GUIDE TO FOIP The Freedom of Information and Protection of Privacy Act Chapter 5 Third Party Information
TABLE OF CONTENTS Overview.......................................................................................................................................................................1 Quick Reference 1: Third party timelines .........................................................................................................2 Quick Reference 2: Contracting with government institutions................................................................4 Section 2: Definition of a third party .................................................................................................................9 Section 19: Third party information ................................................................................................................ 11 Subsection 19(1)(a)............................................................................................................................................ 14 Subsection 19(1)(b) ........................................................................................................................................... 16 Subsection 19(1)(c) ............................................................................................................................................ 28 Subsection 19(1)(c)(i) ............................................................................................................................. 29 Subsection 19(1)(c)(ii) ............................................................................................................................ 35 Subsection 19(1)(c)(iii) ........................................................................................................................... 40 Subsection 19(1)(d) ........................................................................................................................................... 45 Subsection 19(1)(e)............................................................................................................................................ 48 Subsection 19(1)(f)............................................................................................................................................. 51 Subsection 19(2)................................................................................................................................................. 55 Subsection 19(3)................................................................................................................................................. 56 Section 29: Disclosure of Personal Information.......................................................................................... 64 Subsection 29(2)(o): Disclosure of personal information ................................................................... 64 Subsection 29(2)(o)(i)............................................................................................................................. 64 Subsection 29(2)(o)(ii)............................................................................................................................ 71 Section 34: Notice to third party ...................................................................................................................... 76 Subsection 34(1)(a)............................................................................................................................................ 77 The absence of standing ...................................................................................................................... 79 Subsection 34(1)(b) ........................................................................................................................................... 82 The absence of standing ...................................................................................................................... 83 Subsection 34(2)................................................................................................................................................. 86 Subsection 34(2)(a)............................................................................................................................................ 86 Subsection 34(2)(b) ........................................................................................................................................... 88 Subsection 34(3)................................................................................................................................................. 91
Subsection 34(4)................................................................................................................................................. 93 Section 35: Waiver of notice .............................................................................................................................. 94 Section 36: Right to make representations .................................................................................................. 94 Subsection 36(1)(a)............................................................................................................................................ 95 Subsection 36(1)(b) ........................................................................................................................................... 96 Subsection 36(2)................................................................................................................................................. 99 Section 37: Decision .............................................................................................................................................. 99 Subsection 37(1)(a)..........................................................................................................................................101 Subsection 37(1)(b) .........................................................................................................................................102 Subsection 37(2)...............................................................................................................................................104 Subsection 37(2)(a)..........................................................................................................................................105 Subsection 37(2)(b) .........................................................................................................................................107 Subsection 37(3)...............................................................................................................................................108 Subsection 37(4)...............................................................................................................................................110 Section 49: Application for review.................................................................................................................112 Subsection 49(1)...............................................................................................................................................113 Subsection 49(2)...............................................................................................................................................114 Subsection 49(3)...............................................................................................................................................116 Subsection 49(4)...............................................................................................................................................117 Section 52: Notice of application for review..............................................................................................120 Section 53: Conduct of review ........................................................................................................................121 Section 55: Report of commissioner.............................................................................................................123 Section 56: Decision of head ...........................................................................................................................125 Section 57: Appeal to court..............................................................................................................................127
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 1 Overview The Freedom of Information and Protection of Privacy Act (FOIP) provides a right of access to all records under the possession or control of government institutions, subject to limited and specific exemptions. Some of the records to which FOIP applies contain information of third parties, such as private-sector businesses or individuals. Applicants often ask government institutions for access to records that contain third party business and personal information.1 The term “third party information” is generally used to refer to information the disclosure of which might particularly affect a person or organization, other than the government from which it is sought. That person or organization is called a ‘third party” because they are not involved directly in the request for information, either as the applicant or the government institution that must respond to the request.2 This Chapter explains the various provisions in FOIP that deal with third party information. What follows is non-binding guidance. Every matter should be considered on a case-by-case basis. This guidance is not intended to be an exhaustive authority on the interpretation of these provisions. Government institutions may wish to seek legal advice. Government institutions should keep section 61 of FOIP in mind. Section 61 places the burden of proof for establishing that access to a record may or must be refused on the government institution. For more on the burden of proof, see Chapter 2: Administration of FOIP. This is a guide. 1 Service Alberta, FOIP Bulletin No. 10: Third Party Notice at p. 1. 2 Government Information Access and Privacy, McNairn and Woodbury, Carswell, 2008, at p. 4-1. The tests, criteria and interpretations established in this Chapter reflect the precedents set by the current and/or former Information and Privacy Commissioners in Saskatchewan through the issuing of Review Reports. Court decisions from Saskatchewan affecting The Freedom of Information and Protection of Privacy Act (FOIP) will be followed. Where this office has not previously considered a section of FOIP, the Commissioner looked to other jurisdictions for guidance. This includes other Information and Privacy Commissioners’ Orders, Reports and/or other relevant resources. In addition, court decisions from across the country are relied upon where appropriate. This Chapter will be updated regularly to reflect any changes in precedent. This office will update the footer to reflect the last update. Using the electronic version directly from our website will ensure you are always using the most current version.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 2 Quick Reference 1: Third party timelines If the government institution does not intend to disclose third party information, third party notice is not required. However, if the government institution intends to disclose, notice is required to the third party. The following is a quick reference for the time limits involved with third party information.3 For more detail on each section below, refer to that section in this Chapter. The timelines set out in subsections 34(2), 36(1)(b), 37(1), 37(2), 37(3), 49(2), 49(4), and sections 56, and 57 of FOIP are fixed and there is no mechanism established within FOIP to formally modify or extend them. Step Step Description Time Limit 1. Notice to Third Party (section 34) Wavier of Notice (section 35) Extension of Time (section 12) As soon as possible, but at least within 30 days of receipt of the access to information request (unless time limit is extended by section 12). 2. Right to Make Representations (section 36) Government institution must have received representation from the third party within 20 days after Notice to Third Party is sent. 3. Notice of Decision (section 37) Within 30 days after Notice to Third Party is sent. (Can also be articulated as 10 days after 3 The above table was adapted from British Columbia Government Services, FOIPPA Policy and Procedures Manual at Section 24 - Time limit and notice of decision - Province of British Columbia (gov.bc.ca). Accessed Sept. 1, 2022. For a more detailed reference document on timelines and procedures, see the Access and Privacy Branch, Ministry of Justice resource, Help with FOIP!!, Access Request Checklist, Third Party Notification Required.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 3 expiry of the 20 days for third party representation) The section 7 decision to the applicant can be combined with the section 37 response for efficiency. 4. Request for Review of Decision (subsections 37(2)(b), 49(3) & 49(4)) Within 20 days after Notice of Decision for third party. Within one year after Notice of Decision for applicant. 5. Access to the Record (subsection 37(3)) 20 days after Notice of Decision, if no request for review by third party, the records may be released to the applicant. Check with IPC to see if a request for review has been received by the IPC. 6. Report of Commissioner (section 55) If a review is requested by the applicant, a Review Report by the Commissioner will be issued. This may take several months to be issued. 7. Decision of Head (section 56) 30 days after issuance of Commissioner’s Review Report. 8. Appeal to Court (section 57) 30 days after receipt of Decision of the Head. 9.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 4 Access to the Record If no appeal to the Court of King’s Bench after 30 days of the Decision of the Head, the head can release the records to the applicant. Quick Reference 2: Contracting with government institutions Common types of records that arise in access to information requests involving third party information are contracts and tender/bidding or proposal documents. The following is a quick reference guide for the precedent set by the Commissioner and the courts regarding contracts and tender/bidding or proposal documents. Topic Precedent Tender/bidding or proposal documents • Entire proposal packages submitted by third parties to a government institution in response to a Request for Proposals (RFPs) could constitute commercial information and be supplied explicitly in confidence if the RFP included a confidentiality clause.4 • Contractors setting out to win government contracts through a confidential bidding process should not expect that the monetary terms will remain confidential if the bid succeeds. The public’s right to know how government spends public funds as a means of holding government accountable for its expenditures is a fundamental notion of responsible government that is known to all.5 Contracts • Third parties and businesses need to know when they deal with government institutions supported by tax 4 Office of the Saskatchewan Information and Privacy Commissioner (SK OIPC) Review Reports 0312015 at [10] to [28], 020-2016 at [4] to [12]. 5 Canada (Minister of Public Works and Government Services) v. Hi-Rise Group Inc., 2004 FCA 99 (CanLII) at [37] and [42].
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 5 dollars that their contract will probably be released. No confidentiality clause, however well drafted, can override the law (i.e., FOIP).6 • An agreement where the government institution contributed significantly to its terms would not qualify under this exemption because it is the result of negotiation between the parties and was also largely based on the criteria set out by the government institution in its request for proposals.7 Subsection 19(1)(a) In Canadian Bank Note Limited v. Saskatchewan Government Insurance, (2016), Justice Zarzeczny found that unit prices in a contract between Saskatchewan Government Insurance and a third party did not qualify as a trade secret. Subsection 19(1)(c)(ii) Asserting disclosure would create a more competitive environment does not give rise to a reasonable expectation of a material financial loss or prejudice to a third party’s competitive position.8 Subsection 19(1)(c)(iii) • Once a contract is executed, negotiation is concluded. The exemption would generally not apply unless, for instance, the same negotiation strategy will be used again, and it has not been publicly disclosed.9 • The Federal Court in Société Gamma Inc. v. Canada (Department of the Secretary of State) (1994), 56 C.P.R. (3d) 58, interpreted the equivalent provision in the federal Access to Information Act as requiring that “it must refer to an obstruction to those negotiations and not merely the heightening of competition for the 6 SK OIPC blog by Commissioner Kruzeniski, Confidentiality Clauses in Contracts, September 5, 2017. 7 SK OIPC Review Reports F-2005-003 at [17] to [19] and LA-2011-001 at [97]. 8 Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 (CanLII) at [35]. See also SK OIPC Review Report 020-2016 at [19] to [22]. 9 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/disclosure-harmful-economic-interests. Accessed July 19, 2019. Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 107.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 6 third party which might flow from disclosure”.10 Further, a distinction must be drawn between actual contractual negotiations and the daily business operations of a third party.11 IPC Findings In Review Report 007-2015, the Commissioner considered subsections 19(1)(b) and (c) of FOIP. An applicant had made an access to information request to the Ministry of Central Services (Central Services) for the Statement of Work attached to Information Technology Consulting Services Agreement ITO-12023. Central Services responded to the applicant advising that it was withholding portions of the Statement of Work pursuant to several provisions of FOIP including subsections 19(1)(b) and (c). For subsection 19(1)(b) of FOIP, the Commissioner found that the estimated hours, hourly rate, and estimated cost per consultant was the financial and commercial information of the third party. However, the Commissioner found that the estimated hours, hourly rate and estimated cost per consultant were not supplied by the third party because they were part of the contract between Central Services and the third party and the result of negotiation between the parties. As all three parts of the test were not met, the Commissioner found that subsection 19(1)(b) of FOIP did not apply and recommended the information be released. For subsection 19(1)(c) of FOIP, Central Services and the third party asserted that releasing the estimated hours, hourly rate and estimated cost per consultant would result in a competitor having the ability to provide a lower rate for future contracts, which would cause the third party to experience a competitive disadvantage. However, neither Central Services nor the third party provided anything further to support this assertion. The Commissioner also stated that the winning contractor would have access to the internal cost estimates in question as it is part of the current contract and that keeping these figures from the public, including other future bidders, would jeopardize competitive bidding processes. The Commissioner found that subsection 19(1)(c) of FOIP was also not properly applied by Central Services. In Review Report 031-2015, the Commissioner considered subsection 19(1)(b) of FOIP. An applicant had made an access to information request to Saskatchewan Government 10 Société Gamma Inc. v. Canada (Department of the Secretary of State), (April 27, 1994), T-1587-93, T1588-93 (F.C.T.D.) at [10]. 11 Canada (Information Commissioner) v. Canada (Minister of External Affairs) (T.D.), [1990] 3 FC 665, 1990 CanLII 7951 (FC) at [24].
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 7 Insurance (SGI) for all records relating to a Request for Proposals (RFP). SGI responded to the applicant indicating that access was partially granted to some records, but others were withheld pursuant to several exemptions including subsection 19(1)(b). The records at issue under subsection 19(1)(b) were hundreds of pages that constituted the actual proposals submitted to SGI by two separate third parties. There were also 87 pages worth of emails. Upon review, the Commissioner found that the records contained financial, commercial, scientific, technical and labour relations information of the third parties. The Commissioner further found that the entire proposal packages of the two third parties constituted commercial information because the proposals were related to the buying or selling of goods and services. This approach was consistent with other jurisdictions including British Columbia (Order F09-22) and Ontario (MO-3179). The Commissioner went on to find that all the records were supplied by the third parties, including emails sent to SGI by the third parties. Finally, the Commissioner found that the records were supplied explicitly in confidence. This was based on the submissions of all the parties which indicated all the parties agreed on this fact (mutual understanding). Furthermore, the RFP included a confidentiality clause. As all three parts of the test were met, the Commissioner found that subsection 19(1)(b) of FOIP was appropriately applied by SGI to the proposals and the severed information in the emails. In Review Report 054-2015 and 055-2015, the Commissioner considered the equivalent provision, subsection 18(1)(b), in The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP). An applicant had made an access to information request to the City of Regina (City) for a tender and contract related to a street infrastructure project. The records involved were two documents titled, Form of Tender. The applicant was only interested in the unit prices and total prices severed from the two documents. The City withheld this information in part under subsection 18(1)(b) of LA FOIP. The City asserted that the unit prices disclosed pricing and pricing practices of the third parties involved in a competitive contract award process. The Commissioner found the unit prices and total prices constituted commercial and financial information of the third parties. The City asserted that the tender package supplied by the City to bidders contained a blank Form of Tender. Bidders entered their specific data in Schedule A of the form and returned it to the City as part of their bid package. Based on this, the Commissioner found that the third parties supplied the unit prices and total prices. The City asserted that clause 19 of the Instructions to Bidders issued by the City indicated that financial and commercial information supplied by bidders would be supplied in confidence. Based on this, the Commissioner found that the unit pricing and total prices were supplied explicitly in confidence. As all three parts of the test were met, the Commissioner found that subsection 18(1)(b) of LA FOIP was appropriately applied.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 8 In Review Report 195-2015 and 196-2015, the Commissioner considered subsections 19(1)(b) and (c) of FOIP. An applicant made two access to information requests to the Ministry of Central Services (Central Services) for all current active information technology service contracts with a maximum value of over $1 million and any between Central Services and Solvera Solutions over $1 million. Central Services responded to the applicant advising that some of the information in the contracts was being withheld under various provisions of FOIP including withholding the hourly rates for contracted services pursuant to subsections 19(1)(b) and (c) of FOIP. Upon review, the Commissioner found that the hourly rates for contracted services qualified as commercial information of the third party. However, the Commissioner found that the third party did not supply the hourly rates for contracted services because they were provisions of a contract that were mutually generated through negotiation. As all three parts of the test were not met, the Commissioner found that subsection 19(1)(b) of FOIP did not apply. For subsection 19(1)(c) of FOIP, Central Services and the third party asserted that releasing the hourly rates could result in competitors having the ability to provide a lower rate for future contracts and result in undue loss to Solvera Solutions and prejudice its competitive position. The Commissioner found that the bids were evaluated based on several criteria and laid out the three stages used by Central Services at paragraph [44] of the report. As such, the selection was not based on price alone. Finally, the Commissioner found that releasing costs would increase the chances that a public body would, in the future, obtain fair bids and a competitive bidding process. The Commissioner found that subsection 19(1)(c) did not apply to the hourly rates. In Review Report 229-2015, the Commissioner considered subsection 19(1)(b) of FOIP. An applicant made an access to information request to Saskatchewan Government Insurance (SGI) for information related to a contract for Centralized Driver License and Identification Card Production and Facial Recognition Services including contract price, price per card components, lump sum price components and card volume and contract term. SGI responded to the applicant indicating that some of the information was being withheld pursuant to several provisions of FOIP including subsection 19(1)(b). The Commissioner found that the price per unit and lump sum prices constituted the commercial information of the third party. Furthermore, the Commissioner found that the price per unit and lump sum prices were terms of the contract that had been agreed to by both the third party and SGI and as such were mutually generated as part of the negotiation process. The Commissioner distinguished this case from Review Report 054-2015 and 055-2015, where the unit prices were provided on a blank Form of Tender provided by the City of Regina to bidders. The Commissioner noted that unlike the other case, the bidding process was concluded, the successful bidder was selected and a contract was already awarded. The Commissioner found
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 9 that the unit prices and lump sum prices were not supplied by the third party but were negotiated terms of the contract that both parties agreed to. As the second part of the test was not met, the Commissioner found that subsection 19(1)(b) of FOIP was not appropriately applied. The third party appealed the Commissioner’s decision to the Court of King’s Bench where Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, considered the facts and circumstances in the de novo appeal, agreed that the information was commercial information of the third party but found that the unit prices were supplied to SGI by the third party.12 Section 2: Definition of a third party Third party information 2(1) In this Act: … (j) “third party” means a person, including an unincorporated entity, other than an applicant or a government institution. FOIP defines a third party as a person, including an unincorporated entity, other than an applicant or a government institution.13 This definition is broad and can include an individual, private business (e.g., sole proprietorship, partnership, corporation, unincorporated association, or organization), non-profit group, trade union, syndicate or trust. However, it does not include applicants or government institutions14 which are defined by subsections 2(1)(a) and (d) of FOIP which provide: 2(1) In this Act: (a) “applicant” means a person who makes an application for access to a record pursuant to section 6; 12 Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [36] to [39]. 13 The Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01 at section 2(1)(j). 14 In SK OIPC Review Report 244-2018 at [94], the Commissioner found that the Ministry of Health was a government institution so could not be a third party for purposes of FOIP.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 10 … (d) “government institution” means, subject to subsection (2): (i) the office of Executive Council or any department, secretariat or other similar agency of the executive government of Saskatchewan; or (ii) any prescribed board, commission, Crown corporation or other body, or any prescribed portion of a board, commission, Crown corporation or other body, whose members or directors are appointed, in whole or in part: (A) by the Lieutenant Governor in Council; (B) by a member of the Executive Council; or (C) in the case of: (I) a board, commission or other body, by a Crown corporation; or (II) a Crown corporation, by another Crown corporation; The definition of a third party under FOIP can also include a “local authority”, as defined by subsection 2(f) of The Local Authority Freedom of Information and Protection of Privacy Act for purposes of FOIP.15 IPC Findings In Review Report 080-2018, the Commissioner determined, for the first time, that the Saskatchewan Health Authority (a local authority as defined by subsection 2(f) of The Local Authority Freedom of Information and Protection of Privacy Act) could qualify as a “third party” for purposes of FOIP. In Review Report 244-2018, the Commissioner considered whether the Ministry of Health and the pan-Canadian Pharmaceutical Alliance (pCPA) qualified as third parties pursuant to subsection 2(1)(j) of FOIP. The Commissioner found that the Ministry of Health did not qualify as a third party because it was a government institution. Furthermore, the Commissioner found that the pCPA did not qualify as a third party. This was in part because the Ministry of 15 SK OIPC Review Report 080-2018 at [51] and [52]. In addition, see SK OIPC blog, Can Public Bodies be a Third Party?. This replaces earlier interpretations by the SK OIPC that government institutions and local authorities could not qualify as third parties under FOIP and The Local Authority Freedom of Information and Protection of Privacy Act – for old precedent see SK OIPC F-2012-001/LA-2012-001 at [40] to [53].
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 11 Health had some control over the governance of the pCPA. As a result, the Commissioner found that subsection 19(1)(b) of FOIP did not apply to the records at issue. In West v Saskatchewan (Health), 2020 SKQB 244 (CanLII), the court stated at paragraph [65] that “pCPA does not appear to be either a “government institution” nor a “third party”, as defined by s. 1 of the Act.” The court noted that the origin of the documents is still relevant when considering the application of section 13(1)(b) of FOIP. Section 19: Third party information Third party information 19(1) Subject to Part V and this section, a head shall refuse to give access to a record that contains: (a) trade secrets of a third party; (b) financial, commercial, scientific, technical or labour relations information that is supplied in confidence, implicitly or explicitly, to a government institution by a third party; (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; (d) a statement of a financial account relating to a third party with respect to the provision of routine services from a government institution; (e) a statement of financial assistance provided to a third party by a prescribed Crown corporation that is a government institution; or (f) information supplied by a third party to support an application for financial assistance mentioned in clause (e). (2) A head may give access to a record that contains information described in subsection (1) with the written consent of the third party to whom the information relates. (3) Subject to Part V, a head may give access to a record that contains information described in subsection (1) if:
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 12 (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Section 19 of FOIP is a mandatory, class-based and harm-based provision, meaning it contains both class and harm-based exemptions. As a mandatory provision, the government institution has no, or more limited, discretion regarding whether or not to apply the exemption. That is, if the information is covered by the exemption and the conditions for the exercise of discretion do not exist, then it must not be disclosed. The provision is intended to protect the business interests of third parties and to ensure that government institutions are able to maintain the confidentiality necessary to effectively carryon business with the private sector.16 The Government of Saskatchewan collects a wide range of information from third parties. This information may be submitted voluntarily, such as in a bid for a government contract, or submitted as required by law, such as for proof of regulatory compliance. There is a compelling need to protect information that is provided to the government by third parties if the information falls within one of the enumerated exemptions under section 19 of FOIP.17 Some common examples where government institutions may have possession or control of third party records include: • Records that have been provided under legislated or regulatory requirements. • Records including the personal information of individuals applying for benefits or services. • Records collected as part of a procurement of products or services. 16 Office of the Nunavut Information and Privacy Commissioner (NU IPC) Review Report 03-08 at p. 7. 17 Adapted from the Information Commissioner of Canada’s 2017-2018 Annual Report, Investigation Highlights, Section 20 – Third Party Information. Available at https://www.oicci.gc.ca/en/resources/reports-publications/2017-2018-investigation-highlights#h3. Accessed July 22, 2019.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 13 • Records containing expert advice. • Records gathered during public consultations. • Records created through public-private sector partnerships.18 Although government institutions need to be open and accountable, they also need to conduct business and enter into business relationships; in doing so, they must be able to assure their private sector partners that their trade secrets and commercial and financial secrets will not be readily disclosed to competitors and the public.19 The leading case authority in terms of third party information is Merck Frosst Canada Ltd. v. Canada (Health), (2012). At paragraph [23], the court recognized that a balance must be struck between the private interests of third parties and the public interest in the disclosure of information. The court commented: [23] Nonetheless, when the information at stake is third party, confidential commercial and related information, the important goal of broad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation and development. The Act strikes this balance between the demands of openness and commercial confidentiality in two main ways. First, it affords substantive protection of the information by specifying that certain categories of third party information are exempt from disclosure. Second, it provides procedural protection. The third party whose information is being sought has the opportunity, before disclosure, to persuade the institution that exemptions to disclosure apply…20 Third parties doing business with public institutions must understand that certain information detailing the expenditure of public funds might be disclosed.21 Third parties should be aware that the right of access to information under government control is available to every member of the public and cannot be restricted by considerations 18 Ontario Ministry of Public and Business Service Delivery resource, Freedom of Information and Protection of Privacy Manual at Chapter 4: Access Fundamentals, Records of Third Parties. Accessed Sept. 6, 2022. 19 Office of the Northwest Territories Information and Privacy Commissioner (NWT IPC) Review Report 04-043 at p. 4. 20 Quoted by Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [28]. 21 Office of the Ontario Information and Privacy Commissioner (ON IPC) Order PO-3845 at [62].
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 14 of motive or occupation. The only way motivation could be relevant is to establish a reasonable expectation of harm to third parties [subsection 19(1)(c) of FOIP].22 The information below is reproduced for ease of reference from Chapter 4: Exemptions from the Right of Access. Subsection 19(1)(a) Third party information 19(1) Subject to Part V and this section, a head shall refuse to give access to a record that contains: (a) trade secrets of a third party; … (2) A head may give access to a record that contains information described in subsection (1) with the written consent of the third party to whom the information relates. (3) Subject to Part V, a head may give access to a record that contains information described in subsection (1) if: (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Subsection 19(1)(a) of FOIP is a mandatory, class-based exemption. It permits refusal of access in situations where a record contains the trade secrets of a third party. The following test can be applied: 22 Intercontinental Packers Ltd. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 142 (T.D.), affirmed (1988), 87 N.R. 99 (Fed. C.A.) at [145].
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 15 Does the record contain trade secrets of a third party Trade secret is defined as information, including a plan or process, tool, mechanism or compound, which possesses each of the four following characteristics: i) The information must be secret in an absolute or relative sense (is known only by one or a relatively small number of people); ii) The possessor of the information must demonstrate he/she has acted with the intention to treat the information as secret; iii) The information must be capable of industrial or commercial application; and iv) The possessor must have an interest (e.g., an economic interest) worthy of legal protection.23 The information must meet all the above criteria to be considered a trade secret. The types of information that could potentially fall in this class include the chemical composition of a product and the manufacturing processes used. However, not every process or test would fall into this class, particularly when the process or test is common in a particular industry.24 If the government institution determines that the information qualifies as a trade secret and it intends to withhold it, it should ask the third party if it consents to the release of the information pursuant to subsection 19(2). Consent should be in writing. Pursuant to subsection 19(2) of FOIP, where a record contains third party information, the government institution can release it with the written consent of the third party. Pursuant to subsection 19(3) of FOIP, where a record contains third party information, the government institution can release it if disclosure is in the public interest and the information relates to public health, public safety, or protection of the environment. In addition, the public interest clearly outweighs in importance any financial loss or gain, prejudice to 23 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at p. 7. Definition relied on by Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [32]. 24 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.14.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_14. Accessed July 22, 2019.
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 16 competitive position or interference with contractual negotiations of the third party. For further guidance, see Subsection 19(3) of this Chapter. In Canadian Bank Note Limited v. Saskatchewan Government Insurance, (2016), Justice Zarzeczny found that unit prices in a contract between Saskatchewan Government Insurance and a third party (Veridos Canada Ltd.) did not qualify as a trade secret. Subsection 19(1)(b) Third party information 19(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 a government institution by a third party; … (2) A head may give access to a record that contains information described in subsection (1) with the written consent of the third party to whom the information relates. (3) Subject to Part V, a head may give access to a record that contains information described in subsection (1) if: (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Subsection 19(1)(b) of FOIP is a mandatory, class-based exemption. It permits refusal of access in situations where a record contains financial, commercial, scientific, technical or
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 17 labour relations information that was supplied in confidence to a government institution by a third party. The following three-part test can be applied:25 1. Is the information financial, commercial, scientific, technical, or labour relations information of a third party Financial information is information regarding monetary resources, such as financial capabilities, assets, and liabilities, past or present. Common examples are financial forecasts, investment strategies, budgets, and profit and loss statements. The financial information must be specific to a third party.26 Commercial information is information relating to the buying, selling or exchange of merchandise or services. This can include third party associations, past history, references and insurance policies and pricing structures, market research, business plans, and customer records.27 Types of information included in the definition of commercial information can include: • Offers of products and services a third party business proposes to supply or perform; • A third party business’ experiences in commercial activities where this information has commercial value; • Terms and conditions for providing services and products by a third party; • Lists of customers, suppliers or sub-contractors compiled by a third party business for its use in its commercial activities or enterprises - such lists may take time and effort to compile, if not skill; • Methods a third party business proposes to use to supply goods and services; and • Number of hours a third party business proposes to take to complete contracted work or tasks.28 25 MCCreary J. used this three-part test in Seon v Board of Education of the Regina Roman Catholic School Division NO. 81, 2018 SKKB 166 at [9] for the equivalent provision (subsection 18(1)(b)) in The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP). 26 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 103. Definition first relied on in SK OIPC Review Report F-2005-003 at [23]. 27 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 102. 28 Office of the British Columbia Information and Privacy Commissioner (BC IPC) Order F05-09 at [9]. First cited in SK OIPC Review Report 019-2014 at [35].
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 18 Scientific information is information exhibiting the principles or methods of science. The information could include designs for a product and testing procedures or methodologies.29 It is information belonging to an organized field of knowledge in the natural, biological, or social sciences or mathematics. In addition, for information to be characterized as scientific, it must relate to the observation and testing of specific hypothesis or conclusions and be undertaken by an expert in the field. Finally, scientific information must be given a meaning separate from technical information.30 Technical information is information relating to a particular subject, craft or technique. Examples are system design specifications and the plans for an engineering project.31 It is information belonging to an organized field of knowledge which would fall under the general categories of applied sciences or mechanical arts. Examples of these fields would include architecture, engineering, or electronics. It will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance of a structure, process, equipment or thing. Finally, technical information must be given a meaning separate from scientific information.32 Labour relations information is information that relates to the management of personnel by a person or organization, whether or not the personnel are organized into bargaining units. It includes relationships within and between workers, working groups and their organizations as well as managers, employers and their organizations. Labour relations information also includes collective relations between a public body and its employees. Common examples of labour relations information are hourly wage rates, personnel contracts, and information on negotiations regarding collective agreements.33 In the decision Merck Frosst Canada Ltd. v. Canada (Health), (2012), the Supreme Court of Canada recognized that administrative details such as page and volume numbering, dates 29 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 191. Definition first relied on for third party exemption in SK OIPC Review Report F-2006-002 at [85]. 30 Definition originated from ON IPC Order P-454 at p. 4. Adopted in SK OIPC Review Report F-2006002 at [87]. 31 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 191. Definition first relied on for third party exemption in SK OIPC Review Report F-2006-002 at [85]. 32 Definition originated from ON IPC Order P-454 at p. 4. Adopted in SK OIPC Review Report F-2005003 at [26]. Definition endorsed in Consumers’ Co-operative Refineries Limited v Regina (City), 2016 SKKB 335 (CanLII) at [20]. 33 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 103. Definition first relied on in SK OIPC Review Report 019-2014 at [37].
Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 19 and location of information within records do not constitute financial, commercial, scientific or technical information.34 2. Was the information supplied by the third party to a government institution Supplied means provided or furnished.35 Information may qualify as “supplied” if it was directly supplied to a government 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.36 Information gathered by government inspectors via their own observations does not qualify as information “supplied” to the government institution. Judgements or conclusions expressed by officials based on their own observations generally cannot be said to be information supplied by a third party.37 Records can still be “supplied” even when they originate with the government institution (i.e., the records still may contain or repeat information extracted from documents supplied by the third party). However, the third party objecting to disclosure will have to prove that the information originated with it and that it is confidential.38 Whether confidential information has been “supplied” to a government institution by a third party is a question of fact. The content rather than the form of the information must be considered: the mere fact that the information appears in a government document does not, on its own, resolve the issue.39 The following are examples of information not supplied by a third party: • Information that reflects the viewpoints, opinions or comments of government officials; • Reports resulting from factual observations made by government inspectors; and 34 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [141]. 35 British Columbia Government Services, FOIPPA Policy Definitions at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions#supplied. Accessed August 21, 2019. 36 SK OIPC Review Reports F-2005-003 at [17], F-2006-002 at [40]. 37 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [156] and [158]. 38 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [157]. 39 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [158].
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