Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Ontario Lottery and Gaming Corporation (OLGC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for information relating to dealings between the OLGC and a named company (the affected party). The request read: I would like copies of records of any and all monies paid to [the affected party] and copies of any and all contracts, both tendered and untendered, given to [the affected party] between June 1, 1995 and the present date. The OLGC identified records responsive to the request and denied access to them in full, relying on the exemptions set out in sections 17(1)(a) (third party information) and 18(1)(c) and (d) (economic and other interests of Ontario) of the Act . The requester (now the appellant) appealed the decision. During mediation, the OLGC conducted a subsequent search for records in their accounts payable, records management and procurement departments. Instead of issuing a revised decision letter, the OLGC agreed to participate in a mediation conducted by telephone to advise the appellant of its search efforts. At the telephone mediation the OLGC advised the appellant that thirty-three pages of records (as more particularly described in the Records section below) had been located. The OLGC maintained its reliance on the above-noted exemptions to deny access to all the responsive records. Mediation did not resolve the appeal and the matter moved to the adjudication stage. I sent a Notice of Inquiry to the OLGC and the affected party, initially, setting out the issues and seeking representations. Only the OLGC responded with representations. A Notice of Inquiry was then sent to the appellant along with a copy of the OLGC’s representations. The appellant did not provide representations in response. RECORDS: The records at issue relate to the provision of print, display and television advertising services. They consist of invoices, purchase orders, cheques, an internal email and estimates of the cost of providing the services or goods relating to the services. The estimates have a signature line indicating approval by the client at the bottom. The estimates are all signed. The balance of the documentation relates to the billing and processing of payment for the services and goods provided based on the estimates. Although the appellant did not raise reasonable search as an issue, as there is a reference to a contractual agreement dated July 1, 1995 in the records, at the adjudication stage I asked the OLGC to conduct a search for the document. OLGC did so and was unable to locate it. The records that the OLGC located total thirty-three pages. DISCUSSION: THIRD PARTY INFORMATION General Principles 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]. Although the OLGC only raised the application of section 17(1)(a) in its decision letter, the representations it filed address sections 17(1)(a), (b) and (c) of the Act . As these are mandatory exemptions, I will consider their application in the circumstances of this appeal. Sections 17(1)(a), (b) and (c) of the Act read as follows: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (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; or (c) result in undue loss or gain to any person, group, committee or financial institution or agency; For section 17(1)(a), (b) and/or (c) to apply, each part of the following three-part test must be established: the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and the information must have been supplied to the OLGC in confidence, either implicitly or explicitly; and the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paragraphs (a),(b) and/or (c) of section 17(1) will occur. Part 1: Type of Information The OLGC takes the position that the records contain “commercial information”. Previous orders have defined this term as follows: Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises [Order PO-2010]. The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information [P-1621]. The OLGC submits that the records consist primarily of pricing information pertaining to the sale of goods and services as well as the terms of delivery and payment, and that this constitutes “commercial information”. I concur and find that the information in the records meets the definition of “commercial information”. Therefore, the requirements of Part 1 of the section 17(1) test have been established. Part 2: supplied in confidence In order to satisfy Part 2 of the test, the OLGC must establish that the information was “supplied” “in confidence”, either implicitly or explicitly. Supplied The requirement that information be "supplied" to an institution 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 an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party (Orders PO-2020, PO-2043). The contents of a contract involving an institution and a third party will not normally qualify as having been "supplied" for the purpose of section 17(1). The provisions of a contract, in general, have been treated as mutually generated, rather than "supplied" by the third party, even where the contract is preceded by little or no negotiation (Orders PO-2018, MO-1706). The OLGC submits that the affected party provided the estimates and invoices, which include the pricing for the products and services. It submits that this information is also included in the purchase orders and cheques it generated. It submits that the OLGC Procurement maintains the confidentiality of vendor information, including pricing information, and the information would have been provided on that basis. Otherwise, it says, it maintains the confidenti
Decision Content
NATURE OF THE APPEAL:
The Ontario Lottery and Gaming Corporation (OLGC) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for information relating to dealings between the OLGC and a named company (the affected party). The request read:
I would like copies of records of any and all monies paid to [the affected party] and copies of any and all contracts, both tendered and untendered, given to [the affected party] between June 1, 1995 and the present date.
The OLGC identified records responsive to the request and denied access to them in full, relying on the exemptions set out in sections 17(1)(a) (third party information) and 18(1)(c) and (d) (economic and other interests of Ontario) of the Act.
The requester (now the appellant) appealed the decision.
During mediation, the OLGC conducted a subsequent search for records in their accounts payable, records management and procurement departments. Instead of issuing a revised decision letter, the OLGC agreed to participate in a mediation conducted by telephone to advise the appellant of its search efforts. At the telephone mediation the OLGC advised the appellant that thirty-three pages of records (as more particularly described in the Records section below) had been located. The OLGC maintained its reliance on the above-noted exemptions to deny access to all the responsive records.
Mediation did not resolve the appeal and the matter moved to the adjudication stage.
I sent a Notice of Inquiry to the OLGC and the affected party, initially, setting out the issues and seeking representations. Only the OLGC responded with representations. A Notice of Inquiry was then sent to the appellant along with a copy of the OLGC’s representations. The appellant did not provide representations in response.
RECORDS
The records at issue relate to the provision of print, display and television advertising services. They consist of invoices, purchase orders, cheques, an internal email and estimates of the cost of providing the services or goods relating to the services. The estimates have a signature line indicating approval by the client at the bottom. The estimates are all signed. The balance of the documentation relates to the billing and processing of payment for the services and goods provided based on the estimates.
Although the appellant did not raise reasonable search as an issue, as there is a reference to a contractual agreement dated July 1, 1995 in the records, at the adjudication stage I asked the OLGC to conduct a search for the document. OLGC did so and was unable to locate it.
The records that the OLGC located total thirty-three pages.
DISCUSSION:
THIRD PARTY INFORMATION
General Principles
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].
Although the OLGC only raised the application of section 17(1)(a) in its decision letter, the representations it filed address sections 17(1)(a), (b) and (c) of the Act. As these are mandatory exemptions, I will consider their application in the circumstances of this appeal.
Sections 17(1)(a), (b) and (c) of the Act read as follows:
A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to,
(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
(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; or
(c) result in undue loss or gain to any person, group, committee or financial institution or agency;
For section 17(1)(a), (b) and/or (c) to apply, each part of the following three-part test must be established:
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 OLGC 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 paragraphs (a),(b) and/or (c) of section 17(1) will occur.
Part 1: Type of Information
The OLGC takes the position that the records contain “commercial information”. Previous orders have defined this term as follows:
Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises [Order PO-2010]. The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information [P-1621].
The OLGC submits that the records consist primarily of pricing information pertaining to the sale of goods and services as well as the terms of delivery and payment, and that this constitutes “commercial information”. I concur and find that the information in the records meets the definition of “commercial information”.
Therefore, the requirements of Part 1 of the section 17(1) test have been established.
Part 2: supplied in confidence
In order to satisfy Part 2 of the test, the OLGC must establish that the information was “supplied” “in confidence”, either implicitly or explicitly.
Supplied
The requirement that information be "supplied" to an institution 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 an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party (Orders PO-2020, PO-2043).
The contents of a contract involving an institution and a third party will not normally qualify as having been "supplied" for the purpose of section 17(1). The provisions of a contract, in general, have been treated as mutually generated, rather than "supplied" by the third party, even where the contract is preceded by little or no negotiation (Orders PO-2018, MO-1706).