Canada: Freedom Of Information? But I'm A Corporation!

Last Updated: November 2 2011
Article by Adam Chisholm

Corporations may be surprised to find that they have received a notice concerning a request made under Ontario's Freedom of Information and Protection of Privacy Act1 ("FIPPA") or other analogous pieces of provincial legislation. After all, the purpose behind such legislation relates to government institutions, including ministries, agencies, boards, commissions or corporations of the Government of Ontario. How could it relate to a private corporation?

FIPPA establishes a process for access to government documents through a freedom of information request ("access request"). Generally speaking, pursuant to FIPPA2, a person3 may make a request to an institution for records in the institution's custody or control, along with payment of a $5.00 fee. The head of the institution then makes a decision with respect to disclosure of the records. The party making the request may appeal a decision of the head of an institution by way of an appeal to the Information and Privacy Commissioner through the Office of the Information and Privacy Commissioner ("IPC").

Corporation A may find that its information is in the custody or control of a government institution and is responsive to a request made by a party (the "requestor"), even if they have been dealing with a government institution at arm's length. It may be intuitive to think that if Corporation A has received a grant, concluded an agreement, or even sent a letter to an institution, its information may become subject to an access request.

However, even where particular third-party "information" that "affects the interest" of the third party is responsive to an access request, such third party is entitled to notice that their information is at issue. As such, even if Corporation A's information is contained in a less conspicuous form of government record, Corporation A may receive a third-party notice from the government institution.

Corporation A's counsel may be caught off guard if they receive a third-party notice if they do not often deal with FIPPA requests. This is especially true if Corporation A is headquartered in a jurisdiction outside of Ontario or does not often work in the public sector space. Notably, the third-party notice does not come from the IPC, but rather from the head of the government institution. Nonetheless, the third-party notice is required by FIPPA4, and the fact that the notice originates from the institution (and not the IPC) should not cause Corporation A to devalue or ignore the third-party notice.

In order to be compliant with FIPPA, the third-party notice shall contain: (a) a statement that the head intends to release a record or part thereof that may affect the interests of the person; (b) a description of the contents of the record or part thereof that relates to the person; and (c) a statement that the person may, within twenty days after the notice is given, make representations to the head as to why the record or part thereof should not be disclosed.5

There is no express requirement in Ontario that the head of a government institution provide a copy of the record which is responsive to the access request to the third party, although it often is. This means that Corporation A may be advised that its information is contained in a record responsive to the requestor's request without seeing the actual record at issue. The IPC has refused to order a government institution to produce a record containing a corporation's own information to the corporation itself, on the basis that harm would result from disclosure of the record to the corporation.

Corporation A has twenty days after notice is given to make representations to the head of the institution which sent the third-party notice as to why the record containing its information or part thereof should not be disclosed to the requestor.6

By default, every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless an exemption to disclosure applies.7 That is, only if the institution successfully argues that an exemption applies, will the record be withheld from production in response to an access request. In order for Corporation A to substantiate the withholding of a record containing its information, it must respond to receipt of the third-party notice with arguments as to why the record should be withheld as being exempt from disclosure.8

The primary exemption relied upon by third parties is located in section 17(1) of FIPPA, which provides that a head of an institution shall refuse to disclose a record if:

  • it reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly; and
  • disclosure could reasonably be expected to,
    •  prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
    • 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;
    • result in undue loss or gain to any person, group, committee or financial institution or agency; or
    • reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.9

Notably, the language in the third-party information exemption in FIPPA is mandatory, meaning that the head of an institution does not retain discretion to produce the record if the exemption applies and if the third party does not consent to disclosure.

Additionally, Corporation A may object to disclosure of the record or part thereof if the record contains personal information that the head has reason to believe might constitute an unjustified invasion of personal privacy.10

The head of an institution is also required to seek consent if it intends to disclose information on records or information obtained from Corporation A's tax return or gathered for the purpose of determining tax liability or collecting a tax .11

The head of an institution is not obligated to provide third-party notice to Corporation A unless the head believes that disclosure of the record relates to one of the above-noted exemptions. However, upon receipt of notice, there is no express limitation on Corporation A preventing it from objecting to disclosure of the record on the basis of other relevant exemptions contained in FIPPA.

After Corporation A provides its representations in response to the third-party notice (in writing12), the head of the institution to which the access request was made shall decide whether or not to disclose the record or part thereof and give written notice of the decision to the person to whom the information relates and the person who made the request.13

Where the head of the institution intends to disclose a record or part thereof, Corporation A will have thirty days after receiving notice to appeal the institution"s decision to the IPC.14 If the institution decides to produce the record, and no appeal is taken by Corporation A, it will be produced to the party who made the request.15

However, if the head of the institution agrees that an exemption applies – including any third-party exemption argued by Corporation A -- then the institution may deny the requestor access to the record. All of the exemptions which the head of the institution may claim are beyond the scope of this article. However, the party requesting access has its own appeal process available if it disagrees with the government institution's decision.

In summary: Corporation A has twenty days to respond to a third-party notice received from a government institution and express its views to the head of the government institution. If Corporation A intends to oppose disclosure of records or part thereof, it will have to meet the statutory conditions in FIPPA, and will have to do so in a way consonant with past IPC decisions. Clearly, if Corporation A is considering withholding a record from disclosure, it should contact counsel early to ensure that its interests are adequately protected. Are you Corporation A?

Footnotes

1 R.S.O. 1990, c. F.31 [FIPPA].

FIPPA, ss.10 and 24.

3 It is the opinion of the writer that the term "person" should be given a narrow and legally informed definition.

FIPPA, s.28(1).

FIPPA, s.28(2).

FIPPA, s.28(2),(5).

7 FIPPA, s.10.

8 In fact, past IPC decisions related to some exemptions from disclosure require detailed and compelling evidence.

FIPPA, s.17(1).

10 FIPPA, s.21(1)(f).

11 FIPPA, s.17(2).

12 FIPPA, s.28(6).

13 FIPPA, s.28(6).

14 FIPPA, s.28(7).

15 FIPPA, s.28(9).

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2011 McMillan LLP

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Adam Chisholm
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions