No shake down at the C-NLOPB – GSI’s seismic ATI request unsuccessful

The Federal Court affirmed the Canada-Newfoundland and Labrador Offshore Petroleum Board’s (C-NLOPB) decision not to release information to Geophysical Service Incorporated (GSI) under the Access to Information Act.

In 2012, GSI requested from the C-NLOPB documents “relating to the board collecting, obtaining or maintaining in its possession any GSI digital Seismic data, Seismic Images, field data in any format or media” from 2005-2011.

C-NLOPB released some records but “severed” documents that were not relevant or fell under exemptions to the Act. C-NLOPB issued an Initial Decision and Second Decision, explaining which exemptions under the Act justified severance of the information. The Commissioner affirmed the Initial Decision following a complaint from GSI.

On judicial review of C-NLOPB’s decisions, GSI raised issues relating to procedural fairness, bias against GSI as the requester, and the change of reasons between the Initial and Second Decision. This post focuses on the Court’s reasonableness and de novo review of the exemptions under the Act.

The Court found that Vavilov required it to conduct a reasonableness review of the C-NLOPB’s discretion to release records. However, it must also do a de novo review of whether the records are exempt, as required by section 41 of Act.

The Court considered the reasonableness of C-NLOPB’s discretion to sever the following documents:

• Invoices containing financial codes;
• a Briefing, February Memo, November Memo, and December Memo, each of which contained comments from the C-NLOPB’s legal counsel; and
• an Audit discussing whether GSI was in “non-conformance” with certain requirements.

The Court found the C-NLOPB reasonably withheld the Invoices, as it established a clear and direct connection between the disclosure and the possibility of illegal movement of funds. Although GSI argued that it would have to gain access to the Respondent’s internal network to misuse the financial codes, the Court found a “reasonable expectation” of facilitating the commission of an offence under section 16(2)(c) of the Act with the evidence of cybersecurity issues. It was therefore irrelevant whether the financial codes had “substantial value” under section 18.

With respect to the Briefing, February Memo, November Memo, and December Memo, the Court found the C-NLOPB unreasonably withheld these documents under section 23 and/or section 21(1)(a). Although both parties agreed that the Briefing and February Memo were solicitor-client privileged (under section 23), the C-NLOPB did not consider the arguments in favour of disclosure and weigh those arguments against the objectives of the Act. Rather, the evidence showed it only considered the factors favouring non-disclosure.

The Court also found the C-NLOPB’s reasoning that the November Memo and December Memo contained “advice and recommendation” to be circular and insufficient to apply section 21(1)(a).

With respect to the Audit, C-NLOPB included the document in the disclosure package but ultimately claimed it was irrelevant to the request. The Court found this claim unreasonable and lacking transparency and logic.

Considering de novo whether these exemptions applied, the Court found:

• the Invoices are exempt under section 16(2)(c), because cybersecurity issues presented a clear and direct connection between the disclosure of the financial codes and the alleged possibility of illegal movement of funds (the same reason this decision was reasonable);
• the Briefing was exempt under section 23, because the test for solicitor-client privilege was met;
• the February Memo was exempt under section 23, because it contained solicitor-client privileged information, and section 21(1)(a), because it contained opinion on policy-related matters or a suggested course of action;
• the November Memo and December Memo were exempt under section 21(1)(a), as they each related to GSI’s efforts to prevent C-NLOPB from disclosing certain data and provided background, a summary, recommendation, and options;
• the Audit was exempt under section 21(1)(b), as the notes qualified as consideration with a view to a decision; and
• certain Meeting Notes were exempt under section 21(1)(b), as the decision items it listed were careful considerations with a view to decision. However, one paragraph was not exempt because it contained a description of a project, rather than consultations or deliberations.

A copy of the decision can be found here.