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CCCA_V6No2_Dept-IntelProperty-FIN_CCCA_V6No2_Dept-IntellectualProperty 5/23/12 11:36 PM Page 12 Intellectual Property A penny for your thoughts, $5 for your docs Protecting company property against Access to Information requests. By Noel Courage hink all you can get for $5 these Canada Ltd. v. Canada (Health), [2012] The dispute focused on items such as for- Tdays is a foot-long sub? Actually, SCC 3) on exemptions of third-party mat and structure of the new drug sub- that’s all your competitor has to spend to commercial information from federal ATI mission and lists of published articles that get a CD of your company’s documents disclosure (s.20 of the ATI Act). The deci- Merck relied upon. The Court considered under a federal access to information sion was made in the pharmaceutical con- most of the disputed information (ATI) request. But there are ways to text. The same exclusions apply to other releasable and dismissed the appeal. It protect your company’s valuable propri- federal ATI requests for third-party infor- seems unlikely that Merck suffered any etary information (a.k.a. the ‘secret mation on issues such as the environment, prejudice after release. sauce’) from prying eyes. food regulation, trade regulation, natural Under the ATI Act, the federal govern- resources and technology. The case will Submitting your information ment is required to release information also be influential in provincial ATI to government unless it falls within an exemption. There requests subject to similar exemptions. Companies should have control over all is an exemption for trade secrets, confi- The Merck case involved Health their proprietary information, irrespective dential information and other information Canada’s release of information from a of ATI issues. Identify and catalogue valu- that could cause competitive/financial regulatory submission for approval of able information. Treat it as confidential. harm if disclosed. The access laws balance Singulair, an asthma medication. Some of Protect it with a company policy that con- broad rights of access (transparency) with the information was released without any trols access, use and disclosure. protection of third-party information. notice to Merck. For other information, Keep government on a need-to-know ATI requests keep government depart- Health Canada conducted an initial basis. Be forthright in submissions of infor- ments very busy. For example, Health examination, notified Merck and placed mation, but avoid oversharing. Sometimes Canada received 1,481 new ATI requests in the onus on Merck to provide evidence of oversharing stems from uncertainty about fiscal year 2010, according to its most recent an applicable exemption to prevent what government needs. Tap into outside annual report About one in three requests release. Merck applied for a court order expertise if necessary to find out the mini- were duds — either no records existed or blocking release of the information. mum requirements. the applicants abandoned the requests. Mark all exempted information as confi- Nearly one in five completed requests pro- The government is not out to get you dential or something similar. This is not vided full disclosure of all relevant records The bottom line remains that the federal determinative, but it should trigger notice and half received partial disclosure. government will not knowingly disclose from government before disclosure. If pos- Information was withheld as exempt in exempted information. Health Canada sible, consider keeping confidential and only 3 per cent of requests. Full exemp- has an established practice of consulting non-confidential information separated in tions are rare so be prepared to have some internal technical experts to help deter- such a manner that they are easily severable. company information released. This mine the sensitivity of the requested sci- Make an internal record of why each should be acceptable as long as the entific and technical information. document is exempted. This is especially released information is commercially In Merck, there appears to have been important when the exemption would not neutral and not within an exemption. little ‘juicy stuff’ in issue. Highly sensitive be readily apparent. Keep track of informa- The Supreme Court of Canada recent- information, such as chemistry and manu- tion that is subsequently published by the VEER.COM ly issued its first decision (Merck Frosst facturing data, was not at risk of disclosure. company and becomes non-confidential. 12 CCCA Canadian Corporate Counsel Association SUMMER 2012