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Document
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P-520
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File #
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P-9300088
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Institution/HIC
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Ontario Hydro
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Summary
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ORDER BACKGROUND: Ontario Hydro (Hydro) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for the prices paid by the successful bidders for surplus trucks and other equipment sold by Hydro in two tender transactions, 1015-ML and 1047-ML. These tenders were conducted pursuant to Hydro's Investment Recovery Policy (the IRP). The requester indicated that his company had been involved with these two transactions. Hydro denied access to the records pursuant to sections 17(1)(a) and (c) and 18(1)(c) of the Act . The requester appealed the denial of access. During mediation the Appeals Officer requested a copy of the IRP from Hydro. Pursuant to the terms of the IRP, Hydro provided the appellant with the names of the successful bidders in the two transactions and the rationale for the awards. Hydro declined to give the appellant access to the prices paid by the successful bidders for the surplus inventory. Further mediation was unsuccessful and notice that an inquiry was being conducted to review Hydro's decision was sent to Hydro, the appellant and the 22 successful bidders (the affected parties) in the two transactions. Representations were received from Hydro, the appellant and two of the affected parties. The two affected parties consented to the disclosure of the prices they had paid for the five vehicles and equipment they had purchased. The information remaining at issue is the prices paid by the affected parties for the 52 vehicles and other equipment disposed of by Hydro pursuant to the tenders. These prices are contained in the records entitled "Award Summary Sheets" for these transactions in the columns headed "Price Offered". Hydro has confirmed that the "price offered" represents the tender price accepted by Hydro, and consequently the price paid, in each case. ISSUES: The issues in this appeal are: A. Whether the mandatory exemptions provided by sections 17(1)(a) and (c) of the Act apply to the record. B. Whether the discretionary exemption provided by section 18(1)(c) of the Act applies to the record. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemptions provided by sections 17(1)(a) and (c) of the Act apply to the record. Sections 17(1)(a) 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; (c) result in undue loss or gain to any person, group, committee or financial institution or agency. In order for a record to qualify for exemption under section 17(1) Hydro and/or the affected parties 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 only information at issue in this appeal is the bid prices tendered by the affected parties and accepted by Hydro for the purchase of the surplus equipment. While Hydro submits that this constitutes "financial" information, in my view, it is more accurately characterized as "commercial" information in that it relates "solely to the buying, selling or exchange of merchandise or services" (Order P-493). Therefore the first part of the test has been met. Part Two With respect to part two of the test, Hydro and/or the affected parties must meet two requirements. They must prove that the information was supplied to Hydro and that it was supplied in confidence , either explicitly or implicitly. Having examined the record and the representations, I am satisfied that the information contained in the record was supplied to the Ministry by the affected parties as part of the tendering process and, therefore, I find that the "supplied" aspect of part two of the test has been satisfied. With regard to the issue of whether the information was supplied in confidence, the appellant submits that Hydro, as a public corporation, is owned by the public and should be open and accountable to the public. In support of its position that the bid prices were supplied in confidence, Hydro refers to certain sections of its "Policies and Procedures Manual for the Disposal of Surplus Equipment & Material" (the manual). These sections of the manual set out the type of information that will be given, on request, to unsuccessful bidders on items sold for less than $100,000 (as was the case in the transactions at issue). Unsuccessful bidders may request the name of the successful bidder and the rationale for the award. Under the section on "Rationale", the manual goes on to state that: Ontario Hydro practices a "policy" of open information and, consequently, the policy of disclosure indicated above is intended to reflect Hydro's long standing position in this regard. Despite the fact that, in its representations, Hydro refers to the manual as "reflecting its commitment to the confidentiality of bid details", the manual does not contain any explicit statement concerning the non-disclosure or confidentiality of the bid prices. In its representations, Hydro also refers to Orders 166 and P-367 to support its position that the bid prices were supplied in confidence. Both of these orders dealt with appeals in which access to information involving tenders had been denied. In Order 166, an appeal from a decision of the Ontario Northland Transportation Commission, then Assistant Commissioner Tom Wright quoted from a document entitled "Summary of
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Aug 25, 1993
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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