Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 23 The preceding factors are not a test but rather guidance on factors to consider. It is not an exhaustive list. Each case will require different supporting arguments. The bare assertion that the information was supplied implicitly in confidence would not be sufficient.57 Factors to consider when determining if a document was supplied in confidence explicitly include (not exhaustive): • The existence of an express condition of confidentiality between the government institution and the third party;58 • The fact that the government institution requested the information be supplied in a sealed envelope and/or outlined its confidentiality intentions to the third party prior to the information being supplied.59 The preceding factors are not a test but rather guidance on factors to consider. It is not an exhaustive list. Each case will require different supporting arguments. The Federal Court has summarized the following in terms of what is considered confidential: • It is an objective standard (based on facts). • It is not sufficient that the third party state, without further evidence, that the information is confidential. • Information has not been held to be confidential even if the third party considered it so, where it has been available to the public from other sources or where it has been available at an earlier time or in another form from government. • Information is not confidential where it could be obtained by observation albeit with more effort by the applicant.60 Compulsory supply means there is a compulsory legislative requirement to supply information. Where supply is compulsory, it will not ordinarily be confidential. In some cases, 57 SK OIPC Review Report LA-2013-002 at [60]. 58 SK OIPC Review Reports F-2006-002 at [56], LA-2013-003 at [113], F-2014-002 at [47], PEI IPC Order 03-006 at p. 5, Office of the Alberta Information and Privacy Commissioner (AB IPC) Orders 97-013 at [23] to [24], 2001-008 at [54]. 59 SK OIPC Review Reports F-2006-002 at [56], F-2012-001/LA-2012-001 at [29], LA-2013-002 at [49], LA-2013-003 at [113], F-2014-002 at [47]; PEI IPC Order 03-006 at p. 5; AB IPC Order 97-013 at [25]. 60 Air Atonabee Ltd. v. Minister of Transport, (1989), 27 C.P.R. (3d) 180 (F.C.T.D.) at p.11. Stenotran Services v. Canada (Minister of Public Works and Government Services), 2000 CanLII 15464 (FC) at [9] citing Air Atonabee. It is important to note that subsection 20(1)(b) of the federal ATIA places the focus on the confidential nature of the information itself. SK’s subsection 19(1)(b) of FOIP places the focus on the confidential nature of the supply. However, Air Atonabee may still be instructive with interpreting SK’s subsection 19(1)(b) of FOIP.
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