|
|
|
|
|
|
|
|
|
|
|
|
|
|
Document
|
|
P-829
|
|
|
|
|
|
File #
|
|
P-9400568
|
|
|
|
|
|
Institution/HIC
|
|
Management Board Secretariat
|
|
|
|
|
|
Summary
|
|
NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The requester asked the Management Board Secretariat (the Board) for information respecting a Request for Proposal (RFP) that the Board prepared. This proposal related to an office lease for the Ministry of Education's Independent Learning Centre in Toronto. The requester represents one of the property owners who applied unsuccessfully for this lease. The Board identified three records that were responsive to the request. These consisted of two "records of proposal openings" as well as a leasehold agreement entered into between the provincial government and a named real estate corporation (the landlord). The Board agreed to disclose these documents to the requester in full with the exception of three passages found on Page 7 of the leasehold agreement. The Board's decision to exempt this information was based on the following exemptions contained in the Act : third party information - section 17(1)(a) economic and other interests of the Board - section 18(1)(c) The requester appealed this decision to the Commissioner's office and also took the position that additional records which were responsive to the request should exist. A Notice of Inquiry was provided to the requester/appellant, the Board and the landlord. Representations were received from all parties. Along with its submissions, the Board identified an eight-page collection of documents entitled "Schedule III" as a further record that was responsive to the request. This group of documents contains an analysis of the bids submitted by six separate property owners in response to the RFP. The Board again made the decision to release the majority of the information contained in these documents subject to certain deletions made under sections 17(1)(a) and 18(1)(c) of the Act . The Board subsequently provided the appellant with a copy of this package and the appellant has since indicated that he does not wish to challenge the Board's treatment of these documents. In addition, the appellant no longer wishes to pursue the aspect of his appeal relating to the Board's search for responsive records. The information which remains at issue in this appeal consists of references to certain inducements in the leasehold agreement which prompted the Board to select the landlord's property as the site for the Learning Centre. DISCUSSION: THIRD PARTY INFORMATION The Board and landlord claim that section 17(1)(a) of the Act applies to the inducements found in the leasehold agreement. For a document to qualify for exemption under this provision, the Board and/or the landlord 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 the harms outlined in sections 17(1)(a) will occur. Part One of the Test I have carefully reviewed the relevant portions of the agreement and find that they contain commercial and/or financial information for the purposes of section 17(1) of the Act . Part Two of the Test To satisfy part two of the test, the Board and/or the landlord must establish that the information contained in the agreement was supplied to the Board and secondly that such information was supplied in confidence either implicitly or explicitly. A number of previous orders have addressed the question of whether 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 contained in an agreement is typically the product of a negotiation process involving the parties, that information will often not qualify as having been "supplied" for the purposes of section 17(1) of the Act . In its representations, the Board indicates that it selects its office premises through an open tendering process. In the context of the present RFP, the Board advertised its space requirements in two local newspapers and invited proposals from interested parties. The Board then identified those bids which met its established criteria and invited the parties to present their proposed leases to the institution. A short list of proposals was then selected and the Board ultimately chose the lease which best met its needs. The Board states that the leases which it receives typically consist of a rental charge per square foot along with an inducement of some sort to encourage the Board to enter into the lease. An example of an inducement would be a rent free period or a package of renovations which are provided without cost. The Board points out that the decision to include an inducement in a leasehold agreement rests solely with the lessor. For this reason, and in the context of the present appeal, the Board argues that any information about inducements which appears in the lease was not negotiated between the parties but was originally supplied by the landlord. I have carefully reflected on this issue and have reached the conclusion that the portions of the agreement which refer to the inducements constitutes information which the landlord actually provided to the Board. On this basis, I conclude that this information was supplied to the government agency for the purposes of the Act . I must now consider whether the information in question was supplied to the Board in confidence. In its representations, the Board indicates that the inducements provided to the Ontario Government are unique in nature and that the industry practice is to maintain confidentiality with respect to these sorts of incentives. The Board then states that it has always treated inducements in a confidential fashion and that it is implicitly understood by parties involved in the leasing process that inducements are provided
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Irwin Glasberg
|
|
|
|
|
|
Published
|
|
Jan 09, 1995
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
<<
Back
|
|
|
|
Back to Top
|
 |
|
|
|
© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
|