OUR GREAT MINDS

    by J. Alex Templeton

    The Information Act – What Can You Really Know?

    Operators in the Newfoundland and Labrador offshore area are required to provide a plethora of information to the Canada-Newfoundland and Labrador Offshore Petroleum Board (C-NLOPB), some of which they expect to be kept confidential. With an increase in the number of access- to-information requests made to the board, there’s been a corresponding increase in the focus given to statutory protections of confidentiality applicable to such requests.

    According to the C-NLOPB’s annual reports, between 2008 and 2010 the board received only one or two requests per year. This number increased to nine in 2011, and then ballooned to 32 in 2012. In 2013, up to October 22, the board received a total of 24 requests. The type of information that’s been requested varies from records relating to the copying of seismic data, to safety and environmental audits and inspection reports, to minutes and other documents distributed at board meetings, among others. While the identities of the requesters are not published, government of Canada statistics for 2011-12 indicate that 43 percent of requesters nationwide were classified as private sector businesses, 12 percent as media and 1 percent as academia.

    The C-NLOPB is a government regulator to which the Access to Information Act applies. The Act is intended to provide Canadians with access to information under government control, but subject to certain specific exceptions that are deemed to be justified for the proper functioning of government or for public policy reasons. In the context of the offshore oil and gas industry, there are a number of exceptions that apply to information provided to the board depending on the nature of the information. For example, the act sets out specific exceptions to access to protect personal information, trade secrets, FCST (financial, commercial, scientific, and technical information), and solicitor-client privileged information.

    An access to information request triggers a consultative process with the operator who originally provided the requested information. The C-NLOPB is required to consult the operator and inquire whether, in the operator’s opinion, there are exceptions to access that apply. In some cases, the board and the operator agree on the exceptions that apply and a corresponding reply is made to the requester. In other cases, disagreement results in a request to the federal court for judicial review.

    Aside from the general exceptions to access, there’s also a more significant exception available to operators in the form of an express prohibition against disclosure, otherwise referred to as a “statutory privilege,” set out in the Canada-Newfoundland Atlantic Accord Implementation Act. The Accord Act privilege applies to information provided to the board for the purposes of the act, subject to certain limitations dependent on the type of information involved. Where the privilege applies, the C-NLOPB is prohibited from disclosing the information unless it has the consent of the person who provided it. There are two exceptions to the prohibition: first, where disclosure is for the purposes of the administration or enforcement of the Accord Act, and second, for the purposes of related legal proceedings.

    If the meaning of all of that seems less than clear to you, you’re not alone. The Accord Act privilege continues to be the subject of applications brought to the federal court by operators and other interested persons seeking clarification about how and when it applies. The government of Canada has also recently indicated its intent to clarify the Accord Act privilege by introducing, on January 30, 2014, Bill C-22 titled the Energy Safety and Security Act. The bill proposes an amendment of the Accord Act privilege to specify new rules for board disclosure of information provided by operators relating to safety and environmental protection.

    Bill C-22 does not remove the prohibition against disclosure contemplated by the Accord Act privilege, but rather sets conditions for when the prohibition exists. For example, the C-NLOPB will continue to be prohibited from disclosing safety and environmental protection information conditionally where the board is satisfied that the disclosure could reasonably be expected to result in a material loss or prejudice the operator’s competitive position in a way that outweighs the public interest in disclosure. The bill also sets out a procedure and timelines for the board’s consultation with the operator, culminating in disagreements being referred to the Supreme Court of Newfoundland and Labrador for decision by summary hearing.

    Whether the amendments proposed by Bill C-22 will have the practical effect of clarifying the operation of the Accord Act privilege remains to be seen.

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