Environmental Protection Review Canada
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Confidentiality

General

[1] The Chief Review Officer and the Review Officers have a statutory mandate to prevent trade secrets and other confidential information from being disclosed or made public as a result of being used as evidence in a review. Section 23 of the Rules of Procedure sets out the process for the treatment of confidential documents. Environmental Protection Review Canada has developed internal procedures to ensure that confidential documents remain confidential and are separated from the public file to prevent accidental disclosure.

[2] Rule 23 states:

23. Confidentiality

[23.1] Where a document is filed with the presiding Review Officer, the Review Officer will make the document available for inspection unless a Party asserts a claim of confidentiality at the time of the filing.

[23.2] Any claim for confidentiality made in connection with a document filed with the presiding Review Officer or requested by the presiding Review Officer must be accompanied by reasons for the claim of confidentiality and, where it is alleged that specific direct harm would occur from a breach of confidentiality, sufficient details regarding the nature and extent of harm must be provided.

[23.3] A claim for confidentiality will be placed on the public record of the review and a copy of the claim must be provided to the Parties and Intervenors, if any, by the person claiming confidentiality.

[23.4] The Party claiming confidentiality must provide the presiding Review Officer with a non-confidential summary or a non-confidential edited version of the information, which will be placed on the public record.

[23.5] A Party to a proceeding or an Intervenor seeking the public disclosure of information for which confidentiality has been claimed may request the presiding Review Officer to order disclosure. The person seeking disclosure must set out reasons for the request, including the relevance of the document to the review and public interest considerations, if any.

[23.6] In determining whether information provided to the presiding Review Officer is of a confidential nature, the presiding Review Officer will take into account the provisions of the Privacy Act and the Access to Information Act.

[23.7] Where a Party has asserted a claim to confidentiality, the Review Officer may disclose or require the disclosure where he or she determines, after considering the representations from the Party and other interested persons, that disclosure, in full or in part, is in the public interest or is required by fairness and natural justice.

Designating Information as Confidential

[3] Generally speaking, the responsibility for designating information as confidential belongs to the party filing the information. The opposing party may also assert a claim for confidentiality where that party's interests are affected.

[4] Information for which a confidentiality claim is being made must be clearly marked, with an effort to sever and identify portions for which confidentiality is not required, if possible.

[5] Where a party has made a claim for confidentiality, the claim must be accompanied by a thorough and convincing explanation of why confidentiality is justified. The claim must be in sufficient detail to allow the presiding Review Officer to determine the issues at stake, including the likelihood and severity of the harm that would occur as a result of the disclosure of information sought to be held in confidence. For example, it will not be sufficient to merely make a broad statement such as "We will be hurt competitively." Nor will it be sufficient for the party simply to mark documents as "Confidential." The Review Officer will expect to receive explanations dealing with such matters as the importance of the information to the person asserting confidentiality, the treatment of that information by that person in the course of business, the availability of that information in other fora, as well as a realistic assessment of potential harm.

[6] The party making a claim for confidentiality must file a summary of the information or an edited version that will be placed on the public record. The summary or edited version must be sufficiently detailed to provide an evidentiary base for the claim being supported by the confidential filing.

Determination by the Review Officer

[7] The presiding Review Officer may decide that a claim for confidentiality is not justified. If the Review Officer decides that a document should be placed on the public file, the party claiming confidentiality will be notified. The party will have an opportunity to provide additional explanations of why the information should be treated as confidential. The party may also choose to withdraw the disputed document. In that case, the information will not form part of the record and it will not be considered by the Review Officer in his or her deliberations, unless received from another source.

[8] Where a party or intervenor, if any, challenges the confidentiality designation of information, the Review Officer will hear representations from the parties and other interested persons. The statutory language and the case law arising from the Access to Information Act and the Privacy Act will inform the Review Officer's decision, but considerations of fairness and natural justice, as well as the public interest, will also be determinative in the context of a quasi-judicial hearing.

Declarations and Undertakings

[9] Rule 24 states:

[24] Disclosure to Counsel or an Expert

[24.1] Counsel who wishes access to information that the presiding Review Officer has determined to be confidential must provide the Review Officer with an undertaking and acknowledgment in the form set by Environmental Protection Review Canada regarding the use, disclosure, reproduction, protection and storage of the confidential information, as well as the disposal of confidential information at the close of the hearing or in the event of the change of counsel.

[24.2] A person who is recognized by the Review Officer as an expert, who is acting under the direction of counsel to whom confidential information has been disclosed and who wishes access to some or all of the confidential information, must provide the Review Officer with an undertaking and acknowledgement in the form set by Environmental Protection Review Canada regarding the use, disclosure, reproduction, protection and storage of the confidential information, and regarding that expert's disposal of the confidential information at the close of the hearing or in the event of a change of expert.

[24.3] The person requesting that its information be kept confidential must be given notice of the presiding Review Officer's intention to disclose information to counsel or to an expert pursuant to an undertaking and acknowledgement and may request the Review Officer to refrain from disclosure.

[10] Counsel may request access to information filed by the other party in confidence. Counsel will be required to submit a Declaration and Undertaking in the form determined by Environmental Protection Review Canada; this constitutes a binding undertaking not to disclose any confidential information received, including disclosure to the counsel's client. The other party may object to a request by counsel for access to confidential information. The presiding Review Officer may grant or deny access on such terms as the Review Officer considers reasonable. Counsel may not make copies of any confidential information to which they are granted access without the Review Officer's permission.

[11] All confidential material and notes relating to confidential material in the hands of counsel or expert witnesses who have signed Declarations and Undertakings will be returned to Environmental Protection Review Canada offices on the completion of the proceedings. The purpose of this provision is to ensure that as little confidential material as possible is stored outside of the control of Environmental Protection Review Canada.

[12] Confidential documents, exhibits and other information will not be sent to counsel by electronic means. Where electronic information is provided, counsel will be asked to provide in their Declaration and Undertaking a statement regarding the safeguarding of electronic information and an undertaking to delete all information from computers and networks.

In Camera Proceedings

[13] Rule 25 states:

[25] In Camera Proceedings

[25.1] The hearings conducted by a Review Officer will be public subject the following provisions regarding confidentiality and in camera proceedings:

[25.2] The presiding Review Officer may hold all or any part of a hearing in camera,

  1. on his or her own initiative or on the request of a Party or Intervenor, if any, for the purposes of receiving confidential information; or
  2. on the request of a Party who establishes that the circumstances justify an in camerahearing.

[25.3] Arguments on whether any part of a hearing should be held in camera may be heard in camera.

[14] As a general rule, the hearings of a Review Officer will be open to the public. A person seeking confidential treatment of information, however, may seek to have any determinations on the issue of confidentiality treated in camera. Furthermore, where after hearing representations, a Review Officer determines that information shall be treated as confidential, the portion of the hearing relevant to that information will be held in camera.

[15] Where the Review Officer agrees to hold the hearing in camera, persons who are not authorized to hear discussions of potentially confidential matters will be asked to leave the hearing. Only those persons providing the information and those persons, e.g., counsel and expert witnesses, who have signed Declarations and Undertakings will be allowed to remain in the hearing. When the discussion of confidential matters has ended, the hearing will re-open to the public.

Responsibilities of Environmental Protection Review Canada and Review Officers

[16] Environmental Protection Review Canada will maintain separate confidential and public files. The public files will contain summaries or edited versions of the confidential material. The recordings of the in camera portions of the hearings will be kept separate from the recordings of the public hearing and will be kept as part of the separate confidential file. As little confidential material as possible will be stored after the appeal period by Environmental Protection Review Canada.

[17] Review Officers will not disclose confidential information that comes into their possession as Review Officers.

Return of Confidential Material

[18] Environmental Protection Review Canada will return confidential material to the submitting parties after the time for any appeal to the Federal Court has passed according to the provisions of the Federal Court Act. Summaries and edited versions of documentary material will remain with the record of the review in the files of Environmental Protection Review Canada. Where an appeal has been filed, the confidential material will form part of the record sent to the Court and will not be returned to the submitting party in order to maintain a complete record at the offices of Environmental Protection Review Canada until the appeal process has been completed.