Section 20(2),(5)(6) - Disclosure if a supplier Consents

4) When is there a duty to consider the override?:

There has been little case law on the overrides in subsection 20(2), (5) and (6). In a Privacy Act case involving the consent override in subsection 19(2) Privacy Act [subsection 13(2) Access to Information Act], the Federal Court of Appeal stated that a request for personal information under the Privacy Act that a request by an applicant for information subject to section 19 of the Privacy Act (the parallel to section 13 of the Access to Information Act) "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party [other government or international organization of states] which provided the information" (Emphasis added). The Court noted that the evidentiary burden lies on the government institution to show that the exception in subsection 19(2) [subsection 13(2)] for consent does not apply given the inability of the requestor to know who to ask for consent or what the withheld information consists of. The test enunciated by the Court with respect to the application of the consent override in paragraph 19(2)(a) [paragraph 13(2)(a) of the Access to Information Act] was whether the government institution has made reasonable efforts to seek the consent of the other government or institution. See Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. N^o 779, June 8, 2000, (F.C.A.).

In the Ruby case, the Federal Court of Appeal also considered the duty of the institution head to decide whether the public interest override in subparagraph 8(2)(m)(i) of the Privacy Act applied. The Federal Court of Appeal held that the institution head must undertake a weighing of the competing interests behind the public interest override, but that the manner in which the weighing of interests is conducted is within the discretion of the head of the institution. In the Ruby case, the Federal Court of Appeal concluded that it was unclear whether the government institution (CSIS) had conducted any kind of discretionary balancing of public interest and privacy under subparagraph 8(2)(m)(i), and remitted the matter back to the Trial Judge to determine whether the exemption from disclosure that was subject to the override had been properly applied:

Having said all this, however, we confess that we are unable to ascertain from the decision of the reviewing judge whether in fact CSIS conducted any kind of discretionary balancing of public interest and privacy. In other words, it is unclear whether CSIS took any consideration of sub-paragraph 8(2)(m)(i) when it refused to disclose information relating to third parties and whether, therefore, it properly applied the exemption it claimed pursuant to section 26 of the [Privacy] Act. Nor are we able to determine whether the reviewing judge was satisfied that the exemption had been considered by CSIS, or that he considered it himself.

In the circumstances, there should be a new review of the personal information requested in banks 010 and 015 for the purpose of determining whether the exemption in section 26 has been properly applied by CSIS. (at paragraphs 124- 125).

Based on the above, the institution has a duty to consider the override in the following circumstances:

• 20(2): The institution must examine the records requested to determine whether they contain any information relating to the results of product or environmental testing. If the record contains any such information, subsection 20(2) applies; the product and environment testing override clearly means that the institution must disclose the subject information unless another exemption applies to such information. See Dekalb Canada Inc. v. Agriculture and Agri-food Canada (F.C.T.D. 7 September 1999, unreported).
• 20(5): As it applies to the third party with whom the information relates and consents to disclosure. This provision logically requires that there be some possibility for such consent. It is our position that unless the third party has made it clear in the past or on the record that it will not/never consent, the possibility that it will consent is there. Departments should consult to see if consent would be given. They may obtain consent from the third parties at the time of the submission of documents, during informal or formal consultations (i.e., 9(1)(b) situations) or in response to the notification of the intent to disclose by the government institution (section 27). It is not sufficient for the head of the institution to state that they don't know if the third party would consent. In such a case, they must take positive action to determine if the third party would consent (see also X v. Minister of National Defence¹).
• 20(6): This provision permits disclosure in the public interest "where such public interest 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". It must be considered when it is evident from the request or the requested records, the representations under section 27 or the complaint that a public in disclosure under subsection 20(6) could exist. The Federal Court of Appeal has held that the institution head must undertake the balancing of interests mandated by the public interest override, but that the manner of doing so is within the discretion of the institution head. The Information Commissioner, however, can and does make findings and recommendations on the application of the section 20(6) override².

Once it is established through the request, complaint, section 27 representations or the investigator's inquiries of the institution that there is a prima facie case of public interest, a department arguing that the public interest does not clearly outweigh 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 has the burden of demonstrating this. Since the third party is the one most directly concerned for the purposes of section 35 representations, it is essential that the third party be given an opportunity to make representations on this issue. It is the investigator's responsibility to obtain all the relevant information from the department involved, the third party and the requester in order for the Commissioner to make an appropriate finding on the application of the override.