Third-party consultations must take place in writing

Complaint: Citing section 20, Public-Private Partnerships Canada (PPP Canada) refused access to records about its dealings with Geo Group Inc., a provider of correctional and other services.

Investigation: The OIC learned that Geo Group had said, when consulted by PPP Canada, that the information was proprietary and that releasing it would damage the company’s ability to market its services. However, this consultation had been done by telephone, contrary to the process for consulting third parties set out in section 27.

Outcome: As a result of the investigation, PPP Canada undertook a proper consultation, decided that some of the information should, in fact, be released and then, at further urging from the OIC to reconsider its position, released all but a small amount of the requested information.

Information Commissioner’s position

  • Under section 27, institutions must advise third parties in writing of their intention to disclose records that relate to them and give them the opportunity to state their position on the proposed disclosure.
  • The Supreme Court of Canada has noted that third-party information may often need to be protected (Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3 at para. 2).
  • At the same time, dealings with private sector entities should be as transparent as possible for accountability reasons.
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