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ORDER BACKGROUND: The Ministry of Community and Social Services (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to information concerning various proposals received by the Ministry concerning its Child Care Conversion Project. In particular, the requester sought access to a copy of, or certain relevant extracts from, the proposal submitted by the company (the affected party) that was awarded the contract to evaluate selected Child Care facilities in Ontario for conversion from profit to non-profit status. The Ministry located the records responsive to the request and granted partial access. Access was denied to the proposal of the affected party pursuant to sections 17(1)(a), (b), and (c) of the Act . The requester appealed the decision. Mediation was not possible and notice that an inquiry was being conducted to review the Ministry's decision was sent to the Ministry, the appellant, and the affected party. Representations were received from the appellant and the affected party only. PRELIMINARY ISSUES: In its representations, the appellant claims that section 13(2)(c) of the Act applies to the record. This section is an exception to the discretionary exemption in section 13(1). The Ministry has not applied section 13(1) of the Act to the record at issue. In my view, the appellant's argument that the section 13(2) exception should apply to mandate disclosure of the record, is analogous to the situation in which, an affected party, for example, claims that a discretionary exemption not claimed by an institution should apply to preclude access to a record. In Order P-257, former Assistant Commissioner Tom Mitchinson considered the issue of whether or not a party other than an institution can rely on a discretionary exemption when an institution has not done so. At pages 5 and 6 of that order, he stated as follows: As a general rule, with respect to all exemptions other than sections 17(1) and 21(1), it is up to the head to determine which exemptions, if any, should apply to any requested record. If the head feels that an exemption should not apply, it would only be in the most unusual of situations that the matter would even come to the attention of the Commissioner's office, since the record would have been released. ... In my view, however, the Information and Privacy Commissioner has an inherent obligation to ensure the integrity of Ontario's access and privacy scheme. In discharging this responsibility, there may be rare occasions when the Commissioner decides it is necessary to consider the application of a particular section of the Act not raised by an institution during the course of an appeal. This could occur in a situation where it becomes evident that disclosure of a record would affect the rights of an individual, or where the institution's actions would be clearly inconsistent with the application of a mandatory exemption provided by the Act . In my view, however, it is only in this limited context that an affected person can raise the application off an exemption which has not been claimed by the head; the affected person has no right to rely on the exemption, and the Commissioner has no obligation to consider it. In my view, in the circumstances, this appeal is not one of those "rare occasions" when an exemption, other than a mandatory exemption, not raised by the Ministry should be considered. This is especially the case where, as here, the appellant is raising an exception to a discretionary exemption. ISSUES: The only remaining issue in this appeal is whether the mandatory exemption provided by sections 17(1)(a), (b) or (c) of the Act applies. SUBMISSIONS/CONCLUSIONS: Sections 17(1)(a), (b), and (c) read as follows: A head 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, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) 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; (c) result in undue loss or gain to any person, group, committee or financial institution or agency. In Order 36, former Commissioner Sidney B. Linden enunciated a test for determining whether the section 17(1) exemption applies to a particular record. For a record to qualify for exemption under section 17(1)(a), (b), or (c), the Ministry and/or the affected party must satisfy each part of the following three-part test: 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and 3. 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 subsection 17(1) will occur. Part One In order to meet part one of the test, the affected party and/or the Ministry must establish that disclosure of the records would reveal information that is a trade secret or scientific, technical commercial, financial, or labour relations information. The appellant's position is that the record relates to issues of business valuation, a body of knowledge that is widely understood within the profession. Accordingly, it maintains that it does not believe that the record would "divulge any proprietary theory or information". In its representations, the affected party claims that the record contains information which constitutes a trade secret. It goes on to state that: ... On review of the project outline, it became evident that in order to be successful in obtaining this contract, the successful bidder would have to present an innovative approach to both the valuation and in the manner in which it was carried out. A significant amount of time would have to be, and indeed was, invested in a methodology which would meet the
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