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].
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