T-1622-86
Montana Band of Indians (Applicant)
v.
Minister of Indian and Northern Affairs
(Respondent)
and
Wendy Smith (Party Intervenant)
INDEXED AS: MONTANA BAND OF INDIANS V. CANADA (MIN-
ISTER OF INDIAN AND NORTHERN AFFAIRS)
Trial Division, Jerome A.C.J.—Edmonton, Janu-
ary 4 and 5; Ottawa, April 15, 1988.
Access to information — Indian Bands seeking to prevent
disclosure under Act of financial statements provided to gov
ernment under Indian Act — Department decision to release
information, with exception of personal information —
Application allowed — Departmental records dealing with
Band funds confidential and have been treated confidentially
within meaning of s. 20(1)(b) — Information dealing with
public funds are recorded in other department's records under
which transfers made — No reason to sever minimal informa
tion about public funds from confidential records in Depart
ment of Indian and Northern Affairs, when information could
be obtained from other departments.
Native peoples — Access to information — Confidential
financial statements submitted under Indian Act to Depart
ment of Indian and Northern Affairs should not be released
Information about public funds received through grants and
contribution agreements should be sought from departments
responsible for transfers.
This is one of seven applications under section 44 of the
Access to Information Act in which Indian Bands seek review
of the decision of the Department of Indian and Northern
Affairs to release their audited financial statements provided to
the respondent under the Indian Act. The Band argued that,
since the documents were obtained in the context of a fiduciary
relationship with the Crown, they are not under the govern
ment's control and that, if they are covered by the Act, they are
exempt under sections 19 and 20.
Held, the application should be allowed.
Because of the reporting requirements, the financial state
ments are under the control of the government. To limit the
definition of "control" to exclude them would set a dangerous
precedent. The applicants' concerns have been dealt with by
Parliament in the exemption sections of the Act.
The exemption for personal information, contained in subsec
tion 19(1), applies where individuals are named or identified in
the statements. The exemption does not apply to the statements
overall, however, since the records do not indicate how an
individual's net worth can be calculated from the overall band
figures. Even if such information could be extracted from the
statements, to protect them on that basis would be an unwar
ranted extension of section 19.
The information should be protected, however, under para
graph 20(1)(b), as it is confidential information supplied to a
government institution by a third party who treated it consist
ently in a confidential manner. The only people likely to have
access to the information are the members of the Bands, to
whom it belongs. The number of people to whom the informa
tion is available is not determinative of its confidentiality, if
only those who have a beneficial interest in the information
have access to it. Posting on the Bands' reserves does not affect
the confidential nature of the information, as the reserves are
the private property of the Band members. The information
was treated consistently in a confidential manner by the Band.
Members could review the financial statements in the Band's
office, but could not take them away. There was no evidence
that the information was available to anyone beyond the Band
and its professional advisors. Consequently, the capital and
revenue accounts dealing with Band funds are exempt from
disclosure under paragraph 20(1)(b).
The applicants conceded that grants and contribution monies
from public funds should not be considered confidential. These
are recorded in other departmental documents outlining the
programs under which the funds were transferred and access
should be sought from those more complete records. There is no
reason to sever the minimal information about these monies
from the confidential financial statements. The information is
not reasonably severable under section 25.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, ss. 2, 4(1), 19(1), 20(1)(b),(c), 28, 44.
Freedom of Information Act, 5 U.S.C. § 552 (1970).
Indian Act, R.S.C. 1970, c. I-6.
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II,
s. 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
Piller Sausages & Delicatessens Ltd. v. Canada (Minis-
ter of Agriculture), [1988] 1 F.C. 446 (T.D.).
DISTINGUISHED:
DMR & Associates v. Minister of Supply and Services
(1984), 11 C.P.R. (3d) 87 (F.C.T.D.).
CONSIDERED:
Kruger v. The Queen, [1986] 1 F.C. 3; (1985), 17 D.L.R.
(4th) 591 (C.A.); Sharyland Water Supply Corp. v.
Block, 755 F.2d 397 (5th Cir., 1985); National Parks
and Conservation Ass'n v. Morton, 498 F.2d 765 (D.C.
Cir. 1974).
REFERRED TO:
Maislin Industries Limited v. Minister for Industry,
Trade and Commerce, [1984] 1 F.C. 939; 10 D.L.R.
(4th) 417 (T.D.).
AUTHORS CITED
Finn, Paul D. Fiduciary Obligations, Sydney: The Law
Book Company Limited, 1977.
COUNSEL:
James B. Chadwick, Q.C. for applicant.
Ingrid C. Hutton, Q.C. for respondent.
Everett L. Bunnell, Q.C. for intervenant.
SOLICITORS:
Burke-Robertson, Chadwick & Ritchie,
Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
Parlee, McLaws, Calgary, for intervenant.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This is one of seven applica
tions under section 44 of the Access to Informa
tion Act [S.C. 1980-81-82-83, c. 111, Schedule I]
which came on for hearing before me on January 4
and 5, 1988, in Edmonton, Alberta. While the
specific facts and arguments in each application
vary slightly, the principles involved are the same.
These reasons, with minor variations, will also
apply, therefore, to the Federal Court files num
bered T-1623-86, T-1636-86, T-1658-86,
T-1637-86, T-1649-86 and T-1650-86.
In these applications, seven Indian Bands seek to
prevent disclosure under the Access to Information
Act of their audited financial statements provided
to the respondent under the Indian Act [R.S.C.
1970, c. I-6] and related regulations. The respon
dent received a request dated April 15, 1986, from
Wendy Smith, a reporter with the Calgary Herald
and the party intervenant herein, for access to all
audits and financial statements of the applicant
Bands "since 1975". The request was later limited
to the financial statements for the fiscal years
1979-1980 to 1984-1985, inclusive.
By letter dated May 28, 1986, the applicants
were informed by André Faulkner, head of the
Access to Information and Privacy Secretariat of
the respondent Department, that the request had
been received. This letter, which constitutes the
third party notice required by section 28 of the
Access to Information Act, sets out a list of the
financial statements pertaining to each Band
which would be disclosed if the request was grant
ed. The letter continues:
The Department have [sic] reason to believe that these docu
ments might contain financial information as described in
paragraph 20(1)(b) of the Act (copy attached); however, we do
not have sufficient information in our files to substantiate this.
Thus as required by the Access to Information Act, we intend
to disclose these documents on June 27, 1986.
You have 20 days from the mailing date of this notice to make
written representation to the undersigned as to why any por
tions of the financial information that does not relate to the
expenditure of government funds should not be disclosed. If you
have not responded by the expiry of the 20 day period, the
record will be disclosed on the date set out above. Any
representations you make will result in a review of our decision
to disclose the record.
Copies of section 20 (the exemption for third party informa
tion) and 28 (the provision dealing with notification of third
parties) of the Access to Information Act are enclosed for your
convenience.
Should you have any questions, please do not hesitate to
contact Ghislain St-Jacques or myself at (819) 997-0307.
The Montana Band responded on June 9, 1986,
by objecting to the release of any of the financial
statements. They gave three reasons: that the
information is confidential, that disclosure would
prejudice their competitive position and result in
material financial loss and that the federal govern
ment, because of its trust obligations to Indian
Bands, is obligated to protect their unique and
separate position in Canadian society. Release of
the information, it was alleged, would constitute a
breach of trust.
By letter dated June 27, 1986, the applicant was
informed that it was the decision of the Depart
ment to release the financial information request
ed, with the exception of any personal information
contained in the statements, which would be
severed and withheld. These applications were
then filed under section 44 of the Act for a review
of the decision to disclose.
It is important to understand how the financial
statements at issue here came into the hands of the
respondent. The evidence reveals that they record
the Bands' holdings of three different sorts of
funds: the Bands' capital moneys, which consist
largely of royalties paid for oil and gas obtained on
their lands; the Bands' revenue moneys, in which
are included the interest on the capital accounts;
and grants and contributions to the Bands made by
the Department out of federal public funds. All
three of these sources of funds are subject to
reporting requirements by operation of the Indian
Act and other related statutes and regulations. The
pleadings set out the following outline of those
requirements:
Written Submission of the Respondent:
17. By definition, "Indian moneys" means "all moneys collect
ed, received or held by Her Majesty for the use and benefit of
Indians or bands" (Section 2 Indian Act).
18. Section 61(1) of the Indian Act provides that "Indian
moneys shall be expended only for the benefit of the Indians or
bands for whose use and benefit in common the moneys are
received or held ... and ... the Governor-in-Council may
determine whether any purpose for which Indian moneys are
used or are to be used is for the use and benefit of the band."
19. Section 62 provides that "all Indian moneys derived from
the sale of surrendered lands or capital assets of a band shall be
deemed to be capital moneys of the band, and all Indian
moneys other than capital moneys shall be deemed to be
revenue moneys of the band."
Factum of the Applicant:
5. Pursuant to the Indian Oil & Gas Act, royalties obtained
from oil and gas development on Indian lands are paid to the
Crown in trust for the Indian Bands concerned.
Indian Oil and Gas Act
S.C. 1974-75, c. 15, sec. 5
(in force April 22, 1977)
6. The royalties thus obtained are treated by the Department
of Indian and Northern Affairs as capital assets (as opposed to
revenue generated from the use of land) and as such the funds
from these royalties are placed in the individual Band's Capital
Fund. The classsification of oil and gas royalties as a capital
asset is a matter of the Department's discretion.
Cross-Examination of Gerald Throndson,
page 5, line 1 to page 6, line 7,
page 10, lines 12-18
Affidavit of John Vleeming, para. 3-5
Written Submission of the Respondent:
20. Section 64 of the [Indian] Act sets out the specific pur
poses for which the Minister, with the consent of the Council of
the Band may authorize and direct the expenditure of capital
moneys of the Band.
21. With respect to the revenue moneys of the Applicant Band,
Section 69 of the Indian Act is operative: the Governor-in-
Council has, by order, permitted the Band to "control, manage,
and expend in whole or in part its revenue moneys". This was
done by means of the Indian Bands Revenue Moneys
Regulations.
23. The Indian Bands Revenue Moneys Regulations provide,
inter alia, that the Band shall engage an auditor to audit its
self-administered revenue account, and shall cause such report
to "be posted in conspicuous places on the Band Reserve for
examination by members of the Band; and be supplied to the
Minister of Indian Affairs and Northern Development." The
Band's financial statements which are in issue in this case were
provided pursuant to this requirement of Section 8(2)(b).
24. The interest earned on the Band's capital moneys is treat
ed, by virtue of Section 62 of the Act as revenue money. The
capital money as well as this revenue money is held in the
Consolidated Revenue Fund until it is paid out.
25. The Affidavit of Gerald Throndson, dated December 22,
1986, establishes that capital moneys, as defined by Section 62
of the Indian Act are held in the Consolidated Revenue Fund of
Canada to the credit of a specific band (para. 3), that the
Minister through his officials required the band to provide him
with a Band Council Resolution requesting and consenting to
release of the capital moneys, and an undertaking that an
audited financial statement of the funds would be provided,
(par. 5-9**) and that the band provided such Band Council
Resolution for each of the year [sic] 1979-85, inclusive.
29. With respect to "contribution moneys", i.e., moneys
received pursuant to an appropriation by Parliament, which are
also included in the financial statements of the Band, Section
31 of the Financial Administration Act, and Treasury Board
Minutes 763729 as amended by Treasury Board Minutes
793872 (Exhibits "A" and "B" to the Affidavit of Heather
Peden), establish accounting requirements.
Written Argument of the Party Intervenant:
The terms of the Contribution Agreements with the Applicant
Band are that proper financial and accounting records be kept,
that department officials have the right to access those records
at all reasonable times and that the Band will provide audited
financial reports. (Peden Transcripts, page 5, lines 7-23.)
The information is used to assure the Department of Indian
Affairs and Northern Development, and Parliament generally,
that the public funds are expended in accordance with the
program restrictions. (Peden Transcripts, page 11, lines 21-23,
page 16, lines 10-24.)
Some important concessions have been made on
both sides with respect to these applications. The
respondent, as noted above, admits that personal
information contained in the statements should not
be disclosed. Department officials have indicated
on the copies of the reports filed which entries they
believe may fall within that classification. For
their part, barring some procedural arguments
which have been raised about the decision to dis
close, the applicants are willing to admit that the
information. concerning contribution moneys,
which are public funds, are not subject to the
exemptions from disclosure pleaded here and may
be released. While I am grateful to counsel for
narrowing the issues by means of these conces
sions, I will have something to say later about their
effect on whether, and to what extent, these
records may be disclosed.
The arguments on behalf of the Montana Band
fall into two basic categories: first, that since these
documents were obtained in the context of a
fiduciary relationship, they are not under the gov
ernment's control and are not subject to the Access
to Information Act at all. Second, if the state
ments are covered by the Act, they are exempt
from disclosure by the operation of sections 19 and
20. This applicant made the additional submission
that the Department's classification of their oil
and gas royalties as capital, as opposed to revenue,
constituted a breach of trust. I see no relevance in
that submission to the issue before me here, which
is whether the Band's financial statements, what
ever classifications they record, must be disclosed
under the Act. These reasons, therefore, will be
confined to the applicant's two main arguments..
The statutory provisions which govern the scope
of the Access to Information Act are section 2 and
subsection 4(1) of the Act:
2. (1) The purpose of this Act is to extend the present laws
of Canada to provide a right of access to information in records
under the control of a government institution in accordance
with the principles that government information should be
available to the public, that necessary exceptions to the right of
access should be limited and specific and that decisions on the
disclosure of government information should be reviewed
independently of government.
(2) This Act is intended to complement and not replace
existing procedures for access to government information and is
not intended to limit in any way access to the type of govern
ment information that is normally available to the general
public.
4. (1) Subject to this Act, but notwithstanding any other
Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immi
gration Act, 1976,
has a right to and shall, on request, be given access to any
record under the control of a government institution.
The applicants submit, and it is not disputed by
the respondent, that, when dealing with Indian
property on behalf of the Band, the Crown is
acting as a fiduciary in the context of a trust
relationship. Therefore, the financial information
provided by the Bands to the Crown in order to
obtain "Indian Moneys" derived from their prop
erty is received by the Crown in its capacity of
fiduciary/trustee. The Montana Band argues fur
ther that the release by the Crown of the financial
information would be detrimental to the Band's
business interests and contrary to its wishes. It
would therefore, it is submitted, constitute a
breach of the Crown's duty of loyalty and confi
dentiality to the Band to release the information.
The decision in Kruger v. The Queen, [1986] 1
F.C. 3, at page 17; (1985), 17 D.L.R. (4th) 591, at
pages 607-608 (C.A.) is cited for the proposition
that "the federal Crown cannot default on its
fiduciary obligation to the Indians through a plea
of competing considerations ...."
In his oral submissions, counsel for the Band
expanded this position to argue that, since the
information is governed by the trust relationship, it
is not really "under the control" of a government
institution. The documents may be in the Depart
ment's possession, but they are not under govern
ment control unless government direction can be
exercised over them. It is argued that such direc
tion is not possible given the limited purpose for
which they were provided and the fiduciary nature
of the relationship between the parties.
Some of the other applicants put the case more
strongly. It was argued that the financial state
ments could not be considered "government infor
mation" at all as they record the Bands' own
revenues and capital. It was alleged that in the
phrase "government information", the word "gov-
ernment" has a proprietary connotation. It follows
that the government may only grant access to
records with which it has the legal authority to
deal in its sole discretion. In this case, it is submit
ted, the information, like the funds it describes,
belongs to the Bands, not the government. It there
fore cannot be said to be "government informa
tion".
The respondent replies that any record in the
possession of a government institution is "under its
control" within the meaning of subsection 4(1)
because it is within the institution's power to pro
duce. A narrow construction of the term, it is
alleged, would be contrary to the spirit and intent
of the Act, which are to foster disclosure and
access to information. That Parliament intended a
broad definition of the word "control" can be seen
from the care it took to exempt from disclosure
those records under government control in which a
specific strong interest lies against disclosure. In
the words of the respondent's written submissions:
The exemption of third party information, as set out in S. 20,
addresses the concerns pertaining to information provided to
the government in a trust relationship, strikes the balance
between the interests in disclosure and "privacy" in the larger
sense and sets the exact criteria to be applied in the decision-
making process.
It is further submitted that, since the records in
question were required by the Department and
submitted by the Band to comply with various
regulatory and statutory "government" require
ments, they should be considered "government
information".
I find I must agree with the respondent on this
issue. While the Bands understandably find it
repugnant that their private records could be made
the subject of an access to information request, the
fact remains that, because of the reporting require
ments, copies of their financial statements are
under government control. To limit the definition
of "control" in order to exclude them would be to
set a dangerous precedent with respect to the
interpretation of this relatively new Act. Fortu
nately, as the respondent points out, the appli
cants' concerns have been dealt with by Parlia
ment in the exemption sections of the Act.
That brings us to the applicant's second major
argument, that these records are exempt under
subsections 19(1) and 20(1) of the Act. Those
subsections read as follows:
19. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in sec
tion 3 of the Privacy Act.
20. (1) Subject to this section, the head of a government
institution shall refuse to disclose any record requested under
this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information
that is confidential information supplied to a government
institution by a third party and is treated consistently in a
confidential manner by the third party;
(c) information the disclosure of which could reasonably be
expected to result in material financial loss or gain to, or
could reasonably be expected to prejudice the competitive
position of, a third party; or
(d) information the disclosure of which could reasonably be
expected to interfere with contractual or other negotiations
of a third party.
Specifically, the applicant argues that its financial
statements constitute personal information within
the meaning of subsection 19(1), confidential
information within the meaning of paragraph
20(1)(b) and information the disclosure of which
could reasonably result in material financial loss or
competitive prejudice within the meaning of para
graph 20(1)(c).
Personal information is defined in section 3 of
the Privacy Act [S.C. 1980-81-82-83, c. 111,
Schedule II] as "information about an identifiable
individual". The applicant alleges that, although
no individuals are named or otherwise identified in
most of these statements (where such information
does appear, the respondent has conceded it may
be withheld), since the number of members of each
Band is known, a simple per capita division of the
asset information in the statements would reveal
the entitlement of each individual member. It is
alleged that for this reason, all the statements
must be considered personal information.
I reject this argument. First, on the facts of this
case, I am not satisfied that information about
identifiable individuals can be obtained from the
general data in the financial statements. The state
ments themselves do not provide for the calcula
tion suggested by the applicants. Nothing in these
records indicates how an individual member's net
worth is connected to the overall Band figures.
Second, even if such information could be extract
ed from the statements, to protect them from
disclosure on that basis would be an unwarranted
extension of section 19. While I do not rule out the
possibility that information about small groups
may, in some cases, constitute personal informa
tion, the mere fact that one can divide the group's
assets by the number of its members does not
support such a finding. To hold otherwise would be
to distort the intention of the personal information
exemption.
Nor do I consider the argument under para
graph 20(1) (c) to be a particularly strong one.
Indeed, counsel for the applicants conceded at the
hearing that the evidence of financial or competi
tive harm in this case falls well short of the
standard I applied in Piller Sausages & Delica
tessens Ltd. v. Canada (Minister of Agriculture),
[1988] 1 F.C. 446 (T.D.). Consequently, the docu
ments cannot be exempted from disclosure on this
basis.
The core of the applicants' case, and their
strongest argument, is that this information is
"financial ... information that is confidential
information supplied to a government institution
by a third party and is treated consistently in a
confidential manner by the third party". It will be
seen that this test, as set out in paragraph
20(1)(b), contains four criteria:
1) The records must be (in this case) financial
information. That is conceded by the
respondent here, quite properly, in my
opinion.
2) The information must be "confidential" by
some objective standard. (See Maislin
Industries Limited v. Minister for Industry,
Trade and Commerce, [1984] 1 F.C. 939; 10
D.L.R. (4th) 417 (T.D.)). That factor
remains very much in dispute.
3) The information must be supplied to a gov
ernment institution by a third party. The
respondent attempted to argue that, because
the balances on the applicants' funds held in
trust had been provided to the Bands by the
Department, that information could not be
considered as having been "supplied" by the
Bands. There is no question, however, that
the financial statements, in their current
form, were prepared by the Bands' account
ants for the Bands' own use and provided to
the government in fulfillment of the statu
tory reporting requirements. I have no doubt,
therefore, that this material was "supplied"
by the third parties.
4) The information must have been treated con
sistently in a confidential manner by the
third party. This, together with the confiden
tial nature of the information itself, forms
the basis of the dispute in this case.
The applicants argue that, by any objective test,
this information is confidential in nature. Their
reasons can be summarized follows:
1) The Bands have not released the information
to the public and the public does not have
any proprietary interest in the information.
2) The reports were prepared by the Bands, for
the Bands, at the expense of the Bands and
relate [to the extent of this dispute] solely to
the Band's own funds.
3) The information was conveyed to the govern
ment within the context of the fiduciary/
trust relationship which exists between the
Crown and the Indians and as such was
"communicated in circumstances in which
an obligation of confidence arises".
4) The statements were provided to the Depart
ment for the limited purpose of allowing
DIA to carry out its fiduciary tasks of moni
toring and supervising Band expenditures. In
these circumstances there exists a private
law duty of confidence, either by virtue of
the fiduciary relationship or implied from
the nature of the information and the cir
cumstances of its communication to DIA:
Finn, Paul D. Fiduciary Obligations,
Sydney: The Law Book Company Limited,
1977, Chap. 19.
The respondent does not directly dispute any of
these assertions, but makes the following submis
sions:
1) The financial statements constitute not only
an accounting by the Band to the Minister
but also an accounting by the Band Council
to the Band members for moneys which the
Council held and administered by way of a
trust for all Band members in common.
Because it is an accounting to a large group,
the information is thereby public in nature.
2) Each member of the Band is entitled to see
the records. The difficult question raised in
this case is whether the fact that the state
ments must be by law and are open to
inspection by [here, 471] members of the
Band deprives them of their "confidential"
nature. It is submitted that it does.
3) By virtue of section 69 of the Indian Act, and
the provisions of section 8 of the Indian
Bands Revenue Moneys Regulations
[C.R.C., c. 953], the Bands were required to
engage an auditor to do an annual audit of
its revenue moneys, to post such annual
audit report "in conspicuous places on the
Band Reserve for examination by the mem
bers of the Band" and to supply a copy to
the Minister of Indian Affairs and Northern
Development. It is submitted that this regu
lation requires the information to be made
public. Therefore, although none of the
Bands actually posted their annual reports,
the information which should have been con
tained in and published by such posting is
not "confidential".
4) Some of the expenditures recorded in the
financial statements were for municipal-type
operations. Because of the public interest in
community expenditures, this information
cannot have a confidential nature.
Most of these arguments boil down to the simple
assertion that, because these statements are open
to all Band members, they cannot be considered
confidential. In support of this proposition the
respondent cites two decisions: DMR & Associates
v. Minister of Supply and Services (1984), 11
C.P.R. (3d) 87 (F.C.T.D.) and Sharyland Water
Supply Corp. v. Block, 755 F.2d 397 (5th Cir.,
1985). However, I do not believe that either case
can be successfully used for that purpose. In DMR
the access request was for the winning proposal
resulting from a tender issued by the respondent.
The company which had submitted the proposal
objected to its release on a number of grounds,
among them the confidentiality of the information.
I concluded that the information was not exempt
from disclosure as it would be made available to
the applicant's competitors during the bidding pro
cess on the next stage of the project. That is not
the situation here. The only people who are ever
likely to have access to this information are the
people it belongs to—the members of the applicant
Bands—and those who owe them a duty of confi
dence, for example, their accountants. The
respondent has not demonstrated even a reason
able likelihood that persons whose interests differ
from those of the Band will be allowed to review
this material.
The second case, Sharyland Water Supply, is
certainly based on a more analogous fact situation,
but it has the disadvantage of having been decided
under the American Freedom of Information Act
[5 U.S.C. § 552 (1970)] whose test for confiden
tiality differs from that of the Canadian statute. In
that case a non-profit water supply company
sought to enjoin the Farmers Home Administra
tion from disclosing audit reports filed with the
FHA pursuant to an application for a loan. The
applicant alleged that the reports were covered by
the fourth exemption to the Freedom of Informa
tion Act which protects "trade secrets and com
mercial or financial information obtained from a
person and privileged or confidential". The Court
followed the definition of confidentiality set out in
National Parks and Conservation Ass'n v.
Morton, 498 F.2d 765 (D.C. Cir. 1974) at page
770: information is confidential only if its disclo
sure "is likely (1) to impair the government's
ability to obtain necessary information in the
future; or (2) to cause substantial harm to the
competitive position of the person from whom the
information was obtained". On the basis of that
definition, the Court went on to find that the
information at issue was not confidential. Its rea
sons included the insignificant competition the
company faced and the speculative testimony con
cerning potential harm resulting from disclosure.
In addition, they found at page 399:
Under Texas law, Sharyland must make the audit reports
available to its 5200 members. Texas law does not forbid
disclosure by these members. We see no reason to hold errone
ous a conclusion that what five thousand people may obtain
without even a pledge of nondisclosure is not confidential.
In the Piller Sausages decision I discussed the
problem with relying on American case law for
purposes of interpreting the Canadian statute, par
ticularly with respect to the exemptions at issue
here. As pointed out in Piller, the National Parks
interpretation combines the tests set out in para
graphs 20(1)(b) and (c) of the Canadian Act by
combining a "class" test and an "inquiry" test in
one exemption. I concluded, therefore, that while
the American jurisprudence is helpful in seeking
an understanding of similar terminology, the
standard for refusing to disclose must be estab
lished with respect to the Canadian Act (Piller,
supra, at pages 467-468).
In this case, I would be very hesitant to adopt
the holding quoted above from the U.S. Court of
Appeal. The Canadian Act's definition of "confi-
dential" does not include an injury test, and actual
competitive harm need not be shown under para
graph 20(1)(b). Therefore, the definition of "con-
fidential" must be a less practical one, having to
do with the nature of the information itself. As I
indicated at the hearing, I do not believe that the
number of people to whom information is available
is determinative of its confidentiality. If only those
who have a beneficial interest in the information
and the funds it represents have access to it, the
essential confidentiality of the information will not
be affected, regardless of their numbers. Such
factors may indicate whether the information has
been treated consistently in a confidential manner,
but the objective test for confidentiality must have
more to do with the content of the information, its
purpose, and the conditions under which it was
prepared and communicated.
Applying those criteria, I have no hesitation in
declaring this material to be objectively confiden
tial in nature. The information at issue relates not
to any public funds, but to the financial holdings
of a group of private individuals. By a complex
series of historical and constitutional develop
ments, it happens that those funds are held in trust
for the Bands by the federal government. In the
context of that fiduciary relationship, financial
information passes between the parties. In any
similar situation involving a non-governmental
fiduciary, there would be no question that the
information was subject to a duty of confidence. I
do not think that a different result applies in this
case.
Certainly, the confidentiality is not destroyed by
the Band Council's responsibility to report to its
members. As noted above, the funds belong to
each Band member and they have a similar inter
est in the information relating to those funds. For
that reason, the fact that members are entitled to
review the records, or even to take copies, does not
in any way reduce their confidentiality.
Nor do I think the posting requirement raised
by the respondent renders these public records.
Even had it been followed, the regulation would
only have resulted in a posting on the Band's own
reserve. Indian reserves are private property, and
anyone who enters one without the consent of the
Band is liable for trespass (Indian Act, sections 30
and 31). It cannot be said, therefore, that to post
information on a reserve is to make it available to
the public at large.
Finally, I do not accept the respondent's submis
sion that "municipal-type" expenditures are
automatically public information. There must cer
tainly be an accounting to the members of the
community on whose behalf the expenditures were
made, but in this case that again takes the infor
mation no further than the Band itself.
It remains for me to consider whether these
records have been treated consistently in a confi
dential manner by the third party. In my opinion,
they have. Much of what I have said above applies
here. The evidence reveals that the Montana
Band's practice was to permit its members to
review the financial statements in the Band's
office, but not to take them away. Access would be
granted on request to any member who sought it.
In addition, the Band's accountants and manage
ment consultant were given access to the informa
tion. No oaths of secrecy were taken from any of
these people and no resolution was passed by the
Band declaring the records confidential.
None of this evidence leads me to the conclusion
that these records were not treated confidentially
by the Band. There was no requirement for the
Band or its members to expressly declare the
statements confidential—they were clearly so by
their very nature. Nor is it fatal that the members
are not sworn to secrecy on reviewing their own
financial statements. If such an argument were to
succeed, any family or private company who did
not take an express oath of confidentiality from its
members would endanger the privacy of its
records. No oath of secrecy was required, either,
from the professionals the Band had engaged in a
fiduciary capacity. By the terms of their employ
ment, both the accountants and the consultant had
a duty of confidence to the Band, (Finn, Paul D.
Fiduciary Obligations (Sydney: The Law Book
Company Limited, 1977), at page 137). The
suggestion that the provision of information to
people in their professional capacity endangers its
confidentiality is entirely without merit.
The most important consideration is that neither
the respondent nor the party intervenant could
provide any evidence that this information was
available to anyone beyond the Band and its
fiduciaries. I have therefore decided that the finan
cial statements are confidential information which
have been treated confidentially by the third party
within the meaning of paragraph 20(1)(b)—at
least those parts of the statements which deal with
Band funds.
As noted above, the applicants have conceded
that information dealing with public funds, that is,
grants and contribution monies, should not be
considered confidential. The respondent concludes
from this that any such information in the finan
cial statements should be severed and disclosed
under section 25 of the Act. That section reads:
25. Notwithstanding any other provision of this Act, where a
request is made to a government institution for access to a
record that the head of the institution is authorized to refuse to
disclose under this Act by reason of information or other
material contained in the record, the head of the institution
shall disclose any part of the record that does not contain, and
can reasonably be severed from any part that contains, any
such information or material.
I do not agree. All the monies received by the
Band through grants and contribution agreements
are recorded in other departmental documents
outlining the programs under which the funds were
transferred. Many of these documents were filed in
evidence as Exhibit "C" to the Peden affidavit. In
my opinion, access to that information should be
sought by a request for those records, which are
undeniably public information under the control of
the Department. The records contained in Exhibit
"C" would give much more complete and useful
information about the amount of contribution
monies transferred and the purposes for which
they were intended. There is no reason to seek to
sever the very minimal information about these
monies in the confidential financial statements.
In addition, I do not find that the information
regarding public funds is reasonably severable. To
attempt to comply with section 25 would result in
the release of an entirely blacked-out document
with, at most, two or three lines showing. Without
the context of the rest of the statement, such
information would be worthless. The effort such
severance would require on the part of the Depart
ment is not reasonably proportionate to the quality
of access it would provide.
For these reasons, my order will be that the
requested financial statements should not be dis
closed by the Department. The section 44 applica
tion is therefore allowed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.