Letter 23-1: Notice to Third Party Under Subsection 23(4) Regarding Business Interests
- use this letter to advise the third party that an applicant has requested access to information that affects the business interests of the third party
File or Reference Number:
Third party's name and address
Re: Freedom of Information and Protection of Privacy Act Request for information
Dear [third party's name]:
[Name of public body] has received a request under the Freedom of Information and Protection of Privacy Act (the Act) to disclose [describe records as they relate to the third party]. A copy of the information that pertains to you is attached. [ Include a copy of the record whenever it is possible to do so without disclosing information that is excepted under the Act].
We would appreciate receiving your views regarding disclosure of this information.
As the attached description of Section 21 of the Act indicates, [name of public body] must disclose the information to the applicant unless it can be shown that:
- the records contain certain types of information (described in more detail on the attached sheet);
- the information was supplied in confidence; and
- the disclosure of the information could reasonably be expected to result in one or more of the harms specified on the attached sheet.
The requested records have been reviewed by [public body] and we have determined that the records contain information that might be harmful to your business interests. You may be able to provide us with information from your business' perspective that would help us to determine whether or not disclosure of these records could result in significant harm.
In addition to a copy of the requested records/information, I have attached an explanation of Section 21 of the Act. After reviewing the attached material, please provide your views on the disclosure of the records in writing to [me, or name and job title] by [date]. You may: (1) consent to the disclosure of the information; (2) request that the (public body) remove some of the information, while disclosing the remainder, providing written representations as to why the information should be withheld; or (3) make written representations explaining why you feel all the information should not be disclosed.
If you wish to have any of the information pertaining to your business withheld, it is important that you provide clear and specific reasons. In your submission, please focus on the type of harm directly related to Section 21, as specified in the attachment regarding Section 21.
Your input will be considered, along with other relevant factors, in deciding whether to disclose the requested information. Please note that if we do not receive written representations from you by the date indicated above, we are required under the Act to make a decision based on the information that we have available. I will write to you by [date] to inform you of [public body's] decision on the release of this inform.
If you have any questions or concerns, please write or call me at 250 [telephone number]. You may be transferred to this number free of charge by calling Service BC at 604 660-2421 in Vancouver or at 1 800 663-7867 outside Victoria and Vancouver.
Freedom of Information and Privacy
ATTACHMENT to LETTER 23-1
THIRD PARTY NOTICE RE: THIRD PARTY BUSINESS INTERESTS EXPLANATORY NOTE
Purpose of the Freedom of Information and Protection of Privacy Act
The Freedom of Information and Protection of Privacy Act (the Act) balances the public's right of access to government records with the need to protect from disclosure information which would harm the interests of government or third parties.
When a request is made for access to records, we are required to provide access to as much of the requested information as possible and may only withhold information covered by the specific exceptions provided in the Act.
Request for Information which May Affect your Business Interests
We have received a request for access to records which contain information relating to your business. Section 21 of the Act provides for an exception to the right of access when disclosure of the information results in significant harm to a third party's business interests. Under Section 21, the head of a public body must withhold access to the information if the information satisfies all three parts of the test set out below:
- The information is a trade secret or commercial, financial, labour relations, scientific or technical information of the third party; and
- The information was supplied, implicitly or explicitly, in confidence. There must be evidence that the information has been consistently treated in a confidential manner; and
- One or more of the following harms will occur if the information is disclosed:
The disclosure of the information will:
- Harm significantly the competitive position or interfere significantly with the contractual or other negotiations of the third party;
- Result in similar information no longer being supplied to the public body where it is in the public interest that similar information continues to be supplied. This does not apply where a statute or regulation requires that the information be supplied;
- Result in undue loss or gain to any person or organization; or
- Reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.
Opportunity for Input
[Name of public body] is sending you notice of this request in order to give you an opportunity to consent to release or express any concerns you may have regarding the disclosure of the third party information related to your business. Your input would be valuable in helping [name of public body] make an informed decision on whether or not to disclose the requested information.
You may respond to this notice by:
- Consenting in writing to the disclosure of some or all of the information; or
- Making written representations to the public body explaining why disclosure of the information would be harmful to your business interests.
If you choose to make written representations, your representations will be one of the factors that the public body considers in deciding whether to disclose the requested information. Your reasons should be as clear and specific as possible in order to help the [name of public body] decide whether or not to disclose the information. Please include detailed, factual and objective evidence that will assist us to answer the following questions:
- Is the information a trade secret? Is it financial, commercial, labour relations, scientific or technical information?
- Was the information in your view supplied to a public body in confidence?
- Can the release of the information reasonably be expected to cause one or more of the harms listed above?
In making your representations:
- direct your comments only to the question of whether or not the specified information that relates to your business interests should be disclosed;
- identify the exact portions of the records which you wish us to withhold. (You may highlight information on the enclosed copies that you feel should not be disclosed.)
Notification of Decision and Right of Appeal:
[Name of public body] will consider your representations in deciding whether or not to disclose the requested information. If we decide to disclose all or some of the information, we will notify you before the information is disclosed so that you may have an opportunity to request a review of the decision. Under section 52 of the Act, you may ask the Information and Privacy Commissioner to review the decision of the [public body] regarding the release of this information. You have 20 days from the receipt of the [public body]’s letter to request a review by writing to:
Office of the Information and Privacy Commissioner for British Columbia
PO Box 9038 Stn Prov Govt
Victoria, BC V8W 9A4
Telephone: (250) 387-5629 (250) 387-5629
Fax: (250) 387-1696
If you request a review, please provide the Commissioner’s office with:
- Your name, address and telephone number;
- The request number assigned to your request (the “reference number” quoted at the top of the letter);
- A copy of the [name of the public body]’s decision letter; and
- The reasons or grounds upon which you are requesting the review.
For further information, please contact [Director/Manager of Freedom of Information and Privacy named in the covering letter, or name and job title].