• 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) (this section is the provincial equivalent to section 10(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 or where the final agreement reflects information that originated from a single party [Orders PO-2018, MO-1706].

This approach has recently been upheld by the Divisional Court in Boeing v. Ontario (Ministry of Economic Development and Trade), Tor. Docs. 75/04 and 82/04 (Div. Ct.); motion for leave to appeal dismissed, Doc. M32858 (C.A.).

In Order PO-2435, Assistant Commissioner Brian Beamish adopted the view articulated in Orders MO-1706, PO-2371 and PO-2384 that, except in unusual circumstances, agreed upon essential terms are considered to be the product of a negotiation process and therefore are not considered to be “supplied”.

I agree with and adopt these lines of reasoning for the purposes of this appeal as it relates to the current section 9(1)(b) and (d) analysis which immediately follows, as well as to the ensuing section 10(1) analysis. 

Under contract law, it is well-settled that a course of offer and acceptance creates a contract, whose terms may be reflected in more than one document.  In the present appeal, the records outlined in the records chart are, taken together, the contract between the Municipality and the Ministry.  This office contacted the Municipality by telephone and confirmed that all the records forwarded following my production order comprised the contract.  Therefore, Records 1 – 19 together constitute agreements of a contractual nature, and on this basis, I find the information was neither “supplied” by the Ministry nor “received” by the Municipality. (See Orders PO-2562 and PO-2543, which also take this approach).

This conclusion is further supported by the RFP process under which the records were prepared and delivered to the Municipality by the Ministry and by the Municipality to the Ministry, which also indicates that these records were in fact prepared and delivered as part of a negotiation process.

This appeal also raises the somewhat unusual situation where an institution under the Act has responded to an RFP by a provincial Ministry (itself an institution under the Freedom of Information and Protection of Privacy Act).  The Ministry asked for proposals and the Municipality responded.  In this instance, the essential direction in which confidential information would normally travel would be from the Municipality to the Ministry – i.e. the Ministry is the entity to whom, for the most part, the information has been sent.

Considering all of the circumstances, I find that the Municipality has not established that the information in the records was “received” in confidence and therefore sections 9(1)(b) and (d) do not apply.

As well, with respect to section 9(1)(d), the aspect of the records being received from “an agency of a government” has not been satisfied.  Neither the Municipality, the Ministry nor the records themselves provide any information to support a finding that the records were received from any identified “agency” within the meaning of section 9(1)(d).  The representations and the records relate to information passing between the Municipality and the Ministry.  In that instance, section 9(1)(d) does not apply.

I will next turn to whether the records are exempt under section 10(1) as claimed by the Municipality.

THIRD PARTY INFORMATION

As previously stated, the Municipality also denied access to the records on the basis of section 10(1) of the Act. 

The relevant part of section 10(1) reads:

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 10(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions [Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851 (Div. Ct.)].  Although one of the central purposes of the Act is to shed light on the operations of government, section 10(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].

For section 10(1) to apply, the institution and/or the third party must satisfy each part of the following three-part test:

• 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 institution 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 paragraph (a), (b), (c) and/or (d) of section 10(1) will occur.

The Municipality provided only brief representations to support its assertion that the records were exempt under section 10(1).  The Municipality’s position was that disclosure of the records “…could reasonably be expected to prejudice significantly the contractual negotiations of the Government of Ontario” and that the information was supplied in confidence.

In my view, the exemption under section 10(1) is not applicable to the records at issue in this appeal.  This office has long held that Section 10(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to institutions.  This finding has been upheld in Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851 (Div. Ct.).  In this case, the parties are two public bodies, not businesses or other non-public castor organizations.

This view is supported by the ability an institution has to exempt records from disclosure under section 9.  That section may be claimed to exempt information received in confidence by municipal institutions from government bodies, as opposed to business entities.  I also note that where the objective of denying access is to protect the business interests of an institution such as the Municipality, the exemption found in section 11 of the Act (economic and other interests) exists for this purpose.

Quite apart from the fact that the section 10(1) exemption was not intended to apply in this situation, I also find that it is not supported on the facts of this case.  In the discussion above, I found that the records were not exempt under section 9 because they were not “received” in confidence.  I found that “received in confidence” is analogous, in the circumstances of this appeal, to “supplied in confidence” under section 10(1).  Under the section 9(1) analysis, I reviewed in detail the meaning of “supplied” in confidence and in particular, the approach that essential contractual terms are considered to be the product of a negotiation process and therefore are not considered to be “supplied”.

In the section 9(1) analysis, I concluded that the records were not "received in confidence" because they constitute a negotiated agreement and were mutually generated rather than "received".  The same analysis applies to whether they were "supplied" under section 10(1):  as negotiated contracts, the information they contain was not "supplied" and I therefore find that the records do not meet part 2 of the test.  As well, for the reasons outlined above in the section 9 analysis, I find that the records were not supplied “in confidence”.  Part 2 of the test is clearly not met and, because all three parts must be satisfied, the records are not exempt under section 10(1).

In summary, I find that the records are not exempt under sections 9(1)(b) and (d)  or section 10(1) and I will order them disclosed to the appellant.

ORDER:

1. I order the Municipality to disclose the responsive records before May 29, 2007 but not earlier than May 24, 2007.

2. I will provide the Municipality with copies of the records found non-responsive to the appeal.  These records are not to be disclosed to the appellant.

3.      To verify compliance with this order, I reserve the right to require the Municipality to provide me with a copy of the material disclosed to the appellant pursuant to Provision 1.

Original signed by:                                                                        April 24, 2007                                       

Beverley Caddigan