David Fraser
David Fraser, Lawyer, McInnes Cooper
Carole Chan
Carole Chan, Lawyer, McInnes Cooper
 

Doing business with the public sector creates an often overlooked – but very real – risk that the confidential information a business typically discloses when responding to a public sector Request for Proposal or Expression of Interest or seeking government financing will end up in a competitor’s hands.

A business responding to a NS (or any) public sector body’s RFP to provide a particular good or service will typically be required to provide a broad range of business & financial (including pricing), customer and client, and/or employee information. Much of this information is highly sensitive and valuable commercial information that if disclosed to a competitor would give it several competitive advantages and could lead to undue financial loss to the information owner. Completely eliminating these inherent confidentiality risks means eliminating the public sector as a customer or an investor – not a viable or desirable strategy for most businesses – so they must include in their risk management strategy mitigation of the risk of disclosure of their confidential information.

Here’s why doing business with the Nova Scotia government  got riskier – and the importance of such risk mitigation strategies more important – as of January 2017:

  • Online. On January 10, 2017, the Nova Scotia Information and Privacy Commissioner’s Office announced, via Twitter, that the Nova Scotia government will now post all completed non-personal Freedom of Information and Protection of Privacy Act (FOIPOP) requests on the Province of Nova Scotia’s website. It’s not yet clear whether other NS non-government department public sector organizations such as universities, school, hospitals and municipalities will follow suit and disclose FOIPOP materials.
  • Full disclosure. The post contains the public body’s full disclosure in response to the access to information request – not merely the fact of the request, a copy of the request or a summary of it.
  • Broad access. Anyone, not only the party that made the access to information request, can access this (searchable) website listing. This means that anyone, not just the party that made the request, can access all of the information that a NS public body discloses in response to an access to information request. As of now, it appears the Province has posted a total of nine completed disclosures going back to a completion date of December 15, 2016.

Nova Scotia joins the Federal government and only four other Provinces / Territories currently offer completed access to information requests available online:

  • Federal: A searchable list of past completed access to information requests (summaries only) as of January 2015; website visitors can obtain the information disclosed in such completed requests by making a new request electronically at no charge
  • BC: A searchable list of the full response (disclosure letter or information released) in response to the access to information request as of July 2011
  • MAN: A weekly list of summarized access to information requests and a cumulative list of access to information requests and the information disclosed in response to such requests as of July 2016
  • NL: A list of the full response (disclosure letter or information released) in response to the access to information request as of April 23, 2013.  Information is automatically posted 3 after the info is sent to the applicant via e-mail or 5 days after if via mail
  • NS: A searchable list of the full response (disclosure letter or information released) in response to the access to information request as of December 2016.  Information is automatically posted 7 days after the information is sent to the applicant
  • QC: No centralized posting; the publicly available information varies by individual government body (see, for example, the Commission d’accès à l’information du Québec posts a list of requests received as of April 1, 2015)

None of the Provinces / Territories of Ontario or Alberta (most notably) or  New Brunswick, Northwest Territories Nunavut, Prince Edward Island, Saskatchewan or Yukon (perhaps due to their smaller size and likely fewer resources) make information about specific access to information requests or information disclosed pursuant to such requests available online. Typically, however, these as well as the others do post annual reports with statistics about requests and responses.

The sharing of such information, whether on-line or otherwise, should respect the statutory restrictions about responding to access to information requests. Personal information is redacted (as it would be for the applicant receiving the response); Newfoundland and Labrador and Nova Scotia further specify on their websites that no requests for personal information are included in their on-line platforms. Other considerations for withholding information requested may come into play, for example protecting business confidentiality, on-going negotiations, trade secrets, or ensuring the administration of justice and public security aren’t affected.

To discuss this or any other legal issue, contact any member of McInnes Cooper’s Privacy Law Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2017.  All rights reserved.

About the authors:

David Fraser is a lawyer with McInnes Cooper and leads its Privacy Law Team. David is recognized as a foremost Canadian technology and privacy lawyer and regularly advises a range of clients – from start-ups to Fortune 100 companies – on all aspects of privacy and technology laws. You can reach David at david.fraser@mcinnescooper.com.

Carole Chan is a member of the Privacy Law Team @ McInnes Cooper. Carole has deep experience providing risk management advice, particularly in the energy and natural resources sectors, in commercial and property transactions, public private partnerships (P3), regulatory drafting and policy development. You can reach Carole at carole.chan@mcinnescooper.com.