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.
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