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:
Nova Scotia joins the Federal government and only four other Provinces / Territories currently offer completed access to information requests available online:
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 firstname.lastname@example.org.
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 email@example.com.