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Document
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P-610
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File #
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P-9300188
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Institution/HIC
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Ministry of Housing
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Summary
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ORDER BACKGROUND: The Ministry of Housing (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to tendering information related to the construction of a non-profit housing development. The Ministry provided the requester with the name of the company awarded the project, the number of bids received, and the timing for building construction and occupancy. The Ministry denied access to the five bids, which includes the name and address of the contractors and the value of their bid, pursuant to section 17(1) of the Act . The requester appealed the Ministry's decision. During mediation the appellant agreed that he did not require the attachments to the bids which include general covering letters, and documents related to the bonds posted by the contractors. Further mediation of the appeal was not successful, and notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant, the Ministry, the five contractors, and the non-profit group which oversees the housing project. Written representations were received from the appellant, the Ministry, and two contractors. One of the contractors advised that they had no objection to the disclosure of the construction bids, provided that all bids are disclosed, or if only selected parts are disclosed, that they are the same for each bid. The five bid records which remain at issue each consist of: (a) a "Stipulated Price Bid Form"; (b) a "Bid Form Appendix "A"- List of Proposed Subcontractors"; and (c) a "Bid Form Appendix "B"- Unit Prices". Four of the bids also contain a "Bid Form Appendix "C"- Alternatives and Substitutions". PRELIMINARY ISSUE: The five bids were provided directly to the architect employed by the non-profit group by the contractors. The architect then provided the bids to the Ministry. The Ministry submits that the records are not within its custody or control as specified in section 10 of the Act . The Ministry states that the true custodian of the records is the non-profit group and requested that its representations be sought regarding the release of this information. The Ministry submits that it is in possession of the records because, as the funding agency, it is its role to review and comment on the recommendations of the project architect regarding the bids. The Ministry states that it accepts or rejects the project architect's assessment of the bids, but is not a party to the decision; however, it does transfer funds to the architect. In discussions with the Appeals Officer, the Ministry indicated that if it did not concur with the architect's recommendation or assessment of the bids, or with the non-profit group's choice of bid, it could refuse to fund the housing project. In Order 120, former Commissioner Sidney B. Linden made the following comments regarding the issue of custody and control: "I feel it is important that [custody and control] be given broad and liberal interpretation in order to give effect to [the] purposes and principles [of the Act ]." He went on to outline what he felt was the proper approach in determining whether specific records fell within the custody or control of an institution: In my view, it is not possible to establish a precise definition of the words "custody" or "control" as they are used in the Act , and then simply apply those definitions in each case. Rather, it is necessary to consider all aspects of the creation, maintenance and use of particular records, and to decide whether "custody" or "control" has been established in the circumstances of a particular fact situation. The former Commissioner listed a number of factors to assist in determining whether an institution has custody or control of a particular record. I agree with former Commissioner Linden, and have considered the records in light of the factors set out in Order 120 and the Ministry's representations. In my view, the records are within the custody or control of the Ministry. The Ministry's concern regarding the interests of the non-profit group has been addressed through the notification of the group and the request for representations from them. ISSUE: The only remaining issue in this appeal is whether the mandatory exemption provided by section 17(1) of the Act applies to the five bid records. SUBMISSIONS/CONCLUSIONS: Sections 17(1)(a), (b) and (c) of the Act read: 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; For a record to qualify for exemption under section 17(1)(a), (b) or (c) of the Act 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. [Order 36] Part One The Ministry states that the records contain highly technical commercial information related to the residential construction industry, including very detailed itemized unit costs for a specific project. The Ministry submits that the information requested falls under the definition of commercial and technical information of the third parties. One of the contractors submits that the construction bids contain financial
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Legislation
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FIPPA
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10(1) custody or control
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17(1)(a), (b) & (c)
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Jan 13, 1994
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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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