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.
RkJQdWJsaXNoZXIy MTgwMjYzOA==