In possible precedent-setting ruling, federal judge orders EDC to release records

A judge has ruled against Export Development Canada (EDC) in a case that could set a precedent for releasing more information about companies that do business with the government.

Here’s the backstory:

EDC is a Crown corporation whose primary purpose is to provide financing to Canadian companies that do business abroad. In 2019, someone filed an access to information request for a summary of all financial assistance of more than $50,000 provided by EDC to Canadian companies in Honduras from 2009 to 2019. 

EDC said it would only release the types of insurance policies it issued and that anything else (names of companies, amounts, etc.) was protected customer information. (EDC already discloses information about individual loans and equity investments on its website, but not insurance policies.)

EDC relied heavily on two exemptions: section 18.1 of the Access to Information Act and section 24.3 of the Export Development Act.

Section 18.1 allows just four federal institutions – EDC, Canada Post, Via Rail and the Public Sector Pension Investment Board – to withhold records that contain “trade secrets or financial, commercial, scientific or technical information that belongs to, and has consistently been treated as confidential” by those agencies.

Section 24.3 says that “all information obtained by the Corporation in relation to its customers is privileged.” This is EDC’s most-cited exemption. In the 2021-22 year, EDC used it to withhold information in 20 of the 40 requests received that year. (The Globe has previously written about its own five-year battle for records withheld under section 24.3.)

Back to the Honduras request. The requestor appealed to the Office of the Information Commissioner. The office agreed with the requestor in 2022 and argued, essentially, that information about clients is not necessarily information “obtained” from them. EDC appealed to the Federal Court.

On Nov. 21, Justice Ekaterina Tsimberis sided with the Information Commissioner and ordered EDC to release the requested records. 

On Section 18.1, Justice Tsimberis wrote that EDC’s internal processes for deciding on applications could be protected information – but the outputs of those systems (in this case, the amount EDC ended up extending to Canadian companies operating in Honduras) was not proprietary.

On Section 24.3, the judge wrote that the exemption should only cover information that clients send to EDC. Records that EDC creates about its clients (such as how much money it gave them) is not protected client information.

Justice Tsimberis noted in the ruling that this was the first time section 18.1 had been interpreted by any court and the first time section 24.3 had been analyzed by the Federal Court in relation to an access request.

When asked by The Globe for comment on the ruling, EDC said it plans to appeal. 

“We recognize that, as a Crown corporation, EDC operates in the public interest,” the agency said in a statement. But “at the same time, Canadian companies and other customers using EDC’s commercial products (i.e., loans, working capital and insurance products) also expect that their specific information would not be shared publicly and remain confidential, as is customary in the financial sector.”

The Office of the Information Commissioner said it would wait to comment on the ruling until after the post-ruling appeal period.

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