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    NL Revises Guidance on Disclosure of Information Harmful to Third-Party Business Interests

    Jan 10, 2017

    Office of the Information and Privacy Commissioner (OIPC) of Newfoundland and Labrador issued a revised guidance document on December 23 detailing mandatory exceptions under the provincial Access to Information and Protection of Privacy Act (ATIPPA) when the disclosure would be harmful to the business interests of a third party. The guidance was revised following a decision by OIPC regarding a request for public records to the Department of Health and Community Services.

    On December 19, the OIPC recommended that detailed information about all consultants used by the Department of Health and Community Services be released to a requestor, despite a third-party complaint that the information should be withheld because it would give the applicant access to personal information. As outlined in the guidance, Section 39 of ATIPPA prohibits a public body from disclosing to an applicant information that would reveal trade secrets or other commercial information of a third party that is supplied in confidence, and which the disclosure could, among other things, create significant harm to the competitive position of the third party.

    “The burden of proving that the exception applies rests with the party relying upon the exception,” the guidance says. “A Public Body relying on section 39 to withhold information or a Third Party objecting to a Public Body’s decision to disclose must be able to ‘make the case.’ This means presenting detailed and convincing evidence that the exception applies.” 

    For third parties, OIPC’s guidance suggests that incorporating a statement of confidentiality in tendering documents is insufficient to excluding the application of ATIPPA. In addition, it recommends that public bodies include clauses in such documents noting that any information provided is, in fact, subject to the ATIPPA. 

     This monthly advisory contains brief summaries of recent legislative and regulatory issues that may affect the management of records and information in Canada.

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