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Third parties under FOIP and LA FOIP (updated)

September 21, 2023 - Ron Kruzeniski, Information and Privacy Commissioner

In other blogs I have talked about public bodies and third parties (businesses). If a public body is a city, town or municipality, legislation like section 91of The Cities Act or section 117 of The Municipalities Act requires the release of contracts, and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) requires the same unless part of the contract falls under one of the exemptions. Public bodies like government ministries, boards, agencies and Crown corporations are bound by The Freedom of Information and Protection of Privacy Act (FOIP) and contracts are released unless they come under subsection 19(1).

As we provide advice or begin a review, it always seems the third party expects the entire agreement to be withheld because the third party does not want any of the information released.

Many clauses in an agreement do not disclose sensitive information. Clauses like the singular includes the plural and successors to the parties are bound to not disclose sensitive information. So, in many of the cases, the entire contract will never be withheld.

Third parties sometimes want all correspondence and reports related to the project withheld. Again, they have to show that individual items fall under subsection 19(1) of FOIP and subsection 18(1) of LA FOIP. Some rely on a clause in the contract that all will be kept confidential. I remind both public bodies and third parties they cannot contract out of the law of the province. FOIP and LA FOIP apply in spite of a confidentiality clause in a contract.

Public bodies and third parties sometimes are concerned that the applicant will distribute the documents or publish them. As a citizen, the applicant has the right to documents unless subsection 19(1) of FOIP or subsection 18(1) of LA FOIP applies. The intention or anticipated actions of the applicant are irrelevant in a FOIP or LA FOIP context. Some third parties are more concerned when it is the media applying. The media has the same right to the information. What might the media do with the documents? The answer is, obviously, they will analyze and might write a story. That is part of the democratic process.

If after thinking about the above, a third party intends to object to the release of documents, they will have to move quickly. They have 20 days after they receive notice. The public body is bound to give the applicant a response to the access request within 30 days (or 60 days if an extension is decided upon). If the public body failed to respond to the applicant in 30 days (or 60 days) my office will consider that the public body has decided not to respond, and it is treated as a deemed refusal.

Third parties should, where they enter into contracts involving taxpayer funds, not expect total confidentiality and should read subsection 19(1) of FOIP and subsection 18(1) of LA FOIP.

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