The Township of Scugog refused to disclose the sources of the fill it had purchased, on the basis that this was confidential third party information, exempted from disclosure under section 10(1) of the Municipal Freedom of Information and Protection of Privacy Act. In Township of Scugog (Re), 2014 CanLII 50835 (ON IPC), the Information and Privacy Commissioner (IPC) ordered: the Township must disclose the sources of its fill. The case is a reminder of the precautions that must be taken when disclosing sensitive commercial information to any government.
Section 10(1) of the Municipal Freedom of Information and Protection of Privacy Act requires that a municipality “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 if that disclosure could result in one of the harms set out in subsections (a)-(d), such as prejudicing a competitive position, or resulting in undue loss or gain.
The IPC agreed that the source of the fill was “commercial” information because it could identify specific fill suppliers. However, it disagreed that the records were supplied “in confidence”. In reaching this conclusion, the IPC considered whether the information was:
- 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 person prior to being communicated to the government organization
- not otherwise disclosed or available from sources to which the public has access
- prepared for a purpose that would not entail disclosure.
The IPC found that the fill sources were not supplied to the township with an explicit expectation of confidentiality. Nor was there sufficient evidence to support their argument of an implicit expectation of confidentiality.
That a document is confidential will not be sufficient to protect it from disclosure – the third party must also show a reasonable expectation of harm. However, to reach that stage of review, the document must be “confidential” in the first place. To that end, there are a number of precautions that should taken. For example, ensure that documents are:
- Marked as confidential;
- Supplied under a cover letter explaining that the documents are confidential, and why, and that the company expects that the municipality will keep the documents in a separate folder, marked as confidential;
- Kept confidential internally – for example, employees, contractors, and others who have access to the information should treat treat the information as confidential; and
- Not posted publicly either by the company or any government entity such as a municipality or regulator.