blue book on wood table with Freedom information act FOI written on cover

Seon v Board of Education of the Regina Roman Catholic School Division No 81, 2018 SKQB 166
Prince Edward Island (Department of Economic Development and Tourism) (Re), 2018 CanLII 54182 (PE IPC)

The role of Freedom of Information requests in procurement can be confusing, and two recent decisions – one from Saskatchewan and one from Prince Edward Island – provide some clarity both for when access is refused and for when information is provided but redacted. The following cases refer to specific provisions of the legislation in each province. However, as this type of legislation is remarkably similar across Canada, these precedents may be helpful in navigating requests for disclosure received by your own organization.

In Seon v Board of Education of the Regina Roman Catholic School Division No 81, 2018 SKQB 166, Michael Seon sought to appeal the Respondent’s decision to refuse him access to information in a vendor evaluation table (the “Table”) relating to a 2017 request for proposals for supplying computer hardware. The Board of Education (“the Respondent”) had prepared the Table in order to assess the bids and included the unit prices submitted by each vendor, the date by which units would be delivered, and the point scores assigned to each bid during the evaluation process. Mr. Seon was notified on June 8, 2017 that his bid was unsuccessful. Unsuccessful vendors were not provided any information about other bids aside from which bids were successful.

The following day, Mr. Seon made an access for information request, seeking the Table along with the list of vendors evaluated, point scores, vendor bid amounts, products selected, and shipping costs. He was provided with a list of vendors and a redacted copy of the Table, but not information about pricing, delivery times, or point scores. The Respondent also provided him with an explanation of how the point scores were assigned to the bids. Mr. Seon here sought to appeal the refusal to release the redacted information.

Information That Could Prejudice the Competitive Position of a Third Party

The judge considered sections 18(1)(b) and (c) of Saskatchewan’s Local Authority Freedom of Information and Privacy Act (the “Act”), which the Respondent argued prohibit them from allowing Mr. Seon to access the Table in its entirety. The relevant provision is as follows:

18 (1) Subject to Part V and this section, a head shall refuse to give access to a record that contains:
[…]
(b) financial, commercial, scientific, technical or labour relations information that is supplied in confidence, implicitly or explicitly, to the local authority by a third party, [or]
(c) information, the disclosure of which could reasonably be expected to:

(i) result in financial loss or gain to;
(ii) prejudice the competitive position of; or
(iii) interfere with the contractual or other negotiations of;
a third party […].

In upholding the refusal to release the redacted information, the judge considered all three criteria in section 18(1)(b). First, unit pricing and delivery dates contained in vendors’ bids are clearly commercial in nature. Second, the third-party vendors disclosed this information to a local authority (the Respondent). The point scores are also both commercial and disclosed, as they were calculated based on the disclosed information. Finally, the tender documents promised confidentiality, meeting the third requirement.

The judge also determined that disclosing this information would prejudice other third-party vendors, meaning that the Respondent was correct to deny Mr. Seon access pursuant to section 18(1)(c).

In Re Prince Edward Island (Department of Economic Development and Tourism), 2018 CanLII 54182 (PE IPC) the PEI Information and Privacy Commissioner (the “Commissioner”) addressed two related requests made by the same applicant (the “Applicant”).

In the first request, the Applicant sought access to RFP responses, agent evaluations, and quotas allocated to each agent for the years 2011–2014 inclusive. These records related to a 2011 RFP in which qualified parties were sought to act as agents for the PEI Provincial Nominee Program. The public body – now referred to as the Department of Economic Development and Tourism – refused the Applicant’s request pursuant to sections 14(1), 15, and 22 of PEI’s Freedom of Information and Protection of Privacy Act (the “PEI Act”):

14 (1) Subject to subsection (2) the head of a public body shall refuse to disclose to an
applicant information

(a) that would reveal

(i) trade secrets of a third party, or
(ii) commercial, financial, labour relations, scientific or technical information of a third party;

(b) that is supplied, explicitly or implicitly, in confidence; and
(c) the disclosure of which could reasonably be expected to

(i) harm significantly the competitive position or interfere significantly with the negotiating position of a third party,
(ii) result in similar information no longer supplied to the public body when it is in the public interest that similar information continue to be supplied,
(iii) result in undue financial loss or gain to any person or organization, or
(iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.

15 (1) The head of a public body shall refuse to disclose personal information to an applicant if
the disclosure would be an unreasonable invasion of a third party’s personal privacy.

The Applicant sought a review of the decision, and the Public Body relented, allowing the Applicant access to the RFP records with certain information redacted pursuant to sections 14 and 15. After three third parties then requested a review of that decision, the Public Body provided access to the Applicant of the eight other bidders in the 2011 RFP. The Public Body reconsidered subsections 14(1) and 15(1), and decided that these sections did not apply to the quota letters.

In 2016, the same Applicant made a request for access to extension agreements and the quota allocated to each agent for the years 2014–2016 inclusive, and was granted complete access to the records, as the Public Body decided that subsections 14(1) and 15(1) did not apply to the extension agreements. However, two of the three third parties who had requested a review of the previous request now requested a review of this decision.

Information Which Could Cause Undue Financial Loss

The Commissioner reviewed both decisions, dividing the analysis into sections looking at the quota letters, the extension agreements, the evaluations, and the RFP responses. For the quota letters, the Applicant argued that he was interested in them for statistical purposes, submitting that the letters do not disclose financial information. While the third parties submitted that the records are covered by subsection 14(1), the Commissioner held in the Applicant’s favour, ruling that the third parties had not proved on a balance of probabilities that there was a cause and effect relationship between disclosure of the quota letters and harm to their interests.

Information Supplied in Confidence

The extension agreements were provided to the Applicant in their entirety, but the third parties argued that the information in them was supplied in confidence. The Commissioner held that the relevant consideration was whether the information had actually been supplied by the parties. Contractual terms are generally not considered to be ‘supplied’ – although there are exceptions: where ‘immutable’ or unchanging third-party information is added to a contract or where disclosure of that information would allow someone to draw an accurate inference about third-party confidential information that is not contained in that contract. Here the Commissioner ruled that neither exception applied, upholding the Public Body’s decision to provide these agreements to the Applicant without redactions. Further, companies who enter into contracts with public bodies reasonably understand the duties of transparency to the public these public bodies have.

The Commissioner considered whether the evaluations, which were not provided to the Applicant, should have been given. As with the extension agreements, none of the information in the evaluations had actually been supplied by the third parties but had been created by the Public Body and based on the Public Body’s criteria. This is a particularly interesting finding from the Commissioner, as intuitively evaluations and scores may seem to be automatically confidential. The Commissioner thus ordered the Public Body to provide access to the evaluations to the Applicant.

Labour Relations Information and Including Trade Secrets

Finally, the Commissioner analysed whether the Public Body was right to provide the Applicant with the redacted RFP responses. The redactions were based on sections 14 and 15, as the responses included descriptions of services, proposed fee schedules, information relating to past client numbers, and more. The Applicant conceded about the redactions based on section 14 as well as those based on section 15, which included redactions of signatures, employee photos, employee resumes, personal client information, individuals’ banking information, and so on. However, the third parties argued that unredacted information should also be redacted pursuant to those sections, as that information was commercial, financial, and technical, as well as relating to labour relations and including trade secrets. However, the Commissioner found that there was no specific subject, craft, or technique in the information. Nor was the information found to contain employer-employee relations or trade secrets. While the Commissioner did find that the information included ‘commercial information,’ commercial information on its own is insufficient to invoke section 14, as the information must also be revealed – that is, made publicly available. Since there was no evidence to show that the third parties’ commercial information had already been made public, the Commissioner held that some of the disclosed information was covered by section 14 – but that the third parties had not disclosed it in confidence. Ultimately, the Commissioner upheld the Public Body’s decision to provide this information, with redactions, to the Applicant.

Conclusions

These two cases provide illustrative notes on how to engage with privacy legislation when requesting access to RFP records. Highlights to remember include that not all business records are confidential or exempt from disclosure – rather, it is those records the disclosure of which could reasonably harm the commercial interests of the party that public bodies need to either redact or refrain from providing. When requesting documents, it is important to keep those provisions in mind and craft arguments explaining why access should be granted – and of course it is equally important when arguing against providing your organization’s records to an applicant.

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case.  For any particular legal problem, seek advice directly from your lawyer or in-house counsel.  All dates, contact information and website addresses were current at the time of original publication.