Draft – Public Access to Information Guidelines and Interpretation Notes under the Oil and Gas Operations Act

Legislative Requirements

Section 22 of OGOA describes the overall approach to making information submitted to the CER available to the public and explains circumstances under which information may be kept confidential:

• Because it meets certain criteria; or
• For a certain period of time.

Plain Language

These Guidelines have been written in plain language in order to make them accessible to as many readers as possible.

Legislation is Paramount

Where a conflict exists between the Guidelines and OGOA, OGOA is paramount.

Objectives

The objectives of the Guidelines are to:

• Describe how information provided to the CER is handled resulting from the amendments to OGOA which came into effect on 23 July 2020;
• Provide information on the process for requesting that information provided to the CER be kept confidential;
• Enhance certainty and predictability in regulatory decisions; and
• Promote accessibility and transparency in oil and gas regulation.

Authority

These Guidelines are issued by the CER under section 18 of the OGOA.

Regulator’s Discretion

Application of these Guidelines is subject to the CER’s discretion under OGOA.

Jurisdiction

Contents

The Guidelines are organized as follows:

Objective

Persons providing information to the CER and members of the public interested in that information understand what will be made public and when.

Requirements

Subsection 22(2) of OGOA states that the CER will make information provided to it public, unless the CER determines the information meets the specific criteria to be kept confidential.

Subsection 22(9) of OGOA lists information that must be made public and when.

Information Provided to the Regulator

Subsection 22(2) of OGOA applies to any information provided to the CER in relation to a requirement of OGOA or of its regulations.

Section 3 of these Guidelines explains the process for requesting that the CER keep information provided to it confidential.

Information Produced by the Regulator

The CER is committed to transparency and accessibility in its operations. Information produced by the CER for the purposes of OGOA and its regulations is publicly available, except when it contains information that has been determined to be confidential by the CER or that is not disclosed under the Access to Information Act and Privacy Act (see Section 7 of these Guidelines).

The CER may redact information produced by the CER in order to allow for greater transparency while respecting the confidentiality of information due to the CER’s decision or the Access to Information Act and Privacy Act.

Location of Publicly Available Information

Publicly available information is:

• On the CER’s public registry;
• On the CER website: View north and offshore data and well history; or
• Available through the Frontier Information Office within the CER Library by phone at (403) 292-4800 or 1 (800) 899-1265 or by e-mail library@cer-rec.gc.ca.

Applications

Non-confidential information associated with applications for Operations Authorizations, Well Approvals and Operating Licences is available as follows:

Active Operations

Non-confidential information associated with active operations is available as follows:

Active Operations – other submissions under the Oil and Gas Drilling and Production Regulations

Non-confidential information associated with active operations is available as follows:

Active Operations – other reports

Non-confidential information associated with active operations is available as follows:

Definitions

An incident is:

• (a) an event that causes:
  • (i) a lost or restricted workday injury,
  • (ii) death,
  • (iii) fire or explosion,
  • (iv) a loss of containment of any fluid from a well,
  • (v) an imminent threat to the safety of a person, installation or support craft or
  • (vi) pollution
• (b) an event that results in missing person, or
• (c) an event that causes:
  • (i) the impairment of any structure, facility, equipment or system critical to the safety of persons, an installation or support craft, or
  • (ii) the impairment of any structure, facility, equipment or system critical to environmental protection.

A near miss is an event that would likely cause an event set out in paragraph (a) of the definition “incident” but does not, due to particular circumstances.

Pollution is the introduction into the natural environment of a substance or form of energy outside the authorized limits, including spills.

Drilling Results

Non-confidential information resulting directly from the drilling of a well is available as follows:

Definitions

An exploratory well is a well drilled on a geological feature on which a significant discovery has not been made.

A delineation well is a well drilled in order to determine the commercial value of the accumulation penetrated by an existing well.

A development well is a well drilled into the same accumulation as an existing well:

• For the purpose of production or observation; or
• For the injection or disposal of fluid into or from the accumulation.

Non-confidential information resulting from geophysical or geological work is available as follows:

Exclusive geological or geophysical work is conducted to gather data for use by a particular company.

Non-exclusive geological or geophysical work is conducted to gather data for the purpose of sale to the public.

Other Research

Non-confidential information resulting from other research is available as follows:

Objective

The process to apply for confidentiality is clear and the public is aware of decisions to consider information confidential.

Requirements

Subsection 22(2) of OGOA states that the Regulator will make information available to the public, unless it meets certain specific criteria.

The CER may consider information to be confidential if it contains financial, commercial, scientific, or technical information; and

• the information has been consistently treated as confidential by the provider;
• the person’s interest in confidentiality outweighs the public interest in making the information public; and
• the information is not publicly available.

Confidentiality of Indigenous Knowledge

Indigenous knowledge provided in confidence to the CER is confidential as detailed in section 5 below. No request for confidentiality is required.

Confidentiality Request Process

Any confidentiality requests should generally be for specific information within a document, rather than for the entire document, The justification for the request should be specific to each piece of information for which confidentiality is sought and the applicable provision ought to be included in the corresponding margin.

The process for requesting confidentiality is:

1. File with the CER on its public registry a cover letter requesting confidentiality and describing:
   • The criteria the information meets (see Criteria for Requesting Confidentiality, above); and
   • The reasons for the request.
2. File with the CER on its public registry a redacted version of the information.
3. Separately file with the CER an unredacted version of the information for which confidentiality is requested to secretary@cer-rec.gc.ca. In the subject line of the cover email and in the document tile and electronic file name, clearly indicate that the information is confidential.
4. The CER will decide whether the information is confidential and will provide written reasons for its decision to the information provider. The CER will also post the decision on its public registry.
5. If the CER decides to treat the information as confidential, then the CER will not require the provider to file the information on its public registry and the information will not be made publicly available.
6. If the CER decides not to treat the information as confidential, then the CER will specify in its written decision a date by which the provider has the choice to either:
   • accept that the information will be made public;
     
     or
   • withdraw the information from the process.

If the provider opts to withdraw the information for which confidentiality was denied, the provider must so notify the CER  and should give instructions to the CER to return all copies of the information to the provider or to destroy them or delete any digital file.

If the provider decides to withdraw the information, rather than have it made publicly available on the CER’s public registry, then the CER cannot consider that information when making a decision on the application or other submission by the provider. Deciding not to file the information on the CER’s public registry may result in serious consequences. For example, it may result in:

• An application being considered incomplete and not being processed; or
• The failure to comply with a reporting requirement under the OGOA, which is an offense under OGOA.

Challenges to a Decision Denying a Confidentiality Request

The OGOA does not include any explicit provisions that allow for an appeal or a review of a CER decision on a confidentiality request under section 22 of the OGOA.

Objective

The process to apply for confidentiality is clear and the public is aware of decisions to consider information confidential.

Requirements and criteria for requesting confidentiality

Section 19 of the OGOA authorizes the CER to inquire into, hear, and determine matters under the OGOA and the regulations, while section 19.1 authorizes the CER to hold public hearings.

Subsection 22(3) of the OGOA authorizes the CER to ensure the confidentiality of information likely to be disclosed at a hearing or an inquiry, if satisfied that:

• disclosure of the information could reasonably be expected to result in material loss or gain to a person directly affected by the hearing or inquiry, or to prejudice the person’s competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure; or
• the information is financial, commercial, scientific, or technical in nature that is confidential information supplied to the CER and
  • the information has been consistently treated as confidential by a person directly affected by the hearing or inquiry,
  • the person’s interest in confidentiality outweighs the public interest in making its disclosure, and
  • the information is not publicly available.

Subsection 22(4) of OGOA authorizes the CER to ensure the confidentiality of information likely to be disclosed at a hearing or an inquiry, if the CER is satisfied that:

• there is a real and substantial risk that making the disclosure of the information will impair the security of infrastructure, and
• the risk above outweighs the public interest in its disclosure.

Any confidentiality requests should generally be for specific information within a document, rather than for the entire document. The justification for the request should be specific to each piece of information for which confidentiality is sought and the applicable provision ought to be included in the corresponding margin.

Requests for confidentiality under subsection 22(3) or 22(4) of OGOA must be made using the following process:

• File with the CER on its public registry a cover letter requesting confidentiality and describing:
  • The criteria the information meets (see Requirements and Criteria for Requesting Confidentiality, above); and
  • The reasons for the request.
• File with the CER on its public registry a redacted version of the information.
• Separately file with the CER an unredacted version of the information for which confidentiality is requested to secretary@cer-rec.gc.ca. In the subject line of the cover email and in the document tile and electronic file name, clearly indicate that the information is confidential.
• The CER will decide whether the information is confidential and will provide written reasons for its decision to the information provider. The CER will also post the decision on its public registry.
• If the CER decides to treat the information as confidential, then the CER will not require the provider to file the information on its public registry and the information will not be made publically available.
• If the CER decides not to treat the information as confidential, then the CER will specify in its written decision a date by which the provider has the choice to either:
• accept that the information will be made public;
  
  or
• withdraw the information from the process (see section 3 above on “Withdrawing Information”).

Requesting Access to Confidential Information

Parties to a Hearing or Inquiry may wish to get access to the Confidential Information for reasons of procedural fairness. Parties can request access either by filing a written request with the CER or verbally making such a request during the Hearing or Inquiry. Such request will be decided upon on a case-by-case basis.

Confidentiality of Indigenous Knowledge

The CER will protect the confidentiality of Indigenous knowledge, as defined in the Canadian Energy Regulator Act, if provided in confidence to the CER. Indigenous knowledge provided in confidence to the CER does not need to meet the requirements described in section 22 of OGOA. In situations where Indigenous knowledge is provided in confidence, the CER must not knowingly, or be permitted to, disclose such knowledge without written consent of the provider. There may be exceptions to this and the Indigenous knowledge may be disclosed if

1. a) it is publicly available; or
2. b) the disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings.

Prior to disclosing any Indigenous knowledge under b) above, the CER will consult the person or entity who provided the Indigenous knowledge and the person or entity to whom it is proposed to be disclosed about the scope of any proposed disclosure and potential conditions that may be imposed with respect to disclosure.

Contents

This section contains information on the situations where confidential information, including Indigenous knowledge provided in confidence, may be shared by the CER.

Objective

Providers of confidential information are aware of the situations where that information may be shared with others without their consent.

Requirements

Subsections 22(5) to (8) and (10) of OGOA describe the situations in which the CER may share information it agreed was confidential under subsections 22(2) to (4).

Sharing Confidential Information

The CER may share confidential information with specific organizations for specific purposes, as shown in the following table:

Objectives

Information provided to the CER before the effective date is managed in a way that reflects the understanding of its confidentiality at the time.

Requirements

Subsection 22(13) of OGOA states that information provided to the CER before the effective date and required to be made available to the public under subsection 22(9) of OGOA will:

• Remain public if it has already been made publicly available; or
• Will be made public after the time period set out in section 22(9) (see section 2 of these Guidelines for more information on the time periods).

Other Information

Information provided to the CER before the effective date and not covered under section 22(9) of OGOA will remain confidential.

Application

The Access to Information Act and Privacy Act apply to information provided to the CER and produced by the CER under OGOA.

Conflict Between Privacy Act and OGOA

If there is a conflict between the Access to Information Act and/or the Privacy Act and the disclosure requirements for information provided to the CER for the purpose of OGOA or its regulations, the section 22 OGOA disclosure requirements prevail.

Where to Find Access to Information Act and Privacy Act

Access to Information Act

Privacy Act