Access to Information and Confidential Information in Municipal Contracts

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In a recent order of the Office of the Information and Privacy Commissioner of Ontario, an adjudicator concluded that confidential information included in a contract was not “supplied” to the municipality and, therefore, must be disclosed in response to an access to information request.

Subsection 10(1) of the Municipal Freedom of Information and Protection of Privacy Act (Ontario) protects informational assets of third parties contracting with municipalities in Ontario. Subsection 10(1) provides, among other things, that a record that reveals technical, commercial, or financial information of a third party is exempt from disclosure under an access to information request under certain circumstances. The information will be exempt from disclosure if the information is supplied in confidence by the third party and could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual negotiations of a person or organization.

In MO-2738, the requester sought access to information in a contract between the municipality and a third party. The information in the contract included maintenance information regarding equipment that was subject to the contract, a detailed code for the supply of the services under the contract, and a summary of financial incentives and disincentives and the third party’s rates. The adjudicator accepted that this was technical, commercial and financial information.

However, relying on prior precedent, the adjudicator concluded that the information was not “supplied” to the municipality by the third party. Instead, it was part of a negotiated contract and, therefore, was “mutually generated”. Accordingly, it was required to be disclosed.

Organizations entering into agreements with municipal and other governmental entities that are subject to access to information laws should take note. Although there are no solutions that offer “bullet proof” protection for confidential information in government contracts, there are a variety of strategies for disclosure and contract negotiation that may be used to enhance the likelihood of protection by taking into account the strict requirements of the Act.