Section 10(1) of the Municipal Freedom of Information and Protection of
Privacy Act requires that a municipality "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 if that disclosure could result in one of the
harms set out in subsections (a)-(d), such as prejudicing a
competitive position, or resulting in undue loss or gain.
The IPC agreed that the source of the fill was
"commercial" information because it could identify
specific fill suppliers. However, it disagreed that the records
were supplied "in confidence" . In reaching this
conclusion, the IPC considered whether the information was:
communicated to the institution on the basis that it was
confidential and that it was to be kept confidential
treated consistently in a manner that indicates a concern for
its protection from disclosure by the affected person prior to
being communicated to the government organization
not otherwise disclosed or available from sources to which the
public has access
prepared for a purpose that would not entail disclosure.
The IPC found that the fill sources were not supplied to the
township with an explicit expectation of confidentiality. Nor was
there sufficient evidence to support their argument of
an implicit expectation of confidentiality.
That a document is confidential will not be sufficient to
protect it from disclosure – the third party must also show a
reasonable expectation of harm. However, to reach that stage of
review, the document must be "confidential" in the first
place. To that end, there are a number of precautions that
should taken. For example, ensure that documents are:
Marked as confidential;
Supplied under a cover letter explaining that the documents are
confidential, and why, and that the company expects that the
municipality will keep the documents in a separate folder, marked
Kept confidential internally – for example, employees,
contractors, and others who have access to the information should
treat treat the information as confidential; and
Not posted publicly either by the company or any government
entity such as a municipality or regulator.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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