Freedom of information and Protection of Privacy Act (B.C.)

A.        Why It Affects Commercial Transactions

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The Freedom of Information and Privacy Act (the "Act") provides the public in Part 1 with access to records", as that term is defined by the Act, and provides for limited exceptions to this right of access.

The Office of the Information and Privacy Commissioner, Victoria, British Columbia, estimates that over 2,200 bodies are covered by the legislation. This includes government ministries, crown listed corporations, commissions and agencies (commonly referred to as Tier One public bodies), local and regional governments, hospitals, police forces, boards, schools, universities and colleges (commonly referred to as Tier Two) and the self-governing professions (commonly referred to as Tier Three).

Subject to the exemptions contained in section 21 of the Act, the public may have a right of access to information about or belonging to your clients and their business. The information need only be in the "custody or under the control" of a public body. The reason why the public body has possession is not relevant. The other exemptions to disclosure are discretionary, and relate to the protection of the public body as opposed to the contracting party.

The scope of possible business transactions with public bodies which might give rise to information being disclosed to the public body is not limited by the Act. The scope of the Act goes beyond the usual supply of goods or services. With the changes in educational funding, and the fact that more contract research and development is being done by educational bodies, it is much more likely that a developer could find itself in a business relationship that could involve intellectual property or other confidential information being disclosed to a public body.

Caution is advised when contracting with public bodies to ensure that your client is entitled to the privacy exemptions included in section 21 of the Act. If the exemptions do not appear to apply, your client may be faced with the decision as to whether to do business with the public body and risk disclosure of any information which might be disclosed in the course of the business relationship.

B.        Scope

This portion of the paper is intended to highlight the possibility of the disclosure of trade secrets and confidential information, including information to which "intellectual property" protection extends, and to suggest a protection strategy. It is not intended to be an definitive work on the Act. The paper refers to the B.C. act only, and does not refer to the Federal legislation governing federal institutions.

C.        What are "Records"?

"Records" are defined in Schedule 1 of the Act as including "...documents, ...papers and any other thing on which information is recorded or stored by graphic, electronic, mechanical or other means, but does not include a computer program ...". The Act does not distinguish between information (including intellectual property) owned by a third party. All information contained in a "record" which is in the "custody or under the control of a public body" is covered. Presumably this also includes data bases, subject to the rights of the individuals about whom the information relates, to privacy protection under the Act.

D.        The Public Body's Obligation

The public body has an obligation to release any information not covered by section 21 or section 17 (disclosure harmful to the financial or economic interests of a public body. Similarly, the public body has a mandatory obligation not to release information covered the exemption contained in section 21.

The theme of the Act is that the public bodies are self policing. The function of the Information and Privacy Commissioner is to review both the refusal to provide information and the decision of the public body to release the information. This dual obligation will inevitably place the public body in a difficult position where it is being asked to divulge information arising out of particular commercial transactions where the public body has a financial interest beyond procuring goods and services. For those of us who are called on to advise public bodies, it may be difficult to balance the interests of the various stake holders, including the public body itself. The handbook does not stress the mandatory nature of the exemption as strongly as it might.

E.         Exemptions from Disclosure

1.         Section 21(1) - "Harmful to Business Interests"

This exemption is mandatory and must be claimed by the public body. A copy of this section is attached at the end of this paper. Because of the onus placed on the public body, public bodies may take a cautious approach to the release of information and rely on the Information and Privacy Commissioner to adjudicate.

There are three conditions to the application of this section:

(a)        The supply must be in confidence - s. 21 (1)(b)

The act provides that confidentiality may be explicit or implicit. As evidence will be required if the right to access is adjudicated, some express provisions should be included in your contract reflecting the confidentiality of the supply of information. This could also take the form of a non-disclosure agreement.

If you client has failed to do this and intends to rely on an implicit agreement of confidentiality, the public body will be forced to consider the circumstances surrounding the supply.

Orders of the Commissioners in British Columbia and Ontario have suggested that some of the circumstances that should be considered are whether there has been a previous and regular practise of supplying information in confidence, whether the purpose for which the information was supplied would have resulted in the disclosure of the information, and whether the information is not otherwise available from other sources. The Handbook provides good guidance to the public body in this regard.

A note of caution. Stamping a document "Confidential", without further evidence, will not be treated as sufficient to satisfy this requirement.

The public body that one is dealing with may have adopted a policy under which information supplied will be implicitly treated as confidential. If one acts for a public body that has not implemented such a policy, it is suggested that they do so. Additionally, if there is a possibility that the information will be distributed between other Ministries or Agencies, consideration should be given to how this information will be handled and controlled.

(b)        The records must relate to :

(i)         Trade Secrets - s. 21(1)(a)(I)

Trade secrets are defined in Schedule 1 of the Act. The definition goes beyond the usual definition of trade secrets and introduces a "harm" test.

The Act states that the disclosure "would result in harm or improper benefit". This suggests a much higher standard of proof than the section as a whole, which only requires a reasonable standard of proof.

(ii)        Commercial, financial, labour relations, scientific or technical information of a third party - s. 21(1)(a)(ii)

One should not assume that all information found in a record will be covered by this language. Reference can be made to the Policy and Procedures Manual (the "Manual") for guidance. The Handbook is not very helpful on this point.

The Manual defines "financial" as relating to "money and its use or distribution or to assets with monetary value". This has been held to cover pricing practices and operational results such as profit and loss.

"Commercial information" relates more to acquiring goods and services.

Scientific and technical information refers to information which exhibits the principals or methods of science, or relates to the application of scientific principles. Refer to Information Circular 86-4R3 published by Revenue Canada which deals much more extensively with this topic in the context of Scientific Research and Experimental Development tax credits for assistance in interpreting the meaning of these words.

(c)        Harm - s. 21(1)(c)

The disclosure of the information must be reasonably expected to harm significantly the competitive or interfere with the negotiating position of the third party, result in similar information no longer being supplied in the future, result in undue financial loss or hardship, or reveal information relating to a labour relations dispute.

The proof required goes beyond a concern, but falls short of proving beyond a reasonable doubt. The Handbook warns that the evidence must be detailed and convincing, and show the link between the information to be disclosed and the harm of interference. This is a public policy driven statute, and the Commissioner will be balancing the right to information against the right to privacy and the sanctity of property rights.

The Manual makes the point that harm is relative to each case - in other words, what is necessary to constitute significant harm to a large company will be different to that of a small company.

There is some evidence that the Commissioner is moving away from the stringent test of proving significant harm, but for the time being one should assume that the higher standard will be applied.

2.         Solicitor Client Privilege

The public body is not obligated to disclose information which is subject to solicitor client privilege - section 14. This exemption is discretionary, and the public body is not obligated to claim it. If the public body is contractually obligated to claim privilege to the extent that it existed, the enforceability of such a provision may be questioned on the ground of public policy considerations.

3.         Miscellaneous Exemptions

There are a variety of other discretionary exemptions that a public body can claim.

These exemptions are contained in sections 15 through 19, and deal with disclosure harmful to the financial or economic interests of a public body, harmful to individual or public safety or law enforcement, and harmful to intergovernmental relations or negotiations. From the public body's point of view and with a business perspective, section 17 provides a discretionary right to refuse to disclose "trade secrets of a public body", "financial, commercial, scientific, or technical information that belongs to the public body ... that has or is reasonably likely to have, monetary value", and information which "...could reasonably be expected to result in the undue financial loss or gain to a third party".

One might consider obligating the public body to claim these exemptions.

Where the information for which the claim of privilege is made can be severed from the record, the public body is obligated to give the applicant access to the remainder of it - section 4(2).

F.         Burden of Proof

It is up to the third party to prove that the applicant has no right of access to the record containing the third party's information - section 57(3)(b).

If the public body receives a request for access to information and intends to adjudicate the request, the third party will be given twenty days to respond to notice of the public body's intention. The public body is obligated to make a decision within thirty days. The time period that a party has in order to present the evidence that will be required to satisfy the requirements of section 21 is short.

G.        Public Policy Override - section 25(1)

Notwithstanding any other provision of the Act, the public body must release information about a risk of significant harm to the environment or the health or safety of the public or a group of people. Notice must be first given to the third party.





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