A recent Order (MO-2786) of a Senior Adjudicator of the Office
of the Ontario Information and Privacy Commissioner provides a
useful guide for organizations wishing to protect confidential and
financial information submitted in response to requests for
proposals issued by a City.
The dispute involved the decision by a City to disclose a
bidders' RFP response (apart from severing personal
information) in response to an access to information request under
the Municipal Freedom of Information and Protection of Privacy
Act ("MFIPPA"). The bidder sought to protect details
of its software solutions and it pricing under subsection 10(1) of
MFIPPA. This provision permits withholding of records that would
disclose "a trade secret or scientific, technical, commercial,
financial or labour relations information, supplied in confidence
implicitly or explicitly" provided that the disclosure would
reasonably be expected to cause the bidder certain types of
specified harm. One of the specified harms would be significant
prejudice to the competitive position of the bidder.
Lessons from the Senior Adjudicator's Order:
Whether information has been made public by the bidder is not
relevant to the initial determination of whether the information is
"commercial information" or "financial
information" under subsection 10(1) of MFIPPA.
The fact that the RFP states that all bid responses will be
subject to MFIPPA does not displace a reasonable expectation of
confidentiality if (a) the bidder marks the response
"Confidential to the City" and (b) there is no indication
that the bidder has disseminated the information more broadly.
If the bidder has published information on its website, there
is no expectation of confidentiality for that information in its
If the total bid price (or, arguably, other information) is
disclosed publicly in a City council meeting or documents for the
City council meeting, the information will not be protected in an
"The failure of a party resisting disclosure to provide
detailed and convincing evidence will not necessarily defeat the
claim for exemption where harm can be inferred from other
Public policy may permit losing bids greater scope for
protection than winning bids. In the Senior Adjudicator's view,
the issue of transparency and accountability in spending taxpayer
money are not as engaged as with a winning bid.
In the result, the Senior Adjudicator accepted that the
information contained in the RFP response would be expected to
cause harm to the bidder (apart from information already disclosed
by the bidder on its website, which was not confidential). Although
the bidder did not submit detailed evidence regarding potential
harm, the Senior Adjudicator accepted that the particular
circumstances permitted an inference of harm:
I accept the appellant's
assertion that it markets its products exclusively to
municipalities and that, within this market, there is a limited
number of competitors. The appellant has identified the bases on
which these competitors distinguish themselves in RFP processes,
including the detailed pricing structure and detailed explanations
of how the functional requirements will be met.
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