Deepak International Ltd. v Northwest Territories et al, 2016 NWTSC 66 Date: 2016 11 17 Docket: S-1-CV 2015-000 161
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF THE Access to Information and Protection of Privacy Act, SNWT 1994 c.20
BETWEEN: DEEPAK INTERNATIONAL LTD. Appellant - and - NORTHWEST TERRITORIES (MINISTER OF INDUSTRY, TOURISM AND INVESTMENT) and HILARY BIRD Respondents
Appeal pursuant to the Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20
Heard at Yellowknife, NT, on June 28, 2016. Reasons filed: November 17, 2016 REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE A.M. MAHAR
Counsel for the Appellant: Counsel for the Respondent Hilary Bird: Counsel for the Respondent Northwest Territories:
Douglas G. McNiven Self Represented Tricia Ralph
Deepak Int’l Ltd. v Northwest Territories et al, 2016 NWTSC 66 Date: 2016 11 17 Docket: S-1-CV 2015-000 161
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF THE Access to Information and Protection of Privacy Act, SNWT 1994 c.20 BETWEEN: DEEPAK INTERNATIONAL LTD. Appellant - and - NORTHWEST TERRITORIES (MINISTER OF INDUSTRY, TOURISM AND INVESTMENT) and HILARY BIRD
Respondents REASONS FOR JUDGMENT INTRODUCTION [1] This is an appeal pursuant to the Access to Information and Protection of Privacy Act, S. N. W. T. 1994, c.20 (the “Act”). The appellant company, Deepak International Ltd., was the subject of an access to information request concerning its dealings with the Government of the Northwest Territories, Department of Industry, Tourism and Investment (the “GNWT”, “ITI”).
Page 2 [2] On May 22, 2014, Ms. Hilary Bird, a journalist with the Canadian broadcasting Corporation, made a request to the GNWT, ITI for “Any and all records related to Deepak International. In particular, information regarding the Company’s interest in Archibald Street in Yellowknife (otherwise known as Diamond Row).”
[3] This request was narrowed through consultation between Ms. Bird and the GNWT access and privacy coordinator to “all records, not including those in draft form, dated from December 20, 2012 to May 26, 2014, related to Deepak International’s plan to acquire the exclusive rights to use the Polar Bear diamond Trademarks.”
[4] On July 28, 2014 and August 1, 2014 the GNWT released those documents that were felt not to require third-party consultation or redaction, followed by documents that had been redacted pursuant to the Act. Ms. Bird was also informed that some of the documents she had requested would be withheld, also pursuant to the Act. Ms. Bird took no issue with the redacting or withholding of documents.
[5] On September 29, 2014 the appellant requested that the GNWT refuse to provide the records requested, pursuant to section 23 and 24 of the Act.
[6] On October 30, 2014 the GNWT released its decision regarding which documents would be released and in what form.
[7] The appellant requested a review by the Information and Privacy Commissioner on November 28, 2014.
[8] On July 14, 2015 the Information and Privacy Commissioner ruled that the documents should be released as proposed by the GNWT on October 30, 2014. It is this decision that forms the subject of the appeal before me, although since the Commissioner simply upheld the decision of the GNWT, it is that decision which bears scrutiny.
Page 3 ANALYSIS [9] All parties agree that the standard of review for appeals under the Act is one of correctness. I concur. The issue is whether or not the GNWT was in error in deciding to release the documents it did. The onus of establishing this is on the appellant, Deepak International.
[10] The Access to Information and Protection of Privacy Act attempts to strike a delicate balance between the right of citizens to access information in the possession of public officials and agencies and the right of individuals and businesses to reasonable privacy. While the right to access is presumed, this right is limited, specifically by sections 23 and 24 of the act.
[11] Section 23 primarily deals with the protection of personal information, including such things as addresses and telephone numbers, as well as personal opinions. There does not appear to be an issue, or at least a significant issue, with this sort of information in this appeal. In reviewing the documents in question the redactions made by the GNWT appear to have taken care of any such concerns.
[12] Section 24 deals with what are essentially business interests and forms the basis for this appeal. Section 24 reads as follows (irrelevant subsections omitted):
24(1) Subject to subsection (2), the head of a public body shall refuse to disclose to an applicant
(a) information that would reveal trade secrets of a third party; (b) Financial, commercial, scientific, technical or labour relations information (i) Obtained in confidence, explicitly or implicitly, from a third party, or (ii) That is of a confidential nature and was supplied by a third party in compliance with a lawful requirement; (c) Information the disclosure of which could reasonably be expected to (i) result in undue financial loss or gain to any person, (ii) prejudice the competitive position of a third party, (iii) interfere with contractual or other negotiations of the third party, or (iv) result in similar information not being supplied to a public body; (…)
Page 4 [13] The appellant takes the position that the information contained in the documents at issue, particularly the Monitoring, Trade-mark Licence, and Certification Agreements, could harm the business interests of Deepak International if it became public. It is submitted that competitors, knowing the terms and conditions of the agreements entered into with Deepak International, would be in a position to undercut the Company’s competitive position.
[14] Counsel for the appellant stated during the hearing of this matter that the appellant is not particularly concerned about the email exchanges caught by the application, but is primarily concerned with the sensitive information they claim forms part of the three agreements mentioned above.
[15] I have reviewed the Monitoring, Trade-mark Licence and Certification Agreements, both in their original form and as redacted for release. Most of the information which could be held to be sensitive in the manner argued by the appellant was contained in various schedules to the agreements. These schedules were highly redacted by the GNWT, leaving nothing in either the schedules or in the agreements themselves which in my view would compromise the appellant’s rights under section 24.
[16] In keeping with the balancing function of the Access to Information and Protection of Privacy Act, it cannot be said that any information of a contractual or business nature ought not to be released. Governments and the various sub government agencies that oversee regularly enter into contracts which impact on the public, even if this impact is purely financial. The three agreements at issue in this appeal are entirely noncontroversial in their content. There is nothing remaining, after the redactions are taken into account, which would impact Deepak International’s bargaining position or result in a foreseeable negative impact or loss.
[17] I have also reviewed the email exchanges for compliance with section 24. I find that the GNWT position on their release is also proper.
Page 5 DECISION [18] For these reasons I find that the decision of the information and privacy Commissioner upholding the decision of the GNWT was correct. The appeal is dismissed. The respondents are awarded costs on a party and party basis.
Dated at Yellowknife, NT th This 17 day of November 2016 Counsel for the Appellant: Counsel for the Respondent, Hilary Bird: Counsel for the Respondent, Northwest Territories:
A.M. Mahar J.S.C. Douglas G. McNiven Self Represented Tricia Ralph
S-1-CV 2015-000 161 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF THE Access to Information and Protection of Privacy Act,
SNWT 1994 c.20
BETWEEN DEEPAK INTERNATIONAL LTD. Appellant - and - NORTHWEST TERRITORIES (MINISTER OF INDUSTRY, TOURISM AND INVESTMENT) and HILARY BIRD
Respondents REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE A.M. MAHAR