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Info Source Bulletin Number 28

Minister of Public Works and Government Services Canada and The Hi-Rise Group Inc.

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

File No.:	A-225-03
Reference:	2004 FCA 99
Date of decision:	March 12, 2004
Before:	Rothstein, Noël and Sharlow JJ.A
Sections of ATIA / PA:	Ss. 20(1(b), 73 Access to Information Act (ATIA)

Abstract

Request for access to bidding documents respecting proposals to provide office accommodations
No reasonable expectation of confidentiality when contract granted
Public benefit not fostered by maintaining confidentiality of amounts paid out of public funds

Issues

Can a reasonable expectation of confidentiality be found following a successful bid for a government contract?
Is public interest fostered if amounts paid out of public funds are exempt from disclosure?

Facts

This is an appeal from a decision of the Federal Court (2003 FCT 430) allowing the application for judicial review by The Hi-Rise Group Inc. (the respondent) of a decision of the Minister of Public Works and Government Services Canada (the appellant) to release certain records.

Following a request for proposal in November 1999 to provide leased office accommodation for various federal government departments, the respondent received a number of proposals. All the proposals (including the respondent's) were submitted to a third party consultant for analysis. This consultant provided financial evaluations to the appellant (in the form of Net Present Value figures) based on information supplied by the bidders. The respondent was ultimately awarded the contract.

In May 2001, the appellant received a request for access to a copy of records containing "information on the bidding process". Since the records relevant to the request contained third party information, The Hi-Rise Group was asked to make submissions with respect to disclosure. The Hi-Rise Group objected to disclosure pursuant to paras. 20(1)(b), (c) and (d). When the appellant disagreed, the respondent sought judicial review.

The Federal Court Judge agreed with The Hi-Rise Group regarding para. 20(1)(b) and concluded that the documents in issue were exempt from disclosure. The Judge held, however, that the reasonable expectation of harm within the meaning of paras. 20(1)(c) or (d) had not been met.

The Minister of Public Works appeals the decision of the Federal Court on the ground that the Court erred in finding that the documents were "supplied" to a government institution by a third party. As well, the appellant alleges that the information is not "confidential information" within the meaning of para. 20(1)(b).

The respondent takes the position that the Trial Judge did not err in his analysis of para. 20(1)(b) and that findings of fact cannot be overturned in the absence of palpable and overriding error.

Decision

The appeal is allowed; the decision of the Federal Court is set aside.

Reasons

The burden of showing that a record falls within an exempted class lies upon the party seeking to prevent disclosure. In order for information to be exempt pursuant to para. 20(1)(b), the respondent must demonstrate, on a balance of probabilities, that the information falls within the following requirements:

The information must relate to financial, commercial, scientific or technical matters. The appellant concedes that the information falls within this requirement.
The information must be confidential in nature. This can be broken down further, as per Air Atonabee^[7]:
1. Whether the information content is already available to the public. There was no proof here that the information was publicly available.
2. Whether the information originated and was communicated in a reasonable expectation of confidence that it would not be disclosed. Based on two pieces of evidence, the Federal Court Judge determined that the information in issue had been communicated in a reasonable expectation of confidence and that this set of facts could be distinguished from Société Gamma^[8]. The Federal Court of Appeal concluded that the Federal Court Judge had erred in his reasoning and that the decision in Société Gamma needed to be followed. When a would-be contractor sets out to win a government contract through a confidential bidding process, he or she cannot expect that the monetary terms, in the event that the bid succeeds, will remain confidential.
3. Whether the relationship between the government institution and the third party would be fostered for the public benefit in keeping the information confidential: The Federal Court Judge distinguished this set of facts with the ones found in Société Gamma and concluded that it was in the public interest to maintain the confidentiality of the information. The Federal Court of Appeal disagreed with the Federal Court Judge: (1) it was not open to the Judge to base his assessment of public interest on the opinion expressed by an official of PWGSC who was not the official to whom the head of PWGSC had delegated his powers (i.e. the ATIP Coordinator); (2) absent special circumstances (such as national security), public benefit is not fostered by maintaining confidentiality. In the context of contractual obligations with third parties, public benefit is generally not fostered by maintaining confidentiality. The public has a right to know how the government spends public funds and thereby holds the government accountable for its expenditures.
The information must be supplied to a government institution by a third party: The appellant maintains that, although some of the variables used in the calculations were provided by the respondent, the information as such was developed by a third party consultant. The Federal Court Judge accepted the evidence before him that the release of the evaluations would allow a third party to calculate with reasonable certainty the annual rents and option prices and therefore held that the raw data supplied by the respondent and the evaluations prepared by the third party consultant were in fact one and the same record. The Federal Court of Appeal determined that it was open to the Federal Court Judge to make this finding based on the evidence before him. The information is therefore "supplied" by the respondent to the appellant within the meaning of para. 20(1)(b).
The information must be consistently treated as confidential by the third party. The appellant conceded that the information fell within this requirement.