Manual
Third Party Information s.17
FIPPA / s.10 MFIPPA
This section contains the following topics:
Summary
Threshold Tests
Competitive
Position or Negotiations
Impede Supply
of Similar Information
Undue Loss or Gain
Labour Relations
Information
Tax Information (
FIPPA)
Exception to
Exemption for Third Party Information (includes Tax Information (FIPPA))
Summary
Institutions subject to the Freedom of Information and Protection of
Privacy Act (FIPPA)/Municipal Freedom of Information and Protection of
Privacy Act (MFIPPA) often acquire information about the activities of
private sector organizations. Some of this information may constitute a
valuable asset to the organization, and disclosure would impair its
ability to compete effectively. S.17(1) FIPPA / s.10(1) MFIPPA provides a
mandatory exemption from disclosure for certain third party information
where disclosure could reasonably be expected to cause certain harms. This
exemption is not limited to commercial third parties, but may also apply
to any supplier of information which meets the tests specified below,
including another institution.
Section 28 FIPPA /s.21 MFIPPA provides that before access is granted to a
record that might contain information referred to in s.17(1) FIPPA /
s.10(1) MFIPPA affecting the interests of a third party, that party must
be notified and given the opportunity to make representations before a
final access decision is made. If a third party claims in its
representations that the record is exempt, the burden of establishing that
the record falls within this section rests with that third party.
Similarly, where an institution asserts that this provision applies, the
burden of proof is on the institution. Notification procedures are
discussed in Chapter 3
(Access Procedures).
The compelling public interest provision in s.23
FIPPA / s.16 MFIPPA applies
to this exemption.
Threshold Tests
Before this exemption can be applied, all of the following three tests
must be met:
- the information must fit within one of the specified categories of
third party information;
- the information must have been "supplied" by the third
party "in confidence", implicitly or explicitly;
and
- the disclosure of the information could reasonably be expected to
cause certain harms specified in this section.
The three tests are discussed in more detail immediately below.
Test #1: Categories of Third Party Information
In order for this exemption apply, the record in question must contain
one or more of the following types of information:
Trade secret: Means information including, but not
limited to, a formula, pattern, compilation, program, method, technique,
or process or information contained or embodied in a product, device or
mechanism which (i) is, or may be used in a trade or business, (ii) is not
generally known in that trade or business, (iii) has economic value from
not being generally known, and (iv) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
Scientific information: Means information belonging to
an organized field of knowledge in either the natural, biological or
social sciences or mathematics. It must also relate to observing and
testing specific hypotheses or conclusions and be undertaken by an expert
in the field. Finally, scientific information must be given a meaning
separate from "technical" information in this provision.
Technical information: Means information belonging to
an organized field of knowledge that would fall under the general
categories of applied sciences or mechanical arts. Examples of these
fields would include architecture, engineering or electronics. It will
usually involve information prepared by a professional in the field and
describe the construction, operation or maintenance or a structure,
process, equipment or thing. "Technical" information is distinct
from "scientific" information.
Commercial information: Means information that relates
solely to the buying, selling or exchange of merchandise or services. The
term "commercial" information can apply to both profit- making
and non-profit organizations, and has equal application to both large and
small enterprises. Commercial" information is distinct from
"financial" information
Financial information: Refers to specific data and is
information that relates to finance or money matters. For example, the IPC
has found that the price paid for land, tax information, conversion rates,
default consequences and interest incentives regarding loans qualifies as
financial information.
Labour relations: Means information concerning the
collective relationship between an employer and its employees. This
includes information compiled in the course of negotiating pay equity
plans which, when implemented, would effect the collective relationship
between the employer and its employees.
Test #2: Supplied in Confidence
The second test for this exemption is that the information must have been
supplied in confidence to the institution by a third party. The IPC's
findings on this test include the following:
- Information that is created or gathered by the institution is not
"supplied" by a third party. For example, information
deriving from an institutions' negotiations with a third party is not
"supplied" by the third party. However, the exemption is
applicable to records developed by the institution where disclosure of
those records would permit the drawing of accurate inference with
respect to supplied by the third party and meeting other parts of the
test.
- The intention to maintain confidentiality may be expressed or may be
implied from the circumstances (or conduct of the parties). For
example, confidentiality may be implied where there is evidence that
the information was consistently treated in confidence.
- 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.
Test #3: Harms Test
For this exemption to apply, it must be demonstrated that disclosure of
the record could reasonably be expected to yield one of the three results
discussed below.
Competitive Position or Negotiations
s.17(1)(a)
FIPPA / s.10(1)(a)
MFIPPA
The subsection applies where the disclosure could reasonably be
expected to prejudice significantly the competitive position or interfere
significantly with the contractual or other negotiations of a person,
group of persons or organization.
This involves significant injury to competitive position, or
significant interference with contractual or other negotiations. It
requires some measure of the injury. The particular circumstances must be
evaluated in each case. The institution or third party must present
evidence that is detailed and convincing and must describe a set of facts
and circumstances that would lead to a reasonable expectation that harm
would occur it the information were released. Generalized assertions of
fact without sufficient evidence do not meet the test.
Where this exemption is considered concerning contracts, it is unlikely
that the harms test will be met by disclosure of standard clauses found in
all or most contracts of a similar nature. It the exemption is applied to
the contract, such clauses may be disclosed by release of a severed copy.
The "competitive position" could be prejudiced
without resulting in any immediate or direct loss. There must be a
competitive community where another's knowledge of the relevant
information could affect the competitive position.
The "negotiations" for which the exemption may be claimed are
contractual negotiations or some similar type, such as negotiations
relating, to the settlement of a lawsuit or negotiations regarding the
funding of a non-profit agency.
The injury contemplated may be either to the third party submitting the
information, or to any person. or group of persons, or to an organization
other than an institution.
Impede Supply of Similar Information
s.17(1)(b)
FIPPA / s.10(1)(b)
MFIPPA
This subsection applies where disclosure could reasonably be expected
to result in similar information no longer being supplied to an
institution where it is in the public interest that similar information
continue to be supplied.
Release of the information would deter the voluntary supply of similar
information from the same or another source. The consideration here is
whether a third party requires assurance of confidentiality prior to
voluntarily supplying information. The test is whether the third party or
another source would entrust similar information to the institution in the
future if the information were disclosed. If not, this subsection applies.
A further necessary test is that it is in the public interest that the
institution continue to receive the information. At issue is the public
interest, not necessarily the institution's interest.
Undue Loss or Gain
s.17(1)(c)
FIPPA / s.10(1)(c)
MFIPPA
This subsection applies when the disclosure could reasonably be
expected to result in undue loss or gain to any person, group, committee
or financial institution or agency.
The loss or gain referred to in this subsection could be of any
character, but must be "undue". "Undue" means more
than necessary, improper, or unwarranted. The loss or gain need not be
attributable to the third party submitting the information, but to
"any person, group, committee or financial institution or
agency".
Labour Relations Information
s.17(1)(d)
FIPPA / s.10(1)(d)
MFIPPA
This subsection applies where disclosure could reasonably be expected
to reveal a report or information supplied to a conciliation officer,
mediator, labour relations officer or other person appointed to resolve
labour relations dispute.
Tax Information (FIPPA)
s.17(2)
FIPPA
This subsection also provides a mandatory exemption for records which
reveal information obtained on a tax return for records which are gathered
to collect a tax or determine tax liability. The injury tests in
subsection 17(1) do not apply to subsection 17(2).
Exception to Exemption for Third Party Information
s.17(3)
FIPPA / s.10(2) MFIPPA
This subsection gives the head discretion to release information
described in s.17 FIPPA / s.10 MFIPPA if the person to whom the
information relates consents. The person to whom the information relates
could be the third party who submitted it, or any other person who is a
subject of the information.
For example:
Where a contractor supplies information about itself and about the
sub-trades on a particular project, both the contractor and the
subtrades could be persons "to whom the information relates",
and each would have to give consent to disclosure.
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OCIPO 
