Agriculture Financial Services Corporation v Alberta (Information and Privacy Commissioner), 2012 ABQB 397

Court of Queen ’ s Bench of Alberta Citation: Agriculture Financial Services Corporation v Alberta (Information and Privacy Commissioner), 2012 ABQB 397 Date: 20120615 Docket: 1103 16169 Registry: Edmonton Between: Agriculture Financial Services Corporation Applicant - and - Office of the Information and Privacy Commissioner Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________ I.

Introduction [ 1 ] Agriculture Financial Services Corporation (AFSC) applies for Judicial Review of an Order (F2010-030) issued by an Adjudicator (the Adjudicator) of the Office of the Information and Privacy Commissioner (the OIPC) requiring ASFC to disclose information requested by Mr. Brian Gallant under the access to information provisions of the Freedom Of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25 (the Act). AFSC seeks an Order quashing the decision and a declaration setting aside the Order on the basis that the Adjudicator, on behalf of the Commissioner:

(

a) Erred in law in her

interpretation and application of

Section 17 of the Act when it concluded that the names of individual AFSC recipients of financial assistance did not constitute personal information; (

b) Erred in law in her

interpretation and application of

Section 16 of the Act when she concluded that there was insufficient evidence to establish that disclosure of the information could be expected to harm the competitive position of the recipients or that the disclosure would be reasonably expected to result in in similar information no longer being supplied. [ 2 ] The Commissioner submits that the Adjudicator interpreted the Act reasonably, in a manner consistent with the Act's objectives and the Commissioner's role. Accordingly the Commissioner submits that the application for Judicial Review should be dismissed. II.

Background [ 3 ] ASFC is an Alberta Corporation created by the Agricultural Financial Services Act , R.S.A. 2000, c. A-12 that provides its clients, Alberta farmers (producers) with loans, insurance, and farm income disaster assistance.

The AFSC reports to the Minister of Alberta Agriculture for Rural Development. [ 4 ] In October 2007, the Alberta Government announced the introduction of the AFRP, a program which provided financial assistance, totaling $165 million, to Alberta livestock farmers to address serious economic challenges in the industry arising from a variety of factors, including the rising value of the Canadian dollar, the drop in livestock prices, and high fuel, fertilizer and feed costs.

The AFSC administered the AFRP and determined which producers were entitled to the benefit and how much money each producer would receive. [ 5 ] Once it was determined that a producer met the eligibility requirements, the amount of the AFRP benefit was calculated according to a set formula that was applied in every case, based on a producer's average profits or loss over the previous five years and their costs for fuel and fertilizer. [ 6 ] The AFRP II was introduced on June 5, 2008, and like the AFRP, was provided as disaster funding to provide further support and assistance to the Alberta livestock industry.

Funds totaling $300 million were provided to Alberta livestock producers in two installments. [ 7 ] In administering the AFRP and AFRP II, the AFSC followed a policy of treating all information received from producers confidentially. AFSC informed producers that their information would be protected and would only be used for certain limited and enumerated purposes. [ 8 ] On July 25, 2008, Gallant sent a request to the AFSC for disclosure of the following information: (

a) The names of all the Alberta Producers who had received payments under the Alberta Farm Recovery Plan (AFRP) from October 26, 2007 to the present, and the amount that each Producer received under the AFRP. (

b) The names of all the Alberta Producers who had received payments under the Alberta Farm Recovery Plan II (AFRP II) from June 5, 2008 to present, and the amount that each Producer received under the AFRP II. [ 9 ] This request was subsequently clarified by Gallant to confirm that he only wanted the names of Alberta Producers to whom the AFSC had issued payments under AFRP and AFRP II and the amounts so issued for the period of October 26, 2007 to July 25, 2008 in relation to AFRP and for the period from June 2008 to July 25, 2008 in relation to AFRP II.

[ 10 ] On October 15, 2008 Gallant was informed that his request for access to this information was denied because such disclosure violated ss. 16 and 17 of the Act . [ 11 ] On December 12, 2008 Gallant requested the OIPC review the decision of the AFSC. [ 12 ] A Notice of Inquiry was issued by the OIPC on February 11, 2010 and in response both the AFSC and Gallant submitted initial and rebuttal submissions to the OIPC. [ 13 ] The OIPC published the Notice of Inquiry in daily newspapers inviting Alberta Producers who were issued payments under AFRP and AFRP II to participate in the inquiry.

The OIPC also notified several organizations who might wish to intervene. Only the Alberta Pork Producers signified their intention to act as interveners in the inquiry. [ 14 ] On August 29, 2011 the Adjudicator issued the Order under review. A

summary of the Adjudicator's conclusions are as follows: •

Section 17 of the Act did not apply to the requested information because the names of the Alberta Producers who were issued financial aid and the amounts issued to those Producers under AFRP and AFRP II were not “ personal information ” as defined under subsection 1 (

n) of the Act. • The Adjudicator reached this conclusion while acknowledging that: • the Alberta Producers listed in the records were third parties for the purposes of the Act ; • The requested information was financial information of third parties; • The requested information was supplied by third parties to AFSC in confidence; • Further, the Adjudicator concluded that s. 16 did not apply to the requested information because there was insufficient evidence upon which the Adjudicator could conclude that the disclosure of the requested information would be reasonably expected to 1. harm significantly the competitive position or interfere significantly with the negotiating position of a third party; or 2. result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied. [ 15 ] As a result the Adjudicator ordered that AFSC disclose the requested information to Gallant. [ 16 ] ASFC seeks judicial review of the Order.

III. Relevant Statutory Provisions

[ 17 ] The following sections of the Act are relevant to this application: Sections 1(

n) and (r), 16(1), 17(1), and 71: 1(n) “ personal information ” means recorded information about an identifiable individual, including (

i) the individual's name, home or business address or home or business telephone number, (ii) the individual's race, national or ethnic origin, colour or religious or political beliefs or associations, (iii) the individual's age, sex, marital status or family status, (iv) an identifying number, symbol or other particular assigned to the individual, (

v) the individual's fingerprints, other biometric information, blood type, genetic information or inheritable characteristics, (vi) information about the individual's health and health care history, including information about a physical or mental disability, (vii) information about the individual's educational, financial, employment or criminal history, including criminal records where a pardon has been given, (viii) anyone else's opinions about the individual, and (ix) the individual's personal views or opinions, except if they are about someone else; 1(r) “ third party ” means a person, a group of persons or an organization other than an applicant or a public body; 16(1) The head of a public body must refuse to disclose to an applicant information (

a) that would reveal (

i) trade secrets of a third party, or (ii) commercial, financial, labour relations, scientific or technical information of a third party, (

b) that is supplied, explicitly or implicitly, in confidence, and (

c) the disclosure of which could reasonably be expected to

(

i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, 17(1) The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's personal privacy. 71(1) If the inquiry relates to a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part of the record.

(2) Despite subsection (1), if the record or part of the record that the applicant is refused access to contains personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy.

(3) If the inquiry relates to a decision to give an applicant access to all or part of a record containing information about a third party, (

a) in the case of personal information, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy, and (

b) in any other case, it is up to the third party to prove that the applicant has no right of access to the record or part of the record. IV. Law (

a) The Standard of Review [ 18 ] The parties agree that the standard of review of the Adjudicator's decision is reasonableness.

If there was no such agreement, this Court would decide that reasonableness is in fact the proper standard of review for the following reason. [ 19 ] In Alberta (Information and Privacy Commissioner) v Alberta Teachers Association , 2011 SCC 61 the Supreme Court of Canada stated there is a presumption of reasonableness when the Commissioner is interpreting her home statute, at para 39: What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional.

When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal's

interpretation of its home statute on the deferential standard of reasonableness. [ 20 ] Guidance regarding application of the reasonableness standard was provided by the Supreme Court in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para 59 : Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the

outcome falls within “ a range of possible, acceptable outcomes which are defensible in respect of the facts and law ” ( Dunsmuir , at para. 47). There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [ 21 ] In Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , Madam Justice Abella, in commenting on what the Court meant by reasonableness in Dunsmuir , stated at para 13: . . . justification, transparency and intelligibility".

To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. Submissions of the Applicant [ 22 ] The Applicant raises two issues. 1. The Adjudicator's

interpretation and application of

Section 17 of the Act was unreasonable. [ 23 ] The Applicant, AFSC, submits that OIPC erred in concluding that the names of producers who were issued financial aid and the amounts issued to those producers under AFRP and AFRP II did not fall within the accepted definition of “ personal information ” within the meaning of

Section 1 (

n) of the Act . The Commissioner found that this information was business information about the third party's business. [ 24 ] The Commissioner also found that even if this information indirectly related to third parties as individuals, there was insufficient evidence and/or information before the Commissioner to conclude that the information had a personal dimension sufficient to render it personal information.

In particular, it concluded that this information was not about Alberta producers in their natural or personal capacity, but about the Alberta producers' businesses, regardless of the format under which they operated their business: a sole proprietorship, partnership, corporation or another type of business. As such the Commissioner found that

Section 17 does not apply to that information. [ 25 ] Since the Commissioner found that the information was not personal information of a third party, it was not necessary to address whether the disclosure of the information would be an unreasonable invasion of privacy. [ 26 ] AFSC submits that this analysis is unreasonable in several respects. First, AFSC argues that the OIPC purported to create a new category of “ business information ” which is somehow excluded from the application of

Section 17. [ 27 ] It submits however that business information is not a category of information recognized under the Act . Rather, the Act explicitly indicates that an individual's business information can constitute personal information under subsection 1(n)(

i) and (vii), including the individual's name, home or business address, home or business telephone number, and information about the individual's educational, financial, employment or criminal history. [ 28 ] AFSC also submits that the Adjudicator's assertion that there was insufficient evidence and/or information before it that there is a personal dimension so as to render the personal as is also unreasonable.

A cursory review of the names of those who received funds under AFRP and AFRP II confirms that many of the names are names of individuals identified by their personal names, with no reference to any corporate or other business entity. [ 29 ] AFSC further submits that the distinction between a natural personal and sole proprietorship is not supported by the Act , and

that the restricted

interpretation of personal information suggested by the OIPC is incompatible with the general principles andinterpretation set out by the Supreme Court of Canada in Dagg v Canada (Minister of Finance), (SCC), [1997] 2 SCR403 SCC at paras. 47 to 63, and 65 to 69. Those principles dictated an expansive approach, and AFSC argues that had the OIPC appliedthe proper principles of

interpretation, OIPC would have found that all requests and information relating to producers who applied forand received AFRP and AFRP II assistance in their personal capacity and in their own names were included within the definition ofpersonal information. 2. The Adjudicator's

interpretation and application of

Section 16 of the Act was unreasonable. [30] AFSC submits that the Adjudicator's

interpretation and application of s. 16 of the Act was also unreasonable. It acknowledgesthat the Adjudicator properly identified the three part test that must be satisfied in order for s. 16 to apply and that the Adjudicator'sproperly applied the first two parts of this analysis. However, AFSC submits that the Adjudicator unreasonably applied the third part ofthe test.

Part 3 of the test requires a party opposing disclosure of information to establish that the disclosure of the information couldreasonably be expected to bring about one of the outcomes set out in s. 16(1)(c). [31] In considering whether the requirements of s. 16(1)(

c) had been met, there are two issues that the adjudicator must consider: 1. Whether disclosure of the requested information could reasonably be expected to significantly harm the competitive position ofthe producers under subsection 16(1)(c)(i). 2.

Whether the disclosure of the requested information could reasonably be expected to result in similar information no longer beingsupplied to the AFSC by the producers under Section 16(1)(c)(ii). [32] Referring first to s. 16(1)(c)(i), AFSC submits that the Adjudicator's analysis and conclusion that there was insufficientevidence to conclude that the livestock industry is competitive was unreasonable. The Adjudicator had Affidavit evidence from AFSCthat the livestock industry was highly competitive. This evidence was unchallenged and uncontroverted.

AFSC argues that theAdjudicator's conclusion that its affidavit asserting the industry competitiveness was insufficient “in and of itself” to establish thecompetitive nature of the industry was unreasonable. In particular, it argues that the Adjudicator chose to ignore the only evidence on thepoint and did not demonstrate any logical reason why the evidence ought to be rejected. [33] AFSC further submits that the Adjudicator misses the more obvious point that potential harm is virtually a foregoneconclusion in a competitive marketplace.

It notes that if this information is releaseable, it is easy to determine these producers are insome form of financial difficulty or that their financial position is unfavourable. [34] The harm that the disclosure of this information would cause in a competitive marketplace ought to have been self-evident tothe Adjudicator based on common sense in the normal operations of a competitive market place.

It is common sense that where suppliersare aware that the producer with whom he is dealing is in financial trouble, the supplier's bargaining position is enhanced and the termsthat he will be willing to offer, particularly with respect to credit, will be less favourable to the producer.

Similarly a producer whoseinformation had been disclosed would have a harder time negotiating prices for his product or terms of payment from the purchaser asthe purchaser would know that the producer is in need of cash flow and therefore is vulnerable. [35] AFSC also suggests that the Adjudicator's conclusion that Section 16(1)(c)(ii) relating to information no longer beingsupplied to the AFSC by the producers was unreasonable. It submits that the Adjudicator's put improper emphasis on the evidence andmisrepresented AFSC's submissions.

AFSC also argues that the Adjudicator also failed to take into account a detriment that would faceproducers with the requested information were disclosed. V. Analysis

1. Was the Adjudicator's

interpretation and application of

Section 17 of the Act reasonable? [ 36 ] In its decision the Adjudicator first reviewed whether AFSC had authority to refuse access under Section 17(1) of the Act which states: 17(1) The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's personal privacy. [ 37 ] The Adjudicator concluded that

Section 17 did not apply to the names of Alberta Producers who were issued financial aid under the AFRP and AFRP II programs, and the amounts they were issued under those programs, because the information at issue was not personal information of a third party under

section 1 (

n) of the Act . [ 38 ] It is useful to reproduce the Adjudicator's detailed reasons for her decision. Starting at paragraph 12 of her decision: A. Does

Section 17 of the FOIP Act (personal information) apply to the records/information? [para 12]

Section 17 is a mandatory ( “ must ” )

section of the FOIP Act . If

Section 17 applies, a public body must refuse to disclose the information. There are two criteria that must be fulfilled under

Section 17 : (

a) the information must be personal information of a third party; and (

b) the disclosure of the personal information must be an unreasonable invasion of a third party's personal privacy. 1. Is the information personal information of a third party? [para 13] Personal information is defined under

section 1(

n) of the FOIP Act. The relevant portions of

section 1(

n) read: 1 In this Act , (n) “ personal information ” means recorded information about an identifiable individual, including (

i) the individual's name, home or business address or home or business telephone number, . . . (vii) information about the individual's educational, financial, employment or criminal history, including criminal records where a pardon has been given, [para 14]

Section 1(

n) defines the term “ personal information ” as including an individual's name and information regarding their financial history. However, after a review of the records, I find that the names of the Alberta Producers who were issued financial aid and the amounts issued to those producers under AFRP and AFRP II is not personal information.

[para 15] In Order F2010-009, the Adjudicator addressed a similar issue. In that order, the Adjudicator addressed whether the same public body, the Alberta Financial Services Corporation, disclosed the complainant's personal information in contravention of

Part 2 of the Act . In that inquiry, the Alberta Financial Services Corporation argued that the information it disclosed was business and not personal information. This information included information regarding the complainant's farming operation, financial numbers and information regarding the complainant's Canadian Agricultural Income Stabilization [CAIS] Program claims. [para 16] The Adjudicator in Order F2010-009 held that none of this information was about the Complainant in his personal or natural capacity.

The Adjudicator instead found that the information was business information about the Complainant's sole proprietorship or corporation. The Adjudicator also held that even if the information did indirectly relate to the Complainant as an individual, it did not have a personal dimension so as to render it “ personal information ” within the meaning of the FOIP Act . In Order F2010-009, the Adjudicator stated the following at paragraphs 15 and 16: On my review of all of the alleged disclosures by the Public Body, as just set out, I find that the Public Body did not disclose the Complainant's personal information.

Under

section 1(n), “ personal information ” is recorded information about an identifiable individual, which means a human being (Order 96-019 at para.67) acting in his or her natural capacity (Order F2002- 006 at para.92). The Public Body cites the folio wing passage: The use of the term “ individual ” in the Act makes it clear that the protection provided with respect to the privacy of personal information relates only to natural persons.

Had the legislature intended “ identifiable individual ” to include a sole proprietorship, partnership, unincorporated association or corporation, it could and would have used the appropriate language to make it clear.

The types of information enumerated under... the Act as “ personal information ” when read in their entirety, lend further support to [the] conclusion that the term “ personal information ” relates only to natural persons. [Order F2002-006 at para.92, citing Ontario Order P-16 (1988) at p.19.] The above makes a distinction between information about an identifiable individual in his or her natural or personal capacity and information about that individual's business, whether it happens to be a sole proprietorship, partnership, unincorporated association, corporation or any other type of entity.

Even where an individual is the only person connected to a business, so that it might be argued that information about the business is also information about the individual, it has been concluded that there is no “ personal information ” within the definition set out in the Act (Order F2002- 006 at paras. 90 and 93). [para 17] I accept the principles outlined in Order F2010-009 and find that the names of Alberta Producers who were issued financial aid under AFRP and AFRP II and the amounts that were issued is not personal information within the meaning of

section 1(

n) of the FOIP Act . I find that this information is business information about the Third Parties' businesses. I find that even if the information at issue does indirectly relate to Third Parties as individuals, there is insufficient evidence and/or information before me that it has a personal dimension so as to render it “ personal information ” . I find that this information is not about Alberta Producers in their natural or personal capacity but about the Alberta Producers ’ businesses whether they are a sole proprietorship, partnership, corporation or another type of business. As such, I find that

section 17 does not apply to that information. [ 39 ] The Adjudicator held that because she had decided the information at issue was not personal information of a third party, she did not need to address whether the disclosure of the information would be an unreasonable invasion of personal privacy under s. 17. [ 40 ] The Adjudicator's reasons demonstrate that both the process that was followed to decide the issues and the outcome itself were transparent. The adjudicator took into account the context of the evidence and the submissions of the parties.

The reasons are intelligible and contain more than adequate justification for the outcome. [ 41 ] The Adjudicator's analysis of the Act is detailed. She reviewed the definition of “ personal information ” in s. 1(n), which uses the phrase “ recorded information about an identifiable individual ” . She concluded, consistent with previous

interpretations of the Act, that the information was business information about the third party's businesses. She held the information was not about Alberta Producers in their natural personal capacity, but about their businesses whether they were sole proprietorships, corporations or other types of businesses.

[42] The Adjudicator's

interpretation of the Act and its application to the facts makes sense. It is consistent with previousdecisions of Adjudicators under the Act including one involving the Applicant AFSC, in very similar circumstances where AFSC arguedits disclosure of information about the farming operation including the identity of the owner and financial information, was not personalinformation under the Act. [43] Moreover, the Adjudicator's analysis is consistent with the purpose of the Act in ensuring access to information aboutgovernment operations and ensuring political accountability.

In Dagg the Supreme Court of Canada indicated (at para 61): The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps toensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, thatpoliticians and bureaucrats remain accountable to the citizenry. [44] Access to this information is important to facilitating democracy and accountability.

Thus, the Adjudicator's conclusions arewithin the range of acceptable outcomes, and the decision in relation to s. 17 of the Act was reasonable. 2. Was the Adjudicator's

interpretation and application of

Section 16 of the Act reasonable? [45] The Adjudicator next decided whether AFSC had authority to refuse access under s. 16(1) of the Act. The Adjudicator heldthat AFSC had not proven s. 16(1) of the Act applied to the information at issue. [46] The Adjudicator decided that although the conditions of subsections 16(1)(

a) and (

b) were met, the disclosure of theinformation could not reasonably be expected to bring about one of the outcomes in s. 16(1)(c). [47] The Adjudicator rejected AFSC's assertion that the disclosure of the information could reasonably be expected tosignificantly harm the competitive position of the Third Parties under s. 16(1)(c)(

i) or result in similar information no longer beingsupplied under s. 16(1)(c)(ii). She noted that in Order 96-013, the former Commissioner emphasized that harm under s. 16(1)(c)(

i) mustbe “significant” and that in order for a public body to meet the harm test there must be a probability of harm: “... [The] evidence must demonstrate a probability of harm from disclosure and not just a well-intentioned but unjustifiably cautiousapproach to the avoidance of any risk whatsoever because of the sensitivity of the matters at issue.” (Canada (InformationCommissioner) v. Canada (Prime Minister), (FC), [1992] F.C.J. No. 1054 (Fed T.D). [48] The former Commissioner further stated that the Public Body must provide evidence of the following to prove significantharm: (

i) the connection between disclosure of the specific information and the harm which is alleged; (ii) how the harm constitutes “damage” or “detriment”; and (iii) whether there is a reasonable expectation that the harm will occur. [49] The Adjudicator here concluded there was insufficient information and evidence before her to prove the existence ofsignificant harm, noting that the only evidence on the point was AFSC's affidavit, sworn by Ms. Merle Jacobsen, Vice President ofAFSC. She deposed that third party's names and aid amounts could reasonably be expected to significantly harm the competitiveposition of a third party under s. 16(1)(c)(

i) because the livestock industry is highly competitive, the livestock industry has faced severe

economic challenges stemming from a high Canadian dollar, low livestock prices and high fuel, feed and fertilizer costs, and because information regarding the financial aid could be valuable information to a competitor leading to significant harm to the Third Parties. [ 50 ] The Adjudicator held that these assertions in the affidavit “ in and of itself ” was insufficient. She further found that the information did not adequately address how a competitor could use information regarding a Third Party's receipt of financial aid to harm a Third Party's competitive position.

She also noted that although the Alberta Pork Producers stated that the disclosure of this information could cause “ a great deal of personal and business harm to the individuals named ” , this organization also did not provide sufficient further explanation or evidence in that regard. [ 51 ] The Adjudicator also rejected AFSC's assertion that a competitor could use information regarding the size of a Third Party's livestock operation to the third party's deteriment, finding there was insufficient information and evidence before her as to how this information could be valuable to a competitor.

She concluded that she was required to base her decision on the information and evidence before her, and that it was not enough for AFSC to simply state that this type of information is valuable to a competitor. She continued: Lastly, in coming to my conclusion under section 16(1) (c)(i), I took into account that the information relates to the financial aid issued in the years 2007 and 2008.

Although I accept the Public Body's argument that this information may provide some information to a competitor regarding a Third Party's operation in 2011, in coming to my decision, I was also mindful that, the value and relevance of this information will diminish as the information ages. [ 52 ] In regards to s. 16(1) (c )(iii) she noted that in Order 96-018, the former Commissioner held that in order to fulfill section 16(1) (c)(ii), the disclosure must reasonably be expected to result in the Third Party or anyone else no longer supplying information to the Public Body, and he emphasized that the continued supply of this information must be in the public interest and not just in the interest of one of the parties. [ 53 ] AFSC argued that because it specifically told producers that the information supplied to the AFRP and AFRP II programs would be protected and only used and shared for specific purposes, if it disclosed the information at issue, the Third Parties would consider such a disclosure as a breach of a “ relationship of trust ” and, as a result, they would be less willing to provide similar information to the Public Body in the future.

The Adjudicator held that requirements of section 16(1) (c)(ii) were not fulfilled because AFSC's evidence was only that the third parties would be less willing to provide the information in this inquiry, not that the information would not be provided.

She concluded that she could not simply assume that the Third Parties or anyone else would no longer supply information to the Public Body. [ 54 ] She went on to note: The Public Body also states that Third Parties would be less willing to provide similar information particularly in situations where there is no direct incentive to provide the information, but the Public Body nevertheless requires the information in order to regulate the industry.

The Public Body states that in order to effectively regulate the industry, it is essential that the Third Parties voluntarily provide information regarding their operations. The Public Body did not, however, provide sufficient information and evidence to support its position. The Public Body did not sufficiently specify what type of information the Alberta Government requires from Third Parties to regulate the industry nor did it provide sufficient information and evidence as to when and how such a situation might arise.

The Public Body also did not provide sufficient information and evidence that Third Parties would not voluntarily provide this information. Lastly, I note that the Public Body did not specify whether the Third Parties are required to provide any of this information by statute. If the Third Parties were required to provide information by statute, this information would not fall under section 16(1)(c)(ii) (see Order 2001- 026). I note that the Applicant, in support of its argument, also referred to the disclosure of the payments which were made under the BSE Compensation program.

The Applicant states that the information disclosed regarding the BSE Compensation program payments is similar to the information at issue in this inquiry. The Applicant states that the publication of the payments under the BSE Compensation program shows that either the livestock producers consented to the disclosure (which would suggest that they were not concerned about the disclosure of this type of information) or, if they did not consent, the disclosure did not deter those participants from applying under AFRP and AFRP II.

I do not find that the disclosure of the payments under the BSE Compensation program is highly relevant to this inquiry. This prior disclosure was made under a different program and under different circumstances and, arguably, to some different producers. I do not find that those prior disclosures under that program are determinative in this inquiry. [ 55 ] She concluded that that although the information at issue fulfilled sections 16(1)(

a) and 16(1)(b), the information did not

meet the requirements under s. 16(1)(c). Therefore, the information could not be withheld under s. 16(1), and ordered AFSC to disclose this information to the Applicant. [ 56 ] Under s. 71(1) of the Act the burden is on the head of public body (AFSC) to prove that the Applicant had no right of access to the records. The Adjudicator held that the AFSC did not meet the evidentiary burden necessary to establish the requirements of s. 16(1) (c)(

i) and (ii). [ 57 ] AFSC suggests that its evidence, the Jacobsen affidavit, was sufficient evidence of “ significant harm ” , pointing to the fact that the affidavit was unchallenged. In it's written brief AFSC also suggests that potential harm is a “ foregone conclusion ” and “ self evident ” based “ on common sense and the normal operations of a competitive market place ” .

AFSC did not provide any evidence of “ harm ” but suggests that the adjudicator could or should have speculated as to potential harm. [ 58 ] In Qualicare Health Services Corporation v Alberta (Office of the Information and Privacy Commissioner) , 2006 ABQB 515 the Court considered the issues of the burden of proof, evidence and the “ harm ” . Madam Justice Topolniski's comments in that case are applicable to this case (at paras. 45, 5960, and 63): Here, the Privacy Commissioner described the “ harm test ” for a document to be excepted from access under sections 20(i)(

a) and 25(i) (c), referring to previous Orders issued by his Office. The challenge at bar is twofold: what is the burden of proof, a question of law, and whether the evidence is sufficient to meet the burden, a question of mixed fact and law. The Privacy Commissioner's finding that there was insufficient evidence or acceptable argument to meet each of the elements of the applicable tests. Assigning weight to evidence is a factual conclusion that attracts a deferential standard of review.33 Determining the appropriate burden is a question of law, but one deep within the expertise of the Commissioner.

Accordingly, the Privacy Commissioner's decision should be afforded deference. … In my view, the Privacy Commissioner's requirement for an evidentiary foundation withstands a somewhat probing examination.

As discussed, the scope and intention of FOIPP presumes access to information, subject only to limited exceptions, and the responsibility for establishing an exception rests with the party resisting access to the information. … The requirement of some cogent evidence permits the Privacy Commissioner to discharge his duty of balancing competing interests and policy considerations by rationally assessing the likelihood of reasonable expectations of harm.

To suggest that requiring some evidence is unreasonable means that access to information could be denied based solely on hypothetical possibilities, and that only the most preposterous theoretical risks could be rejected by the Commissioner. … In Toronto Star v. Ontario , the Supreme Court of Canada ruled that speculative risks are insufficient to justify a denial of access to court documents and hearings: Even then, however, a party seeking to limit public access to legal proceedings must rely on more than a generalized assertion that publicity could compromise investigative efficacy.

If such a generalized assertion were sufficient to support a sealing order, the presumption would favour secrecy rather than openness, a plainly unacceptable result. [ 59 ] I find that AFSC did not provide any evidence of “ harm ” , but rather expected that the adjudicator could, or should, have speculated as to potential harm. Generalized assertions as to harm are not evidence. The Adjudicator's decision is entitled to deference. ACFC did not meet the burden of proof under s. 71(1) of the Act .

[ 60 ] In regards to s.16(1)(1)(c)(ii) the Adjudicator made a number of findings,including at para 59: ...The Public Body did not, however, provide sufficient information and evidence to support its position. The Public Body did not sufficiently specify what type of information the Alberta Government requires from Third Parties to regulate the industry nor did it provide sufficient information and evidence as to when and how such a situation might arise. The Public Body also did not provide sufficient information and evidence that Third Parties would not voluntarily provide this information.

Lastly, I note that the Public Body did not specify whether the Third Parties are required to provide any of this information by statute. If the Third Parties were required to provide information by statute, this information would not fall under section 16(1)(c)(ii) (see Order 2001-026). [ 61 ] Again there was no evidence of what “ similar information ” would no longer be supplied as required by 16(1)(1)(c)(ii). AFSC did meet the burden of proof under s. 71(1) of the Act . [ 62 ] It is not this Court's role on judicial review to re-assess the evidence or its sufficiency.

If there is a reasonable basis upon which the Adjudicator reached her conclusions and findings of fact, the decision will be found to be reasonable. As a result I find the Adjudicator's

interpretation and application of s. 16 of the Act to be reasonable. VI.

Summary [ 63 ] In

summary I find that the Adjudicator's findings were reasonable and the application for Judicial Review is dismissed. Heard on the 9 th day of May, 2012. Dated at the City of Edmonton, Alberta this 15 th day of June, 2012. J.J. Gill J.C.Q.B.A. Appearances: K. Colleen Verville and Adrian Elmslie

Fraser Milner Casgrain LLP for the Applicant Jillian Harker Office of the Information and Privacy Commissioner for the Respondent