ORDER PO-4485

Appeal PA18-00747

Ministry of Health

February 22, 2024

Summary: This order deals with a third party appeal of an access decision under the Act  made by the Ministry of Health (the ministry). The request was for records relating to the third party’s community laboratory business, namely records relating to the development, review and implementation of external reviews and to the implementation of a specific funding cut. The ministry decided to disclose the responsive information in part. The appellant claims the application of the mandatory third-party information exemption in section 17(1)  of the Act  to specific commercial and/or financial information that the ministry had decided to disclose. In this order, the adjudicator finds that the appellant has not established that disclosure of the withheld information would result in any of the harms set out in section 17(1). The ministry is ordered to disclose the records to the requester in accordance with its decision.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, sections 17(1) (a) and 17(1) (c).

Orders Considered: Orders PO-4292, PO-4294, PO-4305 and PO-4384.

OVERVIEW:

[1] This order disposes of the issues raised as a result of a third-party appeal of a decision made by the Ministry of Health (the ministry) in response to an access request. The request, made under the Freedom of Information and Protection of Privacy Act  (the Act ), was for records relating to the development, review and implementation of external reviews of specified community laboratories, as well as records relating to the implementation of a particular funding cut.

[2] The ministry located records responsive to the request. Prior to issuing its decision, the ministry notified the third-party company that runs the community laboratories and sought its views on disclosure of the records. The third party objected in part to the disclosure of the records.

[3] The ministry subsequently issued a decision to both the requester and the third party, granting partial access to the records. The ministry denied access to portions of the records, claiming the application of the mandatory third-party exemption in section 17(1).

[4] The third party (now the appellant) appealed the ministry’s decision to the Information and Privacy Commissioner of Ontario (the IPC), claiming that section 17(1) applied to the information in the records that the ministry had decided to disclose. The requester did not appeal the ministry’s decision.

[5] During the course of mediation, the mediator sought consent from the appellant to allow the ministry to disclose records to the requester. The appellant granted the ministry consent to disclose records 13, 20, 143, 330, 339, 376, 378, 414, 419, 421, 422, 451, 459, 470,477, 484, 493, 624, 644, 652, 654 and 787 to the requester, which the ministry subsequently did. As a result, these records are no longer at issue. The requester confirmed with the mediator that they continue to pursue all of the remaining records the ministry granted access to.

[6] The appeal then proceeded to the adjudication stage, where an adjudicator may conduct an inquiry under the Act . The adjudicator assigned to the appeal sought and received representations from only the appellant. In its representations, the appellant provided consent to disclose further records to the requester, namely records 395, 396, 400, 418, 441, 444, 609, 670, 783, 784 and 788. As a result, these records are no longer at issue and are to be disclosed to the requester. In the event that the ministry has not already disclosed these records to the requester, I have included these records in order provision 1 of this order.

[7] The appellant also stated in its representations that it agrees with the ministry’s access decision where the ministry has withheld staff names and patient volumes from records 465, 635, 656, 658, 667, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 785 and 786. Because the requester did not file an appeal of the information that the ministry withheld, the staff names and patient volumes withheld in these records are not at issue and will not be disclosed to the requester. For clarity, I have included an Appendix to this order, which sets out the information in these records that is not to be disclosed.

[8] The file was then assigned to me to continue the inquiry. I provided the appellant with the opportunity to review and comment on IPC Orders PO-4292, PO-4294, PO-4305 and PO-4384, which dispose of third party appeals of decisions of the ministry relating to records of a similar nature to those in this appeal. The appellant responded, submitting that it considered the above-referenced orders and confirmed its position as set out in its representations (referred to in the “Discussion” section, below).

[9] I note that record 868 in this appeal is identical to one of the records that was disclosed to the same requester as a result of Order PO-4292. For this reason, I find that the requester has possession of record 868 and the issue of whether it is exempt from disclosure is moot. As a result, I have removed it from the scope of the appeal.

[10] For the reasons that follow, I find that the information at issue qualifies as commercial and/or financial information which was supplied in confidence by the appellant to the ministry, but that the harms test in section 17(1) has not been met and, therefore, the information is not exempt from disclosure. I order the ministry to disclose records to the requester in accordance with its decision.

RECORDS:

[11] The records at issue consist of the following:

Records at Issue

Record	Type of Record
601	Quality Improvement Plan Progress Report
635	Access & Performance Agreement – Access & Collection Report
656, 658, 667, 671-680	New Access Point and Site Implementation Reports
785	Issues Tracking Standard Operating Procedure
810-817, 859-860, 862-863 and 865	Quality Improvement Plan (QIP) Innovation Business Cases, Corporate Redesign, Supplementary Information, Innovation Report and Journey Mapping.

[12] The appellant’s position is that record 635 is exempt from disclosure in its entirety and that records 813 and 814 are exempt in their entirety except for their titles. With respect to the remaining records, the appellant’s position is that portions of these records are exempt, consisting of proposed and approved budget information, operating costs, resource breakdowns, dollar amounts related to funding and portions of a standard operating procedure relating to information systems inquiries.

DISCUSSION:

[13] The sole issue in this appeal is whether the mandatory exemption in section 17(1) applies to the information described above. The appellant is claiming that sections 17(1)(a) and 17(1)(c) apply, which state:

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;

(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or

[14] Section 17(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions.[1] Although one of the central purposes of the Act  is to shed light on the operations of government, section 17(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace.[2]

[15] For section 17(1) to apply, the institution and/or the third party 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 paragraph (a) and/or (c) of section 17(1) will occur.

Part 1: type of information

[16] The types of information listed in section 17(1) have been discussed in prior orders. The appellant claims that the records contain the following types of information:

Trade secret means information including but not limited to a formula, pattern, compilation, programme, method, technique, or process or information contained or embodied in a product, device or mechanism which

(i) is, or may be used in a trade or business,

(ii) is not generally known in that trade or business,

(iii) has economic value from not being generally known, and

(iv) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.[3]

Technical information is information belonging to an organized field of knowledge in the applied sciences or mechanical arts. Examples of these fields include architecture, engineering or electronics. Technical information usually involves information prepared by a professional in the field, and describes the construction, operation or maintenance of a structure, process, equipment or thing.[4]

Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises.[5] The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information.[6]

Financial information refers to information relating to money and its use or distribution and must contain or refer to specific data. Examples of this type of information include cost accounting methods, pricing practices, profit and loss data, overhead and operating costs.[7]

Representations

[17] The appellant submits that it is in the business of providing community laboratory services in the province and is subject to legislation,[8] which requires it to provide the ministry with certain information as part of what is, in effect, a commercial funding model.[9] The appellant further submits that the records relate to the impact of certain government decisions on both the funding and operations of the laboratories impacted by these decisions.

Commercial information

[18] The appellant goes on to submit that the records qualify as “commercial information,” as follows:

• Record 601 includes the number of patients to whom it provided services. Record 635 associates each number with an identified service, as well as the location from and/or to which the service was provided – for example – a laboratory, healthcare institution or physician’s office,
• The site implementation plan records (records 656, 658, 667, and 671-680) include anticipated patient volumes, which is a key indicator of the amount it will receive from the ministry for the services,[10]
• The quality improvement plans (records 810-817, 859-860, 862-863, 865 and 868) include a number of proposed business cases for the ministry to consider that may be approved and eligible for funding, including information related to proposed resources, associated costs and the amount requested to and approved by the ministry, and
• Appendix “A” of the standard operating procedures (record 785) contains detailed information on how the appellant proposes to address certain requirements in its performance-based funding agreement for a particular year.

[19] All of this information, the appellant argues, qualifies as “commercial information” because it relates to its provision of services in the province.

Financial Information

[20] The appellant’s position is that record 635 also qualifies as “financial information” because the appellant’s funding could be determined by the lab’s share of the market based on the billings it submitted times the volume of patients served and tests conducted.

Technical Information

[21] The appellant submits that record 785 also qualifies as “technical information” because it includes technical information prepared by its information technology department which describes the process that it will use in managing inquiries from the ministry or eHealth (as it was called then) related to technical performance issues.

Trade Secret

[22] The appellant submits that the QIP records containing information about projects that were not approved also qualify as a “trade secrets” because the information in these records is used in the appellant’s business as a business strategy to identify new projects and initiatives to meet and support its performance objectives. These are internally generated ideas by the appellant, and the specific manner in which it proposes to develop, cost and implement these ideas is unique to the appellant. The appellant argues that these ideas have economic value from not being generally known and are not available to anyone outside the company.

Analysis and findings

[23] I find, based on my review of the records and the appellant’s representations, that all of the records at issue contain information that qualifies as “commercial information” for the purposes of the first part of the three-part test in section 17(1) because these records relate solely to the buying and selling of laboratory services by and to the ministry and in turn to the public in the province. I also find that some of the records contain information that qualifies as “financial information” because they contain information relating to operating costs.

[24] With respect to record 785, the appellant’s position is that it contains technical information prepared by its information technology department which describes the process that it will use in managing inquiries from the ministry or eHealth (as it was called then) related to technical performance issues. Technical information usually involves information prepared by a professional in the field and describes, for example, a process. While the information in record 785 describes a process, I find that it does not qualify as being “technical information” because the process described relates to assignment of tasks and reporting obligations, rather than technical processes. In any event, I have already found that this record qualifies as “commercial information” for the purposes of the first part of the three-part test.

[25] The appellant also argues that information in some of the QIP records about projects that were not approved qualifies as a “trade secret.” IPC Orders have found that information will qualify as a trade secret if it contains a formula, pattern, compilation, programme, method, technique, or process or information contained or embodied in a product, device or mechanism which is, or may be used in a trade or business, is not generally known in that trade or business, has economic value from not being generally known, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.[11] I find that this information does not qualify as a “trade secret.” The information consists of business strategies and proposals developed by the appellant to obtain funding from the ministry, not information that is embodied in a product, device or mechanism. However, as previously stated, I have found that these records qualify as “commercial information” for the purposes of the first part of the three-part test.

[26] In sum, I find that all of the records at issue qualify as “commercial information,” meeting the first part of the three-part test. I will now proceed to determine whether part two of the three-part test is met.

Part 2: supplied in confidence

[27] The requirement that the information was “supplied” to the institution reflects the purpose in section 17(1) of protecting the informational assets of third parties.[12]

[28] Information may qualify as “supplied” if it was directly supplied to an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party.[13]

[29] In order to satisfy the “in confidence” component of part two, the parties resisting disclosure must establish that the supplier of the information had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis.[14]

[30] In determining whether an expectation of confidentiality is based on reasonable and objective grounds, all the circumstances of the case are considered, including whether the information was

• communicated to the institution on the basis that it was confidential and that it was to be kept confidential,
• treated consistently by the third party in a manner that indicates a concern for confidentiality,
• not otherwise disclosed or available from sources to which the public has access, and
• prepared for a purpose that would not entail disclosure.[15]

Representations

[31] The appellant submits that it supplied most of the records directly to the ministry as part of its performance obligations under funding agreements. With respect to record 656 which contains reports, the appellant submits that this record contains information that is identical to that supplied to the ministry.

[32] The appellant further submits that the records were supplied “in confidence” to the ministry because, given the commercial and highly strategic business nature of the information, it had a reasonable expectation based on objective grounds that the information would be held in confidence. The appellant also submits that it treats the information in the records consistently in a manner that indicates a concern for its confidentiality, it is not otherwise disclosed by it, nor is it publicly available. The appellant states:

In the Appellant’s experience, the Ministry is always very cautious about not sharing information about one laboratory with another and takes great care with all documents submitted by the individual organizations.

. . .

The inherently competitive nature of the funding process only works because the laboratories expect that their information would remain confidential.

[33] Lastly, the appellant submits that the records in this appeal are analogous to those considered in previous IPC orders in which independent health facilities provided information to the ministry for the purposes of the funding allocation process. In these orders,[16] the appellant argues, the IPC found that the information met the “supplied in confidence” - the second part of the three-part test in section 17(1).

Analysis and findings

[34] Based on my review of the appellant’s representations and the records at issue, I am satisfied that the information contained in them was either directly provided to the ministry by the appellant or, in the case of record 656, contains information that is identical to information which was directly supplied to the ministry. I also find that the records were supplied with a reasonably-held expectation that they would be treated in a confidential fashion by the ministry. As a result, I find the appellant has satisfied me that the records were “supplied in confidence” to the ministry in accordance with the requirements of the second part of the three-part test in section 17(1).

[35] I will now determine whether the third part – the harms part – of the test is met.

Part 3: harms

[36] Parties resisting disclosure must establish a risk of harm from disclosure of the record that is well beyond the merely possible or speculative, but need not prove that disclosure will in fact result in such harm.[17]

[37] Parties should provide detailed evidence to demonstrate the harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences.[18] The failure of a party resisting disclosure to provide detailed evidence will not necessarily defeat the claim for exemption where harm can be inferred from the records themselves and/or the surrounding circumstances.

Representations

[38] The appellant’s position is that the disclosure of the information at issue could reasonably be expected to prejudice significantly its competitive position against other laboratories seeking funding from the ministry, as well as result in undue loss to it and undue gain to the other laboratories.

[39] The appellant argues that the disclosure of record 635 (the book of business, as described by the appellant) in particular would essentially provide competitors with a complete, detailed template of the appellant’s business operations, enabling the competitors to either fill in perceived gaps in the appellant’s services coverage and/or target the appellant’s high-volume clients and locations to entice clients to change their provider of laboratory services. The appellant goes on to submit that while the names and address of the clients and specimen collection centres is known, the volume of the appellant’s business and, therefore, the value of it and the name of the laboratory service provider for each client are not known. Further, the appellant submits that the combination of the information in records 601, 635, 785 as well as the QIP records would provide its competitors with a view as to how the components of the appellant’s business strategy and costing has enabled it to satisfy its performance obligations under the funding agreements.

[40] The appellant then raises Order PO-2780, in which the IPC found that the harms test in section 17(1) was not met with respect to records containing payments made by the ministry to community laboratories insured under OHIP. The appellant distinguishes this order, arguing that in the circumstances of this appeal, the information would provide competitors with:

• a line-item view of how it spends its approved budgets for the setup of new access point implementation,
• detailed spending for the QIP business cases,
• patient volumes from each physician and healthcare institution in Ontario, and
• business cases where funding was not approved, with ideas which could be used in competitors’ future proposals to the ministry.

[41] Lastly, the appellant states that while the records are dated from 2015 to 2016, the passage of time does not diminish the harms because there has been very little change in the appellant’s business model, which is set out in record 635, and in its approach to establishing budgets for new projects. In addition, the appellant submits, the cost to operating its services provided at its access points has not changed in any significant way.

Analysis and findings

[42] As previously stated, the appellant is claiming that sections 17(1)(a) and 17(1)(c) apply to the information at issue. These sections state:

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;

(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or

[43] To meet the competitive harm requirement in section 17(1)(a), the appellant must show that disclosing the information in the records at issue could reasonably be expected to prejudice significantly their competitive position. To satisfy the requirements of section 17(1)(c), it must show that disclosure of the information could reasonably be expected to result in and undue loss for themselves or an undue gain for its competitors.

[44] Based on the appellant’s representations and on my review of the records themselves, I am not persuaded that the harms contemplated in sections 17(1)(a) and (c) could reasonably be expected to result if the commercial and financial information at issue were to be disclosed. As a result, I find that the third part of the three-part test has not been met and that the information is not exempt from disclosure under section 17(1).

[45] The appellant asserts that record 635 constitutes a “complete, detailed template” of its business operations, and that while the names and addresses of the clients and specimen centres listed in this record are known, the disclosure of the volume of their business in the record would reveal the value of their business. As previously noted, all information relating to patient volumes is not at issue with the exception of only record 601. The patient volumes that the ministry withheld will not be disclosed because the requester did not file an appeal of the ministry’s decision. As a result, I am not persuaded by the appellant’s argument given that the volume of business will not be disclosed.

[46] With respect to record 601, the appellant objects to the disclosure of a single number representing patient volume over a discrete period of time. Considering the information at issue is a sole figure representing high level summary information, I do not agree with the appellant that the disclosure of this information could reasonably be expected to prejudice significantly its competitive position or to result in an undue loss to it or an undue gain for its competitors. As a result, I find that the third part of the three-part test has not been met with respect to the patient volume information in record 601, and it is not exempt from disclosure under section 17(1).

[47] The appellant then goes on to argue that the combination of the detailed budget and spending information in records 601,[19] 635, 785 and the QIP records, as well as the business cases where funding was not approved, would provide competitors with a view as to how the components of the appellant’s business strategy and costing has enabled it to satisfy its performance obligations under the funding agreements and provide competitors with ideas which they could use in their future proposals to the ministry.

[48] In Order PO-4292, Adjudicator Colin Bhattacharjee found that similar information was not exempt from disclosure under section 17(1). The information at issue in that appeal related to a community laboratory, including funding amounts requested by the laboratory to the ministry, amounts provided by the ministry, maximum funding amounts, license numbers and addresses of community laboratory centres, estimated and actual costs for various items, some statistics relating to monthly and daily laboratory test requisitions and specific payments made by the laboratory. The community laboratory third-party appellant argued that the disclosure of the information would provide an advantage to its competitors. Adjudicator Bhattacharjee found that the laboratory failed to meet the harms requirement in part 3 of the section 17(1) test, making the following findings:

[A]lthough the community laboratory suggests that disclosing the information at issue would provide an advantage to its competitors, they do not explain in sufficient detail how its competitors could use such information in a manner that could reasonably be expected to prejudice significantly its competitive position, as required by section 17(1)(a), or result in an undue loss for itself or an undue gain for these competitors, as required by section 17(1)(c).

Second, the IPC has found that the fact that a third party working for the government may be subject to a more competitive bidding process for future contracts if the amount it charges for services rendered is disclosed, does not, in and of itself, significantly prejudice their competitive position or result in undue loss to them.[20] Consequently, even though the community laboratory suggests that disclosing, for example, the specific funding that it received from the ministry could be advantageous to its competitors, I find that the fact that it may be subject to a more competitive application process for obtaining ministry funding could not reasonably be expected, in and of itself, to significantly prejudice its competitive position or result in an undue loss for itself or an undue gain for these competitors.

[49] In Order PO-4305, the third-part appellant community laboratory argued that the disclosure of the information at issue would result in a gain for its competitors because it would provide them with the appellant’s entire application template. The appellant also argued that disclosing its QIP innovation business case and reports would significantly prejudice its competitive position and result in an undue gain for its competitors because of the potential for commercialization. Adjudicator Bhattacharjee found that the records, including the QIP records that contained commercial information relating to business cases, innovation reports and year-end performance reports, were not exempt from disclosure under section 17(1), stating that the appellant had not explained in sufficient detail how it was reasonable to expect that prejudice to its competitive position would reach the threshold of being significant or how it was reasonable to expect that any loss for itself or gain for its competitors would be undue.

[50] I agree with and adopt the approach taken in Orders PO-4292 and PO-4305.[21] The information at issue in this appeal is similar, and the arguments made by the third-party appellant in those appeals is similar to those in the present appeal. In this appeal, I am not persuaded by the appellant that the disclosure of the name and addresses of clients (known information), the line-item spending of approved budgets, the spending for QIP business cases and the business cases where funding was not approved could reasonably be expected to prejudice “significantly” the appellant’s competitive position or cause them “undue” loss or a competitor “undue” gain.

[51] For these reasons, I find that the appellant has not met the third part of the three-part test in section 17(1) and, therefore, the information at issue is not exempt from disclosure under section 17(1). I therefore dismiss the appeal and order the ministry to disclose this information to the requester.

ORDER:

1. I order the ministry to disclose records 395, 396, 400, 418, 441, 444, 601, 609, 670, 783, 784, 788, 810, 811, 812, 813, 814, 815, 816, 817, 859, 860, 862, 863 and 865 to the requester in their entirety by March 27, 2024, but not before March 22, 2024.
2. I order the ministry to disclose records 465, 635, 656, 658, 667, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 785 and 786 to the requester, in part by March 27, 2024 but not before March 22, 2024. The attached Appendix sets out the portions of these records that are not to be disclosed to the requester.
3. I reserve the right to require the ministry to provide the IPC with a copy of the records it discloses to the requester.

Original signed by:		February 22, 2024
Cathy Hamilton
Adjudicator

APPENDIX

Appendix - Information in these Records that is not to be Disclosed

RECORD	INFORMATION TO BE WITHHELD
465	Staff names
635	The column on each page entitled Volumes in the Fiscal Year
656	Average Volumes and Estimated Volumes on pages 2, 4, 6, 8, 10, 12, 14, 16, 18, 20 and 22
658	Estimated Volumes on pages 6, 8, 10, 12, 14 and 15
667	Rationale for New Access Point – page 2, bullet 2; Estimated Volumes and Demographic Data on pages 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32 and 34
671	Estimated Volumes and Demographic Data on page 2
672	Estimated Volumes and Demographic Data on page 2
673	Estimated Volumes and Demographic Data on page 2
674	Estimated Volumes and Demographic Data on page 2
675	Estimated Volumes and Demographic Data on page 2
676	Estimated Volumes and Demographic Data on page 2
677	Actual Volume on page 1; Estimated Volumes and Demographic Data on page 2
678	Estimated Volumes and Demographic Data on page 2
679	Estimated Volumes and Demographic Data on page 2
680	Estimated Volumes and Demographic Data on page 2
785	Staff names
786	Staff names