Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The City of Cornwall (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to a copy of an identified company’s “request for proposal” with regard to the operation of a marina. After notifying the identified company (the affected party), the City issued a decision stating that it was denying access to the requested record under section 10 (third party information) of the Act . The decision also stated that the information was provided in strict confidence, and its release would prejudice the competitive position of the affected party. The requester (now the appellant) appealed the City’s decision. During mediation the City agreed that subsequent clarifications to the request for proposal were within the scope of the request. The City then issued a second decision letter to the appellant, in which it also denied access to this additional responsive information on the basis of section 10. The appellant also appealed this second decision. Mediation did not resolve this appeal, and it was transferred to the adjudication stage of the process. I sent a Notice of Inquiry to the City and the affected party, initially. Both the City and the affected party provided representations in response to the Notice of Inquiry. In its representations, the City identified that some of the information contained in the records may contain information which constitutes the personal information of identifiable individuals, and may therefore be exempt under the mandatory exemption in section 14 (invasion of privacy) of the Act . Accordingly, that issue was included in this appeal. In the circumstances, I decided to send a Supplementary Notice of Inquiry to one identified individual. I invited that individual to provide representations regarding whether any portions of the records may contain information which constitutes his personal information and, if so, whether its disclosure would constitute an unjustified invasion of personal privacy. The identified individual did not provide representations in response to the supplementary Notice of Inquiry. I then sent the Notice of Inquiry, which included both section 10 and section 14 as issues, to the appellant. I included a copy of the representations of the City and the non-confidential portions of the representations of the affected party. I did not receive representations from the appellant. RECORDS: The records at issue in this appeal are: 1) A “Request for Proposal”, which includes a 5-page Proposal (the Request for Proposal) and a 2-page cover letter (the Letter); and 2) A subsequent 4-page submission (the Subsequent Submission). DISCUSSION: THIRD PARTY INFORMATION The City takes the position that the records qualify for exemption under section 10 of the Act . Its decision identifies that the disclosure of the information would “prejudice the competitive position of the affected party.” In its representations, the City also refers to its concern that disclosing this information would “inadvertently discourage potential future bidders from submitting financial ... information” on Requests for Proposals or tenders. The affected party’s representations refer only to specific portions of the records at issue, which it objects to disclosing on the basis that the disclosure of the information will prejudice the competitive position of the affected party, and result in undue loss to it. The City and the affected party therefore take the view that the relevant portions of the records are exempt from disclosure under sections 10(1)(a), (b) and (c) of the Act . Those sections read: 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, if 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; or Section 10(1) recognizes that in the course of carrying out public responsibilities, government agencies often receive information about the activities of private businesses. Section 10(1) is designed to protect the “informational assets” of businesses or other organizations that provide information to the government (Order PO-1805). Although one of the central purposes of the Act is to shed light on the operations of government, section 10(1) serves to limit disclosure of information which, while held by government, constitutes confidential information of third parties which could be exploited by a competitor in the marketplace. For a record to qualify for exemption under sections 10(1)(a), (b) or (c) the City and/or the affected party 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 institution in confidence, either implicitly or explicitly; and 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 section 10(1) will occur. (Orders 36, P-373, M-29 and M-37). Part one: type of information Both the City and the affected party submit that portions of the records contain financial information. The City refers to page 5 of the Request for Proposal, and states: [This page] provides financial information given to [the City], as a result of [the affected party’s] Request for Proposal to operate [the Marina]. The affected party provided an estimated budget to the [City] implicitly believing that this financial information as to how they propose to run their business, would not be divulged to the general public. The affected party identifies in its representations the specific information that it considers to be “financial”. This includes the estimated budget information included on page 5 of the Request for
Decision Content
NATURE OF THE APPEAL:
The City of Cornwall (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to a copy of an identified company’s “request for proposal” with regard to the operation of a marina.
After notifying the identified company (the affected party), the City issued a decision stating that it was denying access to the requested record under section 10 (third party information) of the Act. The decision also stated that the information was provided in strict confidence, and its release would prejudice the competitive position of the affected party.
The requester (now the appellant) appealed the City’s decision.
During mediation the City agreed that subsequent clarifications to the request for proposal were within the scope of the request. The City then issued a second decision letter to the appellant, in which it also denied access to this additional responsive information on the basis of section 10. The appellant also appealed this second decision.
Mediation did not resolve this appeal, and it was transferred to the adjudication stage of the process. I sent a Notice of Inquiry to the City and the affected party, initially. Both the City and the affected party provided representations in response to the Notice of Inquiry.
In its representations, the City identified that some of the information contained in the records may contain information which constitutes the personal information of identifiable individuals, and may therefore be exempt under the mandatory exemption in section 14 (invasion of privacy) of the Act. Accordingly, that issue was included in this appeal.
In the circumstances, I decided to send a Supplementary Notice of Inquiry to one identified individual. I invited that individual to provide representations regarding whether any portions of the records may contain information which constitutes his personal information and, if so, whether its disclosure would constitute an unjustified invasion of personal privacy. The identified individual did not provide representations in response to the supplementary Notice of Inquiry.
I then sent the Notice of Inquiry, which included both section 10 and section 14 as issues, to the appellant. I included a copy of the representations of the City and the non-confidential portions of the representations of the affected party. I did not receive representations from the appellant.
RECORDS:
The records at issue in this appeal are:
1) A “Request for Proposal”, which includes a 5-page Proposal (the Request for Proposal) and a 2-page cover letter (the Letter); and
2) A subsequent 4-page submission (the Subsequent Submission).
DISCUSSION:
THIRD PARTY INFORMATION
The City takes the position that the records qualify for exemption under section 10 of the Act. Its decision identifies that the disclosure of the information would “prejudice the competitive position of the affected party.” In its representations, the City also refers to its concern that disclosing this information would “inadvertently discourage potential future bidders from submitting financial … information” on Requests for Proposals or tenders. The affected party’s representations refer only to specific portions of the records at issue, which it objects to disclosing on the basis that the disclosure of the information will prejudice the competitive position of the affected party, and result in undue loss to it. The City and the affected party therefore take the view that the relevant portions of the records are exempt from disclosure under sections 10(1)(a), (b) and (c) of the Act. Those sections read: