Previous orders have held that, while this provision does not impose a requirement on an institution to seek the consent, the head of the institution must at a minimum turn his or her mind to this issue [Orders P-771 and P-1146].

I now turn to consider whether Records 2 and 3 are exempt under section 13(1).

ADVICE TO GOVERNMENT

Section 13(1) 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.

The purpose of section 13 is to ensure that persons employed in the public service are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making.  The exemption also seeks to preserve the decision maker or policy maker’s ability to take actions and make decisions without unfair pressure [Orders 24, P-1398, upheld on judicial review in Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.)].

“Advice” and “recommendations” have a similar meaning.  In order to qualify as “advice or recommendations”, the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised [Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.)].

Advice or recommendations may be revealed in two ways:

• the information itself consists of advice or recommendations

• the information, if disclosed, would permit one to accurately infer the advice or recommendations given

[Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.)]

Examples of the types of information that have been found not to qualify as advice or recommendations include

• factual or background information
• analytical information
• evaluative information
• notifications or cautions
• views
• draft documents
• a supervisor’s direction to staff on how to conduct an investigation

[Orders P-434, PO-1993, PO-2115, P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc. 721/92 (Ont. Div. Ct.), PO-2028, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.)].

Record 2 consists of a two-page briefing document that includes a list of the key principles used to determine the hospitals suitable for the DBFO pilot projects.  Record 3 is also a two-page briefing document that contains estimated timelines for the bidding, selection, agreements and implementation (up to start of construction) of the two pilot projects.

The Ministry submits that these records contain information that relate to a suggested course of action that will ultimately be accepted or rejected by its intended recipient during the process of deliberation, and thus qualifies as “advice” or “recommendations” for the purposes of the Act.

The appellant has not made specific representations on the application of section 13.  In his letter of appeal, he questioned whether the list of criteria could be classified as advice, as they have been applied and decisions made.  He also questions whether a timetable can be considered as advice.

On my review of the records and the representations, I find that Records 2 and 3 do not qualify as advice or recommendations within the meaning of section 13.  They were not created as part of a deliberative process of government decision-making and policy-making.  They do not suggest any courses of action.  Rather, they provide factual or background information for the Minister as to decisions already made and events anticipated in accordance with those decisions.  I also find that Records 2 and 3 do not contain information that would permit accurate inferences about advice or recommendations that may have been given in the deliberative process leading up to those decisions.

I find, therefore, that Records 2 and 3 are not exempt from disclosure.

I will turn to consider whether portions of Records 1A and 1B and the entirety of Records 4A, 4B, 5A and 5B are exempt under section 17(1).

THIRD PARTY INFORMATION

Sections 17(1)(a), (b) and (c) state:

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

Section 17(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions.  Although one of the central purposes of the Act is to shed light on the operations of government, section 17(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace [Orders PO-1805, PO-2018, PO-2184, MO-1706].

Prior orders have established the following three-part test for the application of section 17(1):

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 paragraph (a), (b), (c) and/or (d) of section 17(1) will occur.

Part 1:  type of information

The Ministry submits that the records contain trade secrets as well as financial and commercial information.  The affected parties submit that the information at issue is commercial in nature.  One of them also refers to the information in the RFP as including its technical and proprietary information.  The appellant does not address whether the records contain any of the types of information described in section 17(1). 

I am satisfied that Records 4A, 4B, 5A and 5B contain commercial information in that they were created and used as part of a process of procurement.  As to Records 1A and 1B, the portions severed on the basis of section 17(1) do not clearly contain the types of information described in that section, as they relate primarily to the Ministry’s oversight of the redevelopment projects.  It is unnecessary for me to make a definitive determination on this issue as, for reasons given below, I am not satisfied that this information was “supplied” to the Ministry in any event.

Part 2:  supplied in confidence

The requirement that it be shown that the information was “supplied” to the Ministry reflects the purpose in section 17(1) of protecting the informational assets of third parties [Order MO-1706].  Information may qualify as “supplied” if it was directly supplied to the Ministry by the affected parties, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by the affected parties [Orders PO-2020, PO-2043].

The Ministry submits that the records were created and supplied to it by the affected parties in confidence.  It submits that the records contain explicit and/or implicit references to confidentiality.  Examples are fax cover sheets that bear embedded watermarks, and publication of documentation on Web pages accessible by password only.

The Ministry submits that it has assured the affected parties that their information will be held strictly confidential, subject to the requirements of the Act.  It considers all documentation provided to the Ministry as part of the RFQ’s and RFP’s as subject to this assurance of confidentiality.

The affected parties state that Records 4A, 4B, 5A and 5B were prepared by or on behalf of themselves, and provided to the Ministry for review, as part of an ongoing reporting relationship with the Ministry and in order to ensure that the framework for the bid and negotiation process was in keeping with regulatory and statutory requirements imposed on the hospitals.  The information was provided to the Ministry on the basis that it was confidential and would be treated as such.

These parties submit that the RFP’s (Records 5A and 5B) were not issued by the Ministry, but by the hospitals.  It is said that all recipients of the records have been required to sign confidentiality covenants, including the professionals involved in their preparation. 

One of the affected parties submits that the procurement process used in this instance did not entail a public competition, as sometimes occurs.  Rather, suitable candidates were pre-qualified and then invited to submit proposals.  The RFQ’s and RFP’s have been made available to prospective bidders only under specific covenants of confidentiality.

The appellant submits that the Ministry is the primary architect of the P3 projects.  Further, most of the costs associated with building the hospitals and paying for the hospital services contracted for will come from general provincial revenues.  In fact, it is said, funding for the P3 planning process, including the development of the RFP’s, came from the Ministry.  The appellant submits that the hospitals can more accurately be described as agents of the Ministry in the development of the RFQ’s and RFP’s, rather than third parties within the meaning of the Act and section 17.

The appellant submits that there is nothing inherent to the tenders in question that justifies the “regime of secrecy” that has been adopted by the Ministry and hospitals.  The appellant cites the findings in previous orders of this office that excludes contracts between institutions and third parties from section 17, on the basis that they are not “supplied” within the meaning of that section, and submits that this principle applies to this case.

Analysis

To begin with the last point set out above, the appellant accurately describes prior orders of this office that treat contracts between an institution and a third party as containing mutually generated information, rather than information “supplied” by the third party:  see, for instance, Orders PO-2018 and MO-1706.  However, I do not accept the appellant’s argument that the RFQ’s and RFP’s are equivalent to a contract between the Ministry and the affected parties.  It may well be the case that the level of involvement by the Ministry in the development of the records was significant.  As high-profile, large-scale pilot projects, these ventures have likely seen a higher level of co-ordination between the Ministry and the hospitals than many other projects involving publicly-funded organizations.  Nevertheless, I find that at the end of the day, the RFQ’s and RFP’s “belong” to the hospitals, in the sense recognized by section 17(1).  The involvement of the Ministry in reviewing and advising on the records as they were being developed and ultimately approving them does not transform the RFQ’s and RFP’s into contracts between the Ministry and the hospitals. 

I find, therefore, that the information in the RFQ’s and RFP’s was “supplied” to the Ministry within the meaning of section 17(1).

I also find that this information was supplied in confidence.  I accept the submissions of the affected parties as to their expectations of confidentiality in providing the records to the Ministry for its review.  The description of the tendering process used in these projects establishes that they were not intended to be open competitions in which these documents were available to all prospective bidders.  Rather, access to the records was strictly controlled.  In this context, I find that in providing the Ministry with these documents, the affected parties expected that Ministry employees would also adhere to the confidentiality requirements imposed on other recipients. 

In conclusion, I am satisfied that part two of the test for exemption under section 17(1) has been established, with respect to Records 4A, 4B, 5A and 5B. 

I am not convinced that the information in the severed portions of Records 1A and 1B was “supplied” to the Ministry within the meaning of section 17(1).  This information arises out of the Ministry’s involvement in the projects, and reflects information either generated by the Ministry or mutually agreed to between the Ministry and the affected parties. 

Part 3:  harms

To meet this part of the test, the institution and/or the third party must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.  Evidence amounting to speculation of possible harm is not sufficient [Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from other circumstances.  However, only in exceptional circumstances would such a determination be made on the basis of anything other than the records at issue and the evidence provided by a party in discharging its onus [Order PO-2020].

In this appeal, the affected parties submitted that disclosure of the information in the records would prejudice their competitive positions and interfere with their negotiations with the successful bidders.  At the time of their representations, both affected parties described the negotiations with the successful bidders as ongoing.  It was submitted that release of the RFP would interfere with the negotiation and conclusion of the transactions.  On behalf of one affected party, it was said that the bidder would reconsider its position with respect to the negotiating process given that other competing organizations would have insight into the terms and conditions upon which it was prepared to enter into negotiations.  It was also submitted that the negotiating process could be interfered with if unrelated parties or bidders that had been eliminated from the process decided to take action based on the information released.

On behalf of the other affected party, it was submitted that if negotiations fail to conclude successfully, it wants to be able to negotiate with other private sector parties.  The hospital could be prejudiced in those negotiations by the disclosure of confidential information exchanged with the initial private sector party in that it may lessen the competitive pressures that it wishes to impose on other private sector parties.

In response, the appellant submitted, among other things, that the hospitals are not private sector entities that have competitive positions to protect.  They are not-for-profit institutions that operate under a statutory mandate.  Thus, they do not compete with other publicly-funded hospitals.  It is submitted that there is no evidence to support the claim that disclosure of the tender documents will interfere with the negotiations process.  Further, the appellant submitted that disclosure would not prejudice potential future negotiations with other parties because the tender documents were released to the health care consortia bidding on the projects and not just to the successful proponent.  Thus, the information the appellant seeks has already been made available to the parties most likely to be competing for these or other similar projects.

I provided the affected parties and the Ministry with an opportunity to reply to the submissions of the appellant on the issue of harm.  Only the Ministry responded with further representations.  However, one of the affected parties (the WOHC) wrote with information about certain developments.  The WOHC states that in response to a written direction from the Ministry, it has made the tender documents in relation to its project available for public viewing.  This includes the RFQ and RFP at issue in this appeal.  The WOHC also notes that the same documents have been provided to the litigants and their counsel in the context of a judicial review, and that the same counsel also represents the appellant in this appeal.  The WOHC submits that as a result of these developments, “it is the position of WOHC that records 4A and 5A have been made available.  It is our position that this should resolve the issues related to those records in this appeal.”  The WOHC directed me to its website on which it has posted the process by which members of the public may access the documents.  The website also contains a summary of the project agreement. 

I requested comments from the other parties as to whether and how the facts raised in the letter from this affected party might have a bearing on the issues in this appeal.  The ROHCG responded by stating that it has not, as yet, received any written direction from the Ministry to make any of its documents available for public viewing; however, it anticipated that once there was a commercial closing it would be receiving a similar direction.

The appellant responded by noting, among other things, that the documents disclosed in the context of the judicial review application are subject to the constraints under the Rules of Civil Procedure on the use of such materials for purposes unrelated to the litigation.  Such a constraint is to be contrasted to the lack of any like limitations on the use of information acquired under the Act.  As to the disclosure by the WOHC in response to the Ministry direction, it is said that this disclosure is also subject to significant constraints as to access, copying and use.

Since the above representations were received, it came to my attention that the ROHCG has also reached an agreement with respect to the redevelopment of its hospital, and I invited the ROHCG and the Ministry to provide their comments on whether this apparent commercial closing has an effect on the issues in the appeal.

I received no response from the ROHCG.  The Ministry sent a letter in which it states that commercial close (when the agreements are executed) has taken place, but not financial close (when the consortium’s debt is rated and lenders commit and flow funds to the consortium to start construction).  The Ministry submits that the process leading to financial close involves potentially sensitive negotiations between potential lenders and the project company.  It indicates that disclosure of the records “prior to financial close could undermine that process (rating of debt, negotiations with lenders, financing rate, etc.).”  The Ministry submits that negotiations are not considered completed until financial closing has occurred, and since this has not yet occurred, negotiations are still ongoing.

The Ministry acknowledges that redacted project agreements for both hospitals are available for public viewing. 

Analysis

As to the prospect of disclosure to competing bidders, I find the assertion that the proponents might reconsider their participation in the projects if their competitors gained insight into the terms and conditions upon which they were prepared to enter negotiations unconvincing.  As the appellant has stated, the tender documents were released to other health care consortia bidding on the projects and not just the successful proponents.  I accept the appellant’s submission that the information has thus already been made available to the parties most likely to be competing for these or other similar projects.

For the same reasons, I also find unconvincing the assertion that release of the information may prejudice the hospitals if negotiations fail with the current proponents.  If new negotiations are required, it is reasonable to expect that the hospitals would turn to one of the parties that has already received this information through the prior bidding process.

In any event, I am also satisfied that any harm that may befall the negotiations process through disclosure of the RFP’s and RFQ’s has been resolved by the conclusion of negotiations as well as a degree of public disclosure of the tender documents and project agreements. 

I acknowledge that the Ministry does not consider the negotiations as having concluded.  It relies on the distinction between “commercial close” and “financial close”.  According to the Ministry, while the hospitals and the proponents have executed their agreements (commercial close), potentially sensitive negotiations between potential lenders and the proponents are still awaiting conclusion (financial close).  On the material before me, I am not satisfied that the contents of the RFP’s and RFQ’s could reasonably be expected to prejudice those other negotiations.  The Ministry has not provided me with a sufficient basis to support a conclusion that the disclosure of the specific information in those tender documents could reasonably be expected to prejudice the negotiations over the subject matters it describes (such as rating of debt and financing rate). 

The RFP’s and RFQ’s are, as I have indicated above, the initiating documents in the contract negotiations between the hospitals and the proponents.  They were developed by the hospitals and, in a general sense, represent the expectations of the hospitals about the projects.  They do not reflect final economic terms, and they do not contain financial or other information of the proponents.  In light of these factors, and the lack of further detail from the parties on this point, I am not convinced that disclosure of these records could reasonably be expected to interfere significantly with negotiations over financing as between the proponents and potential lenders.

ORDER:

1.                  I order the Ministry to disclose the records to the appellant with the exception of the portions of Records 1A and 1B that the Ministry severed under section 12(1). 

2.                  Disclosure is to be made by sending the appellant copies of the records ordered to be disclosed by December 20, 2004 but not before December 14, 2004.

3.                  In order to verify compliance, I reserve the right to require the Ministry to provide me with a copy of the records disclosed to the appellant pursuant to the above provisions, upon request.

Original signed by:                                                                              November 15, 2004               

Sherry Liang