When faced with a multi-pronged test, a tribunal must not rely on a broad-brush approach, but must engage in a thorough analysis of the entire test, reviewing all the evidence before it

Administrative law – Decisions reviewed – Privacy Commissioner – Disclosure of records – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness

Plenary Group (Canada) Ltd. v. British Columbia (Minister of Technology, Innovation and Citizens’ Services), [2018] B.C.J. No. 506, 2018 BCSC 444, British Columbia Supreme Court, March 20, 2018, D.W. Thompson J.

The petitioner sought a government contract to build and maintain the Okanagan Correctional Centre. A journalist, Mr. Fries, sought disclosure of the documents submitted in support of the contract. Some of the information was withheld. The Ministry of Technology, Innovation and Citizens’ Services’ position was that the information was withheld to avoid harm to the petitioner’s business interests. The Office of the Information and Privacy Commissioner (“OIPC”) convened an inquiry when Mr. Fries requested a review of the Minister’s decision. The OIPC ordered the Ministry to provide Mr. Fries the information.

The petitioner and the Minister argued the adjudicator misapprehended evidence and applied the wrong test, and therefore arrived at an unreasonable decision.

The withheld information was two documents attached to the contract. The first was approximately a six hundred-page financial model, the second was a six-page construction schedule with start and finish dates for each task. The petitioner and the Minister argued these documents fell within the statutory exception for confidential commercial information, at s. 21(1) of FIPPA. In considering whether the information fell within the exception for commercial information that is “supplied, implicitly or explicitly, in confidence,” the OIPC found the two documents were commercial, and financial, but found the information was not “supplied” and therefore did not consider the “in confidence” portion of the test, or whether disclosure could cause harm.

The OIPC found that information in a contract is a product of negotiations and so the information was not “supplied.” In this, she relied on the Request for Proposals disclaimer regarding negotiation of changes and of funding arrangements. Even though the withheld documents had not in fact been changed due to negotiation, the OIPC had found they were susceptible to change due to the RFP specifications, and this was sufficient.

The court reviewed the OIPC decision on the basis of reasonableness as well as procedural fairness with respect to the review and interpretation of the contract. The court held the OIPC had not undertaken the necessary analysis to determine which information had been the product of negotiation, and which was not. The court found this was not an occasion where a broad brush approach was acceptable. It was unreasonable for the OIPC not to review the entire statutory provision along with the nature of the information, and the evidence and submissions of the parties in relation to that information. The court remitted the matter to the OIPC to determine whether the confidential commercial information exception applies to the two documents.

This case was digested by Kelsey A. Rose, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kelsey A. Rose at krose@harpergrey.com.

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