Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 24 there may be indications in the legislation relevant to the compulsory supply that establish confidentiality. The relevant legislation may even expressly state that such information is deemed to have been supplied in confidence.61 Where information is required to be provided, unless otherwise provided by statute, confidentiality cannot be built in by agreement, informally or formally.62 Example: In Review Report 043-2015, the Commissioner found that subsection 19(1)(b) of FOIP did not apply because the third party was required to provide the information in question to the Ministry of Environment pursuant to The Environmental Management and Protection Act, 2002, The Water Regulations and The Clean Air Act. As such, this constituted compulsory supply. In addition, these statutes did not have any confidentiality provisions related to the types of information in question. In the decision Merck Frosst Canada Ltd. v. Canada (Health), (2012), the Supreme Court of Canada established that information is not confidential if it is in the public domain, including being publicly available through another source. To be confidential, the information must not be available from sources otherwise accessible by the public or obtainable by observation or independent study by a member of the public acting on his or her own. Information that has been published is not confidential. Further, information, which merely reveals the existence of publicly available information, cannot generally be confidential.63 Contractors setting out to win government contracts through a confidential bidding process should not expect that the monetary terms will remain confidential if the bid succeeds. The public’s right to know how government spends public funds as a means of holding government accountable for its expenditures is a fundamental notion of responsible government that is known to all.64 Simply labelling documents as “confidential” does not, on its own, make the documents confidential (i.e., confidentiality stamps or standard automatic confidentiality statements at the end of emails). It is just one factor that we consider when determining whether the information was explicitly supplied in confidence.65 The typical bottom of email 61 Chesal v. Nova Scotia (Attorney General) et al., 2003 NSCA 124 (CanLII) at [72] and [73] and Stevens v. Canada (Prime Minister), [1997] 2 FC 759, 1997 CanLII 4805 (FC) at p. 1. Also, see NS IPC Review Report 17-03 at [98] and SK OIPC Review Reports F-2006-001 at [76] to [78]. 62 SK OIPC Review Report F-2006-001 at [78]. 63 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [146]. 64 Canada (Minister of Public Works and Government Services) v. Hi-Rise Group Inc., 2004 FCA 99 (CanLII) at [37] and [42]. 65 SK OIPC Review Report F-2012-001/LA-2012-001 at [43].
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