GUIDE TO LA FOIP The Local Authority Freedom of Information and Protection of Privacy Act Chapter 5 Third Party Information
TABLE OF CONTENTS Overview.......................................................................................................................................................................1 Quick Reference 1: Third Party Timelines ........................................................................................................2 Quick Reference 2: Contracting with Local Authorities ..............................................................................4 Section 2: Definition of a third party .................................................................................................................7 Section 18: Third Party Information ...................................................................................................................9 Subsection 18(1)(a)............................................................................................................................................ 12 Subsection 18(1)(b) ........................................................................................................................................... 14 Subsection 18(1)(c) ............................................................................................................................................ 24 Subsection 18(1)(c)(i) ............................................................................................................................. 25 Subsection 18(1)(c)(ii) ............................................................................................................................ 30 Subsection 18(1)(c)(iii) ........................................................................................................................... 36 Subsection 18(1)(d) ........................................................................................................................................... 40 Subsection 18(2)................................................................................................................................................. 43 Subsection 18(3)................................................................................................................................................. 44 Section 28: Disclosure of Personal Information.......................................................................................... 51 Subsection 28(2)(n): Disclosure of Personal Information.................................................................... 52 Section 33: Notice to third party ...................................................................................................................... 63 Subsection 33(1)(a)............................................................................................................................................ 65 The absence of standing ...................................................................................................................... 67 Subsection 33(1)(b) ........................................................................................................................................... 69 The absence of standing ...................................................................................................................... 71 Subsection 33(2)................................................................................................................................................. 73 Subsection 33(2)(a)............................................................................................................................................ 74 Subsection 33(2)(b) ........................................................................................................................................... 76 Subsection 33(3)................................................................................................................................................. 78 Subsection 33(4)................................................................................................................................................. 80 Section 34: Waiver of notice .............................................................................................................................. 81 Section 35: Right to make representations .................................................................................................. 81 Subsection 35(1)(a)............................................................................................................................................ 82
Subsection 35(1)(b) ........................................................................................................................................... 83 Subsection 35(2)................................................................................................................................................. 86 Section 36: Decision .............................................................................................................................................. 86 Subsection 36(1)(a)............................................................................................................................................ 88 Subsection 36(1)(b) ........................................................................................................................................... 89 Subsection 36(2)................................................................................................................................................. 91 Subsection 36(2)(a)............................................................................................................................................ 92 Subsection 36(2)(b) ........................................................................................................................................... 94 Subsection 36(3)................................................................................................................................................. 95 Subsection 36(4)................................................................................................................................................. 97 Section 38: Application for review................................................................................................................... 98 Subsection 38(1)...............................................................................................................................................100 Subsection 38(2)...............................................................................................................................................101 Subsection 38(3)...............................................................................................................................................103 Subsection 38(4)...............................................................................................................................................104 Section 41: Notice of application for review..............................................................................................106 Section 42: Conduct of review ........................................................................................................................107 Section 44: Report of commissioner.............................................................................................................109 Section 45: Decision of head ...........................................................................................................................110 Section 46: Appeal to court..............................................................................................................................112
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 1 Overview The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) provides a right of access to all records under the possession or control of local authorities, subject to limited and specific exemptions. Some of the records to which LA FOIP applies contain information of third parties, such as private-sector businesses or individuals. Applicants often ask local authorities for access to records that contain third party business and personal information.1 The term “third party information” is generally used to refer to information the disclosure of which might particularly affect a person or organization, other than the local authority from which it is sought. That person or organization is called a ‘third party” because they are not involved directly in the request for information, either as the applicant or the local authority that must respond to the request.2 This Chapter explains the various provisions in LA FOIP that deal with third party information. What follows is non-binding guidance. Every matter should be considered on a case-by-case basis. This guidance is not intended to be an exhaustive authority on the interpretation of these provisions. Local authorities may wish to seek legal advice. Local authorities should keep section 51 of LA FOIP in mind. Section 51 places the burden of proof for establishing that access to a record may or must be refused on the local authority. For more on the burden of proof, see Chapter 2: Administration of LA FOIP. This is a guide. This Chapter covers: • Who qualifies as a third party. • What qualifies as third party information. • When is third party notice required. • The notice process for third parties and applicants. • The response from the third party to the local authority. • The decision by the local authority. • Time limits involving third party information. • Applications for review involving third parties. • The review process and report of the Commissioner. • The decision of the local authority. 1 Service Alberta, FOIP Bulletin No. 10: Third Party Notice at p. 1. 2 Government Information Access and Privacy, McNairn and Woodbury, Carswell, 2008, at p. 4-1.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 2 • Appealing to the Court of King’s Bench. Quick Reference 1: Third Party Timelines If the local authority does not intend to disclose third party information, third party notice is not required. However, if the local authority intends to disclose, notice is required to the third party. The following is a quick reference for the time limits involved with third party information.3 For more detail on each section below, refer to that section in this Chapter. The timelines set out in subsections 33(2), 35(1)(b), 36(1), 36(2), 36(3), 38(2), 38(4), and sections 45, and 46 of LA FOIP are fixed and there is no mechanism established within LA FOIP to formally modify or extend them. 3 The above table was adapted from British Columbia Government Services, FOIPPA Policy and Procedures Manual at Section 24 - Time limit and notice of decision - Province of British Columbia (gov.bc.ca). Accessed Sept. 1, 2022. For a more detailed reference document on timelines and procedures, see the Access and Privacy Branch, Ministry of Justice resource, Help with FOIP!!, Access Request Checklist, Third Party Notification Required. Although this resource uses section numbers of The Freedom of Information and Protection of Privacy Act, the process is the same, but the section numbers are different. The tests, criteria and interpretations established in this Chapter reflect the precedents set by the current and/or former Information and Privacy Commissioners in Saskatchewan through the issuing of Review Reports. Court decisions from Saskatchewan affecting The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) will be followed. Where this office has not previously considered a section of LA FOIP, the Commissioner looked to other jurisdictions for guidance. This includes other Information and Privacy Commissioners’ Orders, Reports and/or other relevant resources. In addition, court decisions from across the country are relied upon where appropriate. This Chapter will be updated regularly to reflect any changes in precedent. This office will update the footer to reflect the last update. Using the electronic version directly from our website will ensure you are always using the most current version.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 3 Step Step Description Time Limit 1. Notice to Third Party (section 33) Wavier of Notice (section 34) Extension of Time (section 12) As soon as possible, but at least within 30 days of receipt of the access to information request (unless time limit is extended by section 12). 2. Right to Make Representations (section 35) Local authority must have received representation from the third party within 20 days after Notice to Third Party is sent. 3. Notice of Decision (section 36) Within 30 days after Notice to Third Party is sent. (Can also be articulated as 10 days after expiry of the 20 days for third party representation) The section 7 decision to the applicant can be combined with the section 37 response for efficiency. 4. Request for Review of Decision (subsections 36(2)(b), 38(3) & 38(4)) Within 20 days after Notice of Decision for third party. Within one year after Notice of Decision for applicant. 5. Access to the Record (subsection 36(3)) 20 days after Notice of Decision, if no request for review by third party, the records may be released to the applicant. Check with IPC to see if a request for review has been received
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 4 by the IPC. 6. Report of Commissioner (section 44) If a review is requested by the applicant, a Review Report by the Commissioner will be issued. This may take several months to be issued. 7. Decision of Head (section 45) 30 days after issuance of Commissioner’s Review Report. 8. Appeal to Court (section 46) 30 days after receipt of Decision of the Head. 9. Access to the Record If no appeal to the Court of King’s Bench after 30 days of the Decision of the Head, the head can release the records to the applicant. Quick Reference 2: Contracting with Local Authorities Common types of records that arise in access to information requests involving third party information are contracts and tender/bidding or proposal documents. The following is a quick reference guide for the precedent set by the Commissioner and the courts regarding contracts and tender/bidding or proposal documents. Topic Precedent Tender/bidding or proposal documents • Entire proposal packages submitted by third parties to a “local authority” in response to a Request for
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 5 Proposals (RFPs) could constitute commercial information and be supplied explicitly in confidence if the RFP included a confidentiality clause.4 • 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.5 Contracts • Third parties and businesses need to know when they deal with local authorities, supported by tax dollars, that their contract will probably be released. No confidentiality clause, however well drafted, can override the law (i.e., LA FOIP).6 • An agreement where the local authority contributed significantly to its terms would not qualify under for exemption from release under subsection 18(1) of LA FOIP because it is the result of negotiation between the parties and was also largely based on the criteria set out by the local authority in its request for proposals.7 Subsection 18(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 18(1)(c)(ii) Asserting disclosure would create a more competitive environment does not give rise to a reasonable expectation 4 Office of the Saskatchewan Information and Privacy Commissioner (SK OIPC) Review Reports 0112018 at [21], 103-2022 at [34] to [41], 031-2015 at [10] to [28], and 020-2016 at [4] to [12]. 5 Canada (Minister of Public Works and Government Services) v. Hi-Rise Group Inc., 2004 FCA 99 (CanLII) at [37] and [42]. 6 SK OIPC blog by Commissioner Kruzeniski, Confidentiality Clauses in Contracts, September 5, 2017. 7 Adapted from SK OIPC Review Reports F-2005-003 at [17] to [19] and LA-2011-001 at [97].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 6 of a material financial loss or prejudice to a third party’s competitive position.8 Subsection 18(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 third party which might flow from disclosure”.10 Further, a distinction must be drawn between actual contractual negotiations and the daily business operations of a third party.11 IPC Findings In Review Report LA-2012-004, the Commissioner considered a denial of access by the Board of Education of the Saskatoon School Division No. 13 (Board). An applicant made a request for access to a contract between the Board and a taxi company. The Board released the majority of the contract to the applicant but withheld portions pursuant to sections 17(1)(d), (f), (g) and 18(1)(c) of LA FOIP. The Commissioner found that in all cases the Board did not meet the burden of proof in demonstrating the exemptions applied and recommended release of the whole contract. 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. 10 Société Gamma Inc. v. Canada (Department of the Secretary of State), (April 27, 1994), T-1587-93, T1588-93 (F.C.T.D.) at [10]. 11 Canada (Information Commissioner) v. Canada (Minister of External Affairs) (T.D.), [1990] 3 FC 665, 1990 CanLII 7951 (FC) at [24].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 7 In Review Report 082-2015, the Commissioner considered a denial of access by the former Sunrise Regional Health Authority (Sunrise). An applicant requested access to a Master Services Agreement signed by 3sHealth and K-Bro Linen Systems in December 2013. Sunrise intended to release the agreement but the third party, 3sHealth objected to release and raised subsections 18(1)(a), (b), and (c) of LA FOIP. 3sHealth had 20 days to request a review by the Commissioner. The Commissioner determined that subsections 18(1)(a), (b) and (c) did not apply. The Commissioner recommended the agreement be released to the applicant. The Commissioner also recommended that Sunrise and 3sHealth update the Master Service agreement to clarify that Sunrise has obligations under LA FOIP and that it has the right to require unredacted copies of records pertaining to it in the possession of 3sHealth. Section 2: Definition of a third party Third party information 2 In this Act: … (k) “third party” means a person, including an unincorporated entity, other than an applicant or a local authority. LA FOIP defines a third party as a person, including an unincorporated entity, other than an applicant or a local authority.12 This definition is broad and can include an individual, private business (e.g., sole proprietorship, partnership, corporation, unincorporated association, or organization), non-profit group, trade union, syndicate or trust. However, it does not include applicants or local authorities which are defined by subsections 2(a) and (f) of LA FOIP which provide: 2 In this Act: (a) “applicant” means a person who makes an application for access to a record pursuant to section 6; 12 The Local Authority Freedom of Information and Protection of Privacy Act, SS 1990-91, c. L-27.1 at subsection 2(k).
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 8 … (f) “local authority” means: (i) a municipality; (ii) Repealed. 2002, c.C-11.1, s.389. (iii) Repealed. 2002, c.C-11.1, s.389. (iv) a committee of a council of a municipality; (v) any board, commission or other body that: (A) is appointed pursuant to The Cities Act, The Municipalities Act or The Northern Municipalities Act, 2010; and (B) is prescribed; (vi) the board of a public library within the meaning of The Public Libraries Act, 1984; (vii) the Northern Library Office established pursuant to The Public Libraries Act, 1984; (viii) any board of education or conseil scolaire within the meaning of The Education Act; (viii.1) a police service or regional police service as defined in The Police Act, 1990; (ix) a regional college within the meaning of The Regional Colleges Act, other than the Saskatchewan Indian Community College; (x) the Saskatchewan Polytechnic; (xi) the University of Saskatchewan, including Saint Thomas More College; (xii) the University of Regina, including: (A) Campion College; and (B) Luther College with respect to its post-secondary level activities; (xiii) the provincial health authority or an affiliate, as defined in The Provincial Health Authority Act; (xiii) Repealed. 2002 (xiv) Repealed. 2002, c.R-8.2, s.120. (xv) Repealed. 2002, c.R-8.2, s.83. (xvi) any board, commission or other body that: (A) receives more than 50% of its annual budget from the Government of Saskatchewan or a government institution; and (B) is prescribed;
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 9 The definition of a third party under LA FOIP can also include a “government institution”, as defined by subsection 2(1)(d) of The Freedom of Information and Protection of Privacy Act for purposes of LA FOIP.13 IPC Findings In Review Report 080-2018, the Commissioner determined, for the first time, that the Saskatchewan Health Authority (a local authority as defined by subsection 2(f) of The Local Authority Freedom of Information and Protection of Privacy Act) could qualify as a “third party” for purposes of FOIP. Section 18: Third Party Information Third party information 18(1) Subject to Part V and this section, a head shall refuse to give access to a record that contains: (a) trade secrets of a third party; (b) financial, commercial, scientific, technical or labour relations information that is supplied in confidence, implicitly or explicitly, to the local authority by a third party; (c) information, the disclosure of which could reasonably be expected to: (i) result in financial loss or gain to; (ii) prejudice the competitive position of; or (iii) interfere with the contractual or other negotiations of; a third party; or (d) a statement of a financial account relating to a third party with respect to the provision of routine services from a local authority. (2) A head may give access to a record that contains information described in subsection (1) with the written consent of the third party to whom the information relates. 13 SK OIPC Review Report 080-2018 at [51] and [52]. In addition, see SK OIPC blog, Can Public Bodies be a Third Party?. This replaces earlier interpretations by the SK OIPC that government institutions and local authorities could not qualify as third parties under LA FOIP and The Freedom of Information and Protection of Privacy Act – for old precedent see SK OIPC F-2012-001/LA-2012-001 at [40] to [53].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 10 (3) Subject to Part V, a head may give access to a record that contains information described in clauses (1)(b) to (d) if: (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Section 18 of LA FOIP is a mandatory, class-based and harm-based provision, meaning, it contains both class and harm based exemptions. As a mandatory provision, the local authority has no, or more limited, discretion regarding whether or not to apply the exemption. That is, if the information is covered by the exemption and the conditions for the exercise of discretion do not exist, then it must not be disclosed. LA FOIP defines a third party as a person, including an unincorporated entity, other than an applicant or a local authority.14 A “government institution”, as defined under subsection 2(1)(d) of The Freedom of Information and Protection of Privacy Act, can also qualify as a third party for purposes of LA FOIP.15 The provision is intended to protect the business interests of third parties and to ensure that local authorities are able to maintain the confidentiality necessary to effectively carry-on business with the private sector.16 Local authorities often collect a wide range of information from third parties. This information may be submitted voluntarily, such as in a bid for a contract, or submitted as required by law, such as for proof of regulatory compliance. There is a compelling need to protect information 14 The Local Authority Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. L-27.1 at subsection 2(k). 15 SK OIPC Review Report 080-2018 at [51] and [52]. 16 Office of the Nunavut Information and Privacy Commissioner (NU IPC) Review Report 03-08 at p. 7.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 11 that is provided to the local authority by third parties if the information falls within one of the enumerated exemptions under section 18 of LA FOIP.17 Although local authorities need to be open and accountable, they also need to conduct business and enter into business relationships; in so doing, they must be able to assure their private sector partners that their trade secrets and commercial and financial secrets will not be readily disclosed to competitors and the public.18 The leading case authority in terms of third party information is Merck Frosst Canada Ltd. v. Canada (Health), (2012). At paragraph [23], the court recognized that a balance must be struck between the private interests of third parties and the public interest in the disclosure of information. The court commented: [23] Nonetheless, when the information at stake is third party, confidential commercial and related information, the important goal of broad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation and development. The Act strikes this balance between the demands of openness and commercial confidentiality in two main ways. First, it affords substantive protection of the information by specifying that certain categories of third party information are exempt from disclosure. Second, it provides procedural protection. The third party whose information is being sought has the opportunity, before disclosure, to persuade the institution that exemptions to disclosure apply…19 Third parties doing business with public institutions must understand that certain information detailing the expenditure of public funds might be disclosed.20 Third parties should be aware that the right of access to information under a local authority’s control is available to every member of the public and cannot be restricted by considerations 17 Adapted from the Information Commissioner of Canada’s 2017-2018 Annual Report, Investigation Highlights, Section 20 – Third Party Information. Available at https://www.oicci.gc.ca/en/resources/reports-publications/2017-2018-investigation-highlights#h3. Accessed July 22, 2019. 18 Office of the Northwest Territories Information and Privacy Commissioner (NWT IPC) Review Report 04-043 at p. 4. 19 Quoted by Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [28]. 20 Office of the Ontario Information and Privacy Commissioner (ON IPC) Order PO-3845 at [62].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 12 of motive or occupation. The only way motivation could be relevant is to establish a reasonable expectation of harm to third parties [subsection 18(1)(c)].21 The information below is reproduced for ease of reference from the Guide to LA FOIP, Chapter 4: “Exemptions from the Right of Access”. Subsection 18(1)(a) Third party information 18(1) Subject to Part V and this section, a head shall refuse to give access to a record that contains: (a) trade secrets of a third party; … (2) A head may give access to a record that contains information described in subsection (1) with the written consent of the third party to whom the information relates. (3) Subject to Part V, a head may give access to a record that contains information described in clauses (1)(b) to (d) if: (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Subsection 18(1)(a) of LA FOIP is a mandatory, class-based exemption. It permits refusal of access in situations where a record contains the trade secrets of a third party. The following test can be applied: 1. Does the record contain trade secrets of a third party? 21 Intercontinental Packers Ltd. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 142 (T.D.), affirmed (1988), 87 N.R. 99 (Fed. C.A.) at [145].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 13 Trade secret is defined as information, including a plan or process, tool, mechanism or compound, which possesses each of the four following characteristics: i) the information must be secret in an absolute or relative sense (is known only by one or a relatively small number of people); ii) the possessor of the information must demonstrate he/she has acted with the intention to treat the information as secret; iii) the information must be capable of industrial or commercial application; and iv) the possessor must have an interest (e.g., an economic interest) worthy of legal protection.22 The information must meet all the above criteria to be considered a trade secret. The types of information that could potentially fall in this class include the chemical composition of a product and the manufacturing processes used. However, not every process or test would fall into this class, particularly when the process or test is common in a particular industry.23 If the local authority determines that the information qualifies as a trade secret and it intends to withhold it, it should ask the third party if it consents to the release of the information pursuant to subsection 18(2). Consent should be in writing. Pursuant to subsection 18(2) of LA FOIP, where a record contains third party information, the local authority can release it with the written consent of the third party. Pursuant to subsection 18(3) of LA FOIP, where a record contains third party information, the local authority 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 18(3) later in this Chapter. 22 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at p. 7. Definition relied on by Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [32]. 23 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.14.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_14. Accessed July 22, 2019.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 14 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 (Veridos Canada Ltd.) did not qualify as a trade secret. Subsection 18(1)(b) Third party information 18(1) Subject to Part V and this section, a head shall refuse to give access to a record that contains: … (b) financial, commercial, scientific, technical or labour relations information that is supplied in confidence, implicitly or explicitly, to a local authority by a third party; … (2) A head may give access to a record that contains information described in subsection (1) with the written consent of the third party to whom the information relates. (3) Subject to Part V, a head may give access to a record that contains information described in clauses (1)(b) to (d) if: (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Subsection 18(1)(b) of LA FOIP is a mandatory, class-based exemption. It permits refusal of access in situations where a record contains financial, commercial, scientific, technical, or labour relations information that was supplied in confidence to a local authority by a third party.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 15 The following three-part test can be applied:24 1. Is the information financial, commercial, scientific, technical or labour relations information of a third party? Financial information is information regarding monetary resources, such as financial capabilities, assets, and liabilities, past or present. Common examples are financial forecasts, investment strategies, budgets, and profit and loss statements. The financial information must be specific to a third party.25 Commercial information is information relating to the buying, selling or exchange of merchandise or services. This can include third party associations, past history, references and insurance policies and pricing structures, market research, business plans, and customer records.26 Types of information included in the definition of commercial information can include: • Offers of products and services a third-party business proposes to supply or perform; • A third-party business’ experiences in commercial activities where this information has commercial value; • Terms and conditions for providing services and products by a third party; • Lists of customers, suppliers or sub-contractors compiled by a third-party business for its use in its commercial activities or enterprises - such lists may take time and effort to compile, if not skill; • Methods a third-party business proposes to use to supply goods and services; and • Number of hours a third-party business proposes to take to complete contracted work or tasks.27 Scientific information is information exhibiting the principles or methods of science. The information could include designs for a product and testing procedures or methodologies.28 It is information belonging to an organized field of knowledge in the natural, biological, or 24 MCCreary J. used this three-part test in Seon v Board of Education of the Regina Roman Catholic School Division NO. 81, 2018 SKKB 166 at [9]. 25 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 103. Definition first relied on in SK OIPC Review Report F-2005-003 at [23]. 26 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 102. 27 Office of the British Columbia Information and Privacy Commissioner (BC IPC) Order F05-09 at [9]. First cited in SK OIPC Review Report 019-2014 at [35]. 28 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 191. Definition first relied on for third party exemption in SK OIPC Review Report F-2006-002 at [85].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 16 social sciences or mathematics. In addition, for information to be characterized as scientific, it must relate to the observation and testing of specific hypothesis or conclusions and be undertaken by an expert in the field. Finally, scientific information must be given a meaning separate from technical information.29 Technical information is information relating to a particular subject, craft, or technique. Examples are system design specifications and the plans for an engineering project.30 It is information belonging to an organized field of knowledge which would fall under the general categories of applied sciences or mechanical arts. Examples of these fields would include architecture, engineering, or electronics. It will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance of a structure, process, equipment or thing. Finally, technical information must be given a meaning separate from scientific information.31 Labour relations information is information that relates to the management of personnel by a person or organization, whether or not the personnel are organized into bargaining units. It includes relationships within and between workers, working groups and their organizations as well as managers, employers, and their organizations. Labour relations information also includes collective relations between a public body and its employees. Common examples of labour relations information are hourly wage rates, personnel contracts, and information on negotiations regarding collective agreements.32 In the decision Merck Frosst Canada Ltd. v. Canada (Health), (2012), the Supreme Court of Canada recognized that administrative details such as page and volume numbering, dates, and location of information within records do not constitute financial, commercial, scientific, or technical information.33 29 Definition originated from ON IPC Order P-454 at p. 4. Adopted in SK OIPC Review Report F-2006002 at [87]. 30 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 191. Definition first relied on for third party exemption in SK OIPC Review Report F-2006-002 at [85]. 31 Definition originated from ON IPC Order P-454 at p. 4. Adopted in SK OIPC Review Report F-2005003 at [26]. Definition endorsed in Consumers’ Co-operative Refineries Limited v Regina (City), 2016 SKKB 335 (CanLII) at [20]. 32 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 103. Definition first relied on in SK OIPC Review Report 019-2014 at [37]. 33 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [141].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 17 2. Was the information supplied by the third party to a local authority? Supplied means provided or furnished.34 Information may qualify as “supplied” if it was directly supplied to a local authority by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party.35 Information gathered by local authority inspectors via their own observations does not qualify as information “supplied” to the local authority. Judgements or conclusions expressed by officials based on their own observations generally cannot be said to be information supplied by a third party.36 Records can still be “supplied” even when they originate with the local authority (i.e., the records still may contain or repeat information extracted from documents supplied by the third party). However, the third party objecting to disclosure will have to prove that the information originated with it and that it is confidential.37 Whether confidential information has been “supplied” to a local authority by a third party is a question of fact. The content rather than the form of the information must be considered: the mere fact that the information appears in a local authority document does not, on its own, resolve the issue.38 The following are examples of information not supplied by a third party: • Information that reflects the viewpoints, opinions, or comments of local authority officials; • Reports resulting from factual observations made by local authority inspectors; and • The terms of a lease negotiated between a third party and a local authority.39 34 British Columbia Government Services, FOIPPA Policy Definitions at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions#supplied. Accessed August 21, 2019. 35 SK OIPC Review Reports F-2005-003 at [17], F-2006-002 at [40]. 36 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [156] and [158]. 37 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [157]. 38 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [158]. 39 Halifax Developments Ltd. v. Minister of Public Works (994), F.C.J. No. 2035 (QL) (F.C.T.D.). Also, in Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.14.3. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_14. Accessed August 21, 2019.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 18 The contents of a contract involving a local authority and a third party will not normally qualify as having been supplied by a third party. The provisions of a contract, in general, have been treated as mutually generated, rather than “supplied” by the third party, even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party.40 An agreement where the local authority 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 local authority in its request for proposals.41 There are two exceptions to the general rule of “mutually generated” information in contracts.42 If one of these exceptions apply, the information in a contract could be found to have been supplied by the third party: i) Inferred disclosure – where disclosure of the information in a contract would permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by the third party to the public body;43 and ii) Immutability – information the third party provided that is immutable or not open or susceptible to change and was incorporated into the contract without change, such as the operating philosophy of a business, or a sample of its products.44 40 Originated in 2002 ON IPC Order PO-2018. The language above is drawn from the most recent 2019 ON Order PO-3974 at [42]. First relied on in SK OIPC Review Report F-2005-003 at [17]. Several court decisions support this approach. See Boeing C. v. Ontario (Ministry of Economic Development and Trade), 2005 CanLII 24249 (ON SCDC), [2005] O.J. 2851, Canadian Medical Protective Association v. John Doe, 2008 CanLII 45005 (ON SCDC), [2008] O.J. No. 3475, Canadian Pacific Railway v. British Columbia (Information and Privacy Commissioner), 2002 BCSC 603 (CanLII), Canada Post Corp. v. National Capital Commission,(2002), 2002 FCT 700 (CanLII), Halifax Development Ltd. v. Canada (Minister of Public Works and Government Services), [1994] F.C.J. No. 2035. Similar position taken by other IPC offices including BC, AB, NFLD and Labrador and PEI. 41 SK OIPC Review Reports F-2005-003 at [17] to [19] and LA-2011-001 at [97]. 42 Base case was BC IPC Order 01-20 at [86]. This Order was later discussed in Canadian Pacific Railway v. British Columbia (Information and Privacy Commissioner) [2002] B.C.J. No. 848 at [72] to [79]. See also ON IPC Orders MO-1706 at p. 12, PO-2371 at pp. 6-9, PO-2528 at p. 12. Included for the first time in SK IPC Review Report 084-2015 at [22]. 43 An example of “inferred disclosure” can be found at [25] of Aventis Pasteur Ltd. v. Canada (Attorney General), 2004 FC 1371 (CanLII). See also BC IPC Order 01-20 at [86]. 44 The Ontario Superior Court of Justice, in Canadian Medical Protective Association v. Loukidelis, 2008 CanLII 45005 (ON SCDC) and [55], considered “immutability” as a factor in its determination that the information was not “supplied” by the third party.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 19 3. Was the information supplied in confidence implicitly or explicitly? Supplied means provided or furnished.45 In confidence usually describes a situation of mutual trust in which private matters are relayed or reported. Information obtained in confidence means that the supplier of the information has stipulated how the information can be disseminated.46 In order for confidence to be found, there must be an implicit or explicit agreement or understanding of confidentiality on the part of both the local authority and the third party providing the information.47 Implicitly means that the confidentiality is understood even though there is no actual statement of confidentiality, agreement or other physical evidence of the understanding that the information will be kept confidential.48 Explicitly means that the request for confidentiality has been clearly expressed, distinctly stated or made definite. There may be documentary evidence that shows that the information was supplied on the understanding that it would be kept confidential.49 For subsection 18(1)(b) of LA FOIP to apply, a local authority must show that both parties intended the information be held in confidence at the time the information was supplied.50 The expectation of confidentiality must be reasonable and must have an objective basis.51 Whether the information is confidential will depend upon its content, its purposes and the circumstances in which it was compiled or communicated (Corporate Express Canada, Inc. v. The President and Vice Chancellor of Memorial University of Newfoundland, Gary Kachanoski, (2014)). 45 British Columbia Government Services, FOIPPA Policy Definitions at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions#supplied. Accessed August 21, 2019. 46 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 104, SK OIPC Review Reports F-2006-002 at [51], H-2008-002 at [73], ON IPC Order MO-1896 at p. 8. 47 SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [57], ON IPC Order MO-1896 at p. 8. 48 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA2013-002 at [49], F-2014-002 at [47]. 49 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, pp. 104 to 105. 50 SK OIPC Review Reports 158-2016 at [37] and 203-2016 at [28]. 51 SK OIPC Review Reports F-2012-001/LA-2012-001 at [32], LA-2013-002 at [49], ON IPC Orders PO2273 at p. 7 and PO-2283 at p. 10.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 20 Factors considered when determining whether a document was supplied in confidence implicitly include (not exhaustive): • What is the nature of the information. Would a reasonable person regard it as confidential. Would it ordinarily be kept confidential by the third party or the local authority.52 • Was the information treated consistently in a manner that indicated a concern for its protection by the third party and the local authority from the point at which it was supplied until the present time.53 • Is the information available from sources to which the public has access.54 • Does the local authority have any internal policies or procedures that speak to how records such as the one in question are to be handled confidentially. • Was there a mutual understanding that the information would be held in confidence. Mutual understanding means that the local authority and the third party both had the same understanding regarding the confidentiality of the information at the time it was supplied. If one party intends the information to be kept confidential but the other does not, the information is not considered to have been supplied in confidence. However, mutual understanding alone is not sufficient. Additional factors must exist in addition.55 The preceding factors are not a test but rather guidance on factors to consider. It is not an exhaustive list. Each case will require different supporting arguments. The bare assertion that the information was supplied implicitly in confidence would not be sufficient.56 Factors to consider when determining if a document was supplied in confidence explicitly include (not exhaustive): • The existence of an express condition of confidentiality between the local authority and the third party;57 52 BC IPC Orders 331-1999 at [8], F13-01 at [23]; Office of the Prince Edward Island Information and Privacy Commissioner (PEI IPC) Order FI-16-006 at [19]; Office of the Nova Scotia Information and Privacy Commissioner (NS IPC) Review Reports 16-09 at [44], 17-03 at [34]. 53 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 54 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 55 Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), 2001 FCT 556 at [40], SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [58] to [59], ON IPC Order MO-1896 at p. 8, BC IPC Order F-11-08 at [32]. 56 SK OIPC Review Report LA-2013-002 at [60]. 57 SK OIPC Review Reports F-2006-002 at [56], LA-2013-003 at [113], F-2014-002 at [47], PEI IPC Order 03-006 at p. 5, AB IPC Orders 97-013 at [23] to [24], 2001-008 at [54].
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