Date: 20020305
Docket: T-2360-00
Neutral citation: 2002 FCT 253
BETWEEN:
CISTEL TECHNOLOGY INC.
Applicant
- and -
CORRECTIONAL SERVICE CANADA
Respondent
[1] The applicant seeks judicial review of a decision of Mr. Pierre Tessier, A/Senior Analyst, Access to Information and Privacy Division, Correctional Service Canada, dated December 5, 2000, to disclose all invoices with the exception of the individual rates and days worked and the amount attributed to each individual for services provided by the applicant Cistel Technology Inc. The applicant seeks an order that only the identity of Cistel and the total contract price be released pursuant to the Access to Information request.
[2] The basic question here is whether the records in question are exempt from disclosure pursuant to paragraph 20(1)(b) of the Access to Information Act. A secondary question is whether the payment vouchers and the task request/authorization forms of Correctional Service Canada were part of the request.
FACTS
[3] Cistel Technology Inc. ("Cistel") provides information technology personnel to perform work pursuant to various contracts and standing offers it secures. Once a contract or a standing offer is secured, the particular organization for which Cistel is performing services is invoiced. Cistel invoices indicate the name and level of position of the personnel performing the work, their per diem rates, the number of days they have worked on the project that month and the total charges invoiced for that period.
[4] In the spring of 1998, Cistel was the successful bidder for three standing offers with the Correctional Service Canada ("CSC").
[5] On September 7, 2000, a request was made to the Access to Information and Privacy Office of CSC for "copies of all invoices for services Technology Inc. to Correctional rendered by Cistel Services Canada from 1997 to date." [sic] Cistel, on November 24, 2000, advised that the requested information was confidential to Cistel and that its disclosure would allow competitors to determine its underlying costs and profit margin in performing services under these standing offers. It submitted that the detrimental effect to Cistel would be that its competitors would have sufficient information to outbid it in the general marketplace and in the upcoming RFP. Further, the disclosure of the contractor's rates could interfere with Cistel's future negotiations with its subcontractors and employees.
[6] By letter dated December 5, 2000, Cistel was advised of CSC's decision to disclose some of the information Cistel believes is exempted under the Access to Information Act (the "Act"). As an attachment to the letter, CSC provided additional copies of the original documents and highlighted the information it had determined could be exempted under the Act. CSC agreed that it would not show the per diem rates, the number of days the individuals worked on the project that month and the total charges broken down by individual.
ANALYSIS
[7] Cistel submits that of the documents produced by the respondent, the payment voucher and the task request/authorization do not come within the scope of the request. I agree. In my view, in the circumstances of this case, they are not invoices, and should not be disclosed pursuant to this request.
[8] Accordingly, what is in question before me is whether the invoices, with the per diem rates of the individuals, the number of days the individuals worked on the project and the individual amounts removed, as agreed by the respondent, are confidential. The applicant relies on paragraph 20(1)(b) of the Act to state that the invoices are exempt. Paragraph 20(1)(b) reads as follows:
| 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; |
20. (1) Le responsable d'une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant_: ... b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers; |
[9] In interpreting and applying this provision I must also keep in mind the purpose of the Act as set out in subsection 2(1):
| 2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government. |
2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif. |
[10] The case law is clear that all exemptions to access must be limited and specific. The burden of proof required to establish an exemption is that of the balance of probabilities. The onus rests on the party resisting disclosure.
[11] The case of Air Atonabee Limited v. Canada (Minister of Transport) (1987), 27 F.T.R. 194 (T.D.) sets out the four conditions that must be met in order to fall within this exception. The information must be:
a) financial, commercial, scientific, or technical information;
b) confidential information
c) supplied to a government institution by the third party; and
d) treated consistently in a confidential manner by the third party.
Items b) and d) are what are in dispute in this case. The law is clear that with respect to confidential information, it must be objectively characterized as confidential information. It is insufficient for an applicant to state in an affidavit that it is confidential. There is nothing on the invoice to indicate that it is confidential and as stated earlier, the respondent has already agreed to remove the rate, the number of days and the amount billed with respect to each individual set out in the invoice. The names of the support staff that work for Cistel are easily ascertainable by companies in that business and, therefore, cannot be confidential from any objective standpoint. A total dollar amount for a one month period is not going to be of great assistance to any competitor. No reasonable person would conclude that the information in dispute is confidential.
[12] Furthermore, the applicant has not satisfied me that the information was treated consistently in a confidential manner. There is an affidavit in which the Chief Executive Officer of the applicant states that it was treated in a confidential manner, but there is no indication of how this was done. There is no reference to "confidential" on any of the invoices and no facts set out in the affidavit to indicate how the applicant was consistently treating the information as confidential. The mere assertion in the affidavit, without direct cogent evidence on how the applicant treated the information in a confidential manner, is insufficient to establish that the exemption ought to apply.
[13] For these reasons, the application for judicial review is dismissed except that the respondent is directed not to disclose the payment vouchers and the task request/authorization forms. The respondent's confidential record shall be made public. Although the applicant succeeded with respect to deleting the payment vouchers and the task request/authorization forms, this was not an important part of the matter in issue. Accordingly, the respondent should receive 75% of its costs.
"W.P. McKeown"
JUDGE
TORONTO, ONTARIO
March 5, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2360-00
STYLE OF CAUSE: CISTEL TECHNOLOGY INC.
Applicant
- and -
CORRECTIONAL SERVICE CANADA
Respondent
DATE OF HEARING: FEBRUARY 27, 2002
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: MARCH 5, 2002
APPEARANCES BY: Mr. Douglas Brown
For the Applicant
Ms. Susanne Pereira
For the Respondent
SOLICITORS OF RECORD: NELLIGAN O'BRIEN PAYNE
Barristers and Solicitors
1900-66 Slater Street
Ottawa, Ontario
K1P 5H1
For the Applicant
Department of Justice
East Memorial Building, 2nd floor
284 Wellington Street
Ottawa, Ontario
K1A 0H8
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020305
Docket: T-2360-00
BETWEEN:
CISTEL TECHNOLOGY INC.
Applicant
- and -
CORRECTIONAL SERVICE CANADA
Respondent
REASONS FOR ORDER