Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 41 a third party. Subsection 19(1)(c)(iii) of FOIP is a mandatory, harm-based exemption. It permits refusal of access in situations where disclosure of information could reasonably be expected to interfere with the contractual or other negotiations of a third party. The following two-part test can be applied: 1. Are there contractual or other negotiations occurring involving a third party A negotiation is a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter. It can also be defined as dealings conducted between two or more parties for the purpose of reaching an understanding.86 It connotes a more robust relationship than “consultation”. It signifies a measure of bargaining power and a process of back-and-forth, give-and-take discussion.87 Prospective or future negotiations could be included within this exemption, if they are foreseeable.88 It may be applied even though negotiations have not yet started at the time of the access to information request, including when there has not been any direct contact with the other party or their agent. However, a vague possibility of future negotiations is not sufficient. There must be a reasonable fact-based expectation that the future negotiations will take place.89 86 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at pp. 1248 and 1249. Relied on in SK OIPC Review Report 112-2018 at [37]. 87 Gordon v. Canada (Attorney General), 2016 ONCA 625 (CanLII) at [107]. Relied on in SK OIPC Review Report 112-2018 at [37]. 88 SK OIPC Review Report 019-2014 at [27]. Equivalent provision in LA FOIP was being considered (subsection 17(1)(d)). Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 107. 89 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.11.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_11. Accessed July 19, 2019.
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