Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Ministries of Agriculture, Food and Rural Affairs, the Attorney General, and Natural Resources (the Ministries) each received the same request, under the Freedom of Information and Protection of Privacy Act (the Act ). The appellant's request for access to records was made in the context of a named MPP's business interests in two named companies. The two named companies are business associates which are operating under a separate third business name. For the purpose of this Order, I refer to all three companies as "the affected party". The appellant specifically requested: … any and all records relating to the tendering and purchasing practices of your ministry concerning travel expenses, and also for any and all records relating to contracts or ongoing arrangements with an entity described as [the affected party] … or with one [the affected party] … and further, for any and all records relating to purchases from and amounts paid to these entities since June 8, 1995, and more particularly in the last 2 years, and still more particularly in the last year. In accordance with section 25, the Ministries forwarded the request to Management Board Secretariat (MBS) which has custody and control of the responsive records. MBS sought to clarify the appellant's request and confirmed that he was seeking records relating to any contract or other agreements that Management Board Secretariat has with the affected party. After further discussions with the appellant, MBS clarified the request to read: records relating to any contract or other agreements Management Board Secretariat has with [the affected party]; records relating to the Ministry's tendering and purchase practices for travel expenses; any purchases paid to these companies within the last two years prior to the date of your request MBS located nine responsive records, notified the affected party of the request and asked for its views. The affected party objected to the release of certain records. After reviewing the affected party's response, MBS advised the appellant it was granting full access to records 1, 4, 7 and 9, and partial access to records 2, 3, 5, 6 and 8. In withholding information, MBS relied on the exemptions at section 17(1) (third party information) and 21(1) (personal information). The appellant appealed MBS' decision. During mediation of this appeal, two issues were resolved. The appellant agreed that he is not seeking access to the personal information of employees. Section 21 and the following pages, therefore, have been removed from the scope of the appeal: pages 97 - 105; the staff list at pages 116a and b of record 2; pages 31 to 40 of record 5; and the severed portions of pages 36 and 37 of record 8. In discussions with the Mediator, the appellant raised the issue of the existence of additional records. He subsequently advised that MBS provided him with a letter which adequately addressed his concern about additional records and reasonableness of search has been removed as an issue. At that time, the appellant also raised the possible application of the "public interest override" at section 23 of the Act, which has been added as an issue in this appeal. Further mediation was not possible and the matter proceeded to the adjudication stage. I sent a Notice of Inquiry to MBS, initially, soliciting its representations with respect to the exemptions claimed, and received a response. I then sent a copy of the Notice to the appellant along with MBS' complete representations. A copy of the Notice was also sent to the affected party. Both the appellant and the affected party submitted representations. RECORDS: There are five records at issue in this appeal, in full or in part. They are: Record 2 (Travel Management Proposal submitted, May 1994) Record 3 (Travel Agency Services Agreement with Management Board of Cabinet (MBC), November 1994) Record 5 (Travel Management Proposal, January 1996) Record 6 (Regional Travel Services Agreement with MBC, August 1996) Record 8 (Travel Management Proposal, January 1999) DISCUSSION: THIRD PARTY INFORMATION General Principles Section 17(1) of the Act provides, in part: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; One of the principal purposes of the Act is to make transparent the workings of government. Section 17(1) exists in recognition of the fact that in the course of carrying out public responsibilities, governmental agencies often find themselves in possession of information about the activities of private businesses. In Order PO-1805, Senior Adjudicator David Goodis stated that this provision was designed to "protect the 'information assets' of businesses or other organizations which provide information to government institutions." For a record to qualify for exemption under section 17(1)(a), (b) or (c), the institution and/or the affected parties must satisfy each part of the following three-part test: the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and the information must have been supplied to the
Decision Content
NATURE OF THE APPEAL:
The Ministries of Agriculture, Food and Rural Affairs, the Attorney General, and Natural Resources (the Ministries) each received the same request, under the Freedom of Information and Protection of Privacy Act (the Act). The appellant’s request for access to records was made in the context of a named MPP’s business interests in two named companies. The two named companies are business associates which are operating under a separate third business name. For the purpose of this Order, I refer to all three companies as “the affected party”.
The appellant specifically requested:
… any and all records relating to the tendering and purchasing practices of your ministry concerning travel expenses, and also for any and all records relating to contracts or ongoing arrangements with an entity described as [the affected party] … or with one [the affected party] … and further, for any and all records relating to purchases from and amounts paid to these entities since June 8, 1995, and more particularly in the last 2 years, and still more particularly in the last year.
In accordance with section 25, the Ministries forwarded the request to Management Board Secretariat (MBS) which has custody and control of the responsive records. MBS sought to clarify the appellant’s request and confirmed that he was seeking records relating to any contract or other agreements that Management Board Secretariat has with the affected party. After further discussions with the appellant, MBS clarified the request to read:
records relating to any contract or other agreements Management Board Secretariat has with [the affected party];
records relating to the Ministry’s tendering and purchase practices for travel expenses;
any purchases paid to these companies within the last two years prior to the date of your request
MBS located nine responsive records, notified the affected party of the request and asked for its views. The affected party objected to the release of certain records. After reviewing the affected party’s response, MBS advised the appellant it was granting full access to records 1, 4, 7 and 9, and partial access to records 2, 3, 5, 6 and 8. In withholding information, MBS relied on the exemptions at section 17(1) (third party information) and 21(1) (personal information).
The appellant appealed MBS’ decision.
During mediation of this appeal, two issues were resolved. The appellant agreed that he is not seeking access to the personal information of employees. Section 21 and the following pages, therefore, have been removed from the scope of the appeal: pages 97 – 105; the staff list at pages 116a and b of record 2; pages 31 to 40 of record 5; and the severed portions of pages 36 and 37 of record 8.
In discussions with the Mediator, the appellant raised the issue of the existence of additional records. He subsequently advised that MBS provided him with a letter which adequately addressed his concern about additional records and reasonableness of search has been removed as an issue. At that time, the appellant also raised the possible application of the “public interest override” at section 23 of the Act, which has been added as an issue in this appeal.
Further mediation was not possible and the matter proceeded to the adjudication stage. I sent a Notice of Inquiry to MBS, initially, soliciting its representations with respect to the exemptions claimed, and received a response. I then sent a copy of the Notice to the appellant along with MBS’ complete representations. A copy of the Notice was also sent to the affected party. Both the appellant and the affected party submitted representations.
RECORDS:
There are five records at issue in this appeal, in full or in part. They are:
• Record 2 (Travel Management Proposal submitted, May 1994)
• Record 3 (Travel Agency Services Agreement with Management Board of Cabinet (MBC), November 1994)
• Record 5 (Travel Management Proposal, January 1996)
• Record 6 (Regional Travel Services Agreement with MBC, August 1996)
• Record 8 (Travel Management Proposal, January 1999)
DISCUSSION:
THIRD PARTY INFORMATION
General Principles
Section 17 (1) of the Act provides, in part:
A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to,
(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;
(c) result in undue loss or gain to any person, group, committee or financial institution or agency;
One of the principal purposes of the Act is to make transparent the workings of government. Section 17(1) exists in recognition of the fact that in the course of carrying out public responsibilities, governmental agencies often find themselves in possession of information about the activities of private businesses. In Order PO-1805, Senior Adjudicator David Goodis stated that this provision was designed to “protect the ‘information assets’ of businesses or other organizations which provide information to government institutions.”
For a record to qualify for exemption under section 17(1)(a), (b) or (c), the institution and/or the affected parties must satisfy each part of the following three-part test:
1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and
2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and
3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of subsection 17(1) will occur.
[Orders 36, P-373, M-29 and M-37]
The Ontario Court of Appeal recently overturned the Divisional Court’s decision quashing Order P‑373 and restored Order P‑373. In that decision the Court stated as follows:
With respect to Part 1 of the test for exemption, the Commissioner adopted a meaning of the terms which is consistent with his previous orders, previous court decisions and dictionary meaning. His interpretation cannot be said to be unreasonable. With respect to Part 2, the records themselves do not reveal any information supplied by the employers on the various forms provided to the WCB. The records had been generated by the WCB based on data supplied by the employers. The Commissioner acted reasonably and in accordance with the language of the statute in determining that disclosure of the records would not reveal information supplied in confidence to the WCB by the employers. Lastly, as to Part 3, the use of the words “detailed and convincing” do not modify the interpretation of the exemption or change the standard of proof. These words simply describe the quality and cogency of the evidence required to satisfy the onus of establishing reasonable expectation of harm. Similar expressions have been used by the Supreme Court of Canada to describe the quality of evidence required to satisfy the burden of proof in civil cases. If the evidence lacks detail and is unconvincing, it fails to satisfy the onus and the information would have to be disclosed. It was the Commissioner’s function to weigh the material. Again it cannot be said that the Commissioner acted unreasonably. Nor was it unreasonable for him to conclude that the submissions amounted, at most, to speculation of possible harm. [emphasis added]
[Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 (Div. Ct.)]
MBS and the affected party rely on the exemptions at sections 17(1)(a), (b) and (c).
Part 1: Types of Information
The affected party and MBS both characterize the information in the records as relating to the affected party’s commercial and financial interests as between the affected party and the government. The affected party does not respond specifically to the requirements in parts 1 and 2 of the three-part test. Rather, he states generally that the information disclosed does not provide him with sufficient information to discern the nature of the proposals or to gauge the monetary value of the transactions.
The terms “commercial” and “financial” information have been defined in previous orders of the Commissioner’s office as follows:
Commercial Information is information which relates solely to the buying, selling or exchange of merchandise or services. [Order P-493]
Financial Information refers to information relating to money and its use or distribution and must contain or refer to specific data. For example, cost accounting method, pricing practices, profit and loss data, overhead and operating costs. [Orders P-47, P-87, P-113, P-228, P-295 and P-394]
I have reviewed the information contained in the five records and accept that it relates directly to the buying and selling of travel agency services to the provincial government. The three proposals, records 2, 5 and 8, were submitted in response to RFPs. They contain information on the affected party’s proposed business activities, such as its pricing structures, budget and payment terms, financial benefits and cost savings, the nature of the services provided, business plans, corporate structure, employee qualifications, corporate clients, and information on proprietary products and procedures. I am satisfied that this information clearly on its face meets the definitions of commercial and/or financial information.
Similarly, records 6 and 8 are agreements between the affected party and MBS for the provision of travel agency services. Among other terms, both documents include information on bookings, nature of services to be provided, revenue-share calculations and related financial information, and proprietary information for managing reporting. The only information at issue in both records concerns revenue-sharing and related provisions, and proprietary information.
I find that this information may be properly characterized as commercial and/or financial information for the purposes of sections 17(1), and the first requirement of the section three-part test has been met.
Part 2: Supplied in Confidence
In order to satisfy the second requirement, MBS and/or the affected parties must show that the information was “supplied” to MBS, either implicitly or explicitly in confidence. Information contained in a record not actually submitted to an institution will nonetheless be considered to have been “supplied” for the purposes of section 17(1) if its disclosure would permit the drawing of accurate inferences with respect to the information actually supplied to MBS. [Orders P-179, P-203, PO-1802 and PO-1816]
“Supplied”
Records 2, 5, and 8 – the proposals
MBS submits that records 2, 5 and 8 are proposals in response to provincial government RFPs and were therefore “supplied” by the affected party. The affected party makes the same argument, stating that the information in the proposals was provided in the course of a “commercial bidding process” and as such was “supplied” within the meaning of section 17(1).
I have reviewed the records and it is clear that each of the proposals was supplied by the affected party in response to an RFP.
Records 3 and 6 – the agreements
Because the information in a contract is typically the product of a negotiation process between two parties, the content of contracts involving an institution and an affected party will not normally qualify as having been “supplied” for the purposes of section 17(1) of the Act. Records of this nature have been the subject of a number of past orders of this Office. In general, the conclusions reached in these orders is that for such information to have been “supplied”, it must be the same as that originally provided by the affected party, not information that has resulted from negotiations between the institution and the affected party. If disclosure of a record would reveal information actually supplied by an affected party, or if disclosure would permit the drawing of accurate inferences with respect to this type of information, then past orders have also found that this information satisfies the requirements of the “supplied” portion of the second requirement of the section 17(1) exemption test. [Orders P-204, P-251 and P-1105]
In its representations, MBS submits:
… In this case, the information severed from the two agreements between [the affected party] and MBS is pricing information that was actually supplied by [the affected party] in its corresponding RFP response proposal.
Similarly, the affected party states that the information in the agreements qualifies as being “supplied” “because it is not the product of negotiations” and “is the same as that originally provided by [the affected party] in its proposals.”
My review of record 6 indicates that the information at issue was drawn from record 5. I accept that the references contained in the agreement would permit the drawing of accurate inferences with respect to the information actually supplied to MBS by the affected party in its proposal.
With respect to record 3, I am satisfied that the information severed at paragraph 6 is drawn from record 2. The balance of the withheld information at page 11, however, is the result of negotiations between MBS and the affected party. In my view, disclosure of this information would not reveal information actually supplied by the affected party nor would it allow the drawing of accurate inferences to this type of information. As all three parts of the section 17(1) test must be met in order for a record or part of a record to qualify exemption, I find that that the information severed at page 11 of record 3 does not qualify for exemption and should be disclosed to the appellant.
“In Confidence”
As I have found that the information contained in records 2, 3, 5, 6 and 8 was supplied to the institution by the affected party, I will now consider whether it was supplied in confidence, either implicitly or explicitly.
MBS submits:
It is MBS’ normal and consistent practice to treat the proprietary business and financial information in RFP responses as confidential information. Consequently, only that information was severed from the three [the affected party] proposals, whereas the background information and extracts from the RFP were disclosed to the Appellant. … All three proposals include a statement to the effect that the proprietary and confidential information contained therein should remain confidential, and that the proposed data may not be used by MBS for any purpose than to evaluate the response.
…
As for the two contracts, [the affected party’s] pricing structure, which was also supplied to MBS in the RFP proposal was submitted by [the affected party] with the expectation that MBS would treat it as confidential information, and MBS has, in fact treated it as such.
The affected party refers to the explicit confidentiality statements found at the beginning of each proposal, and asserts that they are “evidence of a consistent intention that the information supplied would be treated in a confidential fashion.” It also maintains that the pricing information provided in the agreements was initially supplied to MBS in the RFP responses.