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Document
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PO-1794
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File #
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PA-990398-1
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Institution/HIC
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Ministry of Natural Resources
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Summary
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NATURE OF THE APPEAL: The Ministry of Natural Resources (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to a Ministry tender for the supply of water craft bikes for use in provincial parks. The requester, an unsuccessful bidder, specifically sought access to records relating to the company which was the successful bidder (the company). The Ministry identified 8 records consisting of 13 pages responsive to the request, which it described as consisting of (i) Purchase Order, Form of Tender, Bid, Invoice etc. and (ii) Correspondence between [the company] and the [Ministry]. The Ministry then notified the company of the request. The company then wrote to the Ministry stating that it did not consent to the disclosure of the responsive records, and provided submissions in support of its position that the records were exempt under section 17 of the Act . The Ministry later notified the company and the requester that it had decided to grant access to the requested records. The company (now the appellant) appealed the Ministry's decision to this office. THE RECORDS: The records at issue in this appeal are described as follows: Record 1 Comparison of Tender Quotations and Specifications dated June 1999 Record 2 Purchase Order dated June 30, 1999 Record 3 Form of Tender Record 4 Correspondence to the Ministry from the appellant dated June 23, 1999 Record 5 Correspondence to the Ministry from the appellant dated June 23, 1999 Record 6 Correspondence to the Ministry from the appellant dated June 28, 1999 Record 7 Telephone messages and notes Record 8 Invoice to the Ministry from the appellant dated July 8, 1999 Record 1 contains information relating to a third bidder, apart from the requester and the appellant. The requester has confirmed that he is not seeking access to any information which relates to this other bidder, and therefore this information in Record 1 is no longer at issue in this appeal. I sent a Notice of Inquiry setting out the issues in the appeal to the appellant and the Ministry. I received representations from the Ministry only. In the circumstances, I found it unnecessary to seek representations from the requester. ISSUES: THIRD PARTY INFORMATION Introduction In its letter to the Ministry, the appellant stated that it objected to disclosure of the records for the following reasons: As [the appellant] is a privately held company I have absolutely no intention of disclosing any financial information with regards to this particular tender. Disclosing this information would completely jeopardize [the appellant's] ability to compete on future tenders in this area, thus hurting our competitive position. The appellant made no specific reference to the provisions of section 17. In the circumstances, I will assume that the appellant relies on section 17(1)(a) and (c) of the Act . Those sections 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; (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 sections 17(1)(a) or (c) of the Act , the party or parties resisting disclosure (in this case the appellant only) must establish 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 section 17(1) will occur [Orders 36, P-373]. Part One: Type of information The appellant's submission to the Ministry suggests that at least some of the information at issue qualifies as "financial information." The Ministry makes no specific submissions on this part of the three-part test. This office has defined commercial information as information which relates solely to the buying, selling or exchange of merchandise or services. Previous orders also have stated that the term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises [P-493]. Financial information has been defined by this office as information relating to money and its use or distribution, which contains or refers to specific data. Examples include cost accounting methods, pricing practices, profit and loss data, overhead and operating costs [Order P-493]. It is clear on the face of the records that Records 1, 2, page 2 of Record 3, and Record 8 contain financial information relating to the pricing of the product in question. Further, I find that all of the records contain commercial information, relating to the bid and ultimate purchase and sale of the product. Part Two: Supplied in confidence The Ministry takes the position that the records were not supplied in confidence: … The Ministry Procedures SM 1-0714 and 1-0712 govern the process and procedures for bids. Procedure SM-10714, which is attached, relates to the disclosure of information. The Ministry through its procedures and dealings with bidders has made it clear that the name and the total price of the bid were to be read out at the public opening of the bid. The principl
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Legislation
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Signed by
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David Goodis
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Published
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Jun 26, 2000
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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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