Digests

Hi-Rise Group Inc. v. Canada (Minister of Public Works and Government Services)

A-225-03

2004 FCA 99, Noël J.A.

12/3/04

15 pp.

Appeal from Federal Court decision allowing judicial review application by Hi-Rise Group Inc. (respondent) of decision by head of Public Works and Government Services Canada (appellant) to disclose certain documents pursuant to request made under Access to Information Act (Act)--Issue whether documents, release of which would reveal annual rents paid by appellant for office building, exempt from disclosure under Act, s. 20(1)(b)--Federal Court found five documents in issue exempt from disclosure on ground release would reveal confidential information--Clear from Act, s. 2(1) intent of Parliament to make access to government- controlled information the rule and to ensure exemptions limited, specific--Burden of proving records within exemptions on party opposing disclosure--In particular, respondent must establish information in issue: (a) financial, commercial, scientific or technical; (b) confidential; (c) supplied by it to government institution; (d) treated by it consistently in confidential manner--Appellant conceded requirements (a), (d) met--Regarding second consideration, Federal Court recognized demonstration information communicated in reasonable expectation of confidence had to be made by reference to objective evidence--Held paragraph 12 of Request for Proposals had effect of creating reasonable expectation of confidence on part of respondent with respect to information not itemized--Further found information in issue communicated in reasonable expectation of confidence --Federal Court erred in not applying Société Gamma Inc. v. Canada (Department of the Secretary of State) (1994), 56 C.P.R. (3d) 58 (F.C.T.D.) and in holding respondent had reasonable expectation of confidentiality with respect to records in issue and that public interest fostered by preserving confidentiality of records--Question really whether respondent, assuming proposal successful, could reasonably expect amounts paid or payable to it out of public funds pursuant to ensuing contract would remain confidential by reason of fact process leading to grant of contract confidential --When potential contractor competing for government contract through confidential bidding process, cannot expect monetary terms, in event bid succeeds, will remain confidential--Maintaining confidentiality only justified under Act if it fosters confidential relationship for public benefit (Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.))--In determining necessary to withhold information to guarantee integrity of bidding process, Federal Court may have lost sight of fact appellant, government institution primarily concerned with maintaining integrity of bidding process, may have different view of "public benefit"--Good reasons for maintaining confidentiality during bidding process but different considerations arise once contract awarded and public funds committed to it--Public benefit could not be fostered by maintaining confidentiality of amounts paid or payable by government pursuant to contractual obligations with third parties--Respondent knew appellant acting on behalf of government and that public funds would be involved if its proposal successful--Public's right to know how government spends public funds as means of holding government accountable for its expenditures fundamental notion of responsible government known to all--Respondent could not reasonably expect information as to amounts paid or payable to it under ensuing contract would remain confidential--Not open to Federal Court to hold documents in issue reflected confidential information within meaning of Act, s. 20(1)(b)-- Appeal allowed--Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 20(1)(b).