Five-year wait for EDC documents ends with only critical news emails

Five years after being asked to release internal reports on a controversial loan to a South African company whose owners are accused of massive state corruption, Export Development Canada has granted an access request by giving only a bunch of emails composed mostly of employees discussing the ‘negative’ media coverage.

It’s the latest example of how EDC, a Crown corporation that helps fund export deals for Canadian companies, withholds relevant information about its transactions under commercial confidentiality provisions, which will soon become the rule. object of a case before the Federal Court.

EDC came under fire in 2017 for providing a US$41 million loan to the Gupta brothers of South Africa to buy a luxury Bombardier jet. At the time of the loan, the Guptas were at the center of one of the country’s biggest corruption scandals, which involved accusations of high-level corruption and an investigation by a judicial commission.

The loan was reported for the first time in The Globe and Mail in August 2017, and canceled by EDC by the end of the year.

In early 2018, The Globe launched an investigation into EDC, which included filing freedom of information requests to understand the agency’s inner workings and due diligence. One of these freedom of information requests, filed on April 6, 2018, related to any briefing material for the CEO of EDC referring to the Gupta family of South Africa from January 1, 2014. .

EDC denied the request and refunded the $5 processing fee. In a letter, EDC’s chief compliance and ethics officer said the agency was “legally prohibited” from disclosing information about its customers and cited section 24 of the export development.

The Globe filed a challenge with the Office of the Information Commissioner (OCI) on the grounds that the decision not to even attempt to search for documents was improper. The Globe argued that the existence of the Gupta loan was already known to the public – by EDC itself – and that there may be CEO briefing materials that do not contain commercially sensitive information such as general reports on the agency’s activities in South Africa.

The Globe also argued that Section 24 of the Export Development Act allowed disclosure of documents with customers’ permission, and that EDC had made no attempt to contact the Guptas for permission.

From there, the complaint moved slowly. In October 2019, an OCI investigator said they had been assigned to the case, and in December said they were leaving the case. In August 2022, a new investigator said he had been assigned to the case and little work had been done so far.

Then, on January 9 of this year, EDC sent a new response to The Globe. The agency said it has reconsidered the request in light of the OIC’s comments and will eventually release some documents. EDC did not provide a description of the OPC’s comments.

The OIC itself has faces criticism in recent parliamentary hearings reviewing the access to information system regarding delays in assessing complaints.

The package of documents given to the Globe consisted of 121 pages, more than 30 of which have been completely redacted. The remaining pages are e-mails between then-CEO Benoit Daignault and other senior executives regarding Globe articles on EDC, with subject lines such as “the globe article of today regarding Gupta and EDC (privileged and confidential)”.

An email is an all-staff update from January 29, 2018, with advice on how to respond to “negative media coverage.”

“Employees may have noticed EDC’s ongoing financing coverage for Westdawn in South Africa, a family-owned Gupta conglomerate company…the following talking points summarize EDC’s current position and should help you answer significantly,” the email read. The talking points then advise staff to say that EDC would not comment on the case because it is before the courts.

The contents of the various emails are largely redacted under the Access to Information Act exemptions which cover: discussions between government employees; EDC’s “trade secrets”; and inside information of its customers. The Globe’s previous requests for background materials on other topics have included memos, PowerPoint presentations or reports on a country’s economy.

Matt Malone, a law professor who studies trade secrets at Thompson Rivers University in Kamloops, B.C., said a review of EDC’s annual reports shows the agency is increasingly using these exemptions to block entire requests. In its 2018-2019 report, EDC said it fully redacted eight of the 36 requests it received that year. In 2021-22, the agency said it fully redacted 16 of 38 requests, or nearly half.

Professor Malone said that was much higher than other government departments with a reputation for secrecy, such as the Canadian Security Intelligence Service, which fully redacted 13% of its requests last year, or the Royal Canadian Mounted Police of Canada, which entirely redacted 6%. of requests.

Professor Malone, who reviewed the Globe’s request and EDC’s responses, said the use of commercial confidentiality exemptions appeared to be too broad.

“These entities are hiding behind these exemptions for trade secrets and confidential information, which are loosely defined and loosely enforced,” he said.

The Globe continues to challenge EDC’s redactions to the Information Commissioner.

Last year, our Office challenged EDC’s use of section 24 of the Export Development Act in another case.

EDC had received a request in 2019 for a summary of all financial assistance over $50,000 provided to Canadian companies in Honduras, from 2009 to 2019. It denied the request based on section 24 and an exemption separate on the disclosure of trade secrets.

The Information Commissioner argued that disclosing such information about its activities does not mean that the agency is publishing confidential information obtained from clients. The Commissioner ordered EDC to comply with the request.

EDC agreed to disclose the types of insurance policies it had funded, but no other information. On July 20, 2022, EDC brought the Information Commissioner to Federal Court to seek judicial review of the order.

This case has not yet been heard.