Contractual confidentiality clauses do not trump the Act

Complaint: Public Services and Procurement Canada (PSPC) withheld the total amount it had been reimbursed by SNC-Lavalin for instances of overbilling. PSPC claimed that disclosing this amount could interfere with the contractual or other negotiations of both PSPC and SNC-Lavalin (as per subsection 18(b) and paragraph 20(1)(d)).

Investigation: PSPC claimed to the OIC that a confidentiality clause in its agreement with SNC-Lavalin to settle the overbilling matter prohibited disclosure of the total amount it had received. However, PSPC could not demonstrate that the disclosure of that information could reasonably be expected to interfere with contractual or other negotiations of either itself or SNC-Lavalin.

Outcome: PSPC disclosed the total amount SNC-Lavalin had repaid.

Information Commissioner’s position

  • The requirements of the Access to Information Act take precedence over contractual terms reached between the government and third parties.
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