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Federal (Canada)Access to Information ActWell-founded

5819-03081 — Health Canada

Organization: Health CanadaComplainant: Anonymous applicant
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Plain-language brief

The complainant alleged that Health Canada improperly withheld information under various sections of the Access to Information Act concerning records related to Dukoral. During the investigation, the complainant narrowed the scope, no longer requiring investigation into personal information or information about the production process or composition of Dukoral. The Commissioner found that Health Canada and the third party (Valneva) did not adequately demonstrate that all information withheld under paragraphs 20(1)(b) and 20(1)(c) met the exemption requirements, particularly regarding confidentiality and reasonable expectation of harm. Similarly, certain information withheld under paragraph 21(1)(a) was found not to constitute advice or recommendations. However, the institution successfully demonstrated that information withheld under section 23 (solicitor-client privilege) was properly exempted. The Commissioner ordered Health Canada to disclose specific information previously withheld under paragraphs 20(1)(b), 20(1)(c), and 21(1)(a). Health Canada agreed to implement the order, and the complaint was found to be well founded.

Key issues
  1. 1Whether s.19(1) personal information exemption was properly applied (withdrawn by complainant)
  2. 2Whether s.20(1)(b) confidential third-party financial, commercial, scientific or technical information exemption was properly applied
  3. 3Whether the information was financial, commercial, scientific or technical
  4. 4Whether the information was confidential (not publicly available, reasonable expectation of confidence, relationship fostered for public benefit)
  5. 5Whether the information was supplied by a third party
  6. 6Whether the information was consistently treated as confidential by the third party
  7. 7Whether s.20(1)(c) financial impact on a third party exemption was properly applied
  8. 8Whether disclosure could result in material financial loss or gain to the third party
  9. 9Whether there is a reasonable expectation of harm (well beyond a mere possibility)
  10. 10Whether disclosure could injure the competitive position of the third party
  11. 11Whether Health Canada reasonably exercised its discretion under s.20(5) and s.20(6)
  12. 12Whether s.21(1)(a) advice or recommendations exemption was properly applied
  13. 13Whether the information constitutes advice or recommendations
  14. 14Whether the information was created by or for a government institution or minister
  15. 15Whether Health Canada reasonably exercised its discretion under s.21(1)(a)
  16. 16Whether s.23 solicitor-client privilege exemption was properly applied
  17. 17Whether the information consists of communication between a lawyer/notary and client for legal advice
  18. 18Whether the parties intended the communication to remain confidential
  19. 19Whether Health Canada reasonably exercised its discretion under s.23
Outcome breakdownFavours: Both, in part
  • s.20(1)(b) third-party info: Exemption not justified for some information
  • s.20(1)(c) third-party info: Exemption not justified for some information
  • s.21(1)(a) advice/recs: Exemption not justified for some information
  • s.23 solicitor-client privilege: Exemption upheld
  • Disclosure order: Specific information ordered disclosed
  • Complaint outcome: Complaint well founded
Outcome

Complaint well founded — disclosure ordered

Reasoning

The institution and third party failed to demonstrate that all information withheld under paragraphs 20(1)(b) and 20(1)(c) met the exemption criteria, particularly regarding confidentiality and the reasonable expectation of harm. Some information withheld under paragraph 21(1)(a) was found to be factual, not advice or recommendations. However, the institution properly applied section 23 for solicitor-client privileged information.

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Decision notes
Recommended action / remedy

The Minister of Health is ordered to disclose specific information withheld under paragraphs 20(1)(b), 20(1)(c), and 21(1)(a), including dates, portions agreed to by Valneva, and factual information previously deemed advice or recommendations.

Statutes considered
  • s.19(1) ATIA
  • s.20(1)(b) ATIA
  • s.20(1)(c) ATIA
  • s.21(1)(a) ATIA
  • s.23 ATIA
  • s.20(5) ATIA
  • s.20(6) ATIA
  • s.21(2) ATIA
  • s.30(1)(a) ATIA
  • s.36.1(1) ATIA
  • s.36.3 ATIA
  • s.43 ATIA

This summary is for informational purposes only and does not constitute legal advice.

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