InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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The High Rise Group Inc. v. Minister of Public Works and Government Services Canada
Indexed as: High Rise Group Inc. v. Canada
(Minister of Public Works and Government Services)

File No.:	T-1409-01
References:	2003 FCT 430; [2003] F.C.J. No. 602 (QL) (F.C.T.D.)
Date of decision:	April 11, 2003
Before:	Campbell J.
Section(s) of ATIA/PA:	S. 20(1)(b), (c), (d) Access to Information Act (ATIA)

Abstract

• S. 44 application to have bid evaluation information exempt from release
• Raw data supplied by third party and bid evaluations prepared thereon one and same record
• Reasonable expectation of confidentiality

Issues

Do evaluations of bids prepared by PWGSC contain information supplied to the government institution by the third party?

If the information was supplied to the government institution, does it otherwise meet the test for exemption under para. 20(1)(b)?

Is the information contained in the evaluation reports exempt from release pursuant to paras. 20(1)(c) and (d)?

Facts

PWGSC had issued a request for proposals for bids to provide leased accommodation for various federal departments. The applicant was the successful bidder. An Access to Information Act request was subsequently made for "the initial bidding documents showing the government's requirements for the building, a summary of the bids, and the department's bid evaluation showing the scores in each evaluation category for each bid". After consulting with the applicant, PWGSC determined that the information would not be exempt from release. The applicant has applied for a s. 44 judicial review of this decision .

Decision

The application for judicial review was allowed.

Reasons

Issue 1
The Court relied on the expert testimony filed on behalf of the applicant that, although the actual amounts provided by the applicant in its proposal could not be calculated with absolute certainty, the amounts could be calculated "within a fairly narrow range" from the information subject to being released. Based on this evidence, the Court found that the raw data supplied by the applicant in its proposal and the evaluation reports produced thereon by PWGSC constituted one and the same record.

Issue 2
The parties agreed that the information was financial information and the Court held that there was no doubt that the applicant treated the information as confidential. The only remaining issue was whether the information was "confidential information". Using the test laid out in Air Atonabee v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.) at 198, the Court concluded:

1. The applicant's evidence satisfied the part of the test that required that the information not be available from other sources;
2. The applicant had a reasonable expectation that the information it communicated to the government institution would be kept confidential. In this regard, the Court relied on a provision in the Request for Proposal that listed certain types of information that would not be kept confidential. Because the information at issue was not specifically listed in this clause, the Court found that the clause created a reasonable expectation that the information at issue would be kept confidential. Further, the Court relied on an internal PWGSC email indicating an employee's belief in the same reasonable expectation of confidence;
3. The relationship between the applicant and the government institution was one that would be fostered for the public benefit by protecting the communication as a confidential communication. In coming to this conclusion, the Court distinguished Strayer J.'s comments in Société Gamma v. Canada (Secretary of State) (1994), 56 C.P.R. (3d) 58 (F.C.T.D.) at 64 about how a would-be contractor should not expect to have the terms of his contract, along with the capacities his firm brings to the task, fully insulated from the disclosure obligations of the government as part of the government's regime of accountability. The fact that public money was going to be given to the applicant was an important factor but weight had to be given to the particular circumstances of this case. In this case, keeping the communication confidential was held to be in the public interest in order to ensure the integrity of the bidding process in the complicated lease and option to buy process at issue.

Issue 3
The applicant's evidence with respect to the applicability of paras. 20(1)(c) and (d) was held to be mere speculation. As such, the applicant was not able to meet its onus.

Comments

The Attorney General of Canada has appealed this decision.

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