When a journalist – or any member of the public – requests information related to a procurement process, the government must balance two sometimes conflicting duties: to provide the public with access to information, and to protect the business interests of third parties. The Freedom of Information and Privacy Act (“FIPPA”) contains a section that requires the government to withhold such information in certain circumstances, setting out a three-part test. However, the precise wording of the law sometimes gives rise to disagreements, and it is important for any adjudicator to be sure to examine closely the material in question to determine if it must be withheld or disclosed.
In Plenary Group (Canada) Ltd v British Columbia (Information and Privacy Commissioner), 2018 BCSC 444, the journalist Joe Fries asked the Ministry of Technology, Innovation and Citizens’ Services (“the Ministry”) for copies of particular documents attached to the contract awarded to Plenary Group (Canada) Ltd (“Plenary”) for designing, building, financing, and maintaining the Okanagan Correctional Centre (“OCC”) for a thirty-year period. However, the Ministry withheld some of the information Fries was specifically seeking because the Ministry determined that that information would reasonably be expected to harm Plenary’s business interests.
Specifically, the information withheld from Fries consisted of two documents forming part of the contract: Schedule 15 and Appendix 2F. The former was a 597-page spreadsheet containing Plenary’s financial model for the project, including anticipated project costs. The latter was a construction schedule, from which the Ministry withheld the columns including the proposed start and finish dates for each task.
After Fries received the incomplete information, he asked for a review of the decision to withhold portions. The Office of the Information and Privacy Commissioner (“OIPC”) convened an inquiry, and after the Ministry and Plenary provided affidavit evidence, the adjudicator, appointed under FIPPA, ordered the Ministry to provide to Fries the withheld information. The Ministry had argued that FIPPA applied to Schedule 15, and Plenary had argued that it applied to both Schedule 15 and Appendix 2F.
The Ministry and Plenary brought an application for Judicial Review of the adjudicator’s decision, arguing that the adjudicator came to an unreasonable decision, and that her reasons show that she ignored and misapprehended important evidence. Further, they argued that she applied the wrong test in how she interpreted FIPPA. Finally, they claimed that when the adjudicator reviewed an online version of the contract for Plenary to construct the OCC, she drew conclusions without giving the parties the opportunity to submit evidence or make arguments.
In determining what to do with the Ministry and Plenary’s request for a judicial review of the decision to give Fries the withheld information, the judge assessed the purpose and exact wording of FIPPA in the context of the adjudicator’s reasons. FIPPA’s central purpose, as the judge held, is to make public bodies more accountable, and to do so has created the public’s right to access records under the control – or in the custody – of public bodies. Of course, exceptions to disclosure exist, most of which are discretionary. Some exceptions are what is called ‘harm-based’ – that is, a refusal to disclose can only be justified by a reasonable expectation of harm.
Section 21(1) of FIPPA describes a mandatory harm-based exception regarding the business interests of a third party, meaning that if a reasonable expectation of harm is proved, the information cannot be disclosed to the petitioner. The section is as follows:
21 (1) The head of a public body must 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 or about a third party
(b) that is supplied, implicitly or explicitly, 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 the third party,
(ii) result in similar information no longer being 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.
When the adjudicator considered Fries’ request, she determined that the issue was whether the Ministry had to refuse to disclose the information, and instructed herself that whoever resisted disclosure bore the burden of proof. She then looked to the above section and assessed whether Schedule 15 and Appendix 2F met the three criteria:
- that disclosure would reveal commercial or other information about a third party;
- that the information being asked for was supplied in confidence by the third party; and
- that disclosure could reasonably bring about one of the four harms listed in section 21(1)(c).
While the adjudicator did find that disclosing Schedule 15 and Appendix 2F to Mr. Fries would reveal Plenary’s commercial or financial information, she found that the information was not “supplied” as required by section 21(1)(b). She determined this because of the general rule that information in a contract does not qualify as “supplied” even if there is little or no negotiation of that contract.
On review, Justice Thompson found that the adjudicator’s decision to hold that the information was not “supplied” was unreasonable, because much of the information was immutable, or unchangeable, instead of negotiable. That is, some of the information provided by Plenary was not susceptible to being changed in the negotiating process. Further, determining what of the information was actually immutable and thus supplied required a more finely drawn analysis than the adjudicator had undertaken. (The judge was able to look at the material in camera and held that the adjudicator needed to have done a more in-depth analysis than she had performed.)
Ultimately, the judge decided to quash the decision to give Fries the withheld information. He then remitted the matter back to the OIPC for re-determination. The judge did not offer an opinion as to whether section 21(1) of FIPPA applied to Schedule 15 and Appendix 2F, and since the matter would be assessed with a fresh eye, the procedural fairness issue was irrelevant.
Editor’s Note: While each province and territory has its own Freedom of Information and Protection of Privacy legislation, the tests under the legislation for information that must be withheld are remarkably similar. This case is entirely consistent with similar rulings in other Canadian jurisdictions which have concluded that, while RFP proposals often contain information ‘supplied in confidence’ (a key part of the test), this has little relevance to a signed contract which is neither ‘supplied’ by the bidder, nor provided under the claim of ‘confidence’. The onus is on the party resisting disclosure to prove that the exceptional circumstances for withholding information are met.
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.