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Overview
Alberta Government departments, agencies, boards and commissions enter into a variety of contractual arrangements to carry out their functions. These contractual arrangements can vary from a simple agreement between the public body and a contractor for the supply of goods or services, to a multi-year cooperative arrangement where the roles, participation and contributions of each party will change over the term of the contract. A public body may also enter into an arrangement with another public body or private-sector organization to implement a program or project of mutual interest. For any formal arrangement, there is likely to be some form of written agreement or contract (in the case of agencies of the Crown, this agreement is likely to be a Memorandum of Understanding).
The complexity and term of the arrangement will dictate the amount of detail the contractual document will contain. The roles and responsibilities of each party must be set out in the body of the contract, and may be detailed in a schedule to the contract or in an ancillary agreement, such as an information-sharing agreement.
It is up to the public body, with the help of its legal advisors, to decide on the structure of its contractual arrangements. Whatever the arrangement entered into and the documentation used to record it, the public body must, in each situation, take into consideration the issues relating to access to information and protection of personal information that may be exchanged with the contractor or generated as a result of the contractual arrangement.
This chapter provides an overview of the more common types of contractual arrangements entered into by government departments and other government bodies, and some of the access and privacy considerations that typically arise in contracts and agreements. The contractual arrangements discussed are:
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purchase agreements for the acquisition of goods,
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rental agreements and leases for business equipment,
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software licensing agreements,
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fee-for-service contracts,
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contracting for service delivery,
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privatization arrangements,
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public–private partnerships (P3s),
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agreements relating to common or integrated programs or services,
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information-sharing agreements,
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grant agreements, and
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agreements where the public body is the service provider.
Throughout this Guide the terms “contract” and “agreement” are used in accordance with common practice; no legal distinction should be implied.
A public body will generally use a purchase order to acquire goods from a private-sector vendor. The purchase order is a binding commitment when the purchase order is issued. A public body may also have ongoing contracts with specific vendors (for example, Standing Offer Agreements) for the supply of certain goods over a period of time at an agreed price. In either situation, the public body will have custody of the records it creates or receives in the course of the transaction. These would include a written contract, copies of purchase orders, invoices, and payment records.
Generally speaking, no specific terms relating to the FOIP Act and the RMR are required for a simple contract to purchase goods. Any personal information that may appear in such a contract is typically business contact information, which can be disclosed in accordance with section 40(1)(bb.1) of the FOIP Act. This provision permits the disclosure of an individual’s name and business contact information (business title, address, telephone number, facsimile number, and email address), provided that the disclosure does not reveal other personal information about the individual or personal information about another individual.
If a department is dealing with a new supplier, it may be helpful to advise the supplier that government purchasing may be subject to review, including public review on the part of elected officials and media exercising the right of access under the FOIP Act, but that the Act does not permit the disclosure of confidential business information of a third party if disclosure would cause significant harm to the business.
Related sections of this Guide
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Chapter
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Drafting the contract: FOIP access to information requests
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6.4; esp. cl. Nn
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Public bodies regularly rent or lease business machines, partly to facilitate the upgrading of these machines as newer models become available. Many newer-model business machines, such as digital photocopiers and fax machines, have the ability to record and store information – memory chips and hard drives are not limited to computers.
Access and privacy considerations
While newer business machines may have additional features and enhanced capability for processing information, they may also pose a risk to the security of government information. For example, an unauthorized person may be able to retrieve information from a previous transaction, or be able to remove the storage device. These risks apply whether the equipment is purchased or obtained under a rental agreement or lease. However, government standards for the protection of information on the hard drives of equipment that is being disposed of ( Security Policy for Disk Wiping Surplus Computers, produced by Service Alberta) do not apply in the context of rental agreements and leases unless specified in the agreement or lease. This means there is a risk of unauthorized access to stored information when a machine is returned to the vendor at the end of the lease or rental period.
Alberta’s Information and Privacy Commissioner addressed these concerns in a news release and backgrounder (“Photocopiers and Fax Machines Latest Security Risk,” March 15, 2005) and specifically recommended consideration of service contracts and lease agreements to ensure appropriate security for data contained in a storage device and provisions for the protection of stored information when the machine is returned to the supplier.
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