On December 2nd the Divisional Court affirmed an IPC/Ontario decision that granted access to a municipal contract. The decision is an administrative law decision, but the Court does summarize the principles that govern access to government contracts as follows:
- absent evidence to the contrary, the content of a negotiated contract involving a government institution and a third party is presumed to have been generated in the give and take of negotiations, not “supplied” by the third party under section 10(1) of the Act [and therefore potentially subject to exemption]
- the inferred disclosure exception arises where information actually supplied does not appear on the face of a contract but may be inferred from its disclosure
- the immutability exception arises in relation to information actually supplied by a third party which appears within a contract but which is not susceptible to change in the give and take of the negotiation process such as financial statements, underlying fixed costs and product samples or designs
Under these principles government contracts are very accessible, so much so that the IPC has suggested that Ontario access legislation be amended so contract requests give rise to fewer disputes.
On administrative law, the Court applied Newfoundland Nurses and held that the IPC’s “conclusory” reasons were not sufficient grounds for review in light of the record.
[Here's another contract case from November 28th, also written by Justice Himel but too fact specific to warrant a post. Partial access appeal decision affirmed: HKSC Developments LP v Infrastructure Ontario and Information and Privacy Commissioner of Ontario, 2013 ONSC 6776 (CanLII).]