Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 5 dollars that their contract will probably be released. No confidentiality clause, however well drafted, can override the law (i.e., FOIP).6 • An agreement where the government institution contributed significantly to its terms would not qualify under this exemption because it is the result of negotiation between the parties and was also largely based on the criteria set out by the government institution in its request for proposals.7 Subsection 19(1)(a) In Canadian Bank Note Limited v. Saskatchewan Government Insurance, (2016), Justice Zarzeczny found that unit prices in a contract between Saskatchewan Government Insurance and a third party did not qualify as a trade secret. Subsection 19(1)(c)(ii) Asserting disclosure would create a more competitive environment does not give rise to a reasonable expectation of a material financial loss or prejudice to a third party’s competitive position.8 Subsection 19(1)(c)(iii) • Once a contract is executed, negotiation is concluded. The exemption would generally not apply unless, for instance, the same negotiation strategy will be used again, and it has not been publicly disclosed.9 • The Federal Court in Société Gamma Inc. v. Canada (Department of the Secretary of State) (1994), 56 C.P.R. (3d) 58, interpreted the equivalent provision in the federal Access to Information Act as requiring that “it must refer to an obstruction to those negotiations and not merely the heightening of competition for the 6 SK OIPC blog by Commissioner Kruzeniski, Confidentiality Clauses in Contracts, September 5, 2017. 7 SK OIPC Review Reports F-2005-003 at [17] to [19] and LA-2011-001 at [97]. 8 Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 (CanLII) at [35]. See also SK OIPC Review Report 020-2016 at [19] to [22]. 9 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/disclosure-harmful-economic-interests. Accessed July 19, 2019. Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 107.
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