ACCESS TO INFORMATION
Application under Access to Information Act, s. 44 for review of decision by Public Works and Government Services Canada to disclose quantity of doses, volume ranges in $50 million contract for supply by applicant of influenza virus vaccine—Whether information to be disclosed in contract exempt from disclosure under Act, s. 20(1)(b), (c), (d)—Applicant manufacturing vaccine for influenza virus—Awarded contract by Public Works for supply of vaccine—Applicant objecting to release of portions of contract containing unit prices per dose of vaccine, quantities of doses, volume ranges used to determine prices per dose—Since Access to Information and Privacy Office of Public Works (ATIP Office) determined unit prices exempt under s. 20(1)(b), (c), applicant claiming information allowing third party to determine approximate unit prices should also be exempt from disclosure—In order to bring information in question within exemption set out in s. 20(1)(b), applicant must establish information: (1) financial, commercial, scientific or technical; (2) confidential; (3) supplied to government institution by third party; (4) treated consistently in confidentiality manner by third party—Conditions 1, 4 met—Moreover, applicant consistently treating information in confidential manner—As to condition 2, requirements to be met in order for information to be considered confidential set out in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.)—Both applicant, Public Works accepted, expected unit prices per dose paid under contract would remain confidential while total contract price would be made public—Expected other information in contract which would disclose unit price would also remain confidential—Public Works cannot now say unit prices confidential, then propose to disclose part of contract which will enable confidential part to be easily calculated—Decision by Public Works to withhold unit prices from disclosure not under review, only decision to disclose information that would allow third party to calculate approximate unit prices—As to condition 3 (supplied to government institution), applicant has established information met conditions for exemption from disclosure under Act, s. 20(1)(b)—Obiter: Public Works ought to inform parties during bidding process whether financial terms of contract, after awarded, public funds committed to it, will remain confidential—In case at bar, government intending total contract price would be public, but unit prices per dose would remain confidential—Québec Sponsorship Scandal underlining importance of making government contracts public, transparent unless contrary to public interest—Thus, Public Works should make clear at outset of bidding process whether ultimate contract will be disclosed, or whether parts of it will be kept confidential in public interest—Information in question falling within exemption in s. 20(1)(c)—Disclosure of information could reasonably be expected to prejudice competitive position of applicant in upcoming bids, to result in financial loss to applicant—Application allowed—Access to Information Act, R.S.C., 1985, c. A-1, ss. 20, 44.
Aventis Pasteur Ltd. v. Canada (Attorney General) (T-808-02, 2004 FC 1371, Kelen J., order dated 7/10/04, 17 pp.)