Freedom of Information

More and more frequently, the Ontario General Contractors Association has heard from its members that municipalities and other governments are writing them about requests under the Freedom of Information and Protection of Privacy Act. Generally, the government is the subject of a request to disclose copies of bid documents and related correspondence submitted by contractors on a specific tender call or request for proposal. The motives of the request are unclear. It could be disgruntled contractors wanting to know what the other bids were. It could be a competitor trying to get access to your suppliers or costs of labour. On the other hand, it could be citizens who made an overly-broad request and are about to be sandbagged with documents.

Under the Act, the government must disclose all documents in its possession (which includes bid documents) unless there’s an exemption. An exemption is only applicable if the record reveals a trade secret, which has been supplied to the government in confidence, and the disclosure of the document will result in some prejudice. Portions of bid documents fit within this exemption. Specifically, line items relating to pricing, names of subcontractors to be carried on the bid documents, and other prices have been found to be excluded. Other items that are generic (final bid price, name and address of the company bidding, list of bidder’s experience in similar work, etc.) are not protected and will be disclosed.

Importantly, other documents that have been sent to a government – including takeoff schedules – that were not strictly part of the bid requests for information and documentation, are not exempt from disclosure and will be produced. Members should be aware of this when they are sending in supplementary documents as part of a bid that have not been explicitly requested in the tender call.

As a best practice, when a member receives a request from a government about releasing bid documentation, you should ensure that the government redacts any and all information about prices, proposed sub-contractors or consultants for the project, or any other information that would give competitors insight into the competitive trade secrets about your business. But please be responsive and do not ignore the request – in our experience most governments err on the side of our Members in redacting sensitive information and are generally on your side. Supporting them in redacting private information is in your interest.

As always, when a request comes in it makes sense to refer it to your lawyer for review and comment. If you do not have a lawyer, the Ontario General Contractors Association has referred members to Leonard Finegold of Goldman Sloan Nash & Haber LLP. He can be reached at 416 597 3376 or finegold@gsnh.com. Mr. Finegold has been able to help Members in the past when it comes to these issues and can help you too.

Written by Robert J. Drake, Goldman Sloan Nash & Haber