Freedom of Informationand Protection of Privacy Act:

Access to Information

Information Privacy and Data ProtectionLexpert Seminar

Dan Edmondstone December 9, 2013Paul J.S. Pereira

Agenda

• Overview

• Commercial Information Exemptions

• Contractual Negotiations

• Interactions with Other Statutes

• Exceptions to Exemptions

2

Protection of Privacy

12.* Cabinet Records

13. Advice to Government

14. Law Enforcement

18. Economic and Other Interests of Ontario

19. Solicitor-Client Privilege

21.* Personal Privacy

3

* Mandatory

17.* Third Party Information

23. Exemptions Not to Apply …

Overview

About Section 17

• Section 17 protects confidential business assets from being exploited by competitors

• Disclosure would be against the public interest Made after significant capital expenditure May reduce compliance with reporting

requirements• There may be three or four parties• Onus is on the third party claiming the

exemption

4Overview

Section 17 – As Written17. (1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to,

(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;

(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or …

5Overview

For Section 17(1) to apply, the institution and/or third party must satisfy each part of the following three part test:1. (Type): The record must reveal information that is a trade

secret or scientific, technical, commercial, financial or labour relations information;

2. (Supplied in; in confidence): The information must have been supplied in confidence, either implicitly or explicitly; and

3. (Harm): The prospect of disclosure must give rise to a reasonable expectation that one of the harms specified in paragraphs (a), (b), (c) and/or (d) of section 17(1) will occur. Workers' Compensation Board (Ont.) v. Information & Privacy Commissioner (Ont), [1998] 112 OAC 121, 164 DLR (4th) 129

6

Section 17 – As Applied

Commercial – Supplied – In Confidence – Harm

Commercial Information in Ontario

Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services.• This applies to both profit-making enterprises and

non-profit organizations;• It has equal application to both large and small

enterprises; and• The fact that a record might have monetary value

is not determinative. (Orders PO-493, P-1114, P-1621, PO-2010)

7Commercial – Supplied – In Confidence – Harm

Merck Frosst, 2012 SCC 3“Commercial Information” [Federal]

• Facts: Merck provided a compilation of publicly available studies for the approval of an asthma drug.

• Issue: Does the compilation constitute a trade secret or commercial information?

• Held: Dictionary definitions should be used for “financial, commercial, scientific or technical”. Citations to public studies do not qualify. Charts and tables of public data do not qualify.

• IPC definition for commercial information is narrow.• Dictionary definitions for commercial information are

broad.

8Commercial – Supplied – In Confidence – Harm

Commercial Information Threshold

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• Summary of successful bid(Order PO-3246)

• Contract terms for outsourced services(Order PO-3237)

• Professional allowancesfor pharmacies(Order PO-3210)

• E-mails re election of directors(Order PO-3187)

• Records relating to instructor harassmentin a private college(Order PO-2675)

Commercial Not Commercial

Commercial – Supplied – In Confidence – Harm

“Supplied”

• Information may be directly supplied or may permit the drawing of accurate inferences

• The “supplied” requirement protectsnon-governmental parties Fact that information is derived from non-

governmental source is a clear sign Information may be in a government document

• For observations/reports of officials: Excerpts are supplied; conclusions are generally not This is a question of fact, onus is on the third party

10Commercial – Supplied – In Confidence – Harm

Ontario Rule on Contractual Negotiations

• Negotiated terms are not supplied• Essential terms of a contract based on a RFP are

negotiated, and therefore, not supplied• [Federal] Terms mostly supplied by a third party• [Ontario] Presumption that contract not supplied• Contracts are mutually generated

Even with little or no negotiation Even if content of contract is entirely from one party “Form and structure” of a bid is not protected

11Commercial – Supplied – In Confidence – Harm

Is it Supplied?

12

• Business plan• Correspondence• News release• Report• Reporting pursuant to

statutory requirement(PO-3209)

• RFQ response(PO-3224)

• RFP response(PO-2637)

• Contract (generally) Agreed essential terms Records relating to

non-monetary compensation (PO-3230)

• Accepted contract following RFP Response(PO-3253)

• Ministry spreadsheet of rates paid to temporary workers(PO-3204 )

Supplied Not Supplied

Commercial – Supplied – In Confidence – Harm

Boeing v. The Bottom Line

1. Why does “negotiation” result from the mere “assent” to a contract?

2. Are supplementary documents related to qualifications, research studies, and business plans negotiated?

3. Why is a strained definition for “negotiated” being used to strain the definition of “supplied” in order to undermine an exemption designed to protect commercial information?

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“His conclusion that complex and detailed agreements like the ones before him were the result of negotiations was a reasonable one.”– Boeing Co v Ontario,[2005] 200 OAC 134, 140 ACWS (3d) 601 (Ont Div Ct)

Commercial – Supplied – In Confidence – Harm

When Information in Contracts May Be Exempt from Disclosure and “Supplied”

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Disclosure would permit accurate inferences to be made with respect to underlying non-negotiated confidential information

Not susceptible of change, such as the operating philosophy of a business, or a sample of its products

Inferred Disclosure

Immutability

Commercial – Supplied – In Confidence – Harm

Examples of These Exceptions

Supplied Information Order Date

No Pricing information on PO PO-3246 2013-08-28

No Contracts for outsourcing medical transcription

PO-3237 2013-08-13

No Contracts for the supply of infant formula, including records of gifts

PO-3230 2013-07-11

No Total cost of a management contract (may infer financial model)

PO-3208 2013-05-30

… … … …

Immutable Year-to-year business plan (parts) PO-3157 2013-01-28

Inferreddisclosure

Amounts of volume discount payments given by drug manufacturers (s. 18)

PO-2863 2010-01-13

15Commercial – Supplied – In Confidence – Harm

Room for Information in Contracts to be Supplied?

16Commercial – Supplied – In Confidence – Harm

3rd Party Co

Subcontractor 1

Government

S3

S2

Meaning of “In Confidence”

• There must be a reasonable expectation of confidentiality at the time the information is provided

• The subjective expectation of a business is not sufficient

• The expectation may have arisen implicitly or explicitly

• Information available in the past from the government is generally not confidential

(Orders M-169, PO-2020, and PO-2043)

17Commercial – Supplied – In Confidence – Harm

Expectation of Confidentiality on Reasonable and Objective Grounds

The information must be:1. Communicated to the Institution on the basis that it was

confidential and that it was to be kept confidential,2. Treated consistently in a manner that indicates a

concern for its protection from disclosure by the affected party prior to being communicated to the Institution,

3. Not otherwise disclosed or available from sources to which the public has access,

4. Prepared for a purpose that would not entail disclosure.

Most of these prongs require the informationnot be public. (See Orders PO-2043, PO-2404, MO-2801.)

18Commercial – Supplied – In Confidence – Harm

Merck Frosst, 2012 SCC 3“In Confidence” [Federal]

• Issue: Whether a compilation of public works may be protected as a new work.

• Held: Compilation may be confidential information, but not in this case

• Determination is a fact-driven exercise Statements of reliability of public studies would

generally be confidential• Merck had proposed giving copies of all published articles

to the requester

19Commercial – Supplied – In Confidence – Harm

Harm

• Evidence of possible effect on other contracts is not sufficient.

• Speculation or a possible increase in competition is not sufficient.

• Need evidence of prejudice to negotiations.• Require detailed and convincing evidence

This does not change the standard of proof Determination is based on available records Should not assume that harm is self-evident

• Significant harm is required

20Commercial – Supplied – In Confidence – Harm

Statutes with Deeming Provisions

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Many statutes contain deeming provisionsInformation … is deemed to be subject to … s. 17 if the disclosure would reveal that a hazard is ... contaminating … a certain premises …

(Animal Health Act, 2009, SO 2009, c 31)

Liquor License Act, RSO 1990, c L.19Racing Commission Act, 2000, SO 2000, c

20Financial Administration Act, RSO 1990, c

F.12Electricity Act, 1998, SO 1998, c 15, Sch AGaming Control Act, 1992, SO 1992, c 24Ontario Energy Board Act, 1998, SO 1998, c

15, Sch BFood Safety and Quality Act, 2001, SO

2001, c 20Green Energy Act, 2009, SO 2009, c 12,

Sch AExploration, Drilling and Production, O Reg

245/97, (Oil, Gas and Salt Resources Act)Animal Health Act, 2009, SO 2009, c 31Food Safety and Quality Act, 2001, SO

2001, c 20Ontario Energy Board Act, 1998, SO 1998, c

15, Sch BDeeming Provisions

Section 23: Public Interest– Exception from Exemptions

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

22Section 23

Section 23: Interpretation

• Section 23 requires: a clear public interest, that outweighs the purpose of the

exemption.• Disclosure must add to information the public

already has.• The onus is not on the appellant.• If disclosure serves private interests, it is

generally not in the public interest.

23Section 23

Ontario (Health and Long Term Care), Re (2010), PO-2863

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•Facts: Requester sought volume discounts for drugs.

•Alleged: Private purchasers are harmed with increased prices.

•Held: Discounts were not disclosed.• Further disclosure would not remedy harm.• Existing information, including formulae,

were sufficient for public scrutiny. • It would prejudice Ontario’s negotiations.

Section 23

York (Police Services Board) v. IPC2012 ONSC 6175 (Div Ct)

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•Facts: Requester sought base salary of Police Chief.

• Held: Base salary was disclosed.• Public has a strong interest in transparency.• Members of the public service have an

expectation that their salary may be subject to scrutiny.

Section 23

Is it a Compelling Public Interest?

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• Contributions to municipal election campaigns

• Integrity of criminal justice system

• Public safety of operation of nuclear facilities

• Safe operation of petrochemical facilities

• Preparations for nuclear emergency

• Another public forum for discussion exists

• Information already disclosed is adequate

• Court process provides alternative disclosure mechanism

• Already had wide public coverage / debate

• Records not responsive

Yes No

Section 23

Questions?

Dan Edmondstone416.307.4121dan.edmondstone@mcmillan.ca

McMillan LLP181 Bay Street, Suite 4400Toronto, ON M5J 2T3