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Document
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M-250
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Institution/HIC
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City of Toronto
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Summary
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ORDER On January 4, 1994, the undersigned was appointed Inquiry Officer and received a delegation of the power and duty to conduct inquiries and make orders under the provincial Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act . The City of Toronto (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to the unit prices quoted by the successful bidder in a tender for a construction project. The City identified two pages as responsive to the request and notified the successful bidder (the company), pursuant to section 21(1) of the Act . The company objected to the disclosure of the record. The City, after considering the objections of the company, decided to grant full access to the requester. The company appealed the City's decision. Mediation of the appeal was not successful, and notice that an inquiry was being conducted to review the City's decision was sent to the company (now the appellant), the City and the requester. Representations were received from the appellant and the City. The record at issue consists of two pages from the tender package submitted by the appellant which contain the unit prices. The sole issue in this appeal is whether the mandatory exemptions provided by sections 10(1)(a) and (c) of the Act apply to the record. These sections 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, if 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; Pursuant to section 42 of the Act , the burden of proof that a record falls within a specified exemption lies upon the head. However, if, as in this case, a third party appeals the head's decision to release a record, the burden of proving that the record should be withheld from disclosure falls on the third party (the appellant). For the record to qualify for exemption under section 10(1)(a) or (c) of the Act , the appellant 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) or (c) of subsection 10(1) will occur. [Orders 36, M-29 and M-37] Failure to establish the requirements of any part of this test will render the section 10(1) exemption claim invalid. Part One In order to meet part one of the test, the appellant must establish that disclosure of the record would reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information. The appellant submits that disclosure of the record would reveal trade secrets, technical and financial information. In Order 166, then Assistant Commissioner Tom Wright determined that unit pricing information contained in a tender bid constituted financial and/or commercial information. I agree with that view and adopt it for the purposes of this appeal. In my view, the unit pricing information contained in the record constitutes financial information, and therefore the requirements of the first part of the test are met. Part Two The second part of the test has two elements. First, the information must be supplied to the City and secondly, it must be supplied in confidence , either implicitly or explicitly. In their representations, both the City and the appellant state that the information was supplied to the City. As noted above, the record forms part of the tender package submitted by the appellant to the City and I am satisfied that it was supplied to the City. The next matter to be determined is whether this information was supplied to the City in confidence, either implicitly or explicitly. In Order M-169, Inquiry Officer Holly Big Canoe made the following comments with respect to the application of the second part of section 10(1) of the Act : In regards to whether the information was supplied in confidence , part two of the test for exemption under section 10(1) requires the demonstration of a reasonable expectation of confidentiality on the part of the supplier at the time the information was provided. It is not sufficient that the business organization had an expectation of confidentiality with respect to the information supplied to the institution. Such an expectation must have been reasonable, and must have an objective basis. The expectation of confidentiality may have arisen implicitly or explicitly. I adopt these comments for the purposes of this appeal. The appellant's bid did not explicitly state that it was being submitted in confidence. However, the appellant submits in its representations that it was supplied implicitly in confidence, stating as follows: The information supplied in these tenders is supplied with implicit confidence. Never before in my 25 years of experience, has anyone ever been able to get the unit prices of any contract other than the total tender value. This is the status quo in our industry and holds true for every single City, Municipality, Town, Village, Region and Provincial government. Unit prices are never given out. As a matter of record, we know that applications have been sent to other municipalities and all have been denied. The City's representations state that the information contained in the record was not supplied to it explicitly in confidence, and the documents were not treated as supplied implicitly in confidence by the City. In support of its position, the City has submitted documentation which it provided to suppliers as guidelines for completing the tender submission, and portions of its procedural by-law enacted in 1988,
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Legislation
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Subject Index
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Published
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Jan 20, 1994
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Type
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Order
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