Open Government: a journal on freedom of information, Vol 5, No 2 (2009)

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When Contract Negotiations No Longer Protect Your Business Interests: The Strange World Of Third Party Business Interests Under Freedom Of Information Legislation

Emir Aly Crowne-Mohammed, Mohamed Hashim

Abstract


Applicants requesting access to a governmental record relating to an outsourcing arrangement (or similar type of arrangement) will invariably expose third party business interests due to the nature of those outsourced obligations. The burden will always rest with the third party to demonstrate that the information in question satisfied all three (3) limbs of the statutory provision – namely, that it was sensitive business information supplied in confidence that would result in a loss of competitiveness (whether in terms of negotiating leverage, or overall marketplace/economic competitiveness). It is the term ‘supplied’ that will receive the bulk of my attention in this article. I aim to show that the term has been interpreted and applied in an artificial, arcane and unreasonable manner by the Information and Privacy Commissioner (although, the focus of this article will be British Columbian law, primarily due to the sheer number of outsourcing decisions rendered by that Province’s Office of the Information and Privacy Commissioner).

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