Preventous saga continued: Audit reports not “supplied” and not “confidential” under s 20(1)(b)

The Federal Court dismissed the judicial review by Preventous Collaborative Health, Provital Health and Copeman Healthcare Centre after their half-decade-long saga to prevent Health Canada’s disclosure of audit reports prepared by Alberta Health. Specifically, the Court ordered disclosure of the Audit Reports with the redactions applied by Health Canada pursuant to s 19(1) of the Access to Information Act, but without any redactions pursuant to s 20(1)(b). 

In our previous posts here, here, and here, we have followed this judicial review through procedural motions where the Clinics unsuccessfully sought disclosure of correspondence between Health Canada, Alberta Health, and the Canada Health Act Division. 

The Federal Court now considered whether (1) Health Canada could release the Audit Reports notwithstanding the exemption under s 20(1)(b) of the Access to Information Act; (2) the Audit Reports were “in the possession” of Health Canada; and (3) the Federal Government could release documents that belong to the Province of Alberta. It answered all three questions in the affirmative. 

With respect to s 20(1)(b), information exempt from disclosure must be: 

• financial, commercial, scientific, or technical information; 
• confidential information; 
• supplied to a government institution by the third party; and
• consistently treated in a confidential manner by the third party.

This test is conjunctive, and inapplicability of any of the conditions negates the application of the exemption. Here, the Court found that two conditions were not satisfied: 

• Supplied to Government: There was no dispute between the parties that Alberta Health (who prepared the Audit Reports) supplied these documents to Health Canada voluntarily and without any communication or expectation to their confidentiality. The Court rejected that the Clinics could be equated to Alberta Health because the Audit Reports were based on information the Clinics supplied. 

• Confidentiality: As noted, the Audit Reports were provided to Health Canada without any confidentially. The Court rejected that the Alberta Health Care Insurance Act created a reasonable expectation that Alberta Health would maintain the Audit Reports as confidential. Instead, the Alberta Health Care Insurance Act is mainly applicable to individual health records. The Court also found the Audit Reports were based on public information (e.g., the Clinics’ promotional material and a report published online in November 2017). 

Moreover, the Court cited Samsung Electronics Canada Inc. v Canada (Health) with approval, which found “there was no expectation of confidentiality where the disputed records were submitted as a result of the applicant’s legal obligations.” 

The Court also followed Samsung in finding that “exempting the disclosure of the disputed records would undermine the strong public interest in obtaining access to information and not enhance the public interest.” 

The Court therefore ordered that redactions already applied by Health Canada pursuant to s 20(1)(b) should be removed before disclosure. 

With respect to “control” over the Audit Reports, the Court found that Health Canada did have control, and this term should be given a broad and liberal interpretation. The two-part test from Canada (Information Commissioner) v. Canada (Minister of National Defence), which is applied when a government does not have physical possession of the documents, was not applicable here. Health Canada was in physical possession or custody of the Audit Reports, which has satisfied control in other cases. 

The Court rejected the Clinics’ argument that Health Canada had no authority to exercise control over the Audit Reports that had been created to ensure compliance with the Canada Health Act. 

Finally, with respect to the constitutionality of the disclosure, the Court rejected the Clinics’ argument that the Audit Reports were purely within provincial jurisdiction because they contain information about a provincial health system. The Court held that constitutionality was not at play because the voluntary disclosure from Alberta Health to Health Canada triggered s 13(2)(a) of the Access to Information Act, which explicitly allows disclosure of information from a Provincial Government by a Federal Government department with consent. There was no evidence that Alberta Health lacked the authority to provide the Audit Reports to Health Canada, that the Audit Reports were provided confidentially, or that Health Canada had a positive duty to ignore the Audit Reports. 

A copy of the decision can be found here.