This article is an excerpt from Government Procurement, which is available for purchase.
In its November 2014 judgement in HKSC Developments L.P. v. Infrastructure Ontario, the Ontario Superior Court of Justice ordered the disclosure of information contained in a contract awarded by Infrastructure Ontario to HKSC Developments L.P. notwithstanding HKSC’s objections to that disclosure.
As the court summarized, the dispute arose over a public access request for information contained in a contract between Infrastructure Ontario and HKSC for the development, design, construction and partial financing of highway service centres on Highways 400 and 401 in Ontario that was awarded pursuant to a competitive bidding process:
3 Infrastructure Ontario is the Crown agency responsible for delivering public infrastructure improvements to Ontario. It uses a model called “Alternative Financing and Procurement” in which the public sector determines the purpose and scope of a project while a private sector partner, usually taking the form of a consortium, finances and builds the projects. After a two year procurement process, HKSC was the successful bidder for a project commissioned by the Ministry of Transportation and Infrastructure Ontario to develop, design, construct and partially finance highway service centres on Highways 400 and 401 and to operate and maintain the service centre portfolio under a long term concession agreement. As part of the confidential tender process in the bidding phase of the project, HKSC was required to provide the information to Infrastructure Ontario.
4 In June 2010, an individual (the “requester”) submitted an access to information request for a copy of the “Alternative Financing and Procurement” contract between the Province of Ontario and HKSC (the “Agreement’). Infrastructure Ontario responded that a copy of the Agreement was published on the Infrastructure Ontario website. The requester appealed to the Commissioner and took the position that a large portion of the Agreement was redacted. Infrastructure Ontario refused to provide the redacted portions of the Agreement on the basis that they fell within the exemptions in sections 17 (third party information) and 18 (valuable government information; economic and other interests) of the Act.
After the parties could not agree on the amount of information that could be disclosed, the matter ultimately escalated to the Ontario Information and Privacy Commissioner pursuant to Ontario’s Freedom of Information and Protection of Privacy Act. This resulted in an adjudicator’s order to disclose most of the requested information. HKSC took issue with that order, arguing that the information was protected under the confidential business information exemption in the Act. However, the adjudicator had ruled that information in question did not fall under the relevant statutory exemption since the information had not been “supplied in confidence” to the government as required by the relevant statutory provisions:
8 The IPC adjudicator delivered a 23 page order. He noted at paragraphs 18-19 of IPC Order PO-3011 that “Section 17(1) is designed to protect the confidential ‘informational’ assets’ of businesses or other organizations that provide information to government institutions”. He further commented that, while a central purpose of the Act is “to shed light on the operations of government, section 17(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace.” The IPC adjudicator then outlined the three-part test approved by the Ontario Court of Appeal in Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.), at para. 22, for determining whether the exemption in s. 17(1) applied:
1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information;
2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and
3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paragraph (a), (b), (c) and/or (d) of section 17(1) will occur.
In the disclosure order, the adjudicator had noted that the party opposing disclosure had the onus of meeting the three part test and that, in the circumstances, HKSC had failed to meet that test since the information in question had not been “supplied in confidence” to the government but had been produced in the course of extensive negotiations between HSKC and the government institution. The court upheld the adjudicator’s disclosure order on that basis:
31 It should be noted that HSKC knew from the outset that the Act applied to these transactions with government and that the Province must comply with its provisions. The standard of review of the interpretation and application by the Commissioner of the meaning of the word “supplied” in s. 17 is reasonableness. In our view, the IPC’s decision that the third party exemption does not apply to the information ordered disclosed was done after a careful analysis of s. 17(1) and the three part test endorsed by the Court of Appeal in Ontario (Worker’s Compensation Board). The Commissioner’s approach in this case was consistent with the approach taken in other cases interpreting s. 17(1) and approved of in Boeing Co. v. Ontario (2005), 200 O.A.C. 134, 2005 CanLII 24249 (Ont. S.C. – Div. Ct.) at paras. 18-20. Those cases have found that information in a contract is typically the product of a negotiation process between the parties. The content of a negotiated contract involving a government institution and another party will not normally qualify as having been “supplied”: Boeing, at para. 18; Kitchener (City) v. Ontario (Information and Privacy Commissioner), 2012 ONSC 3496 (Div. Ct.), at para. 10.
32 In this case, HKSC concedes that it negotiated the final terms of the Agreement with Infrastructure Ontario over a period of seven months after it was awarded the contract in a tender process in August 2009. Moreover, while it describes the Agreement as unique and distinguishable from the other circumstances in which courts have found that the content of a negotiated contract is not supplied, it was unable to point to more than the complexity and length of the Agreement. This is a quantitative but not a qualitative distinction. It does not support HKSC’s contention that the principle applied in Boeing is inapplicable in the present circumstances.
33 The IPC adjudicator’s conclusion that a detailed agreement like the one in this case was the result of negotiations was a reasonable one. HKSC bears the onus in this case of discharging the presumption that information forming part of a contractual agreement constitutes part of its negotiated terms even where it originated with a third party. The applicant has not met that onus. The IPC adjudicator reasonably concluded that the agreement was the result of negotiations and that the records do not reveal information of the applicant actually supplied to the Ministry. He applied the appropriate test consistent with past decisions to the records before him. In no way did he fetter his discretion by considering those earlier decisions of the IPC.
As this case illustrates, a party that opposes the disclosure of information requested under public access laws has the onus of establishing why that information should be protected. In this instance, the contractor failed to meet that test since the information created in the course of post-bid negotiations between the contractor and the government agency did not fall within the meaning of “information supplied in confidence”. Rather, that information was considered to be jointly created by the parties during negotiations, and public interest considerations favoured the disclosure of that information to better ensure the transparency of the government contracting process.
