ss.(1)--The Second Part of the Test--Supplied

• In order to meet this part of the test, the information contained in the record at issue must be one and the same as that originally provided to the institution for the purpose of creating the record. (Orders #P-87, P-179, P-203, P-204, M-273, M-675)


• Although there is no general provision in the Workers' Compensation Act which provides that employer compulsory return forms are confidential, the forms are marked "all information is strictly confidential". Therefore, names and addresses derived from information in these forms was supplied in confidence. (Re Workers' Compensation Board and Mitchinson, Assistant Information and Privacy Commissioner, (1995), 23 O.R. (3d) 31 (Div. Ct.))


• An internal policy cannot be construed in a way contrary to a regulation which has the force of law. In this case, the institution had an internal policy stating that any information regarding a disposal well would not be held in confidence. However, Ontario Regulation 915 made under the Petroleum Resources Act stated that any information voluntarily supplied by a company to the institution would be held in confidence. Therefore, the Commission found that the information was supplied in confidence. (Order #P-1165)

ss.(1)--The Second Part of the Test--Not Supplied

• The contractual information was not "supplied" by the affected party as envisioned by this exemption because it was developed as a result of negotiations. Therefore, while certain information was "supplied" in order to enter into the negotiations, the final product, the contract, did not contain the same information and was not "supplied" by the third party. (Orders #P-87, P-179, P-203, P-204, P-219, P-228, P-241, P-248, P-251, P-263, M-36, P-385, P-388, P-394, P-489, M-183, P-581, M-242, P-609, M-258, M-277, M-335, P-710, P-834, M-441, M-574, P-1105) Also, where the final contract price entered into between an institution and a third party reflects a compromise position that is arrived at through the process of negotiation, the "supply" part of the test cannot be met. (Order #P-489)


• The Commission was not satisfied that information in an agreement entered into by a corporate property owner and the Ministry of Environment and Energy to clean up the soil in the area was "supplied" by the property owner. The terms and conditions in the agreement were negotiated between the parties. (Order #P-609)


• An appendix to a contract, which contains the terms of reference and job description for the position, was, in the Commission's view, created by the institution to outline the specific services that it wished to obtain. As a result, the information in the appendix was not supplied to the institution and this exemption did not apply. (Order #M-277)

ss.(1)--The Second Part of the Test--Not Supplied

• A record containing penalties and surcharges imposed on employers under the Workers' Compensation Act is not "supplied" by the third party employers. This is so even though information supplied by the employers is used to calculate the surcharges. It is not possible to calculate the actual information provided by the employers from the surcharge amounts themselves. (Order #P-373)


• Information that is possessed by the institution only as a result of the function of the institution under the Municipal Boundary Negotiations Act is not "supplied" by a third party. (Order #P-69)


• Records disclosing amounts paid by an institution to consultants are not "supplied" by the consultants; these payments are determined by the institution. As a result, this exemption is not applicable. (Order #P-247)


• Records are not supplied to an institution where they are created as a result of a joint meeting between the institution and third party. (Order #P-270)


• Information that is the result of negotiations is not "supplied" even though some of the information originated with the third party. Where it is not possible from a review of the records to determine which information was supplied by the third party, which information originated from the institution and which information is a result of negotiations, the second part of the test cannot been met. (Order #M-65)

ss.(1)--The Second Part of the Test--Not Supplied

• Agreements signed by councillors and employees of an institution cannot be "supplied" to the institution because these individuals are part of the institution. (Order #M-183)


• Information collected by the Ministry of Health, through inspections carried out under the Nursing Homes Act, is not "supplied" by the third party. (Order #P-444)


• Correspondence between a company and the Metro Toronto Convention Centre regarding the Centre's expansion was not exempt under this provision. The information in the records reflected the terms negotiated between the parties not information supplied by the company to the Convention Centre. (Order #P-801)


• Information pertaining to amounts budgeted for contract payments was not "supplied" because it is merely the institution's budget amount committed for payment. (Order #M-531)


• Reports of outside consultants retained to evaluate proposals are not supplied to the institution because the consultants are acting on behalf of the institution. (Order #M-892)
  
  

ss.(1)--The Second Part of the Test--Was Supplied

• Where during an inspection information is obtained from the third party's records without any interpretation by the inspector, the information is "supplied" by that third party. (Order #P-359)


• Information may be "supplied" where it is provided under a statutory requirement. (Orders #P-314, P-365, P-400)


• Technological developments that may result in the networking of computer and electronic data systems between government institutions and private industry should not preclude a business organization from arguing that it "supplied" information to the government. In this case, Hydro obtained readings from its meters by using a computer modem, which electronically transmits the readings. The issue is whether the information was communicated to the government institution by a third party as opposed to being generated or created by the government institution itself. As a result, the "supplied" test was met. (Orders #P-531, P-607)


• The Review Officer of the Pay Equity Commission does obtain information supplied by the parties to a negotiation of a pay equity plan. As well, the Job Evaluation System and Gender-Neutral Comparison System and Terms of Reference of the Pay Equity Committees was supplied by the parties to the negotiation. (Order #P-653)

ss.(1)--The Second Part of the Test--Was Supplied

• A contract may be supplied to an institution where the institution is not a party to the contract. Here, the Art Gallery of Ontario and a foundation had entered into contractual agreements regarding an exhibition and the contract was provided to the institution, the Ministry of Culture, Tourism and Recreation. As such, the record was supplied to the institution. (Order #P-728)


• Applicants for Ontario Film Development Corporation (OFDC) loans 'supply' the dollar amount of the loan to the OFDC. In most instances, that identical amount is provided where the loan is approved. (Order #P-729)


• Where an agreement is not made as a result of negotiation, as where it is a "single source" contract, and where the disclosure of the terms of the agreement would disclose the same information provided by the third party, this exemption applied. Moreover, in this case the third party was able to establish that the terms and conditions were developed solely for the institution and that they are not standard in the industry. (Order #P-807)


• Inducements in a leasehold agreement which prompted the institution to select the landlord's property were held to have been "supplied" to the institution. The Commission found that the inducements were not negotiated; rather, they were supplied by the landlord at his or her own initiative. (Order #P-829)

ss.(1)--The Second Part of the Test--Was Supplied

• Information which is submitted in Notices, which are governed by the Tree Act, are supplied to the institution (Order #M-522)


• An agreement was held to be supplied by a third party where it contained identical information as was supplied in the course of negotiations for the agreement. (Order #M-574)


• While former employees of an institution may be considered as third parties for the purpose of this section, the Commission found that their interests may best be addressed under the privacy provisions of the Act. (Order #M-596)


• Through the introduction of its evidence at an arbitration, the affected party, a corporation, made available to Hydro and the arbitration panel information which was included in the arbitrator's decision. Therefore, technical, commercial and financial information contained in an arbitration decision was "supplied" to Hydro, the institution, by a corporation.(Order #P-1000)


• Assessment and Mitigation Reports are supplied because archaeological licensees are required by the Ontario Heritage Act (OHA) to furnish them to the ministry. (Order #P-1347)
  
  

ss.(1)--The Second Part of the Test--"To the Institution"

• The second part of the test contemplates that the information must be supplied in confidence to the institution. (Order #P-263)

ss.(1)--The Second Part of the Test--"In Confidence"

General

• The expectation of confidence must be reasonable and have an objective basis. The following factors may be considered: 1. was it communicated that the information was to be kept confidential; 2. was it treated consistently in a manner that shows concern for its protection prior to being communicated to the institution; 3. is it otherwise available to the public; and 4. was the record prepared for a purpose that would not entail disclosure. Where records are already in the public domain, it is very difficult to assert that the harms contemplated in this provision will arise. In this case, the building plans were available to the public for viewing at a City office and as a result, the exemption did not apply. (Order #P-561, P-829, M-542, P-1063)


• Since the Copyright Act will not be violated by reproducing records for the purposes of freedom of information statute, an institution may not refuse to grant access to a record in its custody or control solely on the basis of a copyright claim. The fact that a record is subject to copyright does not, in itself, indicate confidentiality. (Order #M-37, M-542)

ss.(1)--The Second Part of the Test--"In Confidence"

• Simply asserting that information was supplied "in confidence" is not adequate. There must be evidence produced to support the assertion. Where records were supplied in a "spirit of co-operation," and were not required to be supplied by law, the confidentiality test was not made out. (Orders #P-47, P-65, P-113, P-125, P-257)


• In order to satisfy this part of the test, it is not sufficient that the business organization had an expectation of confidentiality with respect to the information supplied to the institution. Such an expectation must have been reasonable and must have an objective basis. (Orders #M-169, M-250, P-668, P-655)


• It is not sufficient that the supplier of the information have an expectation of confidence; the expectation must be reasonable and must have an objective basis. In this case, the reasonable expectation of confidence was temporary, until a consultant's report was released for public consultation. Given that this had not occurred, the "in confidence" part of the test was met. (Orders #M-188, M-189)


• Confidentiality must be established by evidence, either in the process, or explicitly, in a contract. A contract that does not specifically state that the institution cannot disclose information does not satisfy the confidentiality requirement. (Orders #P-70, P-101)


• Confidentiality was implicit where a third party could establish that it had a long-standing corporate policy regarding the secrecy of its pricing structure. (Order #P-293)

ss.(1)--The Second Part of the Test--"In Confidence"

• A company's efforts to guard the confidentiality of records in other contexts can support the "in confidence" test. (Order #P-246)


• Where records are provided to an institution pursuant to a statutory requirement, they are not, in general, provided "in confidence." (Order #P-257)


• In this case, the "in confidence" test was met implicitly even though the records were provided in respect of a hearing before a tribunal, which had a practice of making full disclosure to the parties to the proceeding during informal mediation. (Order #P-295)


• Information that has been made public is not confidential. Land transfer tax information is a matter of public record and is, therefore, not confidential. To be confidential, information must be supplied "in confidence" and consistently be treated in a confidential manner. (Orders #P-87, P-113)


• Information available to interested parties and the general public before the Act was in force cannot be supplied "in confidence." (Order #P-53)

• Where the information had been disclosed through debates in the House of Commons and in the Ontario Legislature, this part of the test cannot be met and the information must be disclosed. (Order #P-286)


• Past publication of information puts into question any argument that it was supplied "in confidence." However, the fact that institutions provide information to the Provincial Auditor does not destroy the confidentiality of records, if they were originally supplied in confidence. (Order #P-48)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• This part of the test was satisfied regarding the disclosure of unit prices quoted by the successful bidder for a construction project. While the institution stated that the information was not supplied in confidence, the Commission's Appeals Officer found that the unit price portion of the tender packages were not disclosed at the public opening of tender bids and that this information was treated as confidential. (Order #M-250)


• Where an institution's tender process provides for sealed bids and for the non-disclosure of competing tenders, the "in confidence" test is met. (Order #P-367)


• The "in confidence" test is satisfied in respect of records provided by trust companies during the regulatory process under the Loans and Trust Corporations Act. (Orders #P-314, P-480, P-661)


• Information in a report may implicitly be "supplied in confidence," if the report is received in camera and not disclosed to the public. (Orders #P-3, P-65)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• Written correspondence that establishes confidentiality satisfies the test. (Orders #P-76, P-246)


• Material provided as a result of a sealed tender is confidential where the written policy of the institution stipulates that confidentiality (subject to the Act) would be maintained. (Orders #P-166, P-367, P-520)


• The minutes of a board meeting were supplied implicitly "in confidence." The institution stamped the records "confidential" on receipt and the submissions of the institution and the board confirmed that confidentiality was expected given a long-standing practice ensuring that only certain individuals saw the minutes. (Order #P-400)


• Unit price information was implicitly provided "in confidence" by bidders in a tender because the institution told all suppliers in an open meeting that the information would be treated confidentially. This was also the institution's past practice and policy. (Order #P-408)


• The "in confidence" test was met where the terms of a Letter of Intent stated that it and any agreements entered into between the institution and the company regarding proposed renovations were to be kept in the "strictest of confidence." (Order #P-472)


• Where representations and sworn affidavits indicate that the affected parties supplied information to the institution "in confidence," the test was met. (Order #M-145)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• An informal submission regarding a proposed development application was implicitly supplied to municipal officials "in confidence." An informal submission was distinct from a formal development application made under the Planning Act. In submitting an informal application, the developer is looking to the City for guidance and assistance in formulating the application. The City's response to the documents contain analyses of the information contained in the documents and, as such, the disclosure of the response would permit the drawing of accurate inferences of the nature of the proposal. (Order #M-149)


• The "in confidence" test was met where the institution's guidelines for air carriers stipulated that any information supplied by an air carrier in an offer was supplied in confidence. As well, the head of the institution, in public meetings, had given assurances that all information supplied for the purposes of bidding for air ambulance services were confidential. (Order #P-497)


• The institution's Request for Proposals, in respect of a tender, explicitly provided that all bidder responses would be considered confidential. It applied to reports prepared by the successful bidder in the course of carrying out its contract. As a result, this part of the test was satisfied. (Order #P-500, M-572)


• Records supplied to the Ministry of the Environment in response to a control order issued under the Environmental Protection Act are supplied implicitly "in confidence." (Order #P-513)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• Where a mining company approached the Premier and the Minister of the Ministry of Environment and Energy directly regarding a mining development project, the records were provided to the ministry implicitly "in confidence." The records were provided as a brief for discussion purposes and were not a project report or a definitive environmental study. (Order #P-512)


• Tender documents may be supplied explicitly "in confidence" where written documentation, such as policies or procedures governing the bid process, indicates that there was a reasonable expectation of confidentiality at the time the information was supplied. The fact that there is no reference to confidentiality in the manual does not mean that the records were provided implicitly "in confidence." (Order #P-520)


• The amount of electricity purchased by a company at a landfill site was supplied by the company to Ontario Hydro implicitly in confidence. Ontario Hydro established that all matters pertaining to Non-Utility Generating projects were confidential. During the negotiating phase, Hydro does not acknowledge the existence of the project. Once it is signed, it is discussed only in limited detail with consent and only to entities that have a legal right to the information. (Order #P-531)


• Information provided by an affected party's counsel to investigators during an Ontario Securities Commission investigation was implicitly "supplied in confidence." In these circumstances, the affected party understood that the information would remain confidential. (Order #P-583)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• Information about environmental testing and analysis of a property voluntarily provided to the Ministry of the Environment and Energy by a private company was supplied implicitly "in confidence." In cases where the contamination of the environment is not "grave," it was the policy of the ministry not to disclose more than a summary of the information to the public. (Order #P-584, P-974)


• Corporate consumption of Hydro services was supplied in confidence implicitly. All information supplied to Hydro was kept in strict confidence and used for rate purposes only. The Commission was satisfied that there was a long-standing policy that third party information regarding its business relationship with Hydro was not divulged to any other party. (Order #P-607)


• In labour relations, it is normally the practice that where an impartial third party is performing services analogous to those of a mediator or conciliation officer, any information supplied by a party is not disclosed without the consent of the supplying party. Therefore, information supplied to the Pay Equity Commission or its Review Officer is implicitly supplied in confidence. (Order #P-653)


• Certain tender information was supplied in confidence implicitly where the institution provided sufficient evidence to the Commission that it had always been its policy and practice to treat unit price quotations as confidential. As well, the Commission accepted that performance bonds/letters of credit had always been received by the institution in the strictest of confidence as the documents may contain a great deal of financial information. (Order #M-288)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• Information relating to a company's proposed location for a laboratory or a specimen collection centre was provided to the Ministry of Health implicitly in confidence. The Laboratory and Specimen Collection Centre Licensing Act (the Act) provides a complete scheme for the licensing and regulation of laboratories in Ontario. While the Act does not contain a confidentiality clause that might assist in determining this matter, the information supplied to the Commission by the company established that the location of these proposed sites was competitive information of value within the industry. As well, information about the financial position of the company, which was not a public company, was not ordinarily available and was supplied implicitly in confidence. (Order #P-655, M-520)


• Information supplied by privately held corporations to the Ontario Securities Commission, in respect of statutory reporting requirements for registrants, is provided implicitly in confidence. (Order #P-690)


• Where an "Application for Anti-Racism Operational Funding Program" contained ss.(3) [FIPPA] \ ss.(2) [MFIPPA] as a condition, though in small print, the Commission found that the 'in confidence' test continued to be met in respect of certain parts of the application. This provision uses the term "may" and it was determined that the institution had not taken sufficient steps to bring the significance of the provision to the attention of the organization applying for funding. (Order #P-777)


• A contract which contained unique terms that were provided and developed solely by the third party for use in the agreement with the institution, the Commission found that there was an implicit expectation of confidentiality. (Order #P-807)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• Records related to proposals for grants awarded under the Ministry of Citizenship's "Anti-Racism Operational Funding Program" were supplied to the institution in confidence. Despite the fact that the application for funding contained a condition that authorized disclosure under s.17(3) [FIPPA] \ s.10(2) [MFIPPA], the Commission found that applicants did not fully understand this. (Order #P-800 and see contra below Order P-829 where the Commission held that a comparable clause was applicable and understood in a corporate context.)


• Building plans submitted by a developer to a municipality for review prior to issuing a building permit under the Building Code were held to be supplied in confidence when it was found by the Commissioner that it was not the practice of the municipality to make building plans ordinarily available to the public. (Order #M-520)


• Agreements for financing a building by a township were held to be confidential.(Order #M-574)


• A corporation's technical, commercial and financial information which was contained in the decision of an arbitration panel was "supplied in confidence" when the information contained in the decision was provided in the private confidential form of an arbitration. (Order #P-1000)


• An application for funding made by a company under the Northern Ontario Heritage Fund Corporation and the Ontario Mineral Incentive Program was supplied in confidence and its release would prejudice its competitive position.(Order #P-1066)

ss.(1)--The Second Part of the Test--"In Confidence" Test Met

• The "in confidence" test was met for information supplied by stakeholders to the Ministry in questionnaires about franchising in Ontario. In this case it was necessary to promise confidentiality to encourage the full and frank discussions vital to developing policy and franchising legislation.(Order #P-1090)


• The appellant argued that because the Request For Proposals stated they were "subject to MFIPPA" this meant there was no reasonable expectation of confidentiality. However, the Commission ruled there was sufficient evidence the records were supplied in confidence either explicitly stated in the submitted proposals or implicitly taking into account the circumstances surrounding the tendering process. (Order #M-904)


• The "in confidence" part of the test was met because ministry practice is not to disclose an Assessment and Mitigation Report unless consent of the author is obtained. (Order #P-1347)

• The Commission concluded that where the institution has a public notice stating that all tenders and quotation documents would be available to the public unless the party specifically requested that its documents be received in confidence, and where the practice of the institution is to treat all submissions in a confidential manner, regardless of its notice, then the institution as well as the affected partied must provide some indication that the records were submitted with an expectation that they should be maintained in confidence.(Order #M-759)


• Where notice was conducted with several affected parties involved in an approvals process for a work permit, the Commission found that the fact that two of the parties consented to disclosure of their records was not in and of itself an indication that there was no expectation of confidentiality during the approvals process. (PO-1737)

ss.(1)--The Second Part of the Test--"In Confidence" Test Not Met

• The names and addresses of the employers governed by the Workers' Compensation Act are not supplied "in confidence." (Order #P-373)


• Certificates of Approval, and their Amendments, issued under the Environmental Protection Act are public records and as such they are not supplied "in confidence." Subsequent disclosure of information that was originally supplied "in confidence" may be addressed under the "harms" part of the test. (Order #P-479)


• In this case, all applications for special event permits where alcohol is to be served are considered by the Neighbourhoods Committee in a public meeting. The Commission ruled that in these circumstances applicants would expect that the application and the enclosed information would not be provided "in confidence." (Order #M-169)


• Records concerning a company hired by a City to demolish a building were not provided to the City in confidence. There was nothing on the face of the invoices and letters from the company or in its submissions to indicate that confidentiality was implicit or explicit. (Order #M-192)


• The contents of a letter of intent entered into between SkyDome and private companies was a binding agreement which was negotiated between the parties. Therefore, the contents of the letter of intent were not "supplied" to SkyDome as this exemption contemplated. (Order #P-581)

ss.(1)--The Second Part of the Test--"In Confidence" Test Not Met

• This part of the test was not met where invoices for investigation services were provided to an institution. The Commission did not accept that the invoices were subject to solicitor-client privilege and ruled that any expectation of confidentiality related to the subject matter of the investigation and not to the invoices themselves. (Order #M-258)


• The Commission ruled that the disclosure of the name and address of the bank that a particular company does business with was accessible under the Act. The company could not establish that the information was supplied to the institution in confidence. (Order #P-668)


• Where information is publicly available through corporate searches, it cannot be said that it was supplied to the institution in confidence. (Order #P-677)


• The fact that the amount of rent paid by the Ontario Science Centre to a third party company was not known by the centre personnel, other than senior officials, or that similar information was not made public in the past does not mean that this part of the test is satisfied. The Commission found that the company's expectation of confidentiality was not reasonable since it did not have an objective basis. (Order #P-687)


• Where the third party is not able to point to any evidence of confidentiality and where the institution was prepared to disclose the record, the Commission concluded that the institution did not consider the record to be supplied in confidence. (Order #P-734)

ss.(1)--The Second Part of the Test--"In Confidence" Test Not Met

• A draft proposal provided to an institution was not provided "in confidence." The Commission noted that it was not explicitly supplied in confidence and that sufficient evidence was not provided to determine that the proposal was implicitly provided in confidence. (Order #P-742)


• The records relevant to an inspection of a recycling company by the Ministry of the Environment and Energy were not supplied to the institution in confidence. The company submitted that the Certificate of Approval process was confidential, but the Commission held that there was no evidence to support that assertion and that the information did not reveal the processes or site and recycling plans of the company. (Order #P-765)


• A clause in a leasehold agreement that stated that the landlord "acknowledges, agrees and consents to the release by the Tenant of this Lease and any information contained herein" was sufficient for the Commission to find that the "in confidence" part of the test was not met. The Commission also noted that two senior executives of the landlord's real estate corporation as well as the Director of the institution's leasing services branch signed the lease. As such the agreement was signed by a sophisticated commercial lessor. (Order P-829 and see contra above P-800 where a similar clause was held not to vitiate confidentiality in the context of a contract for public funding.)

ss.(1)--The Second Part of the Test--"In Confidence" Test Not Met

• The "in confidence test" was not met when information was supplied by companies further to the requirements of the institution, which they enacted under the County's Tree By- Law, which was authorized by the Trees Act. The IPC came to this conclusion because there was no indication in the By-law or the notices themselves that the supplied information will be considered confidential. (Order #M-522)


• A city by-law which prohibited any elected or appointed official from divulging any but the total price of public tenders supported a reasonable expectation of confidentiality with respect to unit prices. (Order #M-531)

• Drawings and specifications provided by a licensed professional engineer in support of an application for a building permit were not supplied in confidence in the absence of any evidence of assurances of confidentiality provided by the municipality, or in the absence of any evidence that the drawings had been consistently treated as confidential. (Order #M-542)


• Commercial and financial information provided by charities to a municipality in order to obtain the necessary licence under the Gaming Act for a Nevada lottery was supplied to the municipality but not in confidence. (Order #M-663)

ss.(1)--The Second Part of the Test--"In Confidence" Test Not Met

• The terms and conditions of the lottery licencing process established by the Ontario Gaming Commission do not indicate that information provided to a licencing authority is done in confidence. (Order #M-708)


• A clause in an Agreement stating that information would be treated confidentially, subject to the Act, recognizes that the institution may be compelled to disclose the contents pursuant to a request under the Act. (Order #P-1126)


• The supplied in confidence test was not met because of the peer review organization's policy to disclose information on the number and species of animals used in research facilities. (Order #P-1392)


• If a record has been entered as an agenda item and discussed at an open meeting, all claim to its confidentiality is removed.(Order #M-946)
  
  

ss.(1)--The Third Part of the Test--Harms

• The Commission confirmed that reasonable expectation of harm required that the institution establish a clear and direct linkage between the disclosure of the information and the harm alleged. The Commission approved of the position taken by the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture) [1989] 1 F.C. 47 at 59-60, where the Court indicated that a "reasonable expectation of probable harm" was required. It also approved of the Federal Court Trial Division's decision in The Information Commissioner of Canada v. The Prime Minister of Canada, unreported, November 19, 1992, where the Court stated that the mere "possibility" of harm was not sufficient. The Court held that descriptions of possible harm, even in substantial detail, are insufficient in themselves. Justice Rothstein stated that: The Court must be given an explanation of how or why the harm alleged would result from disclosure of specific information. If it is self-evident as to how and why harm would result from disclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantial the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a Court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged...While the fact that the same or similar information is public is not necessarily conclusive of the question of whether or not there is a reasonable expectation of harm from disclosure of the information sought to be kept confidential, the burden of justifying confidentiality, would...be more difficult to satisfy. Orders #P-534, P-576, P-779)


• The institution or a third party must present evidence that is detailed and convincing and must describe a set of facts and circumstances which would lead to a reasonable expectation that harm would occur if the information is released. Generalized assertions of fact in support of what amounts to speculation of possible harm do not satisfy the requirements of this part of the test. According to Orders #P-87 and P-528, where information is available from a source to which the public have access, there can be no reasonable expectation of harm from the disclosure. (Orders #P-36, P-47, P-49, P-70, P-87, P-101, P-125, P-269, P-286, P-294, P-314, P-323, P-356, P-385, P-408, P-419, M-65, P-431, P- 435, P-479, P-480, P-493, P-529, P-528, P-531, P-545, P-561, P-576, M-258, M-284, P-771, P-1090)

ss.(1)--The Third Part of the Test--Harms

• An engineering company that provided a report to a municipality regarding whether the underground parking of a building complied with certain by-laws did not provide adequate evidence that the disclosure of the report would significantly interfere with contractual or other negotiations. The fact that a negative interpretation of the report might affect present or future clients was not sufficient. (Order #M-10)


• The fact that the information contained in the records is dated is a factor in determining whether the "reasonable expectation of harm" part of the test has been met. (Order #P-286)


• The onus is on the institution or affected third party to demonstrate that the harm envisioned by the section is present or reasonably foreseeable. (Orders #P-3, P-42, P-48, P-65, P-101, P-228, P-249, P-290, M-10, M-29, M-286, P-1105)


• It is unlikely that the disclosure of a "standard" clause in a contract could reasonably be expected to result in the types of harms contemplated by this exemption. (Order #P-251)


• The fact that records may be negatively interpreted, if disclosed, is not sufficient to satisfy the harms test. (Order #P-373)

ss.(1)--The Third Part of the Test--Harms

• The harms tests in ss.(1)(a), (b) and (c) were not met in respect of parts of a tender related to the construction of a non-profit housing development. The Commission ruled that the names and addresses of the contractors, the total value of the bids, the list of proposed subcontractors, and other general information contained in the bid, would not result in the harms contemplated by these sections. (Order #P-610)


• The harms test in ss.(1)(a), (b) and (c) were not met in respect of parts of background material relating to a decision to make a monetary grant to a named organization as part of a ministry's Anti-Racism Operational Funding Program. The Commission found that disclosure of the funding sources of organizations applying for such grants would contravene ss.(1)(a). It also held that public disclosure would not mean that groups would no longer supply this information to the institution, according to ss.(1)(b). (Order #P-777)


• Disclosure of portions of an engineer's report on the structural condition of a building was not subject to the harms in these provisions. While the report did contain technical information that was supplied implicitly in confidence, it could not be said that, if disclosed, the third party would not provide information of this nature in the future, since the City has the authority to obtain reports of this nature in its inspection of buildings. The fact that there may be litigation resulting from the disclosure did not satisfy the harms test. (Order #M-303)


• Records containing the budget and operating costs of a named ambulance service was exempt under this provision. The information is supplied to the Ministry of Health in confidence in order for the ministry to determine funding for approved operational expenses. The Commission was satisfied that one of the harms in this provision would result if the information was disclosed and that union\management negotiations would be adversely affected. (Order #P-711)

ss.(1)--The Third Part of the Test--Harms

• The Commission ruled that the disclosure of a contract between the Art Gallery of Ontario and a foundation for the exhibition of certain works of art would not result in the harms enumerated in this section. The institution had not shown sufficient connection between the disclosure of the contract and these provisions to satisfy the test for this exemption. (Order #P-728)


• A reasonable expectation of harm would result from disclosing the pricing structure of a liquor product sold by the Liquor Control Board of Ontario (LCBO) since disclosure could reasonably be expected to result in other customers applying pressure on the supplier to provide price concessions similar to those which the supplier gave the LCBO. (Order #P-905)


• The Divisional Court approved the position taken by the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture) [1989] 1 F.C. 47 at 59-60, where the Court indicated that a "reasonable expectation of probable harm" was required. There need only be evidence of a reasonable expectation of probable harm which of necessity involves some speculation. (Re Workers' Compensation Board and Mitchinson, Assistant Information and Privacy Commissioner, (1995), 23 O.R. (3d) 31 (Div. Ct.))


• The harms test cannot be met where the records requested were already publicly available in a court file or through other access to information schemes. (Order #P-346, P-1050)

ss.(1)--The Third Part of the Test--Harms

• The institution or a third party must present evidence that is detailed and convincing and must describe a set of facts and circumstances which would lead to a reasonable expectation that harm would occur if the information is released. Generalized assertions of fact in support of what amounts to speculation of possible harm do not satisfy the requirements of this part of the test. (Orders #P-36, P-47, P-49, P-70, P-87, P-101, P-125, P-269, P-286, P-294, P-314, P-323, P-356, P-385, P-408, P-419, M-65, P-431, P-435, P-479, P-480, P-493, P-529, P-528, P-531, P-545, P-561, P-576, M-258, M-284, P-771). Where information is available from a source to which the public have access, there can be no reasonable expectation of harm from the disclosure. (Orders #P-87, P-528, P-1090)


• Disclosure of information regarding future business plans for development of waterfront property by a number of companies could result in undue loss to these businesses. (Order #M-785)


• Release of information with respect to the contractor's Workers' Compensation Board or Workers' Safety and Insurance Board rating, their bonding and insurance arrangements, past project and financial strengths and weaknesses could be expected to prejudice their competitive position. (Order #M-1150)

ss.(1)(a)--Harms Test Not Met

• A lease that contained information which could be used by competitors to develop similar projects was not exempt under this provision. No specific information was given to indicate that this test was satisfied. (Order #P-356)


• Where the release of documents would disclose matters that have already been made available to the public, this provision may not be used. (Orders #P-87, P-323)


• A tender submission was not exempt where it was alleged that its disclosure would reveal the expertise of the staff of the tendering company and would thereby encourage other companies to "raid" the staff. These assertions were speculative and the records were therefore not exempt under this provision. (Order #P-418)


• The mere fact that the institution retained the affected person to provide a collection of research materials, together with editorial comments, is not sufficient to satisfy this provision. The Commission was not persuaded that the ability of the researcher to undertake future research would be hampered because the information could be misconstrued or taken out of context. (Orders #P-454, P-463)


• The disclosure of minutes of certain board of directors' meetings cannot be exempt under this provision where the harm is to the institution and not a third party. Harm to the institution is properly dealt with under s.18 [FIPPA] \ s.11 [MFIPPA]. (Order #P-487)


• The appellant requested records regarding MOH's payment of the lease on an independent health facility. Records disclosing "individual funding levels for rental costs paid by the ministry, as well as the detailed breakdown of some of these costs included in notes to the financial plans" could reasonably be expected to prejudice the competitive position of the landlord and other suppliers, and interfere with contractual negotiations of the landlord, the operator of the facility and other persons involved in providing services to the facility. By contrast, disclosure of the "overall funding level" could not reasonably be expected to result in such harm. Disclosure would simply confirm that a funding arrangement was in place for a given time period, and identify the overall amount of public funds the Ministry allocated for the operation of this particular facility, "without disclosing the individual funding details for rental arrangements or other operating component costs which could have an impact on the landlord's competitive position". (Order #PO-1695)

ss.(1)(a)--Harms Test Not Met

• The scheme of the Act contemplates that harm to the competitive or financial position of an institution should be addressed by a claim for exemption under s.11 [MFIPPA] \ s.18 [FIPPA] of the Act and not this section. (Order #M-286)


• In this case, the Commission ruled that this exemption did not apply to budget files, including budget submissions and annual financial statements of a named day-care centre. Where collective agreement negotiations are over, the Commission stated that it would be very difficult to make the argument that this harm could be satisfied based on the disclosure of the records. In respect of competitive information, in order to establish that disclosure of financial information could prejudice competitive position, detailed and convincing evidence must be provided that would represent significant prejudice. The Commission ruled that where the information is obtained for the purpose of distributing public funds among the providers of a particular service, the inference is even more difficult to draw. Therefore, the need for detailed evidence is greater. (Order #M-284)

• The Commission noted that accounting firms will continue to provide detailed information to government institutions when they are retained to perform forensic accounting work. While it is important that accounting firms share as much information as possible with the institutions that retain them, the firms will continue to provide cost-related information if they wish to secure government contracts. Therefore, the Commission held that the disclosure of this information would not result in less information being available in the future. (Order #P-710)


• Financial information about litigation settlement negotiations is not exempt under this provision. The Commission held that the institution failed to establish that the disclosure of the financial information contained in the record would give rise to a reasonable expectation of significant interference with future negotiations between itself and other individuals. (Order #P-715)

ss.(1)(a)--Harms Test Not Met

• This provision was not satisfied in respect of a request for service contracts, together with standard form tender documents, entered into between GO Transit and suppliers of vending machines located in GO Transit stations. At issue was access to the percentage rents or rates of commission paid by the suppliers to GO Transit, a list of other locations serviced by each supplier and the name and address of the supplier's bank reference. The Commission found that disclosure of this information would not prejudice competitive positions in up-coming tenders or otherwise. (Order #P-779)


• An institution failed to satisfy the third part of the test when it simply repeated the wording of the Act, without describing how or why disclosure of the record could reasonably be expected to result in the harms described. (Order #M-542)


• Since the Agency is no longer in business as a collection agency and the licence is revoked, the Commission did not accept the Agency's position that harm could occur if the bank account numbers were released. (Order #P-952)


• The harms test was not satisfied in respect of a total bid price even though this price would allow the calculation of unit prices because this information was disclosed as standard practice on the Open Bidding Service and as such was available to the public. (Order #P-1162)

ss.(1)(a)--Harms Test Not Met

• The harms test was not met for portions of records which relate to the institution's requirements which must be met by the commercial third party in order for the project to receive funding from the institution. (Order #P-1306)

ss.(1)(a)--Harms Test Met

• Disclosure of specific financial information relating to the company's capitalization, including budget statements and refinancing arrangements, could prejudice its current competitive position and its relationship with other parties. (Order #P-286)


• Release of information relating to the broad corporate strategies and projected financial, commercial and research activities of a third party could reasonably be expected to significantly prejudice the company's competitive position. This rationale does not apply to information specifically related to a takeover, which is historical in nature and not sufficiently connected to ongoing corporate operations to satisfy the harms test. (Order #P-293)


• The affected third party was able to identify a reasonable expectation that disclosure of the information would result in a significant prejudice to its competitive position. Therefore, the harms test was met. (Orders #P-47, P-113, P-219, P-222, P-246, M-572)


• Mere knowledge of an application for a new drug listing could, in itself, result in the type of harm enunciated in ss.(1). (Order #P-68)

ss.(1)(a)--Harms Test Met

• Disclosure of the mailing list of producers would cause undue financial loss to the institution. There was demonstrable potential for lost advertising revenue for its magazine. Therefore, the harms test was met. (Order #P-76)


• The release of monetary amounts noted beside the name of subcontractors, unit price, alternative price and material variations, all of which are provided in respect of a sealed tender, would prejudice the competitive position of the tenderer if released. However, the harms test is not satisfied in respect of the names of the subcontractors or the details of the bid bond, or security deposit. These items would have to be released. (Order #P-166)


• Release of records revealing steps taken in the development of a product could significantly damage the competitive position of a company where millions of dollars have been invested in research and development of the product. (Order #P-246)


• Disclosure of unit price information supplied during a tender would significantly harm competition in this case because competitors could adjust their bids and underbid in future business contracts. The harms test was also made out in respect of a letter of credit. However, the name of the insurance company and the amount of liability coverage was not exempt from disclosure. (Orders #P-408, M-288, M-511)

ss.(1)(a)--Harms Test Met

• The disclosure of tender information satisfied the harms test in this section where it included the bid breakdown, the unit prices, and alternatives and substitutions proposed with any related prices. (Orders #P-610, M-250)


• Where access to a response to an invitation to tender would allow a competitor to determine the profit margin and markup being offered, the bidder's competitive position would be prejudiced in future bids. (Order #P-431)


• This part of the test was met where an individual requested access to agreements and other records regarding the suppliers of computer hardware and software for use in a school. The Commission was satisfied that competitive position would be prejudiced if pricing and marketing strategies for computer equipment in the educational market were disclosed. (Order #M-145)


• Disclosure of a "trade secret" concerning a proposal for the valuation of child-care centres would harm the competitive position of the third party. (Order #P-500, P-1292)


• In this case, disclosure of preliminary discussions between two First Nations bands and a mining company regarding a proposed mining project would significantly interfere with the ongoing negotiations. (Order #P-512)

ss.(1)(a)--Harms Test Met

• The harms test was made out in respect of the disclosure of a private company's proposed locations of sites for medical laboratories and the company's financial position. Since all three parts of the test were made out, the information was held to be exempt. (Order #P-655)

• The Commission was satisfied that the disclosure of certain information contained in a Request for Proposal would prejudice the competitive position of Mediascan or interfere with its contractual negotiations. Mediascan had submitted that the information had been developed over a number of years and that the disclosure could allow competitors to upgrade their working procedures, to increase or replicate press coverage and to copy or subvert the various agreements listed in the proposal. (Order #P-750)


• The Commission found that an application to an institution for grant funding made by a private sector entity and the evaluation of the application were exempt under this provision. The Commission found that entities that apply for government grants provide detailed information about their funding sources and that disclosure of the information was not necessary to submit the granting agency to public scrutiny. The Commission also found that disclosure would hamper the organization's ability to secure comparable funding. Thus an application provided to the Ministry of Citizenship's "Anti-Racism Operational Funding Program" and its evaluation was not disclosed. (Orders #P-777, P-800, P-838)


• In this case disclosure of the reasons for an arbitration decision, the contents of which were supplied by a third party in confidence, could reasonably be expected to interfere with a corporation's negotiations with the Government of Canada and its financial backers for restructuring. (Order #P-1000)

ss.(1)(a)--Harms Test Met

• Disclosure of agreements for financing a building by a township would result in the disclosure to its competitors and customers of information about the affected party's business which is not otherwise available to them. This would place the affected party at a competitive disadvantage within its industry and harm its business relationship with its customers. (Order #M-574)


• Production data relating to the company's mineral exploration was exempt. (Order #P-1071)


• This section does not restrict the competitive position of a party or the contractual or other negotiations to one specific event. The fact that a party is no longer a competitor in a bid does not render its commercial and/or financial information of no value in other or future negotiations. In this case, because a third party had been eliminated from further consideration in a bid process, the information it supplied when the bid process began still fell within this section.(Order #M-836)


• Proposals by law firms in response to Requests For Proposals for legal services met this test. The format used and the information concerning fees to be charged and the services to be performed in each proposal were unique. (Order #M-904)

• This test was met because the consultant and appellant compete for archaeological contracts and publish the results of their work. It is in the public interest for the ministry to continue to receive these Assessment and Mitigation Reports which provide information on Ontario's heritage. Consultants will be more likely to provide this information when they have confidence it will not be disclosed.(Order #P-1347)

ss.(1)(a)--Harms Test Met

• Portions of motions of the Canadian Blood Agency related to budgetary matters, funding issues or ongoing commercial ventures involving a private agency were exempt under this provision. (Order #P-1291)


• This provision applied to summary of contingency plan and labour management strategies which could interfere significantly with negotiations between transfer payment agencies and the unions.(Order #P-1464)


• Release of Law Society losses in self-insured programs, reinsurance structure and capital requirements would provide competitors with valuable information on the exposure and pricing of competitive products.(Order #P-1508)

ss.(1)(a) and (c)--Test Not Met

• The fact that a record may contain information that could be misleading is not sufficient to meet the harms criteria in section 17(1)(a) or (c). An institution is free to counter any misleading information with an explanation as to why the information is misleading. (MO-1452)
• The harms test cannot be met where the records that were requested were already publicly available in a court file. (Order #P-346)


• Where a company is no longer in existence, no harm can result from disclosure of the records related to it. (Order #P-367)


• The harms in these provisions relate to possible future harms that could reasonably be expected to arise if information was released, not harms that could have occurred in the past. (Order #P-400)


• The harms in these provisions were not satisfied in respect of information provided to the Ministry of the Environment and Energy in response to the issuance of a control order under the Environmental Protection Act. The Commission did not believe that the information supplied by the company, subject to the Order, would be misused or misinterpreted to the detriment of the company. The records only revealed that the appellant complied with or exceeded the requirements of the Order. In addition, the records, in this case, did not reveal specific processes used by the company that were not already in the public domain. (Order #P-513)

ss.(1)(a) and (c)--Test Not Met

• The fact that a document may be privileged in litigation is not sufficient to satisfy the third part of the test. In this case, the third party argued that an agreement may be subject to the litigation privilege if litigation was to ensue and that therefore the harms test was made out. The agreement was made with a view to the settlement of issues that arose in the context of potential litigation. No statement of claim had yet been filed. The Commission ruled that the privileged status of the agreement in another context was not sufficient to engage the harms test in respect of an access to information request. (Order #P-609)


• Disclosure of records concerning environmental testing and analysis of a property would not result in commercial harm under this provision despite the affected party's assertion that disclosure would interfere with negotiations related to the land. By not showing the "exact nature of the prejudice to its contractual negotiations," the affected third party failed to establish the harms under this provision. (Order #P-584, P-974)

• The disclosure of only the dollar amounts of severance payments and gross earnings of distributors, and not the names or numbers of the distributors, was not exempt under these provisions. (Order #P-705)


• Where the records are required to be provided by law, this provision can not be applicable. (Order #P-974)

ss.(1)(a) and (c)--Test Not Met

• Where an institution submits that the records contain information about the Company but that it is not in a position to determine what effect the disclosure would have on the Company, the provision did not apply. In the absence of evidence from the Company which establishes the harms, the Commission is unable to conclude that disclosure of the records could reasonably be expected to result in any of the harms specified in this section. (Order #P-1195)


• In this case the potential loss of $5,000.00 for the sale of an environmental contamination report was not considered to be a "significant interference" or an "undue loss".(Order #P-1235)

ss.(1)(a) and (c)--Test Met

• The disclosure of specific pricing information submitted by a named company to an institution during the tender process was exempt under this provision. (Order #P-574)


• Trust companies that provide financial information to the Ministry of Financial Institutions during the regulatory process can reasonably expect that the harms envisaged by these provisions would occur if the records were disclosed. (Order #P-314)


• The harms in these provisions were satisfied where corporations provide information for examination to the Ministry of Finance as part of the regulatory process of loan and trust corporations. (Order #P-480)


• The harms test in these provisions was met regarding the disclosure of the amount of electricity purchased by Hydro from a named company at a landfill site. Hydro and the third party were able to establish that competitors such as the requester, could formulate an "evaluation" of the reliability of the power plant; the "actual production capability" of the power plant would be known; and the requested information "represented the complete picture of all sales" by the affected party which, together with information on purchase rates already in the public domain, would make it possible to derive a total revenue picture. (Order #P-531)

ss.(1)(a) and (c)--Test Met

• An affected third party was able to meet the harms test set out in the section by establishing that release of tender documents relating to the development of a computerized registration system for the Ministry of Culture, Tourism and Recreation could result in competitors using the information to develop competing business strategies; or using the information to enhance or design competing computer systems at considerably reduced expense for research and development; or using the information for advantage in future sales activities. (Order #P-582)


• This exemption applied and this test was met regarding disclosure of the amount and cost of electricity sold to a named company. The Commission ruled that the disclosure of this information would provide details of the operations of the company, reveal to competitors valuable information about negotiating strategies and provide an unfair advantage to competitors for future contracts. (Order #P-607)


• The disclosure of invoices for investigative services provided by a third party was not subject to the harms reflected in these provisions. The invoices contained global figures regarding the amounts billed for fees and disbursements as well as the number of hours of work performed by various employees. (Order #M-258)


• Disclosure of the names of customers and information that relates to the materials in which the company deals and its markets were commercial information supplied implicitly in confidence under s.168 of the Environmental Protection Act in circumstances where the disclosure would interfere with the company's contractual negotiations and result in undue loss for the company. (Order #P-703)

ss.(1)(a) and (c)--Test Met

• Information provided to the Ontario Securities Commission from privately held corporations dealing in investment counselling is exempt under this provision. The Commission was satisfied that the information concerning capitalization, bonding and insurance may impact on the competitive position of the companies. (Order #P-690)


• The Commission was satisfied that disclosure of an annual examination report relating to a named credit union would result in the harms envisaged by these provisions. The examination is conducted under section 138 of the Credit Unions and Caisses Populaires Act and the report consists of a review of the compliance of the business and operations of the credit union. (Order #P-719)


• Where a "single source" contract was entered into which contained unique terms and conditions developed by the third party, the contract was not disclosed under this provision. The Commission found that the disclosure would provide competitors with precise information from which they could match or better the terms offered by the third party. As well, the Commission found that the disclosure would interfere with the third party's negotiations with its other customers who would insist on the same favourable terms. (Order #P-807)


• Information relating to the price of raw materials which, if disclosed, could enable a competitor to arrange its own pricing in a competitive and ultimately affect the profitability of a company met part three of the test. (Order #P-877)

ss.(1)(a) and (c)--Test Partially Met

• The Commission determined that the release of the current replacement value and deferred maintenance figures of buildings owned by a University would reasonably be expected to result in undue loss to the school. Since the University expects to sell some of its property disclosure of detailed information about the building's replacement value and the value of needed repairs could harm its competitive position in the real estate market place. Also; The Commission accepted the appellant's argument that a University likely ought to disclose to potential buyers information about the condition of buildings it intended to sell. However, it found that the Act is not a primary vehicle to ensure fair business practices, particularly with respect of parties which are not government institutions under the Act. (PO-1871-I)
  
  
• Harm was established where disclosure of building plans composed of drawings of the architectural, merchandising, structural, mechanical and electrical configurations of the facilities of proposed tenants in a property development would reveal the merchandising strategy and building operating efficiency of the proposed tenants. However revealing the "number and location of washrooms which can be copied by competitors to gain an advantage in customer service and comfort" did not satisfy the harms test. (Order #M-520)


• Harm was established where disclosure of building plans composed of drawings of the architectural, merchandising, structural, mechanical and electrical configurations of the facilities of proposed tenants in a property development would reveal the merchandising strategy and building operating efficiency of the proposed tenants. However revealing the "number and location of washrooms which can be copied by competitors to gain an advantage in customer service and comfort" did not satisfy the harms test. (Order #M-520). In this case construction footings and foundation plans prepared by consulting engineers and architects did not meet the harms test because (1) no representations were received (2) records themselves did not provide evidence of harm (3) lack of evidence regarding current or anticipated contractual or other negotiations (4) lack of correlation between plans and the third party's competitive position (Order #MO-1225)