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Document
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PO-1993
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File #
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PA-000378-1
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Institution/HIC
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Ministry of Transportation
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Summary
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NATURE OF THE APPEAL:
The appellant submitted a seven (7) part request to the Ministry of Transportation (the Ministry)
under the Freedom of Information and Protection of Privacy Act (the Act) for access to: “all
Request for Proposal (RFP) Summary Charts, Construction Scores for the following work
projects:
1. G.W.P. 273-96-00
Highway 401 from Wesleyville Road to Highway 2, Eastern Region
2. W.P. 10-93-00
Highway 401 from 2.6 km east of Nagle Road easterly to 1.4 km west of Shelter Valley
Road, Eastern Region
3. W.P. 521-91-00
Highway 401 from Joyceville Road to Highway 32, Eastern Region
4. W.P. 7-93-00
Highway 401 from 0.8 km west of Little Lake Road westerly to 1.4 km west of Shelter
Valley Road, Eastern Region
5. W.P. 11-93-00 (Part ‘A’)
Highway 401 from 2.4 km west of Burnham Street easterly to 2.6 km east of Nagle Road,
Eastern Region
6. W.P. 271-96-00-01-02-03 and W.P. 424-98-01
Highway 401 from 0.4 km west of Durham, Northumberland Boundary Road, easterly
5.6 km, Eastern Region.”
Before issuing its decision on access to the requested records, the Ministry notified nine
consultants (the affected parties) who had submitted proposals in response to the RFPs pursuant
to section 28(1) of the Act, since their interests might be affected by disclosure of the records at
issue. In addition, the Ministry notified an association that represents the interests of most
companies in the consulting engineering industry (the intervenor) to seek its views on the
application of section 17 to the type of information requested. In doing so, the Ministry noted
that this organization has, in the past, expressed concerns regarding the disclosure of this type of
information.
Six of the nine affected parties responded to the Ministry and objected to the disclosure of the
information pertaining to their companies in the records. The intervenor also submitted
representations to the Ministry objecting to the disclosure of this type of information.
The Ministry then denied access to the Summary Chart Construction Scores for the work projects
identified in the request under sections 13(1) (advice or recommendations), 17(1)(a)(b) and (c)
(third party information), and 18(1)(c) and (d) (economic and other interests) of the Act.
The appellant appealed the Ministry's decision.
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[IPC Order PO-1993/February 28, 2002]
During the course of mediation the Ministry confirmed that responsive records were identified
only with respect to items 1, 2, 4, and 5 of the appellant’s request. The Ministry indicated that
records do not exist for “W.P. 271-96-00-01-02-03 and W.P. 424-98-01 Highway 401 from 0.4
km west of Durham, Northumberland Boundary Road, easterly 5.6 km, Eastern Region” or
“W.P. 521-91-00 Highway 401 from Joyceville Road to Highway 32, Eastern Region” (Items 3
and 6 of the request).
Also during mediation, the appellant narrowed his request to access to a portion of the requested
records, namely, the Project Supervisor scores. He indicated further that he was no longer
seeking the identities of any party. The Project Supervisor score is found under that heading in
Records 1 and 2, identified as RFP Summary Charts. It was confirmed with the Ministry that the
“Project Supervisor” score is found on the Total Projects Management (the TPM) Scoring Sheets
under the “Management Plan” heading at subheading “Contract Admin” (Records 3 and 4). The
remaining portions of these records, including the names of the companies for which each score
is given and the names (initials) of the Ministry staff who conducted the evaluations, are no
longer at issue.
Finally, the appellant believes that records exist for items 3 and 6 of his request.
The mediator assigned to this file sent out her Report of Mediator to the appellant and the
Ministry. The Ministry responded to the Report, indicating that it accurately reflects the facts
and issues in the appeal as they stood at the time the Report was prepared. However, the
Ministry raised two matters that arose subsequent to the issuance of the Report:
• the Ministry indicated that it withdraws its reliance on the mandatory exemption in
section 17(1) of the Act; and
• the Ministry conducted one further search for responsive records, and located a record
responsive to item 3 of the appellant's request. The Ministry attached a copy of this
record to the letter and stated that it continues to rely on the exemptions in sections
13(1) and 18(1)(c) and (d) for this record, as well as those previously located.
Further mediation could not be effected and this appeal was moved on to inquiry. I decided to
seek representations from the Ministry, initially. In addition, despite the withdrawal of its
section 17(1) claim, I provided the affected parties with an opportunity to address this issue
given the mandatory nature of the exemption. I sent the Notice of Inquiry to eight of the affected
parties originally identified by the Ministry. One affected party had advised the mediator during
mediation that it did not wish to participate further in the appeal. On that basis, I did not notify
this party.
Pursuant to section 13 of the Information and Privacy Commissioner (the IPC) "Code of
Procedure", the IPC may notify and invite representations from any individual or organization
who may be able to present useful information to aid in the disposition of an appeal. In view of
the role of the intervenor in representing the interests of companies operating in this particular
sector and its previously stated position regarding the types of information at issue in this appeal,
I decided to seek its representations on the section 17(1) issue as well.
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[IPC Order PO-1993/February 28, 2002]
The Ministry submitted representations in response, as did the intervenor and three of the
affected parties who were notified. In addition, the affected party who had indicated during
mediation that it did not wish to participate submitted representations in direct response to the
issues raised in the Notice of Inquiry, although this document was not sent to it. Based on its
representations, however, I am satisfied that it has made itself aware of the issues in this appeal
and has had an opportunity to fully present its position on them. Two affected parties contacted
this office to advise that they would not be submitting representations, and the remaining three
did not respond to the Notice.
All of the parties who responded objected to disclosure of the information at issue. In all cases,
the affected parties referred to and adopted the representations submitted by the intervenor. Two
of the affected parties submitted additional representations.
After reviewing these submissions, I decided that it was not necessary to hear from the appellant
on the substantive issues in the appeal. The Ministry’s representations included affidavits sworn
by two of its employees relating to the steps taken to search for and locate responsive records. I
sent a Notice of Inquiry to the appellant along with copies of these affidavits and asked that he
provide representations on the reasonableness of search issue only.
The appellant submitted representations in response, which I then sent to the Ministry in order to
provide it with an opportunity to reply on this issue. The Ministry submitted further affidavits in
response.
RECORDS:
The records at issue are described as follows:
• Record 1 - RFP Summary Chart, Construction Office Scores, WP 273-96-00
(1 page). The information at issue is located at line 3 of this record;
• Record 2 - RFP Summary Chart, Construction Office Scores, WP 10-93-00 (1
page). The information at issue is located at line 5 of this record;
• Record 3 - TPM Scoring Sheets, WP-11-93-00 (6 pages). The information at
issue is located under the heading "management Plan" at subheading
"Contract Admin";
• Record 4 - TPM Scoring Sheets, WP-7-93-00 (6 pages). The information at
issue is located under the heading "management Plan" at subheading
"Contract Admin"; and
• Record 5 - RFP Summary Chart, Construction Office Scores, W.P. 521-91-00
(1 page). The information at issue is located at line 3 of this record.
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[IPC Order PO-1993/February 28, 2002]
Preliminary comments regarding the scope of this appeal
The Ministry and affected parties, including the intervenor, express concerns about disclosure of
the records in their totality. As the Intervenor notes in its representations:
[W]e understand that the appellant is no longer requesting the identification of the
companies involved, but this does not alter our opposition to the request. Given
the nature of the marketplace, it is clear that the requested information, in
combination with information previously released by [the Ministry], would
definitely identify the companies and their detailed scoring on the projects in
question.
Accordingly, I have not restricted my consideration of the issues to only that information
requested by the appellant, but rather, have taken into account the broader implications of the
disclosure of any information from the records.
DISCUSSION:
REASONABLENESS OF SEARCH:
Where a requester provides sufficient detail about the records which he is seeking and the
Ministry indicates that further records do not exist, it is my responsibility to ensure that the
Ministry has made a reasonable search to identify any records which are responsive to the
request. The Act does not require the Ministry to prove with absolute certainty that further
records do not exist. However, in my view, in order to properly discharge its obligations under
the Act, the Ministry must provide me with sufficient evidence to show that it has made a
reasonable effort to identify and locate records responsive to the request (Orders M-282, P-458
and P-535). A reasonable search would be one in which an experienced employee expending
reasonable effort conducts a search to identify any records that are reasonably related to the
request (Order M-909).
Although an appellant will rarely be in a position to indicate precisely which records have not
been identified in an institution’s response to a request, the appellant must, nevertheless, provide
a reasonable basis for concluding that such records may, in fact, exist.
In responding to this issue, the Ministry provided affidavits sworn by the head of Engineering
Claims in the Eastern Region Construction office and the head of Construction Administration in
the Eastern Region Construction office. Both affiants explain their roles at the Ministry and their
knowledge and familiarity with the types of records requested, the filing systems within their
offices and records storage protocols.
The head of Construction Administration indicates that he supervised the search for and
collection of the requested records. He states:
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[IPC Order PO-1993/February 28, 2002]
It is the practise of the Ministry’s Eastern Region Construction Office to maintain
two filing systems in regards to the consultant evaluation process, one electronic
and the other paper.
As a result of the Ministry’s storage protocol, I contacted [the head of
Engineering Claims] and the former Chairperson of the Consultant Evaluation
Committee, about the electronic files for the Documents, because his duties as the
former Chairperson of the Consultant Evaluation Team required him to keep and
maintain the electronic files on his laptop…
With respect to the paper files of the Documents, I instructed [the Senior
Construction Administration Technician] for the Ministry, and one of the
members of the Consultant Evaluation Team, who has knowledge of the
Ministry’s storage protocol, to undertake a search of the paper files pertaining to
the construction scores for the six projects requested.
[The Senior Construction Administration Technician] specifically searched the
consultant acquisition files, the construction contract files and the work project
files located at the Eastern Regional Head Office in Kingston.
[A construction Contract Control Officer] working out of the Ministry’s Port
Hope field office, [searched] the Port Hope office, because the six construction
projects listed in the Request are administrated by the Ministry’s Port Hope
office.
As well,… a Project Manager in the Planning and Design Office … in Eastern
Region [searched] the files in the Planning and Design Office because some of the
requested Documents involved contracts that were evaluated by this office.
The head of Construction Administration indicates that further similar searches were conducted
during the mediation stage of the appeal for records responsive to items three and six of the
request. He explained that originally some documents relating to these two projects had been
located but “these documents did not show the Project Supervisor’s score because this particular
score had not been requested.” He also asked various staff to review their personal files for
responsive records. As a result of this search a Contract Control Officer located his personal
summary sheet for the project identified as item three and this record was forwarded to the
Freedom of Information and Privacy office.
He confirms that no other records were located as a result of the additional searches.
He notes that the retention schedules for construction files that were applicable between 1997
and 2000 did not include the evaluation documentation since this process was recently
implemented in 1996, and the retention schedules were not amended until 1998. He indicates,
however, that it is possible that the record that would be responsive to item three of the request
has been destroyed as a result of various office furniture upgrades and office relocations at the
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[IPC Order PO-1993/February 28, 2002]
Regional and Port Hope Construction Offices between 1997 and 2000. He also states that it has
been the practice of the Construction Office that the “originator office” of the files would be
responsible for their retention and as Construction was not the originator of the RFPs stated in
the request, it did not keep or maintain the score sheets.
Finally, the head of Construction Administration states that a search was not conducted at the
Ministry’s off-site records storage area (for archived records) due to the fact that the construction
contracts were only completed in 2000/2001 and 2001/2002 and the documents would have been
kept with the construction files in the Regional and field offices.
In his affidavit, the head of Engineering Claims explains why and how the electronic files are
maintained. He states that he would have placed any documents relating to the request on his
laptop computer’s hard drive. He states that his laptop computer was stolen during a break-in at
the Ministry’s Regional office on or about May 19, 2000. He attached a certified true copy of
the police incident report relating to the break and enter.
The head of Engineering claims states that he did not make back-up copies of the electronic files
and to date, the laptop computer has not been found.
He confirms that various staff conducted further searches for responsive records in contract files,
work project files and their personal work files at either the Eastern Region office in Kingston or
at the Field Operations Centre in Port Hope. He concludes:
It was the practice of the Construction Office to forward the total score for the
Construction Administration Portion and the Contract Administrator’s score to the
Project Manager in the Engineering Office for TPM Design and Construction
Administration Consultant Assignments. Once the assignment was awarded and
completed, the scoring summaries in Construction as one part of the TPM total
evaluation process were typically destroyed.
These two affidavits were provided to the appellant. In response to them, he poses a number of
questions relating to the appropriate offices to be searched, and in particular, whether the
“originating office” was searched. He notes that records relating to items three and six should
have been retained pursuant to the 1998 retention schedule since they were completed after this
date (it appears he is not satisfied with the existence of only one record pertaining to item three
in the personal files of a Ministry employee). He also believes that there should be a back-up
disk as well as hardcopy of the records. In this regard, he indicates his belief that the hard drive
in the Ministry’s computer network would also contain the files responsive to his request. He
queries whether this hard drive was searched. Finally, he believes that the archived files should
have been searched as these projects were completed in either the fall of 2000 or the summer of
2001.
The Ministry submitted further affidavits in response to the appellant’s questions.
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[IPC Order PO-1993/February 28, 2002]
In his affidavit, the head of Engineering Claims reiterates that any responsive records on his
laptop would have been created by him, that no-one else would have made back-ups without his
knowledge and that he did not back-up these documents on the laptop computer itself, on the
Ministry’s computer network, on floppy disk or on any other computer or computer system.
In responding to the issues raised by the appellant, the head of Construction Administration
states that, in this case, the originating office is the Kingston office. He reiterates that a search
for responsive paper records was conducted in both the Kingston and Port Hope offices. He
notes that this was done because of the relocation of staff between the two offices and the
possibility that certain records may have followed them during their moves.
He also disputes the completion dates suggested by the appellant, noting that although the
“substantial completion dates” were July 24, 2000 and July 24, 2001, respectively, the
construction warranty period for each project extended for another year. He states:
Based upon the aforementioned substantial completion dates of these projects, it
is not the practice of the Ministry to place Responsive Documents into the
archived files as suggested by the Requester, because the projects are still current.
Based on the affidavits provided by Ministry staff, I am satisfied that a full and complete search
for responsive records was conducted. Moreover, the Ministry has provided a reasonable
explanation for the possible destruction of the missing records (albeit outside of its records
retention schedule). Accordingly, I find that the Ministry’s search for responsive records was
reasonable in the circumstances.
ECONOMIC AND OTHER INTERESTS
Sections 18(1)(c) and (d) provide:
A head may refuse to disclose a record that contains,
(c) information where the disclosure could reasonably be expected to prejudice
the economic interests of an institution or the competitive position of an
institution;
(d) information where the disclosure could reasonably be expected to be injurious
to the financial interests of the Government of Ontario or the ability of the
Government of Ontario to manage the economy of Ontario;
Section 18(1)(c) provides institutions with a discretionary exemption which can be claimed
where disclosure of information could reasonably be expected to prejudice the economic
interests of an institution or the position of an institution in the competitive marketplace (Order
P-441) .
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[IPC Order PO-1993/February 28, 2002]
To establish a valid exemption claim under section 18(1)(d), the Ministry must demonstrate a
reasonable expectation of injury to the financial interests of the Government of Ontario or the
ability of the Government of Ontario to manage the economy of Ontario (Orders P-219, P-641
and P-1114).
In Order PO-1747, Senior Adjudicator David Goodis stated:
The words “could reasonably be expected to” appear in the preamble of section
14(1), as well as in several other exemptions under the Act dealing with a wide
variety of anticipated “harms”. In the case of most of these exemptions, in order
to establish that the particular harm in question “could reasonably be expected” to
result from disclosure of a record, the party with the burden of proof must provide
“detailed and convincing” evidence to establish a “reasonable expectation of
probable harm” [see Order P-373, two court decisions on judicial review of that
order in Ontario (Workers’ Compensation Board) v. Ontario (Assistant
Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.),
reversing (1995), 23 O.R. (3d) 31 at 40 (Div. Ct.), and Ontario (Minister of
Labour) v. Big Canoe, [1999] O.J. No. 4560 (C.A.), affirming (June 2, 1998),
Toronto Doc. 28/98 (Div. Ct.)].
Applying this reasoning, in order to establish the requirements of the section 18(1)(c) or (d)
exemption claims, the Ministry must provide detailed and convincing evidence sufficient to
establish a reasonable expectation of probable harm as described in these sections resulting from
disclosure of the records.
In responding to the issues in the appeal, the Ministry has provided extensive background
information relating to the government procurement policy generally and the process it has
developed for the awarding of contracts. In essence, the Ministry notes that, as per Management
Board of Cabinet Directive, competitive bidding for the acquisition of consulting contracts is
essential in order to obtain the best value for the funds to be expended.
The Ministry states that it has recently, through a lengthy development process involving
industry consultations, arrived at a new “two-stage system of award” in the tendering for the
services of a consultant. This system is part of an acquisition process referred to as “Total
Project Management” (TPM) which was first introduced several years ago as part of the
Ministry’s outsourcing initiative, although it only came into effect on January 1, 2001. The
Ministry indicates that pursuant to the TPM:
the Ministry hires a consulting engineering firm to design a highway and then to
carry on with the administration and supervision of a construction firm who
actually builds the highway. In some cases, the Ministry hires the consultant to
solely carry out the administration and supervision of the construction firms work
on the highway construction project.
- 9 -
[IPC Order PO-1993/February 28, 2002]
The Ministry explains the difference between the system prior to January 1, 2001 and as it
currently stands:
As per the system that was in place until December 31, 2000, bidders submitted
their Technical and Management Proposal to the Ministry in confidence. The
Total Competitive Cost for each Proposal was divided by the Total Score for the
Technical and Management Proposal to give the Price/Score Ratio for that
Proposal. The best proposal was deemed the one with the lowest Price/Score
Ratio.
Effective January 1, 2001, a Corporate Performance Rating (CPR), which
measures the past performance of a firm on prior Ministry projects, was
introduced into the evaluation process. The Total Competitive Cost, the score of
the Technical and Management Proposal and CPR of a firm are weighed at 20, 30
and 50 percent respectively under this new evaluation system. The weighted
score for each of these components is added. The firm with the highest total score
wins the assignment.
The Ministry notes that, although the records at issue were created prior to this new system
coming into place:
Many of the fundamental concepts, the approach and steps are the same … and
the impacts of the access to Records should be measured with respect to the new
system.
The Ministry explains that debriefing sessions are held after the contract is awarded and that it
does provide the specific scores to each consultant, presumably so that each proponent can
determine for itself where it was weakest. The Ministry continues that the consultants are,
therefore, quite knowledgeable about the details of their specific scores and how the scores are
used by the Ministry to evaluate proposals.
The Ministry argues that disclosure of the requested information “would damage the integrity of
the consulting bidding system”. The Ministry concludes:
The result would be unfairness to all bidders who do not possess this information
and would have serious economic impacts on the Ministry in terms of prices
sought and in the number and quality of the bids received for each and every
contract. The alternative to the disclosure of the scores is to not evaluate the
consultants on the basis of their past performance or ability, so that no documents
are created. However, such an option is not in keeping with the need of the
Ministry to obtain the best work at the lowest possible price, employing a fair and
equitable process.
Initially, I have some difficulty accepting the Ministry’s position that the “harms” resulting from
disclosure of the records at issue, created prior to the implementation of the new system, should
- 10 -
[IPC Order PO-1993/February 28, 2002]
be assessed based on the same criteria as the new system. This argument suggests that regardless
of the “system”, the Ministry will suffer economic harm if the records are disclosed. Yet it has
gone to great lengths to explain how the specific construction of the new “weighted” system has
created a situation where full disclosure of the records could reasonably be expected to place
proponents in a position to anticipate and thus manipulate the tendering process at a significant
cost to the Ministry. I am not convinced that the same concerns (as described in the Ministry’s
representations) arise in the former system such that this leap can or should be made.
Regardless of any similarities in concepts, approach or process, I am not persuaded that the
anticipated harms could reasonably be expected to occur from disclosure of the information at
issue (or the entire record for that matter) under either system, as discussed below.
The Ministry indicates that the consultant selection system uses three variables in a mathematical
formula. These variables consist of the technical score, weighted at 30%, the consultant past
performance score (CPR), weighted at 50% and the price, weighted at 20%. The Ministry notes
that the consultant industry that bids on Ministry projects is relatively small and that most
consultants know whom they are competing against.
It should be noted that the Ministry’s web site contains a reasonably detailed description of the
new system and explains essentially how each variable is calculated. The Ministry states further:
[T]he consultants can rely upon the debriefing session to fully understand the
details of the evaluation system save for the lack of information of the scores of
other consultants. If the scores of the other consultants were to be known, the
consultant would be in a position to adjust its bid price to maximize its price
while still being awarded the contract.
… If the request were granted, the precedent value of such a decision would allow
numerous other persons to obtain this information. The use of this information
would exploit the evaluation system of the Ministry to the sole benefit of the
consultants and the public detriment. Consultants with high technical and past
performance scores would be able to price their work higher without the concern
for the open market, because they would know how to price their work without
fear of the open market competition.
The Ministry provides a number of examples of the manner in which the information can be
used, resulting in harm to its economic interests. The Ministry requested in its representations
that these portions not be shared with the appellant because to reveal the means by which an
outside party could cause harm to the Ministry would result in the very harm it is seeking to
prevent.
In my view, the submissions of the Ministry regarding the sharing of its representations
undermine its argument that disclosure would damage the integrity of the bidding system. In
this regard, the Ministry indicates that certain information relating to two of the variables “is not
a generally known fact in the consultant industry” and is “in fact … internal knowledge of the
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[IPC Order PO-1993/February 28, 2002]
Ministry”. The Ministry appears to suggest that knowledge of the scores, combined with internal
“confidential” Ministry information (which is not at issue in this appeal), could be used by a
party to manipulate the tendering process generally.
However, the information in the records comprises only one part of the overall assessment. By
the Ministry’s own admission, a party would require additional information that, at present, is
not known within the industry but is closely held by the Ministry, in order to be able to
manipulate the evaluation process in such a way as to affect the Ministry’s economic or financial
interests. In my view, the need to combine this additional “internal” Ministry information with
the information at issue is fatal to this argument relating to harm.
Accordingly, I find that the Ministry has failed to meet its onus in providing detailed and
convincing evidence sufficient to establish that disclosure of the records at issue (or the entire
record for that matter) could reasonably be expected to result in either of the harms in sections
18(1)(c) and/or (d) on the basis of this argument.
On the other hand, the Ministry may be suggesting that revealing the scores would permit a party
to determine what the Ministry already knows. Because the Ministry has requested that this
information not be made public, I am somewhat restricted from providing details of its argument.
Suffice it to say that the Ministry, through its examples, has attempted to demonstrate how a
party using the information in the records could manipulate the scores in such a way as to gain an
unfair advantage over other competitors.
Essentially, the Ministry submits that knowledge of the scores of its competitors would permit a
consultant to gauge their strengths and weaknesses with respect to all of the evaluation criteria
and thus adjust its bids for future tenders accordingly. The end result of this ability to “exploit”
the evaluation system, as suggested by the Ministry, could be an undercutting or inflation of the
bid prices with the attendant problems either situation creates. Ultimately, according to the
Ministry, this could reasonably be expected to impact negatively on its financial interests.
This argument suggests that there is a consistency in the scoring for each company across
projects, and that a competitor would be able to take this information and, through its own
calculations, determine the scores that the other bidding companies could expect to obtain for
any future project.
The scores on the records at issue relate to similar types of projects, thus I would expect that the
evaluation criteria are somewhat comparable; although it may be that there are variations.
However, based on the Ministry’s submissions, I must assume that there are similar expectations
with respect to all of the projects. I, therefore, examined the scoring on the records at issue to
determine whether it supported the Ministry’s argument.
In cases where certain companies submitted bids on more than one project, I observed variations
in the scores for each company across the different projects. I also noted that it appears that in
some cases the same evaluator (as identified only by initials or first name) assigned different
scores to the same company with respect to different projects. Based on the variations within the
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[IPC Order PO-1993/February 28, 2002]
records, including the scores, the companies bidding for the different projects and the
composition of the evaluation team, I am not convinced that disclosure of the records at issue or
the record overall would permit the kind of in-depth analysis and interpretation suggested by the
Ministry in a way that could reasonably be expected to result in the harms contemplated by
sections 18(1)(c) and/or (d).
The Ministry also suggests that the scores it gives a particular consultant may adversely affect its
reputation in the marketplace. The Ministry claims that if consultants know the scores will be
released, they may choose not to compete for Ministry contracts. The Ministry submits that this
could result in the loss of valuable consulting resources which could reasonably be expected to
prejudice its economic interests or be injurious to its financial interests. The Ministry states
further that a consultant who believes its reputation has been damaged through disclosure of the
information in the records may decide to take legal action against the Ministry, which would
similarly impact negatively on its economic or financial interests.
In my view, the Ministry’s final two arguments are entirely speculative. Moreover, given the
interest and involvement of the consulting engineering community in the development of an
evaluation process generally, it is unlikely, in my view, that the disclosure of the scores could
reasonably be expected to result in a disinterest on the part of this industry in competing for
government contracts.
Based on the above discussion, I find that the Ministry has not provided detailed and convincing
evidence to establish a reasonable expectation of probable harm pursuant to either section
18(1)(c) and/or (d) and the records at issue are not exempt on this basis.
ADVICE OR RECOMMENDATIONS
Section 13(1) of the Act states:
A head may refuse to disclose a record where the disclosure would reveal advice
or recommendations of a public servant, any other person employed in the service
of an institution or a consultant retained by an institution.
Previous orders of the Commissioner have established that advice and recommendations, for the
purposes of section 13(1) must contain more than mere information. To qualify as “advice” or
“recommendations”, the information contained in the records must relate to a suggested course
of action, which will ultimately be accepted or rejected by its recipient during the deliberative
process (Orders P-94, P-118, P-883 and PO-1894). Information that would permit the drawing
of accurate inferences as to the nature of the actual advice and recommendation given also
qualifies for exemption under section 13(1) of the Act (Orders P-1054, P-1619 and MO-1264).
The interpretation of section 13(1) first introduced in Orders 94 and P-118 was applied in Order
P-883, upheld by the Divisional Court in Ontario (Ministry of Consumer and Commercial
Relations) v. Fineberg (December 21, 1995), Toronto Doc. 220/95, leave to appeal refused
[1996] O.J. No. 1838 (C.A.).
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[IPC Order PO-1993/February 28, 2002]
In Order P-883, former Adjudicator Anita Fineberg stated:
I have reviewed Record 6 and find that it contains an update to the Secretary of
the Cabinet on the beer dispute, but does not relate to a suggested course of action
which will be accepted or rejected by the Secretary. I find, therefore, that Record
6 is not exempt under section 13(1) of the Act.
In its endorsement, the Divisional Court commented on Adjudicator Fineberg’s interpretation of
the exemptions in that order:
…we are satisfied that the applicant has failed on either standard of review [i.e.
patent unreasonableness or a high standard of deference] and there is no reason
to interfere with the interpretation given by the Inquiry Officer nor the
results reached in connection with the records relating to the sections
outlined above. [emphasis added]
In Order 94, former Commissioner Sidney B. Linden commented on the scope of this exemption.
He stated that it “... purports to protect the free flow of advice and recommendations within the
deliberative process of government decision-making and policy-making”. Building on his earlier
discussion in Order 94, former Commissioner Linden noted in Order P-118:
The general purpose of the section 13 exemption has been discussed in Order 94
(Appeal Number 890137) released on September 22, 1989. At page 5, I stated
that:
...in my view, section 13 was not intended to exempt all
communications between public servants despite the fact that many
can be viewed, broadly speaking, as advice or recommendations.
As noted above, section 1 of the Act stipulates that exemptions
from the right of access should be limited and specific.
Accordingly, I have taken a purposive approach to the
interpretation of subsection 13(1) of the Act. In my opinion, this
exemption purports to protect the free flow of advice and
recommendations within the deliberative process of government
decision-making and policy-making.
…
In my view, "advice", for the purposes of subsection 13(1) of the Act, must
contain more than mere information. Generally speaking, advice pertains to the
submission of a suggested course of action, which will ultimately be accepted or
rejected by its recipient during the deliberative process.
- 14 -
[IPC Order PO-1993/February 28, 2002]
My interpretation of "advice" would appear to be consistent with the way in
which the word has been defined by the Quebec Commission d'accès à
l'information (the "Commission") when interpreting a similar provision in its
legislation entitled, An Act respecting Access to documents held by public bodies
and the protection of personal information, R.S.Q. Chapter A-2.1. According to
an analysis by Dussault and Borgeat in Administrative Law, A Treatise, 2nd
Edition, Vol. 3, Carswell, 1989 at page 347 the Commission defined "advice" in
its decision in the case of J. v. Commission scolaire Jacques-Cartier (1985) 1
C.A.I. 82 as follows:
... advice is "an opinion expressed during debate", the action of
debating being the fact of "studying in view of a decision to be
made". Advice is thus not an opinion "that a person is made aware
of to keep him informed", but rather " to invite that person to do or
not to do a certain thing". Considering therefore, that advice
implies a decision-making process in progress, the Commission
concluded "advice is counsel or a suggestion as to a line of conduct
to adopt during the process. Logically, it takes place after research
and examination into the facts, i.e. study, has taken place"[Tr.].
The purpose and scope of the section 13(1) exemption as interpreted by this office was implicitly
endorsed by the Court of Appeal in the judicial review of Order P-1398 (Ministry of Finance v.
John Higgins, Inquiry Officer and John Doe, Requester [1999] O.J. No. 484, 118 O.A.C. 108
(C.A.), reversing [1998] O.J. No. 5015 (Div. Ct.), leave to appeal refused [1999] S.C.C.A. No.
134 (S.C.C.).
The Ministry submits:
The information set out in the records at issue may look like factual information at
first glance, but from the foregoing description of the system it will be apparent
that such is not the case. Each “score” represents in numerical form the judgment
of a scorer with respect to one aspect of a consultant’s RFP submission. The
scorer assesses the materials submitted for their technical merit and
responsiveness to the needs of the Ministry and makes a judgment as to the
strength and weaknesses of the consultant for the purpose of recommending to
senior staff of the ministry how that consultant’s submission should be viewed in
terms of awarding a contract. The scorer’s judgment is expressed in a numerical
score with respect to each aspect of the consultant’s submission rather than in
words. The individual scores and the totals convey to senior staff the scorer’s
recommendations as to which consultant the contract should be awarded.
With the changes in the role of the Ministry through TPM the importance of the
consultant is greatly magnified. Responsibility for design and construction and
supervision is transferred from Ministry staff to the consultant and its resources.
The size of the contracts involved in this process, and the level of dependence
- 15 -
[IPC Order PO-1993/February 28, 2002]
upon the consultant to produce a quality functional provincial highway
infrastructure makes the process of advising the Minister on the awarding of such
contracts extremely important. These score sheets are the medium for the
provision of such advice by public servants on the staff of the Ministry.
Further on this point, the Ministry describes how the records are used as part of the
Consultant Evaluation Process, including a description of the composition of the
evaluation team and its role:
Ministry staff as part of the consultant evaluation process assigns the technical
component scores…the process still emphasizes the evaluation of the technical
component score, the past performance score and the price tendered by the
consultant. Ministry staff assess these variables in order to select the appropriate
consultant…
… Ministry staff … evaluate and assign scores for each consultant. The
difference relates to the composition of the evaluation team …
…
The evaluation team [for a TPM – Construction Contract Administration
Contract] consists of a Chairperson and three technical staff from the
Construction Office, all of whom are Ministry employees. The technical staff are
either Contract Control Officers or Senior Construction Administration
Technicians with the requisite knowledge and construction experience to carry out
the required assessment of a consultant submission.
Once the submissions have been evaluated at the EOI stage, the chairperson
reviews these scores and makes recommendations to the Manager of Construction
on the short listing … At the RFP stage a more comprehensive predetermined
scoring system is used to assess the technical component of a consultant’s
proposal. Up until December 31, 2000, the Chairperson used these technical
scores to calculate the price/score ratio. Currently, the approach implemented
January 1, 2001 applies to calculate the price/score/CPR in weighted scores. The
Chairperson then provides the successful consultant with a conditional award
pending approval by the appropriate delegated authority, based on the value of the
assignment…
…the evaluation team [for a TPM – Detailed Design and Construction Contract
Administration] consists of the Ministry’s Project Manager from the Planning and
Design office and several Ministry staff with expertise in the various functions of
engineering and construction required for the work..
For the construction administration portion of the evaluation, the team consists of
a Chairperson and three technical staff from the Construction Office appointed by
- 16 -
[IPC Order PO-1993/February 28, 2002]
the Manager of Construction. All are Ministry employees. At both the EOI stage
and RFP stage, the three-member team assesses the submissions based on a preestablished
scoring system. Each member of the team scores the firms
individually and then they meet together and discuss differences in order to ensure
that any one member of the team has not missed any items requiring evaluation.
If concerns or potential problems arise the Chairperson is asked to make a ruling.
Once the scoring is complete a summary chart is submitted to the Chairperson
with the average score of the team members. The scores are reviewed by the
Chairperson, and submitted to the Project Manager in Planning and Design, who
leads the total evaluation team. The score for the Contract Administration portion
is incorporated with the design scores to come up with the total evaluated scores.
The Ministry also describes how the three variables (price/score/CPR) used in the consultant
selection process are calculated and how they interact to enable the Ministry to arrive at the final
score.
Corporate Performance Rating (CPR)
Under the new system, which was put into effect on January 1, 2001, past performance is
weighted at 50% of the overall score. The CPR is a three-year weighted average computed from
the ratings of the performance appraisals issued, calculated every three months. According to the
Ministry’s web site, the CPR is calculated using the following equation:
CPR = 3(Avg. Yr. 1) + 2(Avg. Yr. 2) + 1 (Avg. Yr. 3) divided by 6
Avg Yr. 1 = Average of all appraisals with the most recent 12 months
Avg Yr. 2 = Average of all appraisals in 12 months prior to Year 1
Avg Yr. 3 = Average of all appraisals in 12 months prior to Year 2
CPR’s are rated between 1 and 5, with 5 being outstanding and 1 being poor, not acceptable.
The Ministry’s web site indicates further that appraisals will be completed once the assignment
has been completed. According to the web site:
Appraisals for all types of capital project consultant assignments are included to
calculate a consultant’s CPR (e.g. Preliminary Design, Detailed Design,
Construction Administration, Total Project Management, Functional Assignments
for single engineering disciplines, RFP, RFQ, etc.). At this time, the postconstruction
appraisals of design assignments are not used in CPR calculation.
Technical component
The Ministry indicates that the “consultant technical submissions are scored to a scale typically
ranging from 600 – 1800 points maximum. The evaluation requirements and the scale are predetermined.”
This method of calculation is similar in both the pre and post January systems.
- 17 -
[IPC Order PO-1993/February 28, 2002]
The Technical scores of the proposal are weighted at 30% of the overall score under the new
system.
Proposals submitted at the RFP stage
In both systems, the consultant firms submit their proposals under a two-envelop process. The
first envelop containing the technical (and management proposal) is opened and the scores are
calculated. After January 2, 2001, if a consultant meets the minimum technical requirements, the
second envelop containing the price (weighted at 20%) is opened and the qualified submissions
are weighted using the three variables. The consultant with the highest overall score wins the
assignment. Under the old system, once a consultant meets the minimum technical requirements,
the price envelop is opened and the Price/Score Ratio is calculated. The firm with the lowest
Price/Score Ratio wins the assignment.
With respect to the awarding of the contract, the Ministry states:
Once the scores have been completed, senior management within the Ministry’s
Region where the project is located use the scores to select the consultant, who is
then recommended for award.
It appears that the awarding of a contract (in either system) is based on a non-discretionary
application of an established formula or pre-set criteria. If, as the Ministry suggests, after
totaling up the scores, there is no further assessment of the information contained therein, no
balancing or options or opinion to put forward, I am somewhat at a loss to understand the nature
of the advice being given. In other words, rather than the selection panel putting the consultant
forward to the Chairperson (or any other senior management for that matter) with a
recommendation that this party be awarded the contract, it appears that the process is designed
such that, once the mechanics of the assessment are completed, based on the application of
established criteria, there is no discretionary decision to be made; there is no advice to be
accepted or rejected during the deliberative process.
Even if there is an element of discretionary decision-making, that is, an ability of the recipient to
accept or reject the awarding of the contract to a particular consultant, in my view, the
development of the advice or recommendations would only occur once the completed scores for
the technical component are given to the Chairperson (or Manager) and the remaining
calculations are made based on the overall compilation of all of the variables.
I do not accept the Ministry’s argument that these scores represent the judgment of the scorer for
the purpose of making a recommendation to senior staff. In applying the pre-set criteria to the
information contained in the proposals, the evaluators are essentially providing the factual basis
upon which any advice or recommendations would be developed. Broadly viewed, the
Ministry’s approach could be taken to mean that every time a government employee expresses an
opinion on a policy-related matter, or sets pen to paper, the resultant work is intended to form
part of that employee’s recommendations or advice to senior staff on any issue.
- 18 -
[IPC Order PO-1993/February 28, 2002]
As I noted above, the purpose of the exemption in section 13(1) is to protect the free flow of
advice or recommendations within the deliberative process. The importance of protecting this
type of information is to ensure that employees do not feel constrained by outside pressures in
exploring all possible issues and approaches to an issue in the context of making
recommendations or providing advice within the deliberative process of government decisionmaking
and policy-making. Ultimately, it is the recipient of the advice or recommendations who
will make the decision and thus be held accountable for it.
Support for this approach to the interpretation of section 13(1) can be found in Public
Government for Private People: The Report of the Commission on Freedom of
Information and Individual Privacy 1980, vol. 2 (Toronto: Queen’s Printer, 1980) (the
Williams Commission Report) at p. 292:
A second point concerns the status of material that does not offer specific
advice or recommendations, but goes beyond mere reportage to engage in
analytical discussion of the factual material or assess various options relating
to a specific factual situation. In our view, analytical or evaluative materials
of this kind do not raise the same kinds of concerns as do recommendations.
Such materials are not exempt from access under the U.S. act, and it appears to
have been the opinion of the federal Canadian government that the reference to
"advice and recommendations" in Bill C-15 would not apply to material of this
kind [16]
.
Similarly, the U.S. provision and the federal Canadian proposals do not consider
professional or technical opinions to be "advice and recommendations" in the
requisite sense. Clearly, there may be difficult lines to be drawn between
professional opinions and "advice." Yet, it is relatively easy to distinguish
between professional opinions (such as the opinion of a medical researcher that a
particular disorder is not caused by contact with certain kinds of environmental
pollutants, or the opinion of an engineer that a particular high-level bridge is
unsound) and the advice of a public servant making recommendations to the
government with respect to a proposed policy initiative. The professional opinions
indicate that certain inferences can be drawn from a body of information by
applying the expertise of the profession in question. The advice of the public
servant recommends that one of a possible range of policy choices be acted
on by the government. [emphases added]
According to the Ministry, its evaluators are “Ministry staff with the requisite education and
knowledge of the construction industry needed to evaluate the consultants’ proposals”. In
conducting their review of the proposals submitted to the Ministry pursuant to RFP’s, these
individuals are, as I noted above, establishing the factual basis upon which advice and/or
recommendations may ultimately be made. Moreover, in this case, the entire exercise may be
even further removed from the deliberative process through its very design.
- 19 -
[IPC Order PO-1993/February 28, 2002]
Even if a broader definition were adopted for “advice” and “recommendations”, to include, for
example, all expressions of opinion on policy-related matters, I would not find the Project
Supervisor scores exempt because they are, as I noted above, primarily of a factual or
background nature. In and of themselves, they do not “advise” or “recommend” anything, nor
can they be seen as predictive of the advice or recommendations that would ultimately be given.
It would not be accurate to view them as advice or recommendations in the sense required by
section 13(1). On this basis, I find that section 13(1) does not apply to the records at issue or the
records in their entirety.
THIRD PARTY INFORMATION:
Section 17(1) of the Act reads, in part:
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 for a record to qualify for exemption under sections 17(1)(a), (b) or (c) of the Act, each
part of 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 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 section
17(1) will occur [Orders 36, M-29, M-37, P-373].
To discharge the burden of proof under part three of the test, the parties resisting disclosure must
present evidence that is detailed and convincing, and must describe a set of facts and
- 20 -
[IPC Order PO-1993/February 28, 2002]
circumstances that could lead to a reasonable expectation that one or more of the harms
described in section 17(1) would occur if the information was disclosed [Orders 36, P-373].
This three-part test and the statement of what is required to discharge the burden of proof under
part three of the test have been approved by the Court of Appeal for Ontario. In its decision
upholding Order P-373, the Court stated:
With respect to Part 1 of the test for exemption, the Commissioner adopted a
meaning of the terms which is consistent with his previous orders, previous court
decisions and dictionary meaning. His interpretation cannot be said to be
unreasonable. With respect to Part 2, the records themselves do not reveal any
information supplied by the employers on the various forms provided to the
WCB. The records had been generated by the WCB based on data supplied by
the employers. The Commissioner acted reasonably and in accordance with the
language of the statute in determining that disclosure of the records would not
reveal information supplied in confidence to the WCB by the employers. Lastly,
as to Part 3, the use of the words “detailed and convincing” do not modify the
interpretation of the exemption or change the standard of proof. These words
simply describe the quality and cogency of the evidence required to satisfy the
onus of establishing reasonable expectation of harm. Similar expressions have
been used by the Supreme Court of Canada to describe the quality of evidence
required to satisfy the burden of proof in civil cases. If the evidence lacks detail
and is unconvincing, it fails to satisfy the onus and the information would have to
be disclosed. It was the Commissioner’s function to weigh the material. Again it
cannot be said that the Commissioner acted unreasonably. Nor was it
unreasonable for him to conclude that the submissions amounted, at most, to
speculation of possible harm [emphasis added] [Ontario (Workers’ Compensation
Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41
O.R. (3d) 464 at 476 (C.A.)].
The analysis set out below follows the Commissioner’s traditional tests considered and found
reasonable by the Court of Appeal for Ontario in Ontario (Workers’ Compensation Board) cited
above.
The Ministry did not provide representations on the application of section 17(1) of the Act,
stating that it leaves it to the affected parties and the intervenor to make their case. Accordingly,
the burden of proof rests with the affected parties and the intervenor, and it is up to these parties
to provide evidence and representations sufficient to establish the requirements of the section
17(1) exemption claim.
Requirement One – Type of Information
The intervenor submits that “the requested information is derived from detailed technical
proposals and the scoring of those proposals is clearly commercial information that represents a
key activity in the process for buying and selling engineering services.
- 21 -
[IPC Order PO-1993/February 28, 2002]
The submissions made by the other affected parties tend to echo the intervenor’s position in this
regard.
The term “commercial information” in section 17(1) has been defined in previous orders of this
office to mean information that relates solely to the buying, selling or exchange of merchandise
or services (Order P-493). The records at issue consist of the evaluation scores assigned to each
company that submitted a proposal in response to Requests for Proposals (RFP’s) issued by the
Ministry. The evaluations were conducted by Ministry staff. Many previous orders have found
that records prepared by a company in response to an RFP contain commercial information (see,
for example, Order PO-1957). Previous orders have also concluded that evaluation notes and/or
scores made by institution staff which pertain to proposals and interviews/presentations relate to
the process of selecting bidders to provide services to the institution (Orders PO-1957, PO-1816
and PO-1818, for example).
Consistent with this line of orders, I find that the records, which contain the scores assigned by
each evaluator for each company that submitted a proposal, relates to the process designed by the
Ministry for selecting the consultant to provide the required services, and as such, qualifies as
commercial information.
Requirement Two – Supplied in Confidence
In order to satisfy the second requirement, the affected parties and the intervenor must show that
the information was supplied to the Ministry, either implicitly or explicitly in confidence.
Information contained in a record not actually submitted to an institution will nonetheless be
considered to have been “supplied” for the purposes of section 17(1) if its disclosure would
permit the drawing of accurate inferences with respect to the information actually supplied to the
Ministry (Orders P-179, P-203, PO-1802 and PO-1816).
The intervenor acknowledges that the records contain the scoring by the Ministry of a number of
proposals submitted by several of its member companies in response to RFP’s but submits that:
Given the nature of the marketplace, it is clear that the requested information, in
combination with information previously released by [the Ministry], would
definitely identify the companies and their detailed scoring on the projects in
question. This would significantly interfere with the confidentiality of the
tendering process …
Engineering proposals represent a comprehensive presentation of the capabilities
of a professional firm to undertake an engineering assignment. Within the
practice of professional engineering, proposals are submitted with a definite
understanding that they are provided for the sole use of the client and that they
will be treated as confidential information …
- 22 -
[IPC Order PO-1993/February 28, 2002]
Similarly, the details of the scoring of that confidential information should also
remain confidential. The scoring process is an intrinsic element of the overall
proposal and selection process. To make that information available to other
clients or to competitors violates the relationship between an engineer and client
and would disclose information that our industry treats as being confidential. In
this case, in fact the requested information even exceeds the level of detail that is
reported back to each of the proponents after the assignment is awarded.
One affected party states:
We feel that all of the information supplied to MTO during the proposal process is
confidential and should only be available to MTO’s proposal evaluation team.
This was our understanding when submitting these proposals. MTO’s Request for
Proposal documents typically include the following statement:
All requirements, designs, documentation, plans and information
viewed or obtained by the proponent in connection with this RFP
are the property of the Ministry and must be treated as confidential
and not used for any other purpose other than replying to this RFP
and the fulfillment of any resulting Agreement.
This affected party focuses primarily on the contents of its actual proposal, but concludes that:
We are particularly concerned that our competitors will find out what our overall
performance rating is with MTO, how our key staff are rated, how we staff our
jobs, and the rates we charge for the various individuals in the proposal.
Another affected party states:
MTO staff and CEO members expended very extensive effort in developing a
“Consultant Performance and Selection System” (CPSS) over the past two years.
The fundamental principles observed in the development of this process were to
ensure that the taxpayer of Ontario is well served through a competitive
consultant selection process, while at the same time encouraging a fair selection
process recognizing the professional nature of the services provided by consulting
engineers to MTO. A foundation of this process is the confidentiality of certain
components including particularly and individual firm’s Corporate Performance
Rating (CPR) and the “intellectual property” included in the technical component
of the proposals submitted to MTO. Some of this data, particularly a consultant’s
individual Corporate Performance Rating, is considered to be very highly
confidential both by CEO members and MTO.
In its representations relating to the application of section 18 of the Act, the Ministry describes
the evaluation process:
- 23 -
[IPC Order PO-1993/February 28, 2002]
In this situation, the evaluation team consists of the Ministry’s Project Manager
from the Planning and Design office and several Ministry staff with expertise in
the various functions of engineering and construction required for the work.
For the construction administration portion of the evaluation, the team consists of
a Chairperson and three technical staff from the Construction Office appointed by
the Manager of Construction. All are Ministry employees. At both the EOI
[expression of interest] stage and the RFP stage, the three-member team assesses
the submissions based on a pre-established scoring system. Each member of the
team scores the firms individually and then they meet together and discuss
differences in order to ensure that any one member of the team has not missed any
items requiring evaluation. If concerns or potential problems arise the
Chairperson is asked to make a ruling. Once the scoring is complete a summary
chart is submitted to the Chairperson with average score of the team members.
The scores are reviewed by the Chairperson, and submitted to the Project
Manager in Planning and Design, who leads the total evaluation team. The score
for the Contract Administration portion is incorporated with the design scores to
come up with the total evaluated scores.
Unlike the situation described in many previous orders of this office, which have considered
“notes” taken by evaluators during the interview/presentation portion of the RFP process or
references to details of proposals in evaluation documents to reflect the information actually
provided by the bidders at that stage (for example, Orders PO-1816, PO-1818 and PO-1957), the
information at issue in this appeal is simply the score assigned to one particular aspect of each
proposal by Ministry staff. The record as a whole similarly comprises the scores assigned by
Ministry staff relating to other aspects of each proposal.
In Order MO-1237, Senior Adjudicator David Goodis considered whether the scores assigned to
a number of contractors as part of a pre-qualification process were supplied in confidence under
section 10(1) (the municipal equivalent to section 17(1)). He stated:
In order to meet the second part of the test, it must be established that the
information in the records was actually supplied to the Board, or its disclosure
would permit the drawing of accurate inferences with respect to the information
actually supplied to the Board [Orders P-203, P-388, P-393].
In Order P-373, Assistant Commissioner Mitchinson stated:
Records 1, 2, and 3 list the names and addresses of the employers
with the fifty highest surcharges in 1991, together with the amount
of surcharge for each employer. Records 4 and 5 list only the
names and addresses of the employers with the highest penalties in
1990 under the relevant program.
- 24 -
[IPC Order PO-1993/February 28, 2002]
In my view, the surcharge amounts were not “supplied” to the
Board by the affected persons; rather, they were calculated by the
Board. While it is true that information supplied by the affected
parties on the various forms was used in the calculation of the
surcharges, it is not possible to ascertain the actual information
provided by the affected persons from the surcharge amounts
themselves.
In my view, the reasoning in Order P-373 applies to the scores assigned to the
contractors with respect to each of the criteria. In each case, disclosure of these
scores would not reveal the specific information actually supplied to the architect
(as agent for the Board). Rather, the architect calculated or derived the scores
based on the information that was actually supplied, or in some cases the architect
arrived at the scores based on a subjective evaluation of the information actually
supplied. Further, the number of submissions received and the name of the
engineering firm clearly does not constitute information supplied to the Board, or
to the architect as agent for the Board.
Speaking to this issue generally, Adjudicator Sherry Liang stated in Order MO-1462:
The requirement that it be shown that the information was "supplied" to the
institution reflects, once again, the purpose in section 10(1) of protecting the
informational assets of the third party. As stated in Public Government for
Private People: The Report of the Commission on Freedom of Information and
Individual Privacy 1980, vol. 2 (Toronto: Queen’s Printer, 1980) (the Williams
Commission Report), which provided the foundation of this Act:
. . . [T]he [proposed] exemption is restricted to information
“obtained from a person” in accord with the provisions of the U.S.
act and the Australian Minority Report Bill, so as to indicate
clearly that the exemption is designed to protect the
informational assets of non-governmental parties rather than
information relating to commercial matters generated by
government itself. The fact that the commercial information
derives from a non-governmental source is a clear and objective
standard signaling that consideration should be given to the value
accorded to the information by the supplier. Information from an
outside source may, of course, be recorded in a document prepared
by a governmental institution. It is the original source of the
information that is the critical consideration: thus, a document
entirely written by a public servant would be exempt to the extent
that it contained information of the requisite kind (pp. 312-315)
[emphasis added by Adjudicator Liang].
- 25 -
[IPC Order PO-1993/February 28, 2002]
Adjudicator Liang concluded that the information in the evaluation form used by the County’s
evaluators in assessing the bids for the contract and the scores given by evaluators to the
companies bidding for the contract were not “supplied” by a third party within the meaning of
section 10(1).
The scoring information in the records at issue was clearly not supplied by the consultants who
tendered the proposals. Neither would its disclosure reveal the information provided by them or
permit the drawing of accurate inferences with respect to it. Consistent with previous orders of
this office and the intention of the Legislature in enacting this provision, I find that the
information at issue in this appeal was not supplied to the Ministry and the second part of the
section 17(1) test has not been established. On this basis, I find that the exemption in section
17(1) does not apply in the circumstances.
Before concluding, however, the comments made by the intervenor relating to the affected
parties’ expectations of confidentiality in the RFP process merit some discussion. The intervenor
states:
In the second half of 2000, [the intervenor] held extensive discussions with [the
Ministry] to develop and agree on a revised consultant performance and selection
system (CPSS) for consulting engineering firms. This system was implemented
in January, 2001. Throughout those discussions, [the intervenor] on behalf of the
industry, maintained that scoring or ratings of engineering firms by [the Ministry]
must be treated as confidential information between a client and a professional
engineering firm and must not be disclosed to other clients, competitors or the
general public. That position was accepted by [the Ministry] and was a key
element of our agreement.
These comments are consistent with a letter written by the intervenor to the Assistant Deputy
Minister, Operations Division, at the time the Ministry first notified the parties of the request. In
that letter, the intervenor stated:
As you know, over the past year, we have worked extensively with your ministry
to develop a revised engineering consultant selection system …
Our understanding, throughout discussions on the selection and appraisal systems,
was that selection scoring data and the Corporate Performance Ratings of
individual firms within the appraisal system would not be available to third
parties. The scoring of proposals is a review of confidential information by the
ministry and represents the ministry’s view of the strengths and weaknesses of the
firms…
The affected parties who submitted representations also appear to hold this view.
In Order MO-1476, Assistant Commissioner Tom Mitchinson discussed confidentiality
expectations on the part of a company doing business with the institution in that case:
- 26 -
[IPC Order PO-1993/February 28, 2002]
The appellant maintains that the survey results were supplied to the City with an
explicit expectation of confidentiality, as evidenced by the confidentiality clause
included in the subscription agreement. The City acknowledges that the
subscription agreement with the appellant contains an explicit statement of
confidentiality, but points out that this is not determinative of whether or not
information of this nature is accessible under the Act. The City states that at the
time the agreement was entered into with the appellant “the appellant was
informed that notwithstanding any confidentiality clause, the City was bound by
provincial statutes, including the provisions of the Act.” In the City’s view,
because the limitations of the confidentiality clause were discussed with the
appellant, “the appellant could not have reasonably held an expectation of
confidentiality that would override any provisions of the Act regarding access,
notwithstanding the confidentiality clause.”
I agree with the City that the provisions of the Act apply in the context of requests
for access to records created under the terms of its contract with the appellant,
notwithstanding the existence of a confidentiality clause. However, in my view, it
does not necessarily follow that the appellant did not supply the information
provided under the terms of the contract in confidence. Based on the
representations provided by the parties, it is clear that the confidential nature of
the arrangements between them was not only explicitly addressed in the terms of
the contract, but also discussed in some detail at the time the contract was
executed. The City’s caution to the appellant regarding the extent to which the
clause would apply in the context of an access request under the Act is an
important one that is prudently addressed in contracts of this nature. However,
the confidentiality clause is explicit, and evidences a clear intention on the part of
the parties that the information would be provided in confidence and treated in
that manner by the City. I am satisfied that the appellant’s business protocols
support its position that information from its surveys is treated confidentially
within its organization, and that the survey results were prepared for a purpose
that would not involve general disclosure to the public.
Each case must be determined on its own and the reasonableness of an affected party’s
expectations of confidentiality will depend on the circumstances as they exist at the time the
records are supplied to the institution. For example, in Order M- 845 (upheld on judicial review
in Ottawa Home Health Care Inc. v. Ontario (Information and Privacy Commissioner) (January
26, 1998) Ottawa Doc. 1209/96 (Ont. Div. Ct.)), I concluded that the affected parties in that case
did not have a reasonably held expectation of confidentiality with respect to the contents of their
proposals because the City had a well-understood and formalized policy and practice of
disclosing this information, subject to specific requests for confidentiality at the time the
proposals were submitted.
Further, section 67(1) of the Act provides that this Act prevails over a confidentiality provision in
any other Act unless other specified in subsection (2) (which is not relevant in the circumstances
- 27 -
[IPC Order PO-1993/February 28, 2002]
of this appeal). Clearly, with only a few exceptions (in subsection (2)), the legislature intended
that issues relating to “confidentiality” with respect to records that fall within the scope of the
Act are to be assessed and determined within that context.
The intervenor’s comments suggest that it has been led to believe that the Ministry has, in effect,
provided a “guarantee” that records relating to the tendering process will be maintained in
confidence. This is not a guarantee that the Ministry can give. At best, the Ministry may be able
to assure potential bidders that it will recognize the confidential nature of this process, subject of
course, to the requirements of the Act.
ORDER:
1. The Ministry’s search for responsive records was reasonable and this part of the appeal is
dismissed.
2. I do not uphold the Ministry’s decision to withhold the requested records from disclosure.
3. I order the Ministry to disclose the records at issue to the appellant by providing him with
copies of this information by April 8, 2002 but not earlier than April 2, 2002.
4. In order to verify compliance with the provisions of this order, I order the Ministry to
provide me with a copy of the records which are disclosed to the appellant pursuant to
Provision 3, only upon request.
Original Signed By: February 28, 2002
Laurel Cropley
Adjudicator
POSTSCRIPT:
On a final note, the Ministry explains the basis for its decision to implement the TPM process:
In 1981, the Supreme Court of Canada rendered a decision in the Ron
Engineering case that the integrity of the bidding system must be protected where
under the law of contract it is possible to do so, and the Court developed the
notion of Contract A (tendering) and Contract B (performance).
- 28 -
[IPC Order PO-1993/February 28, 2002]
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Legislation
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Signed by
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Laurel Cropley
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Published
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Feb 28, 2002
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Type
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Order
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Judicial Review
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Institution's and affected party's applications dismissed January 20, 2004
Institution's and affected party's appeals to the Court of Appeal dismissed September 26, 2005
Institution's application for leave to appeal to the Supreme Court of Canada dismissed April 13, 2006
Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), [2005] O.J. No. 4047, Tor. Docs. C42061 and C42071 (C.A.); affirming [2004] O.J. No. 224, 181 O.A.C. 171, Tor. Docs. 193/02 and 224/02 (Div. Ct.); application for leave to appeal dismissed, [2005] S.C.C.A. No. 563, File No. 31224 (S.C.C.)
Divisional Court Decision - Motion to Combine
Divisional Court Decision
Court of Appeal Decision
Supreme Court of Canada Decision
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