GTH and Brightenview oppose release of documents, citing potential 'negative media attention'

The government-owned Global Transportation Hub has cited the potential for "negative media attention" as a reason for dragging its feet for almost a year on a series of CBC access-to-information requests about megamall developer Brightenview.

Saskatchewan's Information and Privacy Commissioner ruled last week that this is inappropriate, in response to a complaint by CBC.

"The purpose of FOIP (The Freedom of Information and Protection of Privacy Act) would be defeated if information could be legitimately withheld simply because an applicant may publish information the applicant has received under FOIP," wrote Ron Kruzeniski in his 23-page decision on the matter.

"Individuals' rights under FOIP cannot be taken away based on what the individual may or may not do with the information."

Kruzeniski recommended GTH release the documents to CBC with minimal redactions. But he only has the power to recommend. The GTH hasn't yet said if it intends to comply.

The commissioner also found that the GTH failed to respond to the access requests in a timely way, a misstep the GTH acknowledged.

"GTH explained that the primary reason for the delay was the "significant objection" by the third party (Brightenview) to the release of information."

Kruzeniski said "third parties, including Brightenview, should not have an expectation that it can conduct business with government institutions in a vacuum without public scrutiny that is facilitated by FOIP."

GTH and Brightenview argue to withhold records

In May 2017, CBC filed three FOIP requests to the GTH asking for emails and other documents involving key Brightenview officials.

According to the commissioner's report, the documents include cooperation agreements, briefing notes, meeting agendas, internal GTH emails, email exchanges between GTH, Ministry of the Economy, and/or Executive Council, between GTH and Brightenview, between GTH and its lawyers and between GTH and the Government of Canada, among other things.

GTH asserts that negative media attention has impacted Brightenview's relationship with clients, partners and investors.- Ron Kruzeniski, Saskatchewan Information and Privacy Commissioner

Under FOIP law, public bodies are required to release documents within 30 to 60 days, once appropriate redactions have been completed. CBC hasn't received anything almost a year later.

In November, CBC complained about the delay to the commissioner. He released his report last week.

The GTH argued that some of the documents should be withheld based on an exemption in the act which says a government body can refuse to release documents that contain "financial, commercial, scientific, technical or labour relations information that is supplied in confidence, implicitly or explicitly, to a government institution by a third party."

Brightenview argued, based on the same exemption, that none of the documents should be given to CBC.

Releasing documents would harm Brightenview's reputation, GTH

The commissioner said in order for this exemption to apply, the GTH and Brightenview would have to "show there is a reasonable expectation of harm if any of the information is disclosed."

According to the report, the GTH told the commissioner releasing the information would cause Brightenview harm because CBC would likely publish what the GTH called negative stories based on the information.

"GTH asserts that negative media attention has impacted Brightenview's relationship with clients, partners and investors," and the GTH says that was "partially fuelled by information obtained through access requests," the commissioner wrote.

For this reason and others, the GTH argued, some of the more than 330 pages requested by CBC should be redacted or withheld.

Brightenview said none of the documents should be given to CBC because the public broadcaster's previous storytelling "hurts the financial investment of Brightenview at the GTH and impacts the reputation of its associated investors and parties."

Brightenview also argued that releasing the documents would breach confidentiality agreements the company has with its partners, reveal Brightenview's strategic plans and hurt the company's competitive position in the market by unveiling it's internal corporate affairs. 

Commissioner says Brightenview must expect public scrutiny

The commissioner rejected those arguments. He said Brightenview failed to provide any evidence that releasing documents would cause the company harm.

Kruzeniski pointed out that every individual has a right under law to ask for and receive government documents, no matter who they are.

He said that the GTH and Brightenview are "discriminately" applying the act by "factoring in the identity of the applicant and his past actions in their decision" to withhold documents.

The commissioner conceded that transparency and accountability may be uncomfortable for companies like Brightenview doing business with the government.

He said it's up to government organizations to make sure the rules are clear to the companies they deal with.

"While Brightenview's relationships with clients, partners, and investors may have been impacted, I must repeat that government institutions would be well advised to be up front regarding of their obligations under FOIP."