Why is it important for public bodies to establish the confidentiality of their information in a contract?

June 01, 2017


Order F2014-15 2014 CanLII 12116 (AB OIPC)

An applicant who had been unsuccessful in obtaining employment with the city of Calgary requested access to a DVD of a pre-employment polygraph interview under the Alberta Freedom of Information and Protection of Privacy Act (the Act). The 3rd party consultant (the Consultant) opposed the request on the basis that the DVD was confidential to it, and that disclosure would be harmful to their business interests. The Adjudicator held that although the Master Consultants Agreement did not contain a confidentiality clause, the facts showed that the DVD had implicitly been supplied to the City in confidence, public disclosure would harm their business interests, and denied access to the DVD.

Drafters should ensure that an agreement entered into with a public body contains a confidentiality clause, to protect the confidential information of the consultant from public disclosure. Specifying that reports, DVD’s etc. are confidential could reduce the expense and risk of establishing the confidentiality of the information when opposing access to information requests.

Details of the case:

In Order F2014-15, 2014 CanLII 12116 (AB OIPC), an unsuccessful job applicant for the City of Calgary applied under the freedom of information legislation for the release of a DVD of her pre-employment polygraph interview, conducted by a 3rd party consultant (the Consultant). The Master Consultants Agreement entered into between the City and the consultant did not have any provisions dealing with confidentiality. The Consultant opposed the disclosure on the grounds that the DVD was supplied in confidence, and that public disclosure would be harmful to their business interests. The consultant gave evidence that normally, only a summary report and not the interview DVD, is given to employers; the DVD contained a record of the entire interview process; the interview process is unique to them in the world and is recognized internationally as such; the interview techniques had thus far been protected from public scrutiny; release of the DVD created a significant risk that the DVD would be available on the internet, and that his would harm their business interests. The adjudicator found that the DVD was given to the City of Calgary in confidence, and that the information was technical information (confidential to the Consultant) the release of which would harm their business interests.

To read the full case on CanLII, click here.