Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 33 reasonable speculation because “in many circumstances a party cannot rely on harm from past disclosures as evidence of reasonably expected harm because past disclosures of that type of evidence may never have occurred”. Nonetheless, the party seeking to exempt the information must put forward something more than internally held beliefs and fears. Forecasting evidence, expert evidence and evidence of treatment of similar elements of proof or similar situations are frequently accepted as a logical basis for the expectation of harm.77 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)(c). 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)(c). During the review, Central Services and the third party asserted that releasing the estimated hours, hourly rate and estimated cost per consultant would result in a competitor having the ability to provide a lower rate for future contracts, which would cause the third party to experience a competitive disadvantage. However, neither Central Services nor the third party provided anything further to support this assertion. The Commissioner also stated that the winning contractor would have access to the internal cost estimates in question as it is part of the current contract and that keeping these figures from the public, including other future bidders, would jeopardize competitive bidding processes. The Commissioner found that subsection 19(1)(c) of FOIP was not properly applied by Central Services. 77 Astrazeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189 (CanLII) at [44] to [47].
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