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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

Brookfield Lepage Johnson Controls Facility Management Services v. Minister of Public Works and Government Services
Indexed as: Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services)

File No.:	T-2337-00
References:	2003 FCT 254; [2003] F.C.J. No. 348 (QL) (F.C.T.D.)
Date of decision:	February 28, 2003
Before:	Layden-Stevenson J.
Section(s) of ATIA/PA:	S. 20(1)(a), (b), (c) Access to Information Act (ATIA)

Abstract

"Rhetorical presentation" not trade secret
Confidentiality agreements not trumping ATIA
Generic and general information not inherently confidential
General statements of possible harm not meeting para. 20(1)(c) test

Issue

Whether paras. 20(1)(a), (b) and (c) ATIA apply to the records at issue.

Facts

The applicant provides professional facility management services to property owners and tenants across Canada.

The respondent issued a request for proposals for the management of its properties in eastern Quebec and also issued twelve other requests for proposals relating to management of its properties in other parts of Canada. In colloquial terms, the respondent called for "privatisation" proposals. When it did so, bidders were requested to specify any information considered to be proprietary and therefore not subject to disclosure without consent, or use by government for any reason other than evaluation of the proposal.

The applicant prepared and submitted bids for each of the proposals and was the successful bidder in all thirteen procurements. In submitting its bid, the applicant's title page contained a statement to the effect that the information contained in the document "is proprietary" to the applicant and that use or disclosure, except for purposes of evaluation of the proposal, "is prohibited" without the applicant's written permission.

A request for access to information regarding two of the portfolios was made and later amended to require information about specific portions of the portfolios. After reviewing the records responsive to the request, the respondent determined that the records contained "third party" information relevant to the applicant and notified the latter. Upon review of the applicant's submissions, the respondent determined that there existed insufficient justification to prevent disclosure of the records. It informed the applicant of its decision to release the requested records with specific portions and pages deleted. The applicant seeks judicial review against the decision to release.

Decision

The application was dismissed with costs to the respondent.

Reasons

Para. 20(1)(a)-Trade secrets
The applicant argued that its unique formula for responding to requests for proposals is a trade secret under para. 20(1)(a). According to the applicant, a trade secret does not have to be something of a scientific or technical nature but can include art, craft and rhetorical design. A trade secret would include information that is not confidential, but is nonetheless worthy of protection because of the circumstances of its presentation. Thus, it submitted that, to the extent that the records in issue are not confidential, they are a trade secret by virtue of presentation.

The applicant's "rhetorical presentation" did not constitute a trade secret. The "presentation" constituted no more than what one would expect of any individual attempting to secure employment, a contract, placement in a specific program at an educational institution and so on. The "technique" consists of nothing more than the age-old skill of putting the punch in the first paragraph and creating a positive first impression. This is not a trade secret by definition.

Para. 20(1)(b)-Confidential information
The applicant argues that the information in the records, which concerned its human resources policies and the various benefits it provides to its employees, was protected under para. 20(1)(b). The respondent conceded that the information was provided by the third party and that it consistently treated the records as confidential. The Court, albeit with reservation, assumed that the records contained commercial information.

The remaining issue was whether the information was confidential in an objective sense. While confidentiality agreements may be taken into account, they cannot override or trump the express statutory provisions of the Act. The applicant's characterization that all information was "proprietary" do not suffice to make it confidential in an objective sense: Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.).

Of greater significance were the comments made by Strayer J. in Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.). Relying on Société Gamma, the Court found that the records consisted of generic and general information that was not of an inherently confidential nature. Also relying on Promaxis Systems Inc. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4th) 204 (F.C.T.D.), the Court found that, for reasons of public policy, the information was not confidential information within the meaning of para. 20(1)(b), however it may have been treated and considered by the applicant.

Para. 20(1)(c)-Harm to competitive position
The applicant submitted for various reasons that there existed a reasonable expectation of harm to its competitive position if the records were disclosed.

The Court concluded that, aside from general statements of possible harm, the applicant failed to provide evidence that there exists a reasonable expectation of probable harm if the records in question were released. Specifically, the applicant's statements regarding prejudice that may occur were of a general nature and failed to provide insight as to how the competitors might use the record so that the applicant will sustain a reasonable expectation of probable harm.