Guide to FOIP Chapter-5

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

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