Confidentiality Clauses in Contracts (updated)
A lot of our work centers around a citizen wanting a contract that a ministry, city, town or municipality has entered into. The public body does not want to release it, for among other reasons, the contract has a confidentiality clause.
The Cities Act and The Municipalities Act specifically provides that a citizen can inspect a contract entered into. See Review Report 049-2021 at paragraph [89]. The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) both provide that a citizen has access to records unless a particular section exempts the public body having to release some of the clauses. Section 19 of FOIP and section 18 of LA FOIP provide certain exemptions but there is no exemption just based on the parties wanting to keep the information confidential. A confidentiality clause in a contract might bind the parties but the clause cannot override the law of the land.
Third parties and businesses need to know when they deal with public bodies supported by tax dollars that their contract will probably be released. No confidentiality clause, however well drafted, can override the law. See Review Report 205-2019, 255-2019 at paragraph [95].
Now I have mentioned there are some exemptions. Section19 allows for information regarding trade secrets; financial, commercial or labor relations information can be withheld.
If an exemption applies, like trade secrets information, that information can be withheld but that does not justify withholding the entire contract. The public body might be entitled to sever the exempted information but would be obliged to disclose the rest.
So I hope over time businesses dealing with public bodies come to accept that being transparent in a democracy is important and their contracts will be available to be examined by citizens.