Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 25 “confidentiality” note is not sufficient to establish that information was supplied in confidence. Such notes are largely format and platitudes.66 Government institutions cannot be relieved of their responsibilities under FOIP merely by agreeing via a confidentiality clause in a contract/agreement to keep matters confidential.67 Since a government institution cannot guarantee confidentiality if FOIP mandates disclosure, it should frame any contract provisions, representations or policies accordingly so third parties are informed prior to providing information to the government institution. This includes tenders, requests for proposals and other processes. 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 competitive position or interference with contractual negotiations of the third party. For further guidance, see subsection 19(3) of this Chapter. IPC Findings In Review Report 007-2015, the Commissioner considered subsection 19(1)(b) of FOIP. An applicant had made an access to information request to the Ministry of Central Services (Central Services) for the Statement of Work attached to Information Technology Consulting Services Agreement ITO-12023. Central Services responded to the applicant advising that it was withholding portions of the Statement of Work pursuant to several provisions of FOIP including subsection 19(1)(b). The Commissioner found that the estimated hours, hourly rate and estimated cost per consultant was the financial and commercial information of the third party. However, the Commissioner found that the estimated hours, hourly rate and estimated cost per consultant were not supplied by the third party because they were part of the 66 Brewster Inc. v. Canada (Environment), 2016 FC 339 (CanLII) at [22]. 67 St. Joseph Corp. v. Canada (Public Works & Government Services) [2002] FCT 274 at [53] and [54], Brookfield LePage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services), [2003] FCT 254 at [16], SK OIPC Review Reports 159-2016 at [39], 052-2017 at [55] and Review Report 311-2017, 312-2017, 313-2017, 316-2017, 340-2017, 341-2017, 342-2017 at [63].
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