Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 21 ii) Immutability – information the third party provided that is immutable or not open or susceptible to change and was incorporated into the contract without change, such as the operating philosophy of a business, or a sample of its products.45 3. Was the information supplied in confidence implicitly or explicitly Supplied means provided or furnished.46 In confidence usually describes a situation of mutual trust in which private matters are relayed or reported. Information obtained in confidence means that the supplier of the information has stipulated how the information can be disseminated.47 In order for confidence to be found, there must be an implicit or explicit agreement or understanding of confidentiality on the part of both the government institution and the third party providing the information.48 Implicitly means that the confidentiality is understood even though there is no actual statement of confidentiality, agreement, or other physical evidence of the understanding that the information will be kept confidential.49 Explicitly means that the request for confidentiality has been clearly expressed, distinctly stated or made definite. There may be documentary evidence that shows that the information was supplied on the understanding that it would be kept confidential.50 In order for subsection 19(1)(b) of FOIP to apply, a government institution must show that both parties intended the information be held in confidence at the time the information was supplied.51 45 The Ontario Superior Court of Justice, in Canadian Medical Protective Association v. Loukidelis, 2008 CanLII 45005 (ON SCDC) and [55], considered “immutability” as a factor in its determination that the information was not “supplied” by the third party. 46 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. 47 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 104, SK OIPC Review Reports F-2006-002 at [51], H-2008-002 at [73], ON IPC Order MO-1896 at p. 8. 48 SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [57], ON IPC Order MO-1896 at p. 8. 49 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA2013-002 at [49], F-2014-002 at [47]. 50 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at pp. 104 and 105. 51 SK OIPC Review Reports 158-2016 at [37] and 203-2016 at [28].
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