Information and Privacy Commissioner finds that mandatory supply of business information is not ‘supplied in confidence’

Thu, Sep 19, 2019

Information and Privacy Commissioner finds that mandatory supply of business information is not ‘supplied in confidence’

WHITEHORSE – The Information and Privacy Commissioner for the Yukon has issued an inquiry report that has implications for outfitter hunting guides and other businesses who are required by law to supply information to a public body. Diane McLeod-McKay found that a mandatory supply of business information by a business to a public body is not exempted from disclosure under the Access to Information and Protection of Privacy Act (ATIPP Act). She also found that information about a corporation does not qualify as personal information under the ATIPP Act.

Her report interprets sections of the ATIPP Act, as well as the Wildlife Act and Wildlife Regulation. The inquiry occurred after the Department of Environment refused access to information requested by two applicants, in separate access requests. They had requested information about hunts of big game animals. The department refused to provide the information based on two mandatory exemptions in the ATIPP Act that relate to business harm and unreasonable invasion of personal privacy. The applicants then asked McLeod-McKay to review the refusals.

The first applicant requested the amount of moose, caribou, bison, wolf, black bear and grizzly bear harvested by resident hunters and non-resident hunters, within each Yukon game management subzone, between April 1, 2009 and March 31, 2017. The second applicant requested the amount of sheep, caribou and moose harvested by non-resident hunters within the concession areas of two outfitters between April 1, 2017 and March 31, 2018.

“The ATIPP Act prohibits a public body from disclosing information to an applicant that would cause business harm or that would amount to an unreasonable invasion of personal privacy,” said McLeod-McKay. “However, there are specific tests under these provisions that must be met. In my review of the information requests, I found that in these cases, the tests were not met, and the exemptions do not apply.”

The sections of the ATIPP Act that McLeod-McKay focused on were subsection 24(1) in regard to business harm and subsection 25 (1) in regard to unreasonable invasion of personal privacy. She found that some of the information requested by the second applicant about two outfitters did qualify as sensitive business information. However, in applying the three-part business harm test that must be met for the exemption to apply, McLeod-McKay found that the information sought by the applicant was not supplied in confidence, which is one aspect of the test. This is because the Wildlife Act and Wildlife Regulation require non-resident special guides and outfitter guides to supply harvest information to the Department of Environment. Because the supply of this information is compulsory, the guides cannot impose conditions, including confidentiality, on the supply of the information. 

In the inquiry report, McLeod-McKay referred to other jurisdictions in Canada where the issue of compulsory supply was considered in relation to the business harm test in access to information laws. The conclusion reached in every case was that if the supply of information is compulsory, it cannot be considered to be supplied in confidence.

The Information and Privacy Commissioner also found that the unreasonable invasion of personal privacy exemption did not apply. McLeod-McKay determined that all outfitting concessions operating within the timeframes of the applicants’ access requests were operating as incorporated businesses. As such, the information sought did not qualify as personal information because it is not about an identifiable individual; it is information about a corporation.

McLeod-McKay recommended that the Department of Environment provide the requested information to the applicants. The department has accepted the recommendation.

The decision in this case can be found here.

The Ombudsman, Information and Privacy Commissioner, and Public Interest Disclosure Commissioner is an independent officer of the Yukon Legislative Assembly. For more information, please go to http://www.ombudsman.yk.ca/.

Contact:

Elaine Schiman

Communications Manager

Office of the Yukon Ombudsman, Information and Privacy Commissioner & Public Interest Disclosure Commissioner                   

elaine.schiman@ombudsman.yk.ca

867-332-4555

867-334-2975