This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
The Office of the Information and Privacy Commissioner of Saskatchewan (the “OIPC”) has established a clear approach in how the OIPC will deal with access requests to third party agreements and competitive bidding documents in the possession and control of public bodies in Saskatchewan. This blog outlines the OIPC’s approach to these documents, as well as the key take-away messages for public bodies and third parties in Saskatchewan.
At a high-level, the OIPC’s approach can be summarized as follows: on the one hand, the OIPC often recommends that third party agreements be released in full by public bodies; on the other hand, the OIPC often recommends that confidential documents submitted by third parties during competitive bidding processes not be released by public bodies.
Freedom of Information Legislation in Saskatchewan
In Saskatchewan, freedom information legislation applies to government institutions (such as government departments, ministries, agencies, boards and commissions and Crown corporations) as well as local authorities (such as regional health authorities, health care organizations, library boards, school boards, and municipalities). In particular, freedom of information legislation gives anyone the right to request access to information which is in the possession and control of government institutions or local authorities. This right is subject to a closed-list of exemptions which can be applied to such information only in limited circumstances.
How Freedom of Information Applies to Third Party Information
Government institutions and local authorities frequently interact with private businesses and other third parties for the provision of services and goods. When doing so, government institutions and local authorities often have access to a significant amount of confidential third party information – much of which is provided during competitive bidding processes. Following competitive bidding processes, government institutions and local authorities generally document their relationships with such third parties in final written agreements. As a result, confidential third party information can be (and often is) the subject of access requests pursuant to freedom of information legislation. In response to such access requests, government institutions and local authorities are required to release such third party information subject to the limited exemptions for third party information.
Exemptions for Third Party Information
It is important to note that the exemptions for third party information are limited. In particular, the following key exemptions exist for third party information in the possession and control of government institutions and local authorities:
- trade secrets of a third party;
- financial, commercial, scientific, technical, or labour relations information that is supplied in confidence by a third party to a government institution or local authority; and
- information, the disclosure of which could reasonably be expected to result in financial loss to a third party, to prejudice the competitive position of a third party, or to interfere with contractual or other negotiations of a third party.
It is also very important to note that the exemptions for third party information are strictly interpreted by the OIPC. In order to rely on a third party exemption, detailed argument and evidence will be required to clearly establish that a particular third party exemption applies to specific third party information in the possession and control of government institutions and local authorities.
Approach to Third Party Agreements and Competitive Bidding Documents
In recent Review Reports, the OIPC has considered various access requests to agreements between government institutions, local authorities, and third parties, as well as the competitive bidding documents that have resulted in those agreements. In these Reports, the OIPC has clearly outlined the OIPC’s approach to third party agreements and competitive bidding documents that are the subject of access requests pursuant to freedom of information legislation. Notably, there are some key differences in the OIPC’s approach to final agreements when compared with competitive bidding documents. This blog outlines the OIPC’s approach to these documents, and provides guidance to government institutions, local authorities, and third parties in dealing with third party agreements and competitive bidding documents.
Approach to Third Party Agreements
The key elements of the OIPC’s approach to third party agreements can be summarized as follows:
- although final agreements between government institutions, local authorities, and third parties are reviewed on a case-by-case basis to determine whether exemptions can be applied, there is a clear trend with respect to such final agreements;
- because such final agreements are important to the need for accountability in public spending, there is a bias towards giving the public access to such agreements;
- the information in final agreements is often considered to be “mutually generated” and not “supplied” by third parties, with the result that third party exemptions often do not apply to such agreements; and
- as a result, the OIPC often recommends that such final agreements be released in full by government institutions and local authorities – including unit prices and total prices.
A clear example of this approach is outlined in Review Report 082-2015, in which the OIPC considered whether access should be given to a third party agreement in the possession and control of a local authority that related to services being provided to the local authority. The OIPC found that no third party exemptions applied to the third party agreement – emphasizing that “disclosure, not secrecy, is the default for records of this sort”. As a result, the OIPC recommended that the entire agreement be released by the local authority in response to the access request.
Approach to Third Party Competitive Bidding Documents
The key elements of the OIPC’s approach to documents submitted by third parties during competitive bidding processes (such as bids, tenders, or proposals) can be summarized as follows:
- although documents provided by third parties to government institutions and local authorities in the context of competitive bidding processes are reviewed on a case-by-case basis to determine whether exemptions can be applied, there is also a clear trend with respect to such documents;
- because such documents are less important to the need for accountability in public spending (as they do not represent the final agreement between the parties), there is less of a bias towards giving the public access to such documents;
- such documents are generally very clearly “supplied” by a third party to a government institution or local authority;
- such documents are more likely to, and often do, contain detailed confidential third party information which is more likely to qualify for third party exemptions; and
- as a result, the OIPC often recommends that such documents not be released by government institutions and local authorities – including unit prices and total prices.
A clear example of this approach is outlined in Review Report 109-2015, in which the OIPC considered whether access should be given to a proposal submitted by a third party to a local authority in response to a request for proposals process. The OIPC found that the entire proposal was the third party’s commercial information that was supplied to the local authority in confidence. As a result, the OIPC recommended that the local authority not release any portion of the proposal in response to the access request.
Similarly, in Review Report 54/2015 & 055/2015, the OIPC considered whether access should be given to unit prices and total prices for goods and services provided by third parties in tenders in a competitive bidding process. The OIPC found that these prices were the third parties’ financial and commercial information that was supplied to the local authority in confidence. As a result, the OIPC recommended that the local authority not release unit prices and total prices for goods and services in response to the access requests.
What this Means for Government Institutions, Local Authorities, and Third Parties
Based on the OIPC’s approach outlined above, there are some key take-away messages for government institutions, local authorities, and third parties.
On the one hand, government institutions and local authorities should:
- have clear policies and procedures in place for receiving and dealing with third party information, including with respect to security, privacy, and procurement;
- have clear policies in place on the treatment of third party information, including with respect to what third party information will proactively be made publicly available, what third party information will be made publicly available in response to access requests, and what third party information will be kept confidential; and
- clearly communicate such policies and procedures to the public and to third parties.
On the other hand, third parties should:
- clearly indicate and confirm in writing when confidential third party information is provided to government institutions and local authorities, including by clearly indicating the applicable third party exemptions;
- require government institutions and local authorities to confirm in writing that specific confidential third party information provided by the third party is subject to third party exemptions; and
- be prepared to justify the application of third party exemptions to its confidential third party information, including by filing detailed arguments and evidence with government institutions, local authorities, and the OIPC.
By carefully considering the OIPC’s approach to third party agreements and competitive bidding documents, government institutions, local authorities, and third parties can:
- minimize the risk of disclosure of confidential third party information;
- avoid significant time and expense in proceedings related to the protection of confidential third party information; and
- improve and avoid harm to the business relationships between government institutions, local authorities, and third parties.
In future blogs, we will be providing detailed tips for third parties to take proactive steps to protect their confidential third party information when dealing with government institutions and local authorities, as well as further summaries of recent freedom of information trends in Saskatchewan.