Access to Confidential Information in Failed Bid Not Allowed

by Dentons
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A recent Order (MO-2786) of a Senior Adjudicator of the Office of the Ontario Information and Privacy Commissioner provides a useful guide for organizations wishing to protect confidential and financial information submitted in response to requests for proposals issued by a City.

The dispute involved the decision by a City to disclose a bidders’ RFP response (apart from severing personal information) in response to an access to information request under the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”). The bidder sought to protect details of its software solutions and it pricing under subsection 10(1) of MFIPPA. This provision permits withholding of records that would disclose “a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly” provided that the disclosure would reasonably be expected to cause the bidder certain types of specified harm. One of the specified harms would be significant prejudice to the competitive position of the bidder.

Lessons from the Senior Adjudicator’s Order:

  • Whether information has been made public by the bidder is not relevant to the initial determination of whether the information is “commercial information” or “financial information” under subsection 10(1) of MFIPPA.
  • The fact that the RFP states that all bid responses will be subject to MFIPPA does not displace a reasonable expectation of confidentiality if (a) the bidder marks the response “Confidential to the City” and (b) there is no indication that the bidder has disseminated the information more broadly.
  • If the bidder has published information on its website, there is no expectation of confidentiality for that information in its bid.
  • If the total bid price (or, arguably, other information) is disclosed publicly in a City council meeting or documents for the City council meeting, the information will not be protected in an access request.
  • “The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from other circumstances.”
  • Public policy may permit losing bids greater scope for protection than winning bids. In the Senior Adjudicator’s view, the issue of transparency and accountability in spending taxpayer money are not as engaged as with a winning bid.

In the result, the Senior Adjudicator accepted that the information contained in the RFP response would be expected to cause harm to the bidder (apart from information already disclosed by the bidder on its website, which was not confidential). Although the bidder did not submit detailed evidence regarding potential harm, the Senior Adjudicator accepted that the particular circumstances permitted an inference of harm:

I accept the appellant’s assertion that it markets its products exclusively to municipalities and that, within this market, there is a limited number of competitors. The appellant has identified the bases on which these competitors distinguish themselves in RFP processes, including the detailed pricing structure and detailed explanations of how the functional requirements will be met.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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