Confidential Business Information

4.9
Confidential Business Information

Where it is important to include confidential business information within a contract, a good practice is to set out the confidential information in a schedule rather than in the body of the agreement. This will facilitate severing in response to an access request. Exceptions to disclosure in response to a FOIP request are discussed in Appendix 2.

Another issue that may arise in relation to confidential business information is disclosure for the purpose of reviewing fees and charges for services to clients. Review of fees and charges stems from a decision of the Supreme Court of Canada in 1998. The Court declared in the Eurig Estate case that probate fees charged in Ontario, which had been established by regulation, were unconstitutional. The Court ruled that, since the revenue collected was much greater than the cost of providing this compulsory service, the fee should be considered a tax and must therefore be authorized by legislation.

Following that decision, Alberta established a Fees and Charges Review Committee, which released a report to the Government in 2000. In this report, the Committee established a guiding principle for the review process: where a compulsory charge is a genuine fee for service, the fee should reflect the cost of providing the service.

The Government accepted and continues to apply this guiding principle. If a contractor is authorized to charge a user fee for the services it provides to public users on behalf of the government (for example, licensing or inspection services), the fee may require Government approval. Departments must obtain approval of their Senior Financial Officer for new or amending regulations that introduce a change in fees or charges.

Where a number of organizations deliver the same service on a competitive basis, the information used to determine the fee may be considered competitive commercial information, which the public body has an obligation to protect. A public body that manages agreements involving fees and charges needs to ensure that it communicates the rationale, the review process and the protections provided for business information to the organizations concerned.

The measures that a public body may wish to consider include

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  consulting with the department’s Senior Financial Officer to determine whether the proposed method of cost recovery through user fees to be charged by the contractor will require Government approval, the process and information required to secure the approval, and the confidentiality of any cost information submitted to the committee;
  
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  setting out this requirement in the RFP or other communication to prospective contractors and explaining that the final contract, or at least the fee schedule of the contract, may not be executed until Government approval is secured; or
  
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  indicating the type of cost information that the contractor may be required to provide and the protection provided to that information in the event of an access request under the FOIP Act.
  

5.
Pre-contracting Processes

5.1
Overview

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  the implications of a proposal to enter into a contract are understood,
  
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  the contractor can make an informed assessment of the responsibilities involved in the contract, and
  
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  the full cost of compliance is recognized.
  

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  development of the business case for a business initiative involving sensitive personal information,
  
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  the Privacy Planning Tool required for all IT projects,
  
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  the Privacy Impact Assessment (PIA),
  
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  the assessment of the privacy capabilities of smaller contractors,
  
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  the organization of records prior to implementing an alternative service delivery initiative, and
  
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  the solicitation or tendering process, from the initial stage of communicating the requirements of the contract to the final disposition of submissions.

  Table 1 provides a summary of risk mitigation strategies in tendering documentation and contracts.

  
  

Directory: foip -> documents
documents -> Privacy Impact Assessment (pia) Questionnaire to assess the protection of privacy as per Part 2 of the Freedom of Information and Protection of Privacy Act (foip act) pia: {pia name or Number}
foip -> Ms. Sharon Pollyck Mgr of Leg. Serv. & Corp. Comm. City of Airdrie 400 Main Street se

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