Section 20(1)(c)&(d): Questions

Archived [2008-11] – Investigator's Guide to Interpreting the Act

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Paragraph -- 20(1)(c)
Statement of Test to be Met
Material financial loss or gain or prejudice to the competitive position of the third party must be likely. must be specific type of harm
Relevant Questions	Departmental Response	Assessment
What kind of harm is expected from disclosure? What use could the requestor make of the information? Does the harm from disclosure involve a financial loss or gain? How will the loss or gain specifically occur? How much money is involved? Will the loss or gain affect the financial performance of the third party or of another person? how to what degree Does the third party perceive that disclosure would likely prejudice its competitive position? How would disclosure impact on the competitive position of the third party? Would it have an adverse effect on sales or marketing? how Would disclosure reveal plans or strategy? What kind of plans or strategy? product launch product approvals marketing plans business acquisitions asset acquisitions others How would knowledge of these plans specifically prejudice the third party's competitive position? Is there an indication of how a competitor could use the information to its own advantage, i.e., by developing competing pricing strategies? Does disclosure allow a competitor to back out other sensitive information about the third party? Ask how it does so.

Statement of Test to be Met
There must be reasonable expectation that such prejudice will occur. Investigator must assess reasonableness of the assertion of prejudice caused by disclosure.
Relevant Questions	Departmental Response	Assessment
How could a competitor use the information? How would a member of the public react to the information? Has the information or the same subject matter been disclosed elsewhere? publications in applications to government that are public in the press in annual reports, government filings in public registries Has it been disclosed pursuant to financial reporting obligations? Could a member of the public assemble the information independently and how easily? Is the subject matter generally well known? Has the information been publicly confirmed to be true or publicly acknowledged? Is existing public knowledge based on rumours or speculation? What additional competitive harm, if any, would arise from government disclosure? How old is the information? if the information is not current, why would disclosure still adversely affect the third party Has similar information about the third party been made public in the past what was the impact was the impact quantifiable lost sales revenues Is information of this nature available about competitors of the third party? Are there examples in other businesses where disclosure of similar information led to competitive prejudice or material financial loss or gain? describe quantify prejudice, loss or gain why is the situation parallel to that of this third party Does the third party have plans in place to deal with public relations issues? What actions would the third party take to minimize adverse public reaction? What actions could the third party take to counteract potential financial loss/gain or competitive prejudice knowing the information would be disclosed?

Paragraph -- 20(1)(d)
Statement of Test to be Met
Interfere with contractual or other negotiations of a third party
Relevant Questions	Departmental Response	Assessment
What negotiations would be affected by disclosure? Are these negotiations ongoing? Have the negotiations been concluded? What stage are the negotiations at? How long have they been going on? What is the subject matter of the negotiations? How would disclosure specifically interfere with the negotiations? Does the information relate to an outstanding issue in the negotiations? if so, how would disclosure interfere with negotiations on this issue Does the information relate to issues already resolved in the negotiations? Would disclosure cause the issue to be reopened why? Would it otherwise interfere with negotiations? how

Statement of Test to be Met
Reasonable expectation such interference will occur. Investigator must assess reasonableness of claim
Relevant Questions	Departmental Response	Assessment
Is the information current? Does the information relate to events prior to the negotiations? How old is the information? Ask how it could affect current negotiations? Is the information commonly known in the industry? Is the information reasonably available elsewhere? if so, how would disclosure by government interfere with negotiations? Does the information specifically relate to the third party or the persons with whom they are negotiating? if not, how will it affect third party negotiations Does the other side of the negotiations already have this information? Have they asked for it?