Information in government contracts is typically not considered 'supplied in confidence': court
The Ontario Superior Court of Justice upheld the Information and Privacy Commissioner of Ontario’s (IPC) decision to require the disclosure of records concerning a joint venture agreement (JVA) and payment details involving Halton Health Services (HHS).
The case stemmed from a request under Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) seeking information about a joint venture called C-Air, a partnership between Canadian Home Healthcare and HHS to provide home oxygen services.
Initially, HHS denied the request based on Canadian Home’s representations, which claimed the documents contained protected information. Following mediation, HHS reversed its position and granted access to the records, prompting Canadian Home to appeal to the IPC.
The IPC adjudicator determined that while the records included commercial and financial information, the JVA did not meet FIPPA’s requirement of being "supplied in confidence," as it was mutually negotiated. Regarding the payment records, the adjudicator found that Canadian Home and HHS failed to provide concrete evidence showing how disclosure would harm their competitive position. Consequently, the IPC ordered both documents disclosed.
The adjudicator also denied Canadian Home’s request for reconsideration and concluded that the process had been fair and comprehensive.
The Superior Court found no merit in Canadian Home’s claims that the IPC process was unfair. The court ruled that the IPC was under no obligation to advise Canadian Home on additional arguments or exemptions beyond s. 17(1) of FIPPA. It noted that Canadian Home, represented by counsel, was invited to raise any relevant issues during the appeal but failed to do so.
The court also upheld the IPC’s interpretation of FIPPA, agreeing with the adjudicator that decades of case law have established that information in government contracts, like the JVA, is typically not considered "supplied" for the purposes of s. 17(1). The decision emphasized that adopting Canadian Home’s position would undermine public transparency in government agreements.
Regarding the payment records, the court rejected Canadian Home’s argument that s. 17(2) of FIPPA, which exempts certain tax-related information, applied. The court held that the applicant had not raised this issue during the IPC process, and there was no evidence to suggest the records were gathered for tax purposes.
Ultimately, the court dismissed the application for judicial review, affirming the IPC’s decision to order disclosure of the documents.
