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Document
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PO-1722
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File #
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PA-990075-1
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Institution/HIC
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Management Board of Cabinet
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Summary
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NATURE OF THE APPEAL: Management Board of Cabinet (MBC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to information about all bids tendered in relation to a specific project. Specifically, the appellant sought access to copies of all the bids that were tendered including that of the successful candidate to whom the contract was subsequently awarded. The appellant also sought access to the identity of the "evaluators" together with particulars of their mechanical background. The appellant was an unsuccessful bidder for the subject contract. MBC granted full access to information regarding the evaluators and partial access to copies of all the bid forms received in response to the tender call. The bid forms contain the construction bids, maintenance bids, total bid prices and the names of proposed subcontractors. MBC denied access to the names of the proposed subcontractors, under sections 17(1)(a) and (c) of the Act , on the basis that this information was supplied to it in confidence. In its decision letter, MBC stated that it had notified the companies which had participated in the tender call, of the request, pursuant to section 28 of the Act . MBC indicated to these companies that it was going to disclose all the information pertaining to the bids with the exception of the names of the proposed subcontractors which were withheld under section 17(1) of the Act . The companies were given a period of 30 days to appeal this decision, after which the information would be disclosed to the requester. The companies did not appeal MBC's decision and the records containing the information were disclosed to the appellant. The appellant, appealed MBC's decision to deny access to the names of the sub-contractors. The appellant also indicated in her letter of appeal that, in response to her request for access to the identity of the "evaluators" together with particulars of their mechanical background, MBC only provided a list of the evaluators. She believes that background information pertaining to the evaluators should exist and be provided to her. During mediation, the appellant was advised that MBC does not have any background information regarding the evaluators in its custody or control. The appellant conceded that this information does not exist and is, therefore, not at issue in this appeal. Therefore, the sole issue to be determined in this appeal is whether the mandatory exemption in section 17(1) applies to the names of the proposed subcontractors. I sent a Notice of Inquiry to the appellant, MBC and the seven companies (the third parties) that submitted bids to MBC. Representations were received from MBC, the appellant and one third party. This third party indicated that it has no objection to disclosure of the information in the record pertaining to its bid. RECORDS: The portions of the records at issue comprise the portions of page 2 of each of the seven bid forms, containing the names of the proposed subcontractors DISCUSSION: For a record to qualify for exemption under sections 17(1)(a), (b) or (c) MBC and the third parties must satisfy each part of the following three-part test: the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and the information must have been supplied to the institution in confidence, either implicitly or explicitly; and the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of section 17(1) will occur. [Orders 36 and P-373] The Court of Appeal for Ontario recently overturned the Divisional Court's decision quashing Order P-373 and restored Order P-373. In that decision the court stated: With respect to Part 1 of the test for exemption, the Commissioner adopted a meaning of the terms which is consistent with his previous orders, previous court decisions and dictionary meaning. His interpretation cannot be said to be unreasonable. With respect to Part 2, the records themselves do not reveal any information supplied by the employers on the various forms provided to the WCB. The records had been generated by the WCB based on data supplied by the employers. The Commissioner acted reasonably and in accordance with the language of the statute in determining that disclosure of the records would not reveal information supplied in confidence to the WCB by the employers. Lastly, as to Part 3, the use of the words " detailed and convincing " do not modify the interpretation of the exemption or change the standard of proof. These words simply describe the quality and cogency of the evidence required to satisfy the onus of establishing reasonable expectation of harm. Similar expressions have been used by the Supreme Court of Canada to describe the quality of evidence required to satisfy the burden of proof in civil cases. If the evidence lacks detail and is unconvincing, it fails to satisfy the onus and the information would have to be disclosed. It was the Commissioner's function to weigh the material. Again it cannot be said that the Commissioner acted unreasonably. Nor was it unreasonable for him to conclude that the submissions amounted, at most, to speculation of possible harm [emphasis added] [ Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 (Div. Ct.)]. MBC relies on sections 17(1) (a) and (c). None of the third parties has provided information to this office or to MBC relating to any part of the three part test. Therefore, in determining this issue, I will take into account the representations submitted by MBC and the appellant, the information in the records themselves and previous orders of this office which have addressed the application of section 17(1) and its municipal equivalent (section 10(1)) to bid information. Part One MBC submits that the names of subcontractors fall within the definit
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Legislation
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Oct 21, 1999
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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