In its September 2023 ruling The City of Richmond Hill (Order MO-4440), Ontario’s Information and Privacy Commissioner denied a public access request made pursuant to Ontario’s Municipal Freedom of Information and Protection of Privacy Act after concluding that a winning bidder’s documents were protected by applicable confidentiality rules.
The case dealt with a municipal tender call for a storm sewer project. The public access request called for a list of all the bidders “and their total bid price, plus the complete submission document including Schedule of Prices” for the winning bidder. The City denied the latter request on the grounds that the winning bidder’s documents contained confidential business information. The requester appealed to the Commission. The Commission denied the appeal after concluding that the requested information fell under a municipal public access law exemption that protects against the disclosure of confidential business information when its disclosure could reasonably be expected to result in harm to the business that originally provided the information to the government.
As the Commission noted, the governing three-part test for denying disclosure under the municipal public access law required that the information in question: (i) must be a trade secret or scientific, technical, commercial, financial or labour relations information; (ii) must have been supplied to the institution, either explicitly or explicitly, in confidence; and (iii) must give rise to a reasonable expectation of harm if disclosed.
The Commission determined that the requested bid documents met that three-part test since: (i) the documents contained financial and commercial information including detailed pricing information and technical information regarding environmental compliance; (ii) the documents were provided by the bidder under a reasonable expectation that the information would be kept confidential under the rules contained in the City’s procurement by-law and tendering documents; and (iii) the disclosure of the winning bid documents could reasonably be expected to cause harm to the winning bidder since “the detailed pricing information contained in the winning submission could reasonably be expected to be used to undercut the prices of the affected party, and potentially prejudice their economic position or cause undue loss.”
However, while ruling against the disclosure of the winning bid documents, the Commissioner ordered the City to release the internal bid award summary prepared by the City, which contained the final bid price, but did not include the unit prices or other detailed financial information. As this case illustrates, public institutions are under a duty to protect confidential bidder information and must be careful to limit how much of that information they release in response to a public access request or disclose as part of the public reporting of contract awards.
