosure, scheme of AIA contemplates full disclosure to requester on bases claimed for exemptions order requester might exercise right of complaint to Information Commissioner--On facts of present matter, requester denied right of complaint to Information Commissioner in respect of range of bases for exemption from disclosure NB and CNSB now seek to rely on before Court--Allowing Boards to do so would contravene spirit of AIA and deny fairness to applicant --Regarding s. 21(1)(c) as basis for exemption, not sufficient for institution from which information, such as names of requesters and description of requested information, requested to rely upon general assertion disclosure of such information could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice competitive position of, third party--Exemption from disclosure should be justified by affidavit evidence explaining clearly rationale exempting each record--Evidence of probable harm must be more than merely speculative-- Extracts from Mr. Doyle's (Manager with CNB) affidavit and from cross-examination on affidavit demonstrate CNB acted in error in failing to examine each request on behalf of applicant on individualized basis, in determining to exempt names of requesters and links between names and data requested on basis of generalized policy and in failing to provide specific evidence negative effect contemplated by s. 20(1)(c) would be reasonably probable and not merely speculative--Same conclusion with respect to denial of access by CNSB--On basis of Mr. McPhee's (General Counsel, CNSB) affidavit and cross-examination on affidavit, CNSB ignored purpose of AIA as reflected in s. 2(1), and simply relied upon CNSB's general knowledge of oil and gas industry and secretive nature of participants in industry to speculate, rather than to demonstrate probable harm as reasonable expectation--Finally, NB withheld identity of only one requester of information or data provided by applicant-- Requester consulted and objected to disclosure and explained basis of objection--NB relied on NB's knowledge and experience of industry and on explanation provided by requester to maintain exemption of requester's identity under s. 20(1)(c)--NB simply failed to meet burden demonstrating probable harm of nature described in s. 20(1)(c) as reasonable expectation from disclosure of requester's identity-- Requester's explanation supporting exemption in respect of requester's identity at level of generality insufficient to discharge NB's burden--Further, NB's own rationale for exemption at level of policy, generality and speculation simply fails to meet burden on NB justifying exemption under s. 20(1)(c)--In Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1998), 24 F.T.R. 32 (F.C.T.D.), Martin J. wrote possibility of prejudice to applicant's competitive position insufficient; reasonable expectation of probable harm required--Based upon analysis, none of three Boards has satisfied reliance on s. 20(1)(c) to exempt identity of one or more requesters and of link between identity of each requester and data provided by applicant to which requester given access, can stand--Concerning privilege under AIA, s. 24(1), Canada-Newfoundland Act (CNA), ss. 22, 119(2) and (5) and provisions equivalent to provisions of CNA in Canada-Nova Scotia Act (CNSA), information in question information provided for purpose of maintenance and operation of CNA, s. 22 facility--Seismic data provided for purposes of Part II or Part III of CNA and thus fell within ambit of privilege provided by CNA, s. 119(2)--By virtue of s. 119(5)(d), privilege expired five years following date of completion of seismic work--Thus, after five years, open to CNB to make such information or documentation available to requester--Names of requesters and link between names and data requested, of entirely different order--Names of requesters and link between names and data requested information provided to CNB for purpose of CNA, s. 22 and not for purposes of either Part II or Part III of CNA--Not information subject to s. 119 and not exempt from disclosure by virtue of s. 24(1)--Finally, concerning exemption under AIA, s. 19(1) (personal information), corporation cannot be "an identifiable individual" for purposes of definition "personal information" in Privacy Act, s. 3, and cannot therefore "take advantage" of s. 19(1)--No basis to conclude names of requesters linked to information requested would constitute personal information--If requesters corporations or unincorporated bodies, not "identifiable individuals"--If requesters "identifiable individuals" and acting only as employees of corporations or the like, and nothing more than requesters' position or title with corporation or other organization identified, disclosure of requesters' names together with information alone does not constitute disclosure of "personal information"--CNSB cannot succeed on claim for exemption from disclosure under AIA, s. 19(1)--In summary, neither NB nor CNSB can rely upon grounds for relief asserted only after claims by applicant to access asserted and rejected and complaints in relation to rejections made by applicant to Access Commissioner--In each application, respondent to disclose to applicant name of each requester of information or data provided to Board by applicant--Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 19(1), 20(1), 21(1)(c), 41, 48, 49--Canada-Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3, ss. 22, 119.