Guide to FOIP Chapter-5

Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 22 The expectation of confidentiality must be reasonable and must have an objective basis.52 Whether the information is confidential will depend upon its content, its purposes and the circumstances in which it was compiled or communicated (Corporate Express Canada, Inc. v. The President and Vice Chancellor of Memorial University of Newfoundland, Gary Kachanoski, (2014)). Factors considered when determining whether a document was supplied in confidence implicitly include (not exhaustive): • What is the nature of the information. Would a reasonable person regard it as confidential. Would it ordinarily be kept confidential by the third party or the government institution.53 • Was the information treated consistently in a manner that indicated a concern for its protection by the third party and the government institution from the point at which it was supplied until the present time.54 • Is the information available from sources to which the public has access.55 • Does the government institution have any internal policies or procedures that speak to how records such as the one in question are to be handled confidentially. • Was there a mutual understanding that the information would be held in confidence. Mutual understanding means that the government institution and the third party both had the same understanding regarding the confidentiality of the information at the time it was supplied. If one party intends the information to be kept confidential but the other does not, the information is not considered to have been supplied in confidence. However, mutual understanding alone is not sufficient. Additional factors must exist in addition.56 52 SK OIPC Review Reports F-2012-001/LA-2012-001 at [32], LA-2013-002 at [49], ON IPC Orders PO2273 at p. 7 and PO-2283 at p. 10. 53 BC IPC Orders 331-1999 at [8], F13-01 at [23]; Office of the Prince Edward Island Information and Privacy Commissioner (PEI IPC) Order FI-16-006 at [19]; Office of the Nova Scotia Information and Privacy Commissioner (NS IPC) Review Reports 16-09 at [44], 17-03 at [34]. 54 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 55 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 56 Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), 2001 FCT 556 at [40], SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [58] to [59], ON IPC Order MO-1896 at p. 8, BC IPC Order F-11-08 at [32].

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