Confidentiality Risks of Doing Business With the Public Sector Just Got Riskier: Completed NS Access to Information Requests Go Online

Doing business with the public sector creates an often overlooked – but very real – risk that the confidential information a business typically discloses when responding to a public sector Request for Proposal or Expression of Interest or seeking government financing will end up in a competitor’s hands.

A business responding to a NS (or any) public sector body’s RFP to provide a particular good or service will typically be required to provide a broad range of business & financial (including pricing), customer and client, and/or employee information. Much of this information is highly sensitive and valuable commercial information that if disclosed to a competitor would give it several competitive advantages and could lead to undue financial loss to the information owner. Completely eliminating these inherent confidentiality risks means eliminating the public sector as a customer or an investor – not a viable or desirable strategy for most businesses – so they must include in their risk management strategy mitigation of the risk of disclosure of their confidential information.

Here’s why doing business with the Nova Scotia government  got riskier – and the importance of such risk mitigation strategies more important – as of January 2017:

• On January 10, 2017, the Nova Scotia Information and Privacy Commissioner’s Office announced, via Twitter, that the Nova Scotia government will now post all completed non-personal Freedom of Information and Protection of Privacy Act (FOIPOP) requests on the Province of Nova Scotia’s website. It’s not yet clear whether other NS non-government department public sector organizations such as universities, school, hospitals and municipalities will follow suit and disclose FOIPOP materials.
• Full disclosure. The post contains the public body’s full disclosure in response to the access to information request – not merely the fact of the request, a copy of the request or a summary of it.
• Broad access. Anyone, not only the party that made the access to information request, can access this (searchable) website listing. This means that anyone, not just the party that made the request, can access all of the information that an NS public body discloses in response to an access to information request. As of now, it appears the Province has posted a total of nine completed disclosures going back to a completion date of December 15, 2016.

Nova Scotia joins the Federal government and only four other Provinces / Territories currently offer completed access to information requests available online:

None of the Provinces / Territories of Ontario or Alberta (most notably) or  New Brunswick, Northwest Territories Nunavut, Prince Edward Island, Saskatchewan or Yukon (perhaps due to their smaller size and likely fewer resources) make information about specific access to information requests or information disclosed pursuant to such requests available online. Typically, however, these as well as the others, do post annual reports with statistics about requests and responses.

The sharing of such information, whether on-line or otherwise, should respect the statutory restrictions about responding to access to information requests. Personal information is redacted (as it would be for the applicant receiving the response); Newfoundland and Labrador and Nova Scotia further specify on their websites that no requests for personal information are included in their on-line platforms. Other considerations for withholding information requested may come into play, for example protecting business confidentiality, on-going negotiations, trade secrets, or ensuring the administration of justice and public security aren’t affected.

Please contact your McInnes Cooper lawyer or any member of the Privacy Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2017. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.