Archived - Access to Information Guidelines - Third-Party Exemption and Notification
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1. Initial Decision Making Stage (Sections 27 and 28)
Third party notification and intervention rights are invoked under sections 27 and 28 where the head of a government institution proposes to disclose information which he has reason to believe may contain information described in subsection 20(1). It should be noted, however, that the requirements regarding third party notification are only invoked where a preliminary decision has been made to disclose the information. If the institution intends to claim an exemption for third party information under subsection 20(1), the requirements for third party notification under sections 27 and 28 will not apply.
(a) Requirements for Notification. Under Subsection 27(1), where a government institution intends to disclose a record which might contain information described in subsection 20(1), a third party who owns the information, who supplied it to a government institution or who could reasonably be expected to be affected by the disclosure in a way described in paragraphs 20(1)(c) or (d) must be notified:
- in writing; and
- within 30 days after the access request is received if the third party can be 'reasonably located'.
The notice should be sent by registered mail to the last known mailing address of the third party.
Where the record to be disclosed may contain trade secrets of a third party (paragraph 20(1)(a)) or confidential information supplied by a third party (Paragraph 20(1)(b)), generally only one third party will be involved and the third party will be easily identifiable. However, where the disclosure of the record could reasonably be expected to affect a third party in a way described in paragraphs 20(1)(c) or (d), third parties other than the submitter of the information can be involved. Subsection 27(1) requires that all such third parties be notified of the intended disclosure.
(b) Waiver of Notification Rights. Under subsection 27(2), a third party may waive the right to be notified of an intended disclosure under subsection 27(1), either at the time the information was obtained or subsequently. A third party who has consented to disclosure is deemed to have waived this right. Third party notification rights, thus, will not apply to a disclosure made under subsection 20(5). Government institutions shall obtain waivers and consent to disclosure from a third party in writing.
(c) Contents of the Notice. Subsection 27(3) provides that the notice to the third party shall contain the following:
- a statement that the government institution intends to release a record, or part thereof, which may contain information described in subsection 20(1);
- a description of the contents of the record, or parts thereof, which belong to, were supplied by or relate to the third party; and
- a statement that the third party may, within 20 days after the notice is given, make representations to the government institution as to why the record, or part thereof, in question should not be disclosed. (See Appendix C).
(d) Extension of Time Limits. Under subsection 27(4), an extension of the 30 day time limit for responding to an access request, set out in section 7, can be extended under section 9 of the Act where third party notification requirements under sections 27 and 28 are invoked. The procedures regarding time limit extensions under section 9 apply to an extension made because of third party notification. (See section 14 of Chapter 2-4).
(e) Representations by a Third Party. Paragraph 28(1)(a) requires that a government institution provide a third party who has been notified of an intended disclosure under sections 27 and 28 with an opportunity to make representations within 20 days after notice has been given as to why the record or part thereof should not be disclosed. These representations are to be made in writing unless the government institution waives this requirement (subsection 28(2)).
If no response is received from the third party to the notification within the specified time limits, the government institution should make a reasonable attempt to establish contact with the third party to determine if it has submitted, or intends to submit, representations.
(f) Decision Following Third Party Representations. The final decision of a government institution as to whether or not to disclose the record or part thereof following receipt of third party representations is to be made within 30 days of the notice being given to a third party (paragraph 28(1)(b)). Parallel time frames and procedures should be followed when representations are not forthcoming. As third party representations are to be received within 20 days of notification, a government institution will normally have 10 days to decide whether or not to disclose the record. The third party must be notified of this decision within the 30 day time limit.
- Decision to Disclose the Record. (Subsections 28(3) and (4)) When the government institution decides to disclose the record, or part thereof, following receipt and consideration of third party representations, or in the absence of such representations, the notice to the third party must contain a statement that: the third party is entitled to apply to the Federal Court - Trial Division for a review of this decision under section 44; and
- access to the record or part thereof will be provided to the person who has requested it forthwith on completion of 20 days after this notice is given unless the third party applies to the Federal Court for a review of the decision (subsection 28(3)). (See Appendix E).
- In such a situation, a government institution shall not disclose the record until the 20 day time period for application to the Federal Court has expired. However, if the third party does not make such an application, the person who has requested the record shall be given access to it on the completion of the 20 day time period (subsection 28(4)).
Decision to Exempt the Record. (Paragraphs 7(a) and 28(1)(b)) Where the government institution decides to claim an exemption for the record, or part thereof, following receipt of third party representations, notice of the decision shall be given within 30 days to both the third party (paragraph 28(1)(b)) and the person who requested access to the record (paragraph 7(a)). (See section 18 of Chapter 2-4 and Appendix G of this Chapter).
2. Proceedings before the Information Commissioner (Section 33 and paragraph 35(2)(c)
(a) Notice by Government Institution to Information Commissioner. When a government institution claims an exemption under subsection 20(1) for a record requested under the Act and the requester complains to the Information Commissioner about the refusal to disclose the record, the government institution is required to notify the Information Commissioner of any third party which it would have notified if it had intended to disclose the record. (Section 33).
(b) Notice by the Information Commissioner to a Third Party. If, as a result of an investigation made under the Act, the Information Commissioner intends to recommend to a government institution that it disclose a record or part thereof which might contain information described in subsection 20(1), the Commissioner is required to notify the third party concerned and, if the third party can reasonably be located, is required to provide the third party with a reasonable opportunity to make representations to the Commissioner (paragraph 35(2)(c)).
3. Following Consideration of a Recommendation of the Information Commissioner (Section 29)
When, following review of a recommendation by the Information Commissioner, a government institution decides to disclose a record, or part thereof, which it has reason to believe might contain information described in subsection 20(1), the government institution is required, under section 29, to:
notify any third party that has been notified under subsection 27(1) or would have been notified under subsection 27(1) at the time of the request if the institution had intended to disclose the record (i.e. any third party to whom the information belongs, who submitted the information to a government institution or who could reasonably be expected to be affected by the disclosure in a way described in paragraph 20(1)(c) or (d)) of the decision to disclose. The notice shall contain a statement that the third party is entitled under section 44 to apply to the Federal Court - Trial Division for a review of the decision within 20 days after notice has been given (See Appendix J);
notify the person who requested the record of the decision to disclose the record. The notice shall contain a statement that unless the third party applies to the Federal Court for a review of the decision within 20 days after notice has been given, the person who requested the record will be given access to it. (See Appendix H).
The government institution shall not disclose the information until the 20 day period for filing an application with the Federal Court has expired. If the third party does not apply to the Court for review within this time period, the government institution shall provide the person who requested the record with access to it on the completion of the 20 day period. Government institutions are notified of applications to the Federal Court, by the Federal Court. However, in order to ensure that no disclosure occurs when an appeal has been filed within the time limits, but notification is delayed, government institutions, through their legal advisor, should obtain confirmation that no application has been filed.
4. Proceedings Before the Federal Court (Sections 43 and 44)
(a) Notification requirements can arise in relation to proceedings before the Federal Court - Trial Division in the following circumstances:
(i) Proceedings Initiated by the Requester or the Information Commissioner (Section 43)
Where a government institution has refused to disclose a record on the basis that it is exempt under subsection 20(1) and the person who requested the record or the Information Commissioner brings proceedings against the government institution in the Federal Court - Trial Division under sections 41 or 42, the government institution is required under subsection 43(1) to give written notice of the proceedings to any third party which has been notified of the request under subsection 27(1) or any third party which would have been notified under subsection 27(1) if the government institution intended to disclose the record. (See Appendix L). Under subsection 43(2), the third party has the right to appear as a party to the proceedings.
(ii) Proceedings initiated by the Third Party (Section 44)
A third party who has been notified by a government institution of an intended disclosure under paragraph 28(1)(b) or subsection 29(1) may, within 20 days after the government institution has given the third party such notice, apply to the Federal Court - Trial Division for a review of the matter.
Where a government institution receives notice that a third party has brought proceedings under section 44, the government institution is required under section 44(2) to notify forthwith the person who requested the record in writing of the fact that the proceedings have been initiated. (See Appendix M). The applicant has the right to appear as a party to such proceedings (subsection 44(3)).
(b) Orders of the Court (Sections 49 and 51)
When the status of third party information is being considered by the Federal Court - Trial Division, in proceedings brought under the Act, the Court will order the information disclosed if it determines that it is not exempt under section 20 (Section 49). If the Court determines that the record contains information described in subsection 20(1), and that subsections 20(2), (5) or (6) do not apply in the circumstances to set aside the mandatory nature of the exemption in subsection 20(1), it will order the government institution to not disclose the record (section 51).
Appendix A - Flow Chart - Third Party Notification and Intervention
Appendix B - Flow Chart - Third Party Exemption Application Procedures
Appendix C - Notice to Third Party of Intention to Disclose
Request Reference No.:
Dear:
On (date) this (Department/Agency, etc.) received your representations in response to our Notice dated _________________, 19__.
We considered your views and have decided that the records for which access have been requested are not exempt from disclosure under subsection 20(1) of the Access to Information Act.
OR INSTEAD OF PARAS. 1 & 2
In the absence of the representations requested in our notice of ______________ we have decided that the records requested are not exempt from disclosure under subsection 20(1) of the Access to Information Act.
You are entitled to request a review of this decision by the Federal Court - Trial Division, pursuant to section 44 of the Act. That request for review must be made within 20 days of the mailing date of this Notice.
If you do not request a review of this matter, the person who requested the record will be given access to it on (date).
A copy of section 44 of the Act is enclosed for your convenience.
Yours truly,
Access to Information Coordinator
Enclosure
Appendix D - Notice to Third Party of Decision to Disclose in the Public Interest Following Representations by Third Party (or in the absence of such representations)
Request Reference No.:
Dear:
On (date) this (Department/Agency, etc.) received your representations in response to our Notice dated _________________, 19__.
We considered your views and have decided that the records for which access have been requested should be released in accordance with subsection 20(6) of the Access to Information Act.
OR INSTEAD OF PARAS. 1 & 2
In the absence of representations requested in our notice of (date) we have decided that the requested records should be released in accordance with subsection 20(6) of the Access to Information Act.
You are entitled to request a review of this decision by the Federal Court - Trial Division, pursuant to section 44 of the Act. That request for review must be made within 20 days of the mailing date of this Notice.
If you do not request a review of this matter, the person who requested the record will be given access to it on (date).
A copy of section 44 of the Act is enclosed for your convenience.
Yours truly,
Access to Information Coordinator
Enclosure
Appendix E - Notice to Third Party of Decision Not to Disclose Following Representations by Third Party
Request Reference No.:
Dear:
On (date) this (Department/Agency, etc.) received you representations in response to our Notice dated __________________, 19___.
We considered you views and have decided that the record(s) to which access has been requested is exempt under paragraph 20(1) ____________________ of the Access to Information Act. Thus, the record(s) will not be disclosed.
The requester has been informed of this decision.
However, under the Access to Information Act the requester has one year from the time access was requested to complain to the Information Commissioner concerning this refusal to disclose.
You will be advised if there are further developments in this matter.
Yours truly,
Access to Information Coordinator
Appendix F - Notice to Requester of Decision to Disclose Record on Recommendation of Information Commissioner
Request Reference No.:
Dear:
As a result of the recommendation of the Information Commissioner regarding your complaint, we have reviewed our earlier decision with respect to the record(s) you requested and have decided to disclose (it/them).
Third parties which may be affected by the disclosure have been notified of the decision to disclose and have 20 days to apply to the Federal Court - Trial Division for a review of this matter. Accordingly, the record(s) will be disclosed to you on the expiry of this period unless an application to the Court is made by a third party.
You will be advised of any such request.
Yours truly,
Access to Information Coordinator
Appendix G - Notice to Third Party of Complaint to Information Commissioner
Request Reference No.:
Dear:
This (Department/Agency, etc.) has in its possession records that contain information which (belongs to/was supplied by/relates to) you/your company.
On (date) pursuant to the Access to Information Act, we received a request for the following record(s):
-
We decided that the records were exempt from disclosure under paragraph 20(1) _______________ of the Act.
However, the requester has complained to the Information Commissioner who will be undertaking an investigation of the matter. If the Commissioner makes a preliminary decision to recommend that the records be disclosed, you will be contacted by the Commissioner's office and will be given an opportunity to make representations as to why the record(s) should not be disclosed.
You will be advised of further developments in this matter.
Yours truly,
Access to Information Coordinator
Enclosure
Appendix H - Notice to Third Party of Decision to Disclose Record on Recommendation of Information Commissioner
Request Reference No.:
Dear:
Please refer to our Notice dated ____________, 19__.
The Information Commissioner has completed his investigation on this matter and has recommended that the record(s) be disclosed.
As a result of this recommendation, we have reviewed our earlier decision not to disclose the record(s) requested and we have decided to disclose (it/them).
You are entitled to apply to the Federal Court - Trial Division for a review of this decision pursuant to section 44 of the Access to Information Act. That request for review must be made within 20 days of the mailing date of this Notice.
If you do not apply for a review of this matter within the 20-day limit, the record(s) will be disclosed to the requester.
A copy of section 44 of the Act is enclosed for your convenience.
Yours truly,
Access to Information Coordinator
Enclosure
Appendix I - Notice to Third Party of Decision to Disclose Record on Recommendation of Information Commissioner (No previous notice)
Request Reference No.:
Dear:
This (Department/Agency, etc.) has in its possession records that contain information which (belongs to/was supplied by/relates to) you/your company.
On (date) pursuant to the Access to Information Act, we received a request for the following record(s):
We decided that the records are exempt from disclosure under paragraph 20(1) _______________ of the Act.
However, following a complaint by the requester and an investigation by the Information Commissioner's office, the Information Commissioner has recommended that the record(s) be disclosed.
You are entitled to apply to the Federal Court - Trial Division for a review of this matter pursuant to section 44 of the Act. That request for review must be made within 20 days of the mailing date of this Notice.
If you do not apply for a review of this matter within the 20-day time limit, the record will be disclosed to the requester.
A copy of section 44 of the Act is enclosed for your convenience.
Yours truly,
Access to Information Coordinator
Enclosure
Appendix J - Notice to Third Party of Appeal by Requester or Information Commissioner to Federal Court
Request Reference No.:
Dear:
Please refer to our Notice dated ___________, 19__.
Following a complaint by the requester to the Information Commissioner and an investigation by the Commissioner, we decided to abide by our earlier decision that the record(s) requested is/are exempt from disclosure under paragraph 20(1) ________ of the Access to Information Act.
The (requester or Information Commissioner) has applied to the Federal Court - Trial Division for a review of this matter.
Under section 43 of the Act you have a right to appear as a party to the review.
Yours truly,
Access to Information Coordinator
Enclosure
Appendix K - Notice to Requester of Appeal by Third Party to Federal Court
Request Reference No.:
Dear:
Please refer to our Notice dated ___________, 19__.
Please be advised that (name) who would be affected by the disclosure of the records you have requested has applied to the Federal Court - Trial Division for a review of this matter under section 44 of the Access to Information Act.
Under section 44 of the Act you have a right to appear as a party to the review.
Yours truly,
Access to Information Coordinator
Appendix L - Notice of Intention to Disclose Testing Results under ss. 20(2)
Request Reference No.:
Dear:
This (Department/Agency/Commission, etc.) has in its possession records that contain information which (belongs to/was supplied by/relates to) you/your company.
On (date) pursuant to the Access to Information Act, we received a request for the following record(s):
Although the information contained in the record(s) falls within paragraph 20(1)(b), (c) or (d)) of the Act, in our view, the record(s) contain(s) the results of product or environmental testing carried out by or on behalf of this institution and, therefore, under subsection 20(2) of the Act we cannot refuse to disclose it.
You have 20 days from the mailing date of this Notice to make written representations to the undersigned as to why the record(s) should not be disclosed. Your representations must be confined to the following:
(1) that the record(s) does not contain the results of product or environmental testing carried out on behalf of a government institution, or
(2) that the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.
If you have not responded by the expiry date of the 20 day period, the record(s) will be disclosed on (date).
Copies of section 20, the exemption for third party information and sections 27 and 28, the provisions dealing with notification of third parties, are enclosed for your convenience.
Yours truly,
Access to Information Coordinator
Enclosures
Appendix M - Notice to Third Party of Decision to Disclose under ss. 20(2) Following Representations by Third Party (or in the absence of such representations)
Request Reference No.:
Dear:
On (date) this (Department/Agency/Commission/Board, etc.) received your representations in response to our Notice dated __________, 19__.
We have considered your views but reconfirm our position that the information which has been requested falls under subsection 20(2) and that it should be disclosed.
OR INSTEAD OF PARAS. 1 & 2
In the absence of representations invited in our notice of ____________ we have reconfirmed our position that the information requested falls under subsection 20(2) of the Access to Information Act and that it should be disclosed.
You are entitled to apply to the Federal Court - Trial Division for a review of this matter pursuant to section 44 of the Access to Information Act. That application for review must be made within 20 days of the mailing date of this Notice.
If you do not apply for review, the person who requested the record(s) will be given access to it, upon expiry of the 20-day period. A copy of section 44 of the Act is enclosed for your convenience.
Yours truly,
Access to Information Coordinator
Enclosure
Appendix N - Notice to Third Party Regarding Justification of Exemption and Refusal of Public Interest Disclosure
Request Reference No.:
Dear:
This (Department/Agency/Commission/Board, etc.) has in its possession records that contain information which (belongs to/was supplied by/relates to) you/your company.
On (date) pursuant to the Access to Information Act we received a request for the following record(s):
Although we have reason to believe that these records might contain (information as described in paragraph 20(1)(b), (c) or (d), we do not have sufficient information in our files to substantiate this. As required by the Act, we will have to make a decision whether or not to disclose the record or part of it by (date, 30 days after day of notice).
You have 20 days from the mailing date of this Notice to make written representations to the undersigned as to why the record should not be disclosed. In this case, the representation should present facts (depending on the paragraph involved (a) for 20(1)(b) that the information contains financial, commercial, scientific or technical information which is confidential and is consistently treated in a confidential manner by you/your company; (b) that disclosure could reasonably be expected to result in material (i.e. substantial and important) financial loss or gain to you/your company which can be presented in a factual way or could reasonably be expected to prejudice the competitive position of you/your company; or (c) could reasonably be expected to interfere with contractual or other negotiations). If you have not responded by the expiry of the 20-day period, we will have to make a decision whether or not to disclose the record or part thereof without your input. If, on the other hand, you have made representations within the 20-day period, these will be considered by this office in deciding whether or not to disclose the record or part thereof. In either case, you will be given a written notice of the decision made, pursuant to section 28 of the Act.
Although the information contained in the record(s) may fall within paragraph 20(1)(b), (c) or (d) of the Act, it is also related to (public health, public safety or protection of the environment). Subsection 20(6) of the Access to Information Act provides that the head of an institution may disclose such information if disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and if such public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual negotiations of a third party. It is our opinion that we may have to consider a disclosure of the information in the public interest in this case. We would appreciate it if you could include with any representations made above reasons why this information should not be disclosed in accordance with the conditions set out in subsection 20(6).
Copies of sections 20 (the exemption of third party information), 27 and 28 (the provisions dealing with notification of third parties) and 44 (third party application for Court review) are enclosed for your convenience in responding.
Yours truly,
Access to Information Coordinator