Information Privacy and Data Protection Lexpert Seminar

1. Freedom of Informationand Protection of Privacy Act:Access to Information Information Privacy and Data ProtectionLexpert Seminar Dan Edmondstone December 9, 2013Paul J.S. Pereira

2. Agenda • Overview • Commercial Information Exemptions • Contractual Negotiations • Interactions with Other Statutes • Exceptions to Exemptions

3. Protection of Privacy 17.* Third Party Information 23. Exemptions Not to Apply … * Mandatory Overview

4. About Section 17 • Section 17 protects confidential business assets from being exploited by competitors • Disclosure would be against the public interest • Made after significant capital expenditure • May reduce compliance with reporting requirements • There may be three or four parties • Onus is on the third party claiming the exemption Overview

5. Section 17 – As Written 17. (1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; or … Overview

6. Section 17 – As Applied For Section 17(1) to apply, the institution and/or third party must satisfy each part of the following three part test: • (Type): The record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; • (Supplied in; in confidence): The information must have been supplied in confidence, either implicitly or explicitly; and • (Harm): The prospect of disclosure must give rise to a reasonable expectation that one of the harms specified in paragraphs (a), (b), (c) and/or (d) of section 17(1) will occur. Workers' Compensation Board (Ont.) v. Information & Privacy Commissioner (Ont), [1998] 112 OAC 121, 164 DLR (4th) 129 Commercial – Supplied – In Confidence – Harm

7. Commercial Information in Ontario Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. • This applies to both profit-making enterprises and non-profit organizations; • It has equal application to both large and small enterprises; and • The fact that a record might have monetary value is not determinative. (Orders PO-493, P-1114, P-1621, PO-2010) Commercial – Supplied – In Confidence – Harm

8. Merck Frosst, 2012 SCC 3“Commercial Information” [Federal] • Facts:Merck provided a compilation of publicly available studies for the approval of an asthma drug. • Issue: Does the compilation constitute a trade secret or commercial information? • Held: Dictionary definitions should be used for “financial, commercial, scientific or technical”. Citations to public studies do not qualify. Charts and tables of public data do not qualify. • IPC definition for commercial information is narrow. • Dictionary definitions for commercial information are broad. Commercial – Supplied – In Confidence – Harm

9. Commercial Information Threshold • Commercial • Not Commercial Commercial – Supplied – In Confidence – Harm • E-mails re election of directors(Order PO-3187) • Records relating to instructor harassmentin a private college(Order PO-2675) • Summary of successful bid(Order PO-3246) • Contract terms for outsourced services(Order PO-3237) • Professional allowancesfor pharmacies(Order PO-3210)

10. “Supplied” • Information may be directly supplied or may permit the drawing of accurate inferences • The “supplied” requirement protectsnon-governmental parties • Fact that information is derived from non-governmental source is a clear sign • Information may be in a government document • For observations/reports of officials: • Excerpts are supplied; conclusions are generally not • This is a question of fact, onus is on the third party Commercial – Supplied – In Confidence – Harm

11. Ontario Rule on Contractual Negotiations • Negotiated terms are not supplied • Essential terms of a contract based on a RFP are negotiated, and therefore, not supplied • [Federal] Terms mostly supplied by a third party • [Ontario] Presumption that contract not supplied • Contracts are mutually generated • Even with little or no negotiation • Even if content of contract is entirely from one party • “Form and structure” of a bid is not protected Commercial – Supplied – In Confidence – Harm

12. Is it Supplied? • Not Supplied • Supplied Commercial – Supplied – In Confidence – Harm • Contract (generally) • Agreed essential terms • Records relating tonon-monetary compensation (PO-3230) • Accepted contract following RFP Response(PO-3253) • Ministry spreadsheet of rates paid to temporary workers(PO-3204 ) • Business plan • Correspondence • News release • Report • Reporting pursuant to statutory requirement(PO-3209) • RFQ response(PO-3224) • RFP response(PO-2637)

13. Boeingv. The Bottom Line “His conclusion that complex and detailed agreements like the ones before him were the result of negotiations was a reasonable one.” – Boeing Co v Ontario,[2005] 200 OAC 134, 140 ACWS (3d) 601 (Ont Div Ct) • Why does “negotiation” result from the mere “assent” to a contract? • Are supplementary documents related to qualifications, research studies, and business plans negotiated? • Why is a strained definition for “negotiated” being used to strain the definition of “supplied” in order to undermine an exemption designed to protect commercial information? Commercial – Supplied – In Confidence – Harm

14. When Information in Contracts May Be Exempt from Disclosure and “Supplied” • Inferred Disclosure • Immutability Commercial – Supplied – In Confidence – Harm Not susceptible of change, such as the operating philosophy of a business, or a sample of its products Disclosure would permit accurate inferences to be made with respect to underlying non-negotiated confidential information

15. Examples of These Exceptions Commercial – Supplied – In Confidence – Harm

16. Room for Information in Contracts to be Supplied? 3rd Party Co Government S3 S2 Subcontractor 1 Commercial – Supplied – In Confidence – Harm

17. Meaning of “In Confidence” • There must be a reasonable expectation of confidentiality at the time the information is provided • The subjective expectation of a business is not sufficient • The expectation may have arisen implicitly or explicitly • Information available in the past from the government is generally not confidential (Orders M-169, PO-2020, and PO-2043) Commercial – Supplied – In Confidence – Harm

18. Expectation of Confidentiality on Reasonable and Objective Grounds The information must be: • Communicated to the Institution on the basis that it was confidential and that it was to be kept confidential, • Treated consistently in a manner that indicates a concern for its protection from disclosure by the affected party prior to being communicated to the Institution, • Not otherwise disclosed or available from sources to which the public has access, • Prepared for a purpose that would not entail disclosure. Most of these prongs require the informationnot be public. (See Orders PO-2043, PO-2404, MO-2801.) Commercial – Supplied – In Confidence – Harm

19. Merck Frosst, 2012 SCC 3“In Confidence” [Federal] • Issue: Whether a compilation of public works may be protected as a new work. • Held: Compilation may be confidential information, but not in this case • Determination is a fact-driven exercise • Statements of reliability of public studies would generally be confidential • Merck had proposed giving copies of all published articles to the requester Commercial – Supplied – In Confidence – Harm

20. Harm • Evidence of possible effect on other contracts is not sufficient. • Speculation or a possible increase in competition is not sufficient. • Need evidence of prejudice to negotiations. • Require detailed and convincing evidence • This does not change the standard of proof • Determination is based on available records • Should not assume that harm is self-evident • Significant harm is required Commercial – Supplied – In Confidence – Harm

21. Statutes with Deeming Provisions Liquor License Act, RSO 1990, c L.19 Racing Commission Act, 2000, SO 2000, c 20 Financial Administration Act, RSO 1990, c F.12 Electricity Act, 1998, SO 1998, c 15, Sch A Gaming Control Act, 1992, SO 1992, c 24 Ontario Energy Board Act, 1998, SO 1998, c 15, Sch B Food Safety and Quality Act, 2001, SO 2001, c 20 Green Energy Act, 2009, SO 2009, c 12, Sch A Exploration, Drilling and Production, O Reg 245/97, (Oil, Gas and Salt Resources Act) Animal Health Act, 2009, SO 2009, c 31 Food Safety and Quality Act, 2001, SO 2001, c 20 Ontario Energy Board Act, 1998, SO 1998, c 15, Sch B Deeming Provisions Many statutes contain deeming provisions Information … is deemed to be subject to … s. 17 if the disclosure would reveal that a hazard is ... contaminating … a certain premises … (Animal Health Act, 2009, SO 2009, c 31)

22. Section 23: Public Interest– Exception from Exemptions An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. Section 23

23. Section 23: Interpretation • Section 23 requires: • a clear public interest, • that outweighs the purpose of the exemption. • Disclosure must add to information the public already has. • The onus is not on the appellant. • If disclosure serves private interests, it is generally not in the public interest. Section 23

24. Ontario (Health and Long Term Care), Re (2010), PO-2863 • Facts: Requester sought volume discounts for drugs. • Alleged: Private purchasers are harmed with increased prices. • Held: Discounts were not disclosed. • Further disclosure would not remedy harm. • Existing information, including formulae, were sufficient for public scrutiny. • It would prejudice Ontario’s negotiations. Section 23

25. York (Police Services Board) v. IPC2012 ONSC 6175 (Div Ct) • Facts:Requester sought base salary of Police Chief. • Held: Base salary was disclosed. • Public has a strong interest in transparency. • Members of the public service have an expectation that their salary may be subject to scrutiny. Section 23

26. Is it a Compelling Public Interest? • No • Yes Section 23 • Another public forum for discussion exists • Information already disclosed is adequate • Court process provides alternative disclosure mechanism • Already had wide public coverage / debate • Records not responsive • Contributions to municipal election campaigns • Integrity of criminal justice system • Public safety of operation of nuclear facilities • Safe operation of petrochemical facilities • Preparations for nuclear emergency

27. Questions?

28. Dan Edmondstone 416.307.4121dan.edmondstone@mcmillan.ca McMillan LLP181 Bay Street, Suite 4400Toronto, ON M5J 2T3