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Date: 19991119
Docket: CI 98-01-08704
(Winnipeg Centre)
BETWEEN:
DAVID KATTENBURG,
Applicant,
v.
THE HONOURABLE JAMES E. DOWNEY,
AS MINISTER OF INDUSTRY, TRADE AND
TOURISM FOR THE DEPARTMENT OF
INDUSTRY, TRADE AND TOURISM,
GOVERNMENT OF MANITOBA,
Respondent.
Scott Kidd
for the Applicant
Aaron Berg and Ivan Wiebe
for the Respondent
Judgment delivered:
November 19, 1999
STEEL, J.[1] This is an application under The Freedom of Information and Protection of Privacy Act, S.M. 1997, c. 50, Cap. F175, and Queen’s Bench Rule 14.05(2)(b) for an order giving the applicant access to the Memorandum of Understanding (“MOU”) entered into by the Province of Manitoba and Maple Leaf Meats Inc. (“Maple Leaf”) regarding the establishment of a hog processing plant in the City of Brandon.
[2] The application was commenced under the old Act (The Freedom of Information Act, C.C.S.M., c. F175). However, between the initiation of the application and this appeal, The Freedom of Information Act was replaced by The Freedom of Information and Protection of Privacy Act.
[3] At least as relates to this appeal, the exemptions, and the principles by which they are to be applied, are substantially the same in both statutes. Counsel have agreed that the applicable legislation for the purposes of this application will be the new Act.
[4] The memorandum in question is in the hands of Manitoba’s Department of Industry, Trade and Tourism. The department’s reasons for withholding the record are contained in the affidavit of Jack Grant Dalgliesh, the Director of Finance and Administration for the Department of Industry, Trade and Tourism. There are three reasons:
- The information was provided on a confidential basis. (See s. 18(1)(b) of the Act.)
- The disclosure would interfere with the contractual negotiations between the Government of Manitoba and Maple Leaf. (See s. 18(1)(c)(ii) of the Act.)
- The disclosure would be prejudicial to the economic and other interests of the Government of Manitoba. (See subsections 28(1)(c)(ii) and 28(1)(c)(iii) of the Act.)
[5] The Act promotes the general principle that information held by government should be available to the public, except where other considerations legitimately require denial of such access. Disclosure is the rule rather than the exception (Oakley v. Manitoba (Minister of Health) (1995), 101 Man.R. (2d) 98 (Man. Q.B.), para. 9, per Darichuk J.). Thus, upon application, there is a right to access any record in the custody or under the control of a public body, subject to the exemptions outlined in the Act. (See s. 7(1) of the Act.)
[6] As it happens, this applicant has a particular concern with respect to the environmental impact of the hog plant in the area. However, the motive is irrelevant. There is no need to justify a request for information. A citizen is prima facie entitled to access information from his government unless there are sufficiently compelling reasons to exempt the information from disclosure. Those reasons are identified in the legislation and constitute exemptions to the general principle of disclosure. The refusal to disclose is mandatory with respect to some of the exceptions while others are only discretionary.
[7] Where an applicant has been refused access to a record and has complained to the Ombudsman but access has still been withheld, an appeal to the court may be taken (subsections 67(1) and 67(2) of the Act).
[8] On such an appeal, the onus falls on the head of the governmental department that refused access to satisfy the court, on the balance of probabilities, that the record falls within an exemption contained in the Act. (See Marchand v. Manitoba (1990), 69 Man.R. (2d) 303 (Man. Q.B.) and see s. 70(1).)
[9] If the court finds that the record falls within an exemption to disclosure, that ends the matter regardless of whether the language of the section is mandatory or discretionary, so long as the discretion exercised by the government official is exercised in a reasonable manner (s. 73(2)). (See Marchand v. Manitoba, supra, p. 307, per Oliphant, A.C.J.Q.B.)
3.1 Is the Record Confidential?
[10] The first exemption relied on by the department is s. 18(1)(b) of the Act:
18(1)the head of a public body shall refuse to disclose to an applicant information that would reveal
…
(b)commercial, financial, labour relations, scientific or technical information supplied to the public body by a third party, explicitly or implicitly, on a confidential basis and treated consistently as confidential information by the third party;[11] There is no dispute that the information was supplied to the public body by a third party. Third party is defined in the Act as meaning “a person, group of persons or an organization other than the applicant or a public body.” Under s. 22(1) of The Interpretation Act, R.S.M. 1987, c. I80, “person” includes a corporation.
[12] However, the applicant submits that while financial, commercial, scientific or technical information may have been provided by Maple Leaf to the Government of Manitoba prior to the drafting of the MOU, the MOU simply contains commitments made by both Maple Leaf and the Government of Manitoba regarding the construction and operation of the Brandon hog processing plant.
[13] In Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 37 Admin. L.R. 245 (F.C.T.D.), Mr. Justice MacKay, in considering whether information could be considered “financial, commercial, scientific or technical”, rejected the submission that the information must have an independent value. He held that dictionary meanings provide the best guide and
… that it is sufficient for purposes of subs. 20(1)(b) that the information relate or pertain to matters of finance, commerce, science or technical matters as those terms are commonly understood. … (p. 268)
Adopting that definition, I find that the information is commercial, technical and financial information supplied to the public body by a third party. They may indeed also represent commitments made by the parties regarding the construction and operation of the plant, however, those “commitments” consist of financial and commercial information.
[14] Next, the respondent submits that the phrase in s. 18(1)(b) “supplied to the public body by a third party, explicitly or implicitly, on a confidential basis” necessitates a subjective test. In other words, whether or not another person would consider the information confidential, did the third party supply it to the government on the understanding that it would be treated in a confidential manner?
[15] This argument was accepted by the court in Oakley, supra:
… Unlike other legislation, there is no requirement under s. 42(1) of the Act that the information supplied be determined to be confidential in any objective sense. … (p. 102)
[16] Section 42(1) of the old Act is duplicated in s. 18(1)(b) of the new Act. It is interesting to note that Oakley was decided before the current access legislation in Manitoba was enacted and that the Legislature has seen fit to retain that phraseology.
[17] However, the applicant argues that the Oakley case should be distinguished on the grounds that in that case the third party was required to provide this information to the Department of Health while, in the present case, Maple Leaf chose voluntarily to enter into negotiations with the government. The applicant argues that the public interest requires access where a third party wishes to have access to public monies for private purposes.
[18] The reason the information was supplied does not enter into the interpretation of whether an objective or subjective test should be used. The entire Act is a carefully drafted attempt to weigh the public interest against equally important interests. This can be seen from a review of s. 18(3) and (4):
18(3)Subsections (1) and (2) do not apply if
(a) the third party consents to the disclosure;
(b) the information is publicly available;
(c) an enactment of Manitoba or Canada expressly authorizes or requires the disclosure: or
(d) the information discloses the final results of a product or environmental test conducted by or for the public body, unless the test was done for a fee paid by the third party.18(4)Subject to section 33 and the other exceptions in this Act, a head of a public body may disclose a record that contains information described in subsection (1) or (2) if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the public interest in disclosure for the purposes of
(a)public health or safety or protection of the environment;
(b)improved competition; or
(c)government regulation of undesirable trade practices.[19] Nor do I agree, as the applicant argued, that Justice Darichuk erred in Oakley because he did not consider what is now s. 33 of the new Act. (Subsection 42(5) of the former Act.) Section 33 requires that when a head of a public body is considering giving access to a record which might affect a third party’s interests described in subsections 18(1) or (2), the head shall give written notice to the third party.
[20] The applicant argued that if the test of confidentiality was a subjective one, there would be no reason to give notice or allow the third party to make representations to the head of the department.
… All the third party would have to state is that the information is confidential. As this is not the case, it follows that the confidentiality of information should be determined on an objective basis. (Applicant’s brief, para. 11)
[21] This argument ignores s. 18(3)(a) which expressly recognizes that even if the information was supplied confidentially, circumstances may arise where the third party might change its mind and consent to the disclosure. It also ignores s. 18(4) where a head of a public body may decide that the public interest in certain areas outweighs the private interest of the third party in non-disclosure. In the latter case, s. 33 allows the third party an opportunity to make representations before that decision is taken. Once again, that is not relevant to the determination of whether the information is confidential. It relates to disclosure despite the confidentiality of the information.
[22] The applicant urges this court to follow a variety of cases decided pursuant to the federal legislation. Subsection 20.(1)(b) of the Access to Information Act, R.S.C. 1985, c. A-1, provides:
20.(1)Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
…
(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; (underlining mine)[23] Those cases decided under the federal legislation adopt an objective standard to determine whether the information is confidential. (See, for example, Air Atonabee Ltd., supra, at p. 270.)
[24] Given the different language involved, I prefer the case of Oakley to Air Atonabee Ltd. and I find that the phrase “supplied … on a confidential basis” in s 18(1)(b) should be interpreted in a subjective manner. The language in this Act is different from that of other provinces or that of the federal legislation and therefore other cases in other jurisdictions are not always applicable.
[25] On the facts, I find that the information in this case was supplied by Maple Leaf to the government in a reasonable expectation of confidence that it would not be disclosed. The MOU itself contains several confirmations that Maple Leaf considered the information confidential. The document is marked at the top “confidential” and a little further down, “private and confidential”.
[26] As well, the MOU itself contains a clause in which the parties agreed not to disclose any of the terms and agreements of the record without the prior written consent of the other party. Maple Leaf has been contacted by the department and they have confirmed orally and in writing, by letter and by sworn affidavit, that they would not be prepared to consent to disclosure of the MOU and that they supplied the information on a confidential basis. There is no evidence to the contrary. It is interesting to note that a copy of the MOU was not even shared with Reid, Crowther, the engineering firm that was retained by Maple Leaf to act for it, with respect to the environmental impact assessment.
[27] Section 18(1)(b) also requires that the information be “treated consistently as confidential information by the third party”. The applicant argues that Maple Leaf has acted inconsistently by disclosing information contained in the MOU and has allowed the government to treat the MOU as not being confidential.
[28] In support of this argument, the applicant refers to comments made by the engineering firm acting on behalf of Maple Leaf with respect to the environmental assessment required by The Environment Act of Manitoba, S.M. 1987-88, c. 26, Cap. E125. In a fax transmission dated June 18, 1998 to Manitoba Environment, Mr. Ken Adam of Reid, Crowther stated:
… A maximum of 54,000 hogs per week would be processed under this 1-shift scenario. When the processing plant begins operating on a two-shift basis, this number could increase to 108,000 hogs per week …
[29] As well, at a public meeting held on July 14, 1998, Patrick Jones made some general comments with regard to the MOU as follows:
I was party to the agreement … I’d be glad to tell you what it is, because it was not something that you’d be offended with or that we’d be afraid to release to you. … I just don’t perfectly recall what was said on that … I mean, what came out of a two-page letter of agreement, which we’ve said, you know, from our point of view is proprietary to us. We’re not going to release it … Like, people talked about doubling the hog production in Manitoba, for example, in ten years. You've read those things in the paper. And I think our discussions along the lines of “best efforts” were that people would be encouraging them, the people, to invest in that …
…
I was provided with a copy of the initial agreement with province … the Memorandum of Understanding. I’ve re-read it twice to make certain that I don’t misquote it. And I wasn’t being evasive earlier, I just couldn’t recall, and I find that none of those comments made their way into the agreement. I know they were certainly part of the discussions, as they were with anywhere you go. You want to locate some place where it’s in a friendly environment for hog production, but there are no commitments, nothing made its way to the letter of understanding. Not one comment.[30] A number of statements were also made by the government to the effect that government would contribute an amount of money to the project for specific purposes. For example the Brandon Sun reported that the provincial government would contribute $8.5 million toward the $112 million project; $5.5 million for sewers, waste water treatment and roads and $3 million for worker training (Brandon Sun, December 3, 1997, p. 1).
[31] In addition, the senior project manager for the provincial cabinet’s economic development board, Gerry Moore, was reported as saying:
… the document (MOU) also contains “best-efforts kinds of things” such as understandings about promoting the pork industry in order to satisfy the plant’s demand for hogs. (Brandon Sun, December 19, 1997, p. 19)
[32] It is the treatment by the third party that must be confidential. The comments reported by the media are generic and do not delineate precisely what the parameters of the agreement are, or the specific responsibilities or contributions of Maple Leaf. More particularly, in his comments at the public meeting, Mr. Jones specifically states that the letter of agreement from Maple Leaf’s point of view is “proprietary to us. We’re not going to release it.” He then goes on to indicate what is not in the agreement, i.e. there is no commitment in the MOU with respect to hog production in Manitoba.
[33] Section 18(3) of the Act indicates that:
Subsections (1) and (2) do not apply if
…
(b) the information is publicly available; …[34] There are five sources of public information; media reports, a copy of a press conference which took place on December 2, 1997, transcripted comments from public meetings, a letter from Reid, Crowther to the City Engineer of the City of Brandon and a draft agreement between the City of Brandon and Maple Leaf concerning the design and construction of a waste water treatment plant. The vast majority of the public information is quite general. It refers broadly to the economic benefits and the commitments of the province and the city.
[35] Even if some of the information was disclosed, that does not automatically mean that everything in the MOU loses its claim to confidentiality. It would be a question of degree. Comparing the MOU to the publicly available information, something counsel were unable to do, I find that the degree of disclosure is limited and does not remove the mantle of confidentiality from the whole document. Disclosure of general information or information required to obtain the necessary permits and licenses does not amount to conduct inconsistent with a desire to maintain confidentiality with respect to specific information.
[36] However, the fact that some of the information is both publicly available and contains specific detail should be taken into account when the decision is made with respect to severance later in this judgment.
3.2 Reasonable Expectation of Harm
[37] The government also relies on the exemptions contained in subsection 18(1)(c)(ii) and subsections 28(1)(c)(ii) and 28(1)(iii):
18(1)The head of a public body shall refuse to disclose to an applicant information that would reveal
…
(c)commercial, financial, labour relations, scientific or technical information the disclosure of which could reasonably be expected to
…
(ii)interfere with contractual or other negotiations of a third party,
…28(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm the economic or financial interests or negotiating position of a public body or the Government of Manitoba, including the following information:
…
(c)information the disclosure of which could reasonably be expected to
…
(ii)prejudice the competitive position of, or
(iii)interfere with or prejudice contractual or other negotiations of,
a public body or the Government of Manitoba;
…[38] In contrast to s. 18, the exemptions under s. 28 are discretionary, not mandatory. However, as has already been indicated, if the record falls within the exemption, the exercise of the discretion by the head of a public body will not be reviewable by this court unless it is manifestly unreasonable. Upon reviewing all the material, I find no evidence that the exercise of discretion in this case was done in a manifestly unreasonable manner or upon inappropriate criteria. (See Marchand v. Manitoba, supra.)
[39] Therefore, the issue in dispute with respect to the application of these two exemptions is the degree of proof required to satisfy the court that there is a “reasonable expectation of harm”.
[40] The applicant submits that in order to rely on these exemptions there must be direct evidence as to how the release of the MOU could reasonably be expected to interfere with contractual or other negotiations of either Maple Leaf or the government.
[41] The respondent argues that direct evidence is too high a test and urges the court to consider whether harm to the third party or government is a logical outcome from the release of the information. The expectation of harm must not be fanciful, imaginary or contrived, but must be based on reason. However, the level of proof is less than direct proof since one is referencing future or possible events.
[42] There are no Manitoba cases directly on point. Swan v. Manitoba (Minister of Health) (1997), 116 Man.R. (2d) 136 (Man. Q.B.) per Duval J., dealt with a claim under subsection 41(1)(b) that focused on disclosure which would constitute an unreasonable invasion of the third party’s privacy. The court distinguished between the interests protected in s. 41 and s. 42 (s. 17 and s. 18):
… the Legislature must be taken to have addressed different concerns respecting the protection of the interests of a third party: the unreasonable invasion of privacy concern identified in s. 41, and the expectation of confidentiality concern, or the prejudice or financial loss concern, identified in s. 42. (para. 25)
[43] In any case, when the court referred to “direct evidence” it was in contrast to speculative harm.
There is no direct evidence in these proceedings that there would be any prejudice or detrimental effect upon the laboratories and radiology clinics if the requested information was disclosed. If reliance is to be placed on prejudice or detriment to the third parties, then such prejudice or detriment must be established. Speculation only, as to future loss or gain or as to prejudice or detriment, cannot be relied upon. (para. 24)
[44] In Timiskaming Indian Band v. Canada (Minister of Indian and Northern Affairs) (1997), 138 D.L.R. (4th) 356 (F.C.T.D.), per Cullen J., the court considered similar language in paragraphs 20(1)(c) and (d) of the Access to Information Act. It was held that:
… The test stated by Jerome A.C.J. in Canada Packers Inc. v. Canada (Ministry of Agriculture), [1988] 1 F.C. 483 (T.D.) is:
… evidence of harm under paragraphs 20(1)(c) and (d) must be detailed, convincing and describe a direct causation between disclosure and harm. It must not merely provide grounds for speculation as to possible harm.
* * * * *
The evidence must not require pure speculation, but must at least establish a likelihood of substantial injury.
[See Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 at pp. 464 and 468 (T.D.), per Jerome A.C.J.]
This decision was upheld on appeal by a unanimous court for which MacGuigan J. wrote the decision. At 89 of that decision, MacGuigan J. further narrowed the principle to “a reasonable expectation of probable harm.” (Canada Packers Inc. v. Canada (Minister of Agriculture) (1988), 87 N.R. 81 at 89, 53 D.L.R. (4th) 246 (F.C.A.), emphasis in the original.) (p. 368)
[45] In the Timiskaming Indian Band case, the Band argued that given there were ongoing negotiations by them for the lease of reserve lands for a rodeo, that the release of this information could adversely impact these continuing negotiations. The court held that the applicant had shown possible harm but had not met the test of establishing a “reasonable expectation of probable harm” from the release of the information.
… The bald assertion that release of the information may affect the rodeo negotiations or rental agreement does not meet the high standard of the test established in the case law. (p. 369)
[46] The same test was applied in SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 (F.C.T.D.). The applicant argued that the detailed information in the proposal regarding finances, construction techniques and logistics would, if disclosed, result in material financial loss or prejudice to itself and an interference with its contractual negotiations in the future. Disclosure, it was argued, would harm the applicant’s reputation and compromise its chances of obtaining future contracts for similar work.
[47] The court held that a “reasonable expectation of probable harm” is not demonstrated simply because the applicant swears that disclosure “would undoubtedly result in material financial loss” or would “undoubtedly interfere in future business dealings”.
… These affirmations are the very findings the court must make if paragraphs 20(1)(c) and (d) are to apply. Without further explanation based on evidence that establishes those outcomes are reasonably probable, the court is left to speculate and has no basis to find the harm necessary to support application of these provisions. (p. 127)
[48] The degree of proof necessary to establish a “reasonable expectation of harm” was also discussed in Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (1986), 7 A.L.D. 584, a decision of the Australian Administrative Appeals Tribunal dealing with the Australian Freedom of Information Act 1982. In that case, the tribunal considered the meaning of the phrase “which would, or could reasonably be expected”. There was extensive oral evidence given with respect to the impact disclosure of the requested information would have on the competitive status of the licensees.
[49] When dealing with a reasonable expectation, the tribunal stated:
… we are in the field of predictive opinion. The question is whether there is a reasonable expectation of adverse effect. It is to that question that the witnesses’ evidence had to be directed, and their assertions are incapable of proof in the ordinary way. What there must be is a foundation for a finding that there is an expectation of adverse effect that is not fanciful, imaginary or contrived, but rather is reasonable, that is to say based on reason, … (para. 25)
[50] This test was adopted approvingly in Canada by a decision dealing with the Ontario Freedom of Information and Protection of Privacy Act. Section 14 of that Act provides that an institution may refuse to disclose a record where doing so could reasonably be expected to result in specified types of harms.
It is my view that section 14 of the Ontario Act similarly requires that the expectation of one of the enumerated harms coming to pass, should a record be disclosed, not be fanciful, imaginary or contrived, but rather one that is based on reason. An institution relying on the section 14 exemption, bears the onus of providing sufficient evidence to substantiate the reasonableness of the expected harm(s) … (Order 188, Appeal 890265, Ministry of Correctional Services, July 19, 1990, Tom A. Wright, Assistant Commissioner of the Ontario Information and Privacy Commissioner)
[51] The only evidence of the reasonable expectation of injury or harm submitted in this application is the public affidavit of Jack Dalgliesh where he states that:
10.In the absence of this assurance, companies have significant and legitimate concerns that their competitive position, ongoing business negotiations and overall business interests could be severly (sic) and negatively impacted by sharing information with the Department. In this environment, companies would be severly (sic) and negatively impacted as companies look to other jurisdictions for opportunities to establish or expand their business.
11.In addition to the negative impact that the failure or inability to hold confidential third party financial and commercial information private would have on the Province’s competitive position, this state of affairs would also negatively impact the Province’s ability to negotiate with other third parties in the future. When the Province enters into a negotiation, the role that the parties agree to take on will vary depending on the circumstances at hand; for example, the nature of the specific business with which Manitoba is negotiating, the proposed location and the economic circumstances of the local economy, and so on. If the final negotiating position taken by the Province in previous negotiations becomes public, it could serve as a precedent which then may serve as an opening negotiating position for subsequent businesses who may seek to relocate in Manitoba, or threaten to leave this Province, or wish to expand existing facilities, or whatever. (Affidavit of Jack Grant Dalgleish, affirmed October 8, 1998, pp. 4, 5)
[52] The second, sealed affidavit of Mr. Dalgliesh simply attaches the MOU and does not elaborate on the expectation of injury.
[53] The sealed affidavit of Gerry Offet, the General Manager and Chief Executive Officer of the Food Development Center, Director of Rural Development, confirms that as of October 14, 1998 there continues to be ongoing negotiations with Maple Leaf. It does not detail the nature or extent of these negotiations or how these ongoing negotiations would be impacted in the event of disclosure.
[54] The affidavit of Patrick Jones only addresses the fact that Maple Leaf has consistently treated the MOU as confidential and wishes to continue to do so. It does not discuss in any way, shape or form the reasonable expectation of interference with its continuing negotiations with the government.
[55] The reasonable expectation of an injury is a future event and therefore need not be proven by means of direct evidence. A court is familiar with the determination of the likelihood of occurrence of future events. Traditionally, that likelihood must be proven on the balance of probabilities to be a reasonable expectation of probable prejudice or interference as opposed to a possible likelihood. In this regard, “possible” is equated with speculative or “fanciful”. There will always be some possibility of an adverse impact when negotiating positions are released, but here the drafters have included the word “reasonable” expectation, thus adding the objective and qualitative elements.
[56] Expert evidence might be adduced to establish the way in which negotiations between companies and provincial governments are carried on and the likelihood of harm that might arise as a result of disclosure. Evidence from other companies that have located in Manitoba or are considering locating in Manitoba might have been useful. Evidence of this nature was adduced in the Australian case. The only evidence on this point adduced in this case was the two paragraphs from Mr. Dalgliesh already referred to and newspaper articles attached as exhibits to the applicant’s affidavits indicating that competition for the plant had been quite stiff amongst a large number of competing communities. No direct evidence from Maple Leaf or the other communities was adduced. It is noteworthy that the affidavit of the President of Maple Leaf does not refer to any reasonable expectation of harm if the information is disclosed.
[57] With respect to disclosure of information that would prejudice the competitive position or negotiations of the Province of Manitoba (s. 28(1)(c)(ii) and (iii)), I agree with the applicant that while the respondent has provided reasons why the release of this type of information in general may be prejudicial to the Government of Manitoba’s interests, it has not provided reasons why the release of the MOU in particular would be prejudicial to its interests.
[58] Based on the evidence, I agree with the Federal Trial Court in the case of Timiskaming Indian Band that the bald assertion that release of information may affect ongoing negotiations or may affect future negotiations with other parties does not meet the high standard of the test established in the case law.
[59] There remains the issue of whether severability is possible in this case. The section in the Act refers to the record or those parts of the record that fall within the exemption claimed. I have held that some parts of the record do not fall within the s. 18(1)(b) exemption because that information is publicly available.
[60] When considering whether there is information that is reasonably severable from the whole, one must bear in mind:
“… Disconnected snippets of releasable information taken from otherwise exempt passages are not … reasonably severable”, and severance of exempt and nonexempt portions should be attempted only when the result is a reasonable fulfilment of the purposes of the Act, per Jerome, A.C.J., in Information Commissioner (Can.) v. Canada (Solicitor General), [1988] 3 F.C. 551; 20 F.T.R. 314, at pp. 558-559 (T.D.).
[61] I have carefully gone through all the information filed as being publicly available and have compared it to the MOU. The detail that is publicly disclosed and is also contained in the MOU is minimal, however, given that s. 18(3) specifically states that the exemption does not apply to information that is publicly available, I have provided that information in an excerpted copy of the MOU attached to this judgment.
4.0 CONCLUSION[62] Based on the foregoing reasons, I find that part of the record in question contains information which is publicly available and which may be severed. I attach that portion as Appendix “A” to this decision. I find that the remainder of the MOU contains commercial, financial or technical information which was supplied to the department by Maple Leaf on a confidential basis and treated consistently as confidential information by the third party.
[63] I also find that the respondent has not satisfied its onus of proof on the balance of probabilities so as to entitle it to an exemption from disclosure pursuant to s. 18(1)(c)(ii) or s. 28(1)(c)(ii) and (iii).
[64] The applicant has argued generally that the democratic process would be furthered by disclosure. I do not dispute that in most cases this is true. Hence, the general thrust of this Act is to make disclosure the rule rather than the exception and to place the burden of proof on those wishing to prevent disclosure.
[65] However, it is insufficient to argue that the public interest always requires disclosure.
[66] Inevitably, there will be situations where equally valuable goals in a free and democratic society will collide. Thus, the right to individual privacy must be balanced against the public’s right to disclosure. As well, there will be situations where a public body will find it necessary to refuse to disclose a document where the result would be to prejudice the competitive position of, or interfere with or prejudice contractual or other negotiations of either the third party or the public body. The Act is an attempt to balance those competing objectives.
[67] This was a question of the interpretation of a new piece of legislation. I agree with both counsel that even though the department was primarily successful, it would not be an appropriate case for costs.