Tag: third-party information

NLCA opts for narrow interpretation of third-party information exemption

On February 2nd, the Court of Appeal of Newfoundland and Labrador held that only a party who owns third-party information has standing to rely on the third-party information exemption in the Newfoundland Access to Information and Privacy Act.

The Newfoundland exemption is in section 39, and reads as follows:

39.(1) The head of a public body shall refuse to disclose to an applicant information

(a) that would reveal

(i) trade secrets of a third party, or

(ii) commercial, financial, labour relations, scientific or technical information of a third party;

(b) that is supplied, implicitly or explicitly, in confidence; and

(c) the disclosure of which could reasonably be expected to

(i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party,

(ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied,

(iii) result in undue financial loss or gain to any person, or

(iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into alabour relations dispute.

The words “of a third party” are not common to all FOI statutes. Ontario’s statutes, for example, simply say, “A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information supplied…”

The Court of Appeal gave effect to these words in an appeal about a request for a table listing all video lottery terminal (VLT) operators in Newfoundland and Labrador with their retailer operating name, location, and the total net revenue generated by VLTs at that location. The Atlantic Lottery Corporation supplied this information to the Department of Finance, who received the request. After the Atlantic Lottery Corporation had lost an appeal to court in its attempt to shield the information from the right of public access, the Beverage Industry Association of Newfoundland (the BIA) and Labrador asserted third party standing on behalf of the VLT operators.

The Court held that the VLT operators had no standing because they did not own the information. It rejected the BIA argument that a beneficial interest in the information was sufficient to support standing given the purpose of the Act, which is to foster transparency.

The Court also held that this point was so clear that neither the Department (pursuant to its mandatory duty to notify affected third parties) nor the Information and Privacy Commissioner (as a matter of fairness and discretion) failed to meet their respective duties on account of not notifying the BIA.

Newfoundland and Labrador (Information and Privacy Commissioner) v Beverage Industry Association of Newfoundland and Labrador, 2023 NLCA 2 (CanLII).

Div Ct affirms decision to give access to government contract

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.

Miller Transit Limited v Information and Privacy Commissioner of Ontario, 2013 ONSC 7139 (CanLII).

[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).]