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Document
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P-166
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File #
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Appeal 890239
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Institution/HIC
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Ontario Northland Transportation Commission
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 , as amended (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) or a request for access to personal information under subsection 48(1) a right to appeal any decision of a head under the Act to the Commissioner. On January 5, 1990, the undersigned was appointed Assistant Commissioner and received a delegation of the power to conduct inquiries and make Orders under the Act . The facts of this case and the procedures employed in making this Order are as follows: 1. On June 23, 1989, legal counsel for the requester wrote to the Ontario Northland Transportation Commission (the "institution") seeking access to the tender documents submitted by the successful tenderer, D. J. Venasse Construction Limited. 2. On August 1, 1989, the institution advised the requester that: Access is denied to the Venasse tender document under section 17 of the Act. This provision applies because there is a mandatory exemption from disclosure of third party information of a financial nature dealing with pricing practices, particularly when this information is supplied in confidence by the third parties and disclosure may interfere significantly with contractual or other negotiations. 3. On August 16, 1989, the requester's legal counsel appealed the decision of the institution. Notice of the appeal was given to the institution and the appellant on August 18, 1989. 4. The Appeals Officer obtained and reviewed the record. 5. On October 4, 1989, the Appeals Officer wrote to D. J. Venasse Construction Limited to advise of the appeal and to determine whether consent to disclose the record would be granted. 6. On October 17, 1989, D. J. Venasse Construction Limited (the "affected party") wrote to the Appeals Officer stating that "we are not willing to consent to the release of our tender documents." 7. As settlement was not possible, notice that an inquiry was being conducted to review the decision of the head was sent to the appellant's legal counsel, the institution and the affected party on November 20, 1989. Enclosed with each notice letter was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. This report indicates that the parties, in making their representations, need not limit themselves to the questions set out in the report. 8. Written representations were received from the appellant's legal counsel and the institution. The affected party chose not to make representations. I have taken these representations into consideration in making this Order. The sole issue in this appeal is whether the head has properly applied the mandatory exemption from disclosure under section 17 of the Act to the requested records. In considering the specific issues arising in this appeal, I have been mindful that one of the purposes of the Act , as set out in subsection 1(a), is to provide a right of access to information under the control of institutions. The provision of this right is in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Further, section 53 of the Act provides that where a head refuses access to a record, the burden of proof that the record falls within one of the specified exemptions in this Act lies upon the head. In this case, the burden of proving the applicability of the section 17 exemption lies both with the head and the affected party as they are the ones resisting disclosure. At issue in this appeal is a six page Tender Proposal Form (the "tender") which has been withheld from disclosure in its entirety. The tender was completed by D. J. Venasse Construction Limited and submitted to the institution with respect to construction of the Ontario Northland Intermodal/Intercity/Rail/ Bus Terminal in North Bay, Ontario. The following list indicates the titles of the 15 sections of the tender. Each section provides information or instructions to enable the tenderer to complete the form. The sections indicated in bold lettering, are those which required information to be provided by the tenderer. 1. Project 2. Architects 3. Tender submitted to: 4. Tender submitted by: 5. Offer: 6. Construction time 7. Addenda 8. Allowances 9. Tender acceptance 10. Appendices to tenderer 11. Contractor 12. List of subcontractors - Appendix A 13. List of unit prices - Appendix B 14. Alternate prices: - Appendix C 15. Material variations - Appendix D Also withheld from disclosure in its entirety was a one page Bid Bond, which serves as a security deposit that is forfeited if the successful tenderer fails to enter into a formal contract with the institution. The appellant and the affected party were the only companies to submit tenders to the institution for the construction project. The appellant's tender was rejected as being incomplete. The appellant's legal counsel requested access to the affected party's tender in order to determine whether it was in fact complete. Having submitted a tender for the same project, the appellant has a copy of the blank tender form. As an unsuccessful tenderer, the appellant requested and received the identity of the successful tenderer (the affected party in this appeal) and the total amount of the successful tenderer's offer i.e. the total price to complete the work required. In light of the above, the appellant's legal counsel indicated that the appeal could be confined to information provided by the affected party in sections 6, 7, 12, 13, 14 and 15 of the tender and the Bid Bond. As previously mentioned, the institution withheld the requested records from disclosure pursuant to the mandatory exemption under subsection 17(1)
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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28(1)
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17(1)
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Subject Index
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Signed by
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Tom Wright
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Published
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May 04, 1990
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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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