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Document
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P-431
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File #
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P-9200489
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Institution/HIC
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Niagara College of Applied Arts and Technology
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Summary
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ORDER The Niagara College of Applied Arts and Technology (the College) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to "the dollar value of the bids submitted by each bidder ... as well as a confirmation of which parts of the tender were awarded" with respect to the College's invitation for Tender #ADM-PR-486. The College notified four companies which submitted bids (the affected persons) of the request under section 28 of the Act . The affected persons submitted representations to the College objecting to the disclosure of the requested information. The College informed the requester as to the name of the successful bidder and which parts of the tender were awarded, but refused to give access to the dollar values of the bids, pursuant to section 17(1)(a), (b) and (c) of the Act . The requester appealed the College's decision to deny access to the dollar values. The record which is identified by the College as being responsive to the request is a one-page internal document of the College entitled "Request for Purchase Approval". It contains a list of the bidders who responded to the invitation for tender, along with the dollar amounts of the bids submitted by each of them. The dollar values are the yearly rates that the affected persons would charge the College for the provision of security services specified in the tender documents and are extracted from the actual bids submitted by the affected persons. Mediation of the appeal was not successful and notice that an inquiry was being conducted to review the College's decision was sent to the appellant, the College, and the affected persons. Written representations were received from the College and the appellant. Along with its representations, the College has forwarded the correspondence it received from the affected persons objecting to the disclosure of the information. The sole issue in this appeal is whether the mandatory provisions of section 17(1)(a), (b) or (c) of the Act apply in the circumstances of this appeal. Sections 17(1)(a), (b) and (c) of the Act 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 to qualify for exemption under sections 17(1)(a), (b) or (c), the following three-part test must be satisfied: 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 Ministry in confidence, either implicitly or explicitly; and 3. the prospect of disclosure must give rise to a reasonable expectation that one of the types of injuries specified in (a), (b) or (c) of section 17(1) will occur. Failure to satisfy the requirements of any part of this test will render the section 17(1) claim invalid [Order 36]. Part One The College submits that the dollar value in each of the bids is "commercial information." The appellant disagrees. He states that "the contents of the information requested do not include a request for any information that might be construed as ... commercial information". It has been established in a number of orders that information which relates to the buying or selling of services is "commercial" information, for the purposes of section 17(1) of the Act [Orders 47, 91, 166]. The information contained in the record relates to the sale and purchase of security services for the College, and outlines the affected persons' offers to supply the College with the required services for the prices indicated in the record. In my view, this information is "commercial" information and satisfies part one of the test. Part Two With respect to part two of the test, the parties objecting to the disclosure of the records must meet two requirements. They must prove that the information was supplied to the Ministry and that it was supplied in confidence, either explicitly or implicitly. The College submits that the information at issue was supplied to it by the affected persons and was not the product of negotiations between the College and the bidders. Having examined the record, the representations of the parties as well as the documentary evidence submitted to me along with the representations, I am satisfied that the information relating to the price for the provision of security services was supplied to the College by the affected persons. Therefore, in my view, the "supplied" aspect of part two of the test has been satisfied. With respect to the "confidentiality" element of the test, the College submits that the bids were received in confidence from the affected persons. The College states that "at least two" of the affected persons submitted their bids with explicit written statements that they were being given in confidence. Further, the College indicates that because the tenders were not publicly opened it was understood that the bids were being supplied in confidence. Finally, the College states that "in situations involving contracts for services where labour is the only or the primary component of the bid" the College's policy and practice is to release only the name of the successful bidder. It says price information in bids is "confidential and access will occur only in narrow circumstances. Only the Board of Governors and the government ministries that fund the College have full access to every bidder's tender price." The College's submissions regarding confidentiality are supported by an affidavit of its Director of Financial Services, who indicates that he has been responsible for the College's Purcha
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Legislation
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Subject Index
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Signed by
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Asfaw Seife
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Published
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Mar 09, 1993
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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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