Dispute Resolution Reference Guide

Confidentiality: Access to Information Act and Privacy Act

Confidentiality is one of the most often-cited advantages of proceeding by way of arbitration, mini-trial, mediation, negotiation or any of the other non-litigious dispute resolution processes (often called Alternative Dispute Resolution or ADR). Moreover, confidentiality clauses are regularly included in ADR agreements. However, when the federal government is a party, the Access to Information Act (ATIA) and Privacy Act (PA) must be examined to determine the extent to which they restrict disclosure and withholding of information.

These statutes are laws of general application and public order and parties cannot contract out of them. Confidentiality clauses that seek to waive the application of these statutes will likely not be upheld by the courts.

As a general rule, the basis for refusing to release confidential information should be the exemptions contained in the ATIA and PA themselves rather than a confidentiality clause contained in an ADR agreement.

To be accessible under the ATIA, information must be a “record under the control of a government institution”. “Record” is broadly defined to include, among other things, any correspondence, memorandum, microform, sound recording and any other documentary material or copy thereof. “Government institution” is defined to include those departments and bodies listed in Schedule I of the ATIA, which include all government departments and a number of institutions and agencies, including the Bank of Canada, the Canadian International Trade Tribunal, the Canadian Transportation Agency and the Public Service Commission. The term “control” is not defined but caselaw suggests that any material provided to the federal government during the course of proceedings, whether confidentially or not, will be considered to be under the control of government. Information that is neither kept in records nor is under the control of a government institution will likely not be subject to the ATIA.

Certain contracts may provide that a neutral, such as an arbitrator or a mediator, is an independent contractor and that the government has no right to any notes this person may wish to make during such proceedings or in preparation for it. The Privacy Commissioner has expressed the view that contractors in these circumstances may not be independent, but instead would be agents of the Crown and therefore the PA (and ATIA) would apply. The Commissioner also believes that withholding information from affected parties could violate principles of natural justice and due process.

Clauses which expressly provide a Department with the right to obtain all information in the possession of the contractor relating to activities performed under the contract would strongly suggest that any such information is “under the control”of government and therefore accessible, subject to any exemptions contained in the ATIA. Similarly, notes taken by a departmental manager are likely to fall within the job function of a manager and would therefore be subject to the Acts on the basis of being under the control of government. In any event, if the Department has physical possession of such notes, the notes are likely “under the control”of the institution and subject to access requests.

With respect to a written settlement agreement or records in relation to such an agreement, an important concept is that of “discretionary benefit of a financial nature”. The Privacy Act specifically excludes information relating to such a benefit, including the name of the individual and the exact nature of the benefit, from the definition of “personal information” for the purposes of both Acts, thereby removing them from the protection afforded personal information and rendering them accessible. Generally speaking, a settlement payment may be a discretionary benefit of a financial nature if it is not paid pursuant to a court order or legislative obligation or not done pursuant to objective criteria which bind the decision-maker to give the benefit to all those who meet the criteria. However, such a determination will depend on the facts in each situation.

Counsel should be aware that there have been cases in which benefits have been disclosed when they did not include cash payments but simply had a financial aspect to them.

The issue of whether communications during the course of a dispute resolution process in which confidentiality promises between the parties have been made is analogous to “without prejudice” communications commonly found in litigation cases is one that has yet to be definitively resolved. Refusal to release may therefore have to be made on the basis of other exemptions in these Acts.

Counsel should also be aware of the restrictions placed upon the release of personal information imposed by the PA. Absent the consent of the concerned individual, disclosure of such information can only be done when authorized by this Act. Further, counsel must be careful about disclosing during the course of arbitration proceedings any information which it would normally exempt if there was a request pursuant to the ATIA. Counsel should also be careful regarding information that would be captured by mandatory exemptions, including commercial information or considerations relating to Cabinet confidences.

In all cases where the application of either Act is not clear, the Information Law and Privacy Section of the Department of Justice should be consulted.