Private companies entering into negotiations with Ontario municipalities or other government-related “institutions,” such as electricity distributors or hospitals, must be mindful that they might lose control over the dissemination of their confidential business information.
Access to Information under MFIPPA
Municipal institutions have access to information obligations under the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, cM56 (“MFIPPA”). Generally, the institution is require to provide a right of access to records under its control unless an exemption in MFIPPA can be relied on.
Exemption to Access for Certain Commercial Information
MFIPPA requires the institution to maintain the confidentiality of third party information, that is, the institution must refuse an access to information request when commercial information is “supplied” in confidence to the institution and disclosure could reasonably be expected to prejudice the company’s competitive position, result in similar information no longer being supplied to the institution where it is the public interest for the institution to have it, result in undue loss or gain, or reveal information regarding labour relations (the “Commercial Exemption”).
The problem is that the Commercial Exemption is narrowly construed by the Ontario Privacy Commissioner. A recent case from the Divisional Court illustrates the Court will support the narrow interpretation of the exemption, leading to the disclosure of commercial information.
In Miller Transit Limited v Information and Privacy Commissioner of Ontario et al, 2013 ONSC 7139 (CanLII), Miller Transit and York Region argued that a union was not entitled to copies of parts of a contract for bus services between Miller Transit and York Region. The Ontario Privacy Commissioner disagreed and found that the information in the contract was not supplied by Miller Transit. The Ontario Privacy Commissioner took the position that the content of a contract with a government institution and a third party is presumed to have been generated in the give and take of negotiations, and not “supplied” by the third party. The Divisional Court upheld the decision of the Ontario Privacy Commissioner.
Miller Transit does not make new law, but serves as an important reminder to private companies doing business with municipalities and other institutions in Ontario.
Understandably, it is a coup for a private company to contract with a municipal institution and the company might want to put all hands on deck to secure the job. However, in the excitement of trying to conclude a deal with an institution, it is wise to be cognizant that the information you provide to the institution, especially if it ends up in the contract, will ultimately get into the hands of competitors.
Be cautious when responding to a Request for Proposals. In your Response, you will often be required to provide a great deal of confidential business information. Make clear statements in the Response that you consider the information provided to be confidential information assets, the disclosure of which will lead to a competitive disadvantage for your company. If possible, reserve your company’s right to decide which portions of the Response end up as part of the final contract. In light of the case law, information which is quoted from an RFP Response straight into the contractual language can be seen by the Privacy Commissioner as having been “negotiated” as opposed to “supplied,” resulting in the information being accessible to third parties through access to information requests.
Finally, remember that only “records“ get disclosed. If it is not in writing, it is not a record. If at all possible, meet and have oral discussions with institutions for the purpose of sharing confidential information that might land you the job. If the information is not in writing, there will be nothing for the institution to disclose when an access to information request is made. While the notes taken by the representatives of the institution can be accessed through access to information requests, it is unlikely that notes will have the same strategic value to a competitor as fulsome documents created by the company.