In a recent order of the Office of the Information and
Privacy Commissioner of Ontario, an adjudicator concluded that
confidential information included in a contract was not
"supplied" to the municipality and, therefore, must be
disclosed in response to an access to information request.
Subsection 10(1) of the Municipal Freedom of Information and Protection
of Privacy Act (Ontario) protects informational assets of
third parties contracting with municipalities in Ontario.
Subsection 10(1) provides, among other things, that a record that
reveals technical, commercial, or financial information of a third
party is exempt from disclosure under an access to information
request under certain circumstances. The information will be exempt
from disclosure if the information is supplied in confidence by the
third party and could reasonably be expected to prejudice
significantly the competitive position or interfere significantly
with the contractual negotiations of a person or organization.
In MO-2738, the requester sought access to information in a
contract between the municipality and a third party. The
information in the contract included maintenance information
regarding equipment that was subject to the contract, a detailed
code for the supply of the services under the contract, and a
summary of financial incentives and disincentives and the third
party's rates. The adjudicator accepted that this was
technical, commercial and financial information.
However, relying on prior precedent, the adjudicator concluded
that the information was not "supplied" to the
municipality by the third party. Instead, it was part of a
negotiated contract and, therefore, was "mutually
generated". Accordingly, it was required to be disclosed.
Organizations entering into agreements with municipal and other
governmental entities that are subject to access to information
laws should take note. Although there are no solutions that offer
"bullet proof" protection for confidential information in
government contracts, there are a variety of strategies for
disclosure and contract negotiation that may be used to enhance the
likelihood of protection by taking into account the strict
requirements of the Act.
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