Can the confidentiality protections under the Securities Act (Act) shield evidence from disclosure in freedom of information requests?
An individual made a freedom of information request for records created as part of an OSC investigation under the Act. The Ministry of Finance did not disclose documents that were subject to the Act’s section 16 confidentiality provision, as they could not be released without an order of the OSC. The requester appealed to the Information and Privacy Commissioner (IPC). The IPC sought disclosure to it as part of the appeal record. OSC staff sought an order under section 17 of the Act permitting production of the documents to the IPC (but not the requester) for the purposes of the appeal.
The OSC ordered the production of the majority of the confidential documents to Ministry and IPC staff. Importantly, the OSC did not give notice of the application to release the records to the IPC to the third party who produced the evidence.1
What You Need to Know
Confidential information may be subject to FIPPA requests. Parties are often compelled to produce sensitive documents and testimony to the OSC. Although the statutory framework was designed so that the confidentiality provisions of the Act prevail over the Freedom of Information and Protection of Privacy Act (FIPPA), protected information provided to the OSC in an investigation may be reviewed by the Ministry and IPC in the course of the freedom of information adjudicative process. This may cause concern to producing parties who don’t want sensitive information seen even by other government officials, or who question whether FIPPA exemptions will apply to protect the information from public disclosure.
Right to notice of application to disclose information is not absolute. Producing parties take comfort in the right under the Act to receive notice and be heard in any application for disclosure of information protected by the statutory confidentiality provisions. However, there are limits to those rights: the Commission may consider an application to release protected third party information without notice to that party where it is in the public interest to forego such notice.
Disclosure to other government agencies may not require notice. In this case, the OSC did not require that notice be given to the producing party because the proposed disclosure was limited to a small number of government employees to facilitate the FIPPA appeal process. However, the Commission decided that only the cover page of a transcript of the third party’s evidence, with the party’s name redacted, should be provided as part of the IPC appeal record. We believe that the decision would have been different if the disclosure posed a substantive privacy risk to the producing party. If the application was for broader disclosure (such as to the requester, an investor or class action counsel) or if the transcript could not have been redacted to withhold the name of the witness and the content of their testimony, we expect the third party would have been provided with notice of the application. Nevertheless, producing parties should be aware that there are limits to the confidentiality of compelled information in OSC investigations and to their right to object to disclosure of that information. The potential for disclosure without notice may affect the form or content of information provided to the OSC in the course of investigations.
1 X.X. (Re), 2018 ONSEC 45
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