Identity of suppliers and manufacturing information protected from an ATI request

The Federal Court redetermined the judicial review by Elanco Canada Limited, which challenged Health Canada’s decision to disclose portions of Elanco’s veterinary drug submission for approval of Fortekor. The Court found that the identity of Elanco’s suppliers is exempt from disclosure under s 20(1)(b), (c), and (d) of the Access to Information Act. It further confirmed that no information at issue was exempt from disclosure solely under s 20(1)(d), and no information was severable and disclosable under s 25.

In 2019, the Federal Court granted Elanco’s judicial review and rejected Health Canada’s arguments that information in the Fortekor submission was in the public domain (see 2019 FC 1455).

The Federal Court of Appeal set the original decision aside, finding that it was “worded too broadly” (see 2021 FCA 191). Specifically, the Court of Appeal found “the Judgment, as written, would prohibit Health Canada from disclosing any part of the requested records, including any part that contains information that is not protected from disclosure under section 20 of the Act.” It remitted the matter to the Federal Court to:

• determine what information, if any, was only exempted from disclosure as a result of the application of paragraph 20(1)(d) of the Act;
• determine if the “Identity of Suppliers” is exempt from disclosure; and
• issue a judgment that requires Health Canada to disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any information or material that as a result of the decision of the Federal Court is exempt from disclosure under section 20 of the Act.

Now in 2024, the Federal Court considered the “Identity of Suppliers” and found this information was exempt from disclosure for the same reasons as other “Supplier Information”. The Court was satisfied that the identity of suppliers was exempt from disclosure under s 20(1)(b) because it related to Elanco’s commercial relationships and information regarding its cost of production. This information was commercial in the ordinary sense and treated confidentially by Elanco.

The Identity of Suppliers was also exempt from disclosure under s 20(1)(c) because Elanco demonstrated a reasonable expectation harm, namely a negative competitive impact. And, it was exempt under s 20(1)(d) because Elanco established that they had negotiated specific confidentiality provisions to protect the identity of suppliers, and disclosure by Health Canada could interfere with those contractual negotiations.

The Court then considered whether any portion of the Fortekor submission at issue was “solely” protected by s 20(1)(d). It found that each category of information sought to be protected by Elanco was also exempt from disclosure under other paragraphs in s 20(1).

Finally, the Court considered whether, pursuant to s 25 of the Access to Information Act, Health Canada could reasonably sever and disclose any portion of the Fortekor submission that is not exempt from disclosure. The Court noted that Health Canada has the obligation to assess severance under s 25 and is required to exercise judgment and reasonableness in assessing if the information that is left to be disclosed has any meaningful value.

For each of the pages in dispute, the Court found that it contained Fortekor Manufacturing Information and could not be served and disclosed (i.e., the information was exempted from disclosure).

A copy of the decision can be found here.