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Canadian companies entering into government contracts need to consider disclosure obligations that might make confidential corporate data public, a Canadian privacy regulator told Bloomberg BNA.
“Businesses have to come to the table knowing a contract may be released,” Saskatchewan Information and Privacy Commissioner Ronald Kruzeniski said Jan. 16. He suggested putting confidential information in a schedule to a contract, rather than in the contract itself, so it could be severed during an access-to-information release process.
Canada’s Access to Information Act gives individuals a right to access records under federal control, with exceptions, and provides for independent review of disclosure decisions. Provincially, access to information and privacy issues are handled by one commissioner. Federally, the role is divided into two offices.
Given knowledge that a disclosure risk exists, “caution should be exercised in providing highly confidential third-party information to government,” Canadian law firm Blake, Cassels & Graydon LLP said in a 2013 bulletin on the act.
The latest cautionary tale came when Saskatchewan’s Global Transportation Hub Authority (GTH), the operator of a self-regulating inland port, received an access-to-information request about certain business contracts with a development company.
The authority sells land to businesses with the goal of increasing provincial business. Brightenview International Developments Inc. was seeking to buy land.
The access request sought a property purchase agreement, a cooperation agreement and a confidentiality agreement. The GTH said the parties had signed a confidentiality agreement, and releasing the information could harm the purchase deal and release competitive information.
“I note that a government institution cannot contract out of its access and privacy obligations,” Kruzeniski said in Review Report 159-2016. “Government institutions should make potential clients aware of their access and privacy obligation.”
The access law includes provisions to protect third-party information related to potentially sensitive or competitive business information, Natalie Bartlett, spokeswoman for Canada’s Office of the Information Commissioner, which handles requests for business contracts with the Canadian government, told Bloomberg BNA Jan. 17.
Section 20 of that act allows refusal to disclose records containing:
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