On February 3, 2012, the Supreme Court issued Merck Frosst Canada Ltd. v. Minister of Health, 2012 SCC 3, which clarifies a number of principles relating to reviews of requests under the federal Access to Information Act ("Act"), including exemptions from disclosure. Justice Cromwell, writing for the majority, dismissed Merck's appeal, affirming the Court of Appeal's decision that the records should be released.
A requester had sought information relating to (i) Merck's new drug submission ("NDS") for SINGULAIR (including the Comprehensive Summary, the Health Canada reviewers' notes and the correspondence between Health Canada and Merck Frosst) and (ii) a supplemental new drug submission ("SNDS") for SINGULAIR (they requested all releasable records). Merck sought judicial review of the Minister's decisions to release some of the information. A series of decisions was released: 2004 FC 959, reversed and remitted back to the Federal Court 2005 FCA 215, granted in part 2006 FC 1201 (and 2006 FC 1200), reversed 2009 FCA 166. The Federal Court of Appeal ultimately held that all remaining pages should be disclosed.
The Court stated that the purpose of the Act is to provide a right of access to information in records under the control of a government institution. The Act has three guiding principles: (i) government information should be available to the public; (ii) necessary exceptions to the right of access should be limited and specific; and (iii) decisions on the disclosure of government information should be reviewed independently of government. The Court noted the Act strikes a careful balance between the sometimes competing objectives of encouraging disclosure and protecting third party interests.
Threshold for notice. The Court clarified the disclosure requirements to the third party as set out in section 27(1), including that the institutional head (i) should disclose third party information without notice only where the information is clearly subject to disclosure, that is, there is no reason to believe that it is exempt and (ii) should refuse to disclose third party information without notice where the information is clearly exempt, that is, where there is no reason to believe that the information is subject to disclosure. Further, the institutional head must give notice if he or she (i) is in doubt about whether the information is exempt, in other words if the case does not fall under the situations set out above; (ii) intends to disclose exempted material to serve the public interest pursuant to section 20(6); or (iii) intends to disclose severed material pursuant to section 25.
Once notice has been given, the third party has an opportunity to make its representations. It is not useful to speak of the third party having an onus; the responsibility to decide on disclosure rests (initially) with the institutional head. The head cannot simply shift his responsibility to the third party and similarly the third party must provide reasonable assistance to the head.
Standard of proof. The Court clarified that on judicial review, a third party must establish that the statutory exemption applies on the balance of probabilities, rejecting the requirement of any higher burden, as was applied by the Court of Appeal in some instances.
Statutory exemptions under section 20(1). The Court gave the following guidance on the interpretation of section 20(1) of the Act, which provides three categories of exemptions from disclosure in regards to third party confidential commercial information.
- trade secrets of a third party – The question on review is whether the party claiming the exemption has established on the balance of probabilities that the record falls within the following definition: a plan or process, tool, mechanism or compound that possess each of the following characteristics: (1) the information must be secret in an absolute or relative sense (is known only by one person or a relatively small number of persons); (2) the possessor of the information must demonstrate that he has acted with the intention to treat the information as secret; (3) the information must be capable of industrial or commercial application; and (4) the possessor must have an interest (e.g. an economic interest) worthy of legal protection.
- 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 – A simple reference to a publicly available study is not confidential information; however, the third party's reliance on or evaluation of those studies may fall within the definition of confidential information. Reviewers' notes may fall within this category: the exemption must be applied to information that reveals the confidential information supplied by the third party, as well as to that information itself.
- 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 – The accepted formulation of "reasonable expectation of probable harm" captures the need to demonstrate that disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but it need not be proved on the balance of probabilities that disclosure will in fact result in such harm. In principle, the Court accepted that the disclosure of information that is not already in the public domain and that could give competitors a head start in product development, or which they could use to their competitive advantage, may be shown to give rise to a reasonable expectation of probable harm of prejudice to the third party's competitive position.
Overall, the majority held that Merck had not shown that the Court of Appeal erred in the principles it applied or how it applied them.
Severance. Finally, the Court addressed the "severance" provision, section 25, which requires disclosure of the remaining information, provided it can reasonably be severed from information falling under the exempted categories. Severance is not reasonable if what is left after excising exempted material does not have any meaning or if disclosure would not reasonably fulfill the purposes of the Act (e.g. it would be unreasonable where severance leaves only disconnected snippets of releasable information).
The dissenting judges disagreed with the majority on the application of the appropriate standard of review. They held that the Federal Court's 2006 judgments did not contain a palpable and overriding error that would justify intervention.
The Supreme Court has provided welcome guidance on the proper approach to dealing with access to information requests. While Merck was ultimately unsuccessful on the specific evidence considered in this case, the Court provided clarification that may be supportive of a third party's position that certain information should be exempt from disclosure.
Nancy P. Pei, Toronto
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