Telecom Commission Letter addressed to Distribution List
Ottawa, 22 June 2020
Our reference: 1011-NOC2019-0057
RE: Review of mobile wireless services, Telecom Notice of Consultation CRTC 2019 57 – Disclosure of certain information designated as confidential by TELUS
Dear Madam, Sir:
This letter addresses a request for disclosure of certain information designated as confidential by TELUS Communications Inc. (TELUS) as part of its responses to undertakings made at the public hearing in the proceeding initiated by Telecom Notice of Consultation 2019‑57 (the proceeding). At the public hearing, TELUS made a statement that its board of directors had approved a resolution instructing its management to pursue an investment reduction plan, a job reduction plan, and a philanthropic giving reduction plan in the event that wholesale MVNO access is mandated. At that time, TELUS volunteered to file this document on the record of the proceeding. In a letter dated 10 March 2020, TELUS filed this document with the Commission entirely in confidence and did not file an abridged version for the public record.
In a letter dated 17 March 2020, the Canadian Network Operators Consortium (CNOC) requested that this document be disclosed in its entirety. It argued that the board resolution should be disclosed for reasons of procedural fairness and particularly in order to give parties an opportunity to scrutinize alleged conditions under which investment and job reduction would be triggered or developed.
In response to the CNOC request, TELUS argued that sound corporate governance demands that activities of boards of directors be conducted in confidence. It argued that its board must have the ability for its resolutions to accurately reflect the internal affairs of the company without the risk that such resolutions would be made publicly available, because without the ability to have confidential discussions and resolutions, the board cannot give its advice and effectively oversee management. TELUS submitted that, for these reasons, the board resolution in question should remain confidential. It submitted that in the event that the Commission determines that the board resolution must be disclosed, it would prefer to withdraw the document from the record of the proceeding.
The Commission’s approach to disclosure is as follows: (a) pursuant to section 38 of the Telecommunications Act (the Act), information filed with the Commission in the course of a proceeding is, subject to section 39 of the Act, to be made public; (b) where information is designated as confidential, an assessment is first made as to whether it qualifies for confidential treatment under section 39; (c) where it does qualify for designation, the Commission then assesses whether the specific and direct harm resulting from disclosure would outweigh the public interest in disclosure.
With respect to the first step of the test, the Commission notes that the focus is not on the document itself, but rather on the information contained in the document. In this regard, the Commission considers that some information in the resolution would fall into a category that can be designated as confidential and other information would not.
Specifically, the Commission considers that the information that is contained in the board resolution that is substantively similar to information already on the public record or otherwise in the public domain does not qualify for confidential designation and should therefore be publicly disclosed.
In contrast, financial or commercial information contained in the board resolution that is not substantively similar to, or goes beyond, information already on the public record or otherwise in the public domain does qualify for confidential designation under section 39. This information is both confidential and treated consistently in a confidential manner by the company. However, in the Commission’s view, information put forward by TELUS in the board resolution that qualifies for confidential designation, with the exception of pronouncements going to the dollar amount of potential expenditure reductions, is of a general or superficial nature and reveals no detailed or even specific financial information. As such, the Commission considers that no likely direct competitive harm would result from its disclosure.
With regards to the information set out in the document that speaks directly to the dollar amount of potential expenditure reductions, the Commission notes that this information differs slightly from statements made by TELUS at the public hearing. In light of this, the Commission considers that this information is properly subject to designation as confidential. However, in the Commission’s view the difference between TELUS’ public statements and the related information in the board document is not material. As such, the disclosure of this information is unlikely to cause significant harm, and should therefore be publicly disclosed.
With respect to TELUS’ claim that disclosure of the information contained in the board resolution would undermine the ability of TELUS’ board to properly discharge its duties going forward, the Commission notes that it did not request or compel the filing of the document in question. Rather, TELUS filed the board resolution on the record at its own request and initiative. Given this and the assessment made above, the Commission considers that requiring public disclosure of the contents of this resolution would not have the adverse effects claimed by the company.
With respect to the public interest in disclosure, the Commission notes that the information contained in the board resolution document is not likely to contribute materially to the Commission’s ability to build a complete record on the issues under consideration as it is general in nature or largely reiterates statements already made publicly by TELUS.
However, given the absence of likely harm resulting from disclosure and the general principle reflected in section 38 that information filed with the Commission in the course of a proceeding is to be publicly disclosed, the Commission considers that the information contained in the board resolution that was filed in confidence should be publicly disclosed, in its entirety.
However, the Commission notes that the document was filed on the record voluntarily by TELUS and contains information intended to support that company’s already public position. In the Commission’s view, though the Rules of Procedure do not generally allow a party to a telecom proceeding to withdraw a document from the record, in the circumstances no party except for TELUS could be prejudiced by such a withdrawal. As such, if TELUS wishes to remove this supporting evidence from the record of the proceeding, it may do so in this case, as an exception to Rules of Procedure.
Having regard to the considerations above, TELUS is to either disclose the board resolution publicly, or withdraw it from the record of the proceeding, by 29 June 2020. In the event that TELUS elects to disclose this information, the Commission requires that the company also provide the associated resolution number and precise date on which it was adopted.
Original signed by
Parties to 2019-57 proceeding
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