Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 31 (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)(c)(ii) of LA FOIP is a mandatory, harm-based exemption. It permits refusal of access in situations where disclosure of information could reasonably be expected to prejudice the competitive position of a third party. The following two-part test can be applied: 1. What is the prejudice to a third party’s competitive position that is being claimed? Prejudice in this context refers to detriment to the competitive position of a third party.76 Competitive position means the information must be capable of use by an existing or potential business competitor, whether or not that competitor currently competes for the same market share. For example: • Information that discloses the profit margin on a private company’s operations; • Marketing plans, including market research surveys, polls; or • Information that reveals the internal workings of a private company.77 2. Could release of the record reasonably be expected to result in the prejudice? The disclosure of information that is not already in the public domain that is shown to give competitors a head start in developing competing products, or to give them a competitive advantage in future transactions may, in principle, meet the requirements. The evidence would have to demonstrate that there is a direct link between the disclosure and the harm. Further, that the harm could reasonably be expected to ensue from disclosure.78 However, asserting disclosure would create a more competitive environment does not give rise to a 76 Adapted from Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 149. 77 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-business-interests-third-party. Accessed August 28, 2019. 78 Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [55] relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [219].
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