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P-807

Document		P-807


File #		P-9400340


Institution/HIC		Ministry of Health


Summary		NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry of Health (the Ministry) received a request for access to an agreement between a named laboratory (the Laboratory) and the Ministry, resulting from a specific Request For Proposal (the RFP) for the supply of vaccine and related products. The Ministry notified the Laboratory of the request pursuant to section 28 of the Act . The Laboratory objected to the disclosure of certain portions of the agreement. The Ministry granted partial access to the agreement. The agreement refers to the RFP as the attached Schedule A. The RFP was previously disclosed to the requester. The Ministry denied access to the balance of the agreement (the record) on the basis of the following exemption: third party information - section 17(1) The requester appealed the decision of the Ministry. A Notice of Inquiry was provided to the appellant, the Ministry and the Laboratory. Representations were received from all parties. DISCUSSION: THIRD PARTY INFORMATION The Ministry and the Laboratory claim that sections 17(1)(a) and (c) of the Act apply to the information in the record. For a record to qualify for exemption under these provisions, the Ministry and/or the Laboratory 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) or (c) of subsection 17(1) will occur. Part One I have carefully reviewed the information in the record. It relates to the sale and supply of products and services by the Laboratory to the Ministry and qualifies as commercial information. Some of this information is the actual cost of products and therefore, also qualifies as financial information. In my view, the information in the record is commercial and/or financial information for the purposes of the section 17(1) test. The first part of the test has been met. Part Two To satisfy part two of the test, the Ministry and/or the Laboratory must establish that the information in the record was supplied to the Ministry and secondly that such information was supplied in confidence , either implicitly or explicitly. Previous orders have addressed the question of whether the information contained in an agreement entered into between an institution and a third party was supplied by the third party. In general, the conclusion reached in these orders is that, for such information to have been supplied to an institution, the information must be the same as that originally provided by the third party. Since the information in an agreement is typically the product of a negotiation process between the institution and the third party, that information will not qualify as originally having been "supplied" for the purposes of section 17(1) of the Act . In the present case, the Ministry has advised that the contract was a "single source" contract. The Ministry states that in such contracts, negotiation, if any, is minimal. The Ministry explains that the contract contains information that reflects the broad parameters of the RFP already disclosed to the appellant. The contract also contains the specific details of the terms and conditions offered by the Laboratory to the Ministry. In its representations, the Laboratory submits that disclosure of the information in the record would reveal unique proposals, terms and conditions that were developed solely for the Ministry and that are not standard in the industry. The Laboratory claims that the information in the record is not the result of a negotiating process but constitutes terms and conditions actually supplied by the Laboratory to the Ministry. I have carefully reviewed the information in the record and the representations of the Ministry and the Laboratory. I accept that most of the information in the record is information that was supplied by the Laboratory to the Ministry. However, there is some information which, in my view, does not fall within this ambit. I have highlighted in blue, the part of the record that, in my view, was not supplied for the purposes of the section 17(1) test. I have highlighted in yellow the part of the record that was supplied. I will now consider whether the portions I have highlighted in yellow were supplied to the Ministry in confidence, either explicitly or implicitly. This requires the Laboratory to demonstrate that there was a reasonable expectation of confidentiality at the time that it supplied the information and that the expectation must have an objective basis. There is nothing on the face of the record to indicate that it was supplied explicitly in confidence. The Laboratory points out that because of the unique nature of the proposals and conditions contained in the record and because the terms and conditions were developed solely for the Ministry, there was an implicit expectation of confidentiality and that this expectation was reasonable. The Ministry supports the position of the Laboratory. I am satisfied that the information in the record was supplied to the Ministry by the Laboratory implicitly in confidence. Part two of the section 17(1) test has been met. Part Three To satisfy this part of the test, the Ministry and/or the Laboratory must describe a set of facts and circumstances which would lead to a reasonable expectation that one or more of the harms described in section 17(1)(a) or (c) will occur if the information is disclosed (Order 36). The evidence which is presented to establish this connection must be clear and convincing. The Laboratory has provided detailed representations relating to each portion of the record which has been withheld. In essence, it submits that the record contains unique terms and conditions developed for the Ministry in response to the RFP. The Laboratory states that disclosure of this information would provide its competitors with the precise detailed information necessary to match or better the terms offered by the Laboratory to the


Legislation		FIPPA 17(1)(a), (b) & (c)


Subject Index		"supplied"


Signed by		Mumtaz Jiwan


Published		Dec 01, 1994


Type		Order


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