Section 17 - Disclosure harmful to the financial or economic interests of a public body

Overview

Section 17 is a discretionary exception.  Section 17 gives the head the discretion to refuse to disclose information which could harm the financial or economic interests of a public body or the government of British Columbia. This section also protects from release information which could harm the ability of the government of British Columbia to manage the economy.

Section Reference

Section 17 of the Freedom of Information and Protection of Privacy Act

17 (1)The head of a public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of a public body or the government of British Columbia or the ability of that government to manage the economy, including the following information:

(a) trade secrets of a public body or the government of British Columbia;

(b) financial, commercial, scientific or technical information that belongs to a public body or to the government of British Columbia and that has, or is reasonably likely to have, monetary value;

(c) plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public;

(d) information the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project or in undue financial loss or gain to a third party;

(e) information about negotiations carried on by or for a public body or the government of British Columbia;

(f) information the disclosure of which could reasonably be expected to harm the negotiating position of a public body or the government of British Columbia.

(2) The head of a public body may refuse to disclose under subsection (1) research information if the disclosure could reasonably be expected to deprive the researcher of priority of publication.

(3) The head of a public body must not refuse to disclose under subsection (1) the results of product or environmental testing carried out by or for that public body, unless the testing was done

(a) for a fee as a service to a person, a group of persons or an organization other than the public body, or

(b) for the purpose of developing methods of testing.

Summary

Section 17 gives the head the discretion to refuse to disclose information the disclosure of which could harm the financial or economic interests of a public body or the government of British Columbia.

This section also protects from release information which could harm the ability of the government of British Columbia to manage the economy.

Section 17 does not apply to the results of product or environmental testing carried out by or for the public body, unless the testing was done on a fee for service basis or for the purpose of developing methods of testing.

Public bodies hold significant amounts of financial and economic information, critical to their financial management and the management of the provincial economy.  Section 17 ensures that, where harm would result from disclosure, public bodies may withhold certain portions of this information.

Policy

1. Public bodies may refuse to disclose information the disclosure of which could harm the financial or economic interests of a public body or the government of British Columbia or the ability of that government to manage the economy.  In determining whether it is reasonable to expect any harm, the head of the public body needs to consider all aspects of the mandate and activities of the public body, and not limit that consideration only to the records requested.

2.  A trade secret must be owned by the public body or the government of British Columbia, or the public body or the government must be capable of proving a claim of legal right in the information (such as under a license agreement).

3. A public body shall consider the financial or economic interests of other public bodies when reviewing records in their custody or control.  Consultation between public bodies in these situations is essential to determine harm under section 17.

4. The fact that information belongs to one of the categories listed in paragraphs (a) to (e) is not sufficient in itself to establish that it meets the harm test set out in subsection 17(1).  Although there is a presumption that the disclosure of information in these categories would harm the financial or economic interests of a public body, the head of the public body must have detailed and convincing evidence of harm in order to apply the exception.

5. Section 17 does not prevent the release of information that reveals a liability which might lead to a suit against a public body for alleged wrongdoing by the public body.

6. Public bodies must not refuse to disclose under subsection 17(1) the results of product or environmental testing carried out by or for that public body, unless the testing was done for a fee or as a service to someone other than the public body, or for the purpose of developing methods of testing.

Procedure

1. Preliminary Examination

2. Line by line review
   
   Verify whether any information in the record which might result in harm to the financial or economic interests of a public body of the government of British Columbia, or to the ability of the government to manage the economy, falls into one of the categories set out in paragraph 17(1)(a) through (e), or is similar in type.
   
   Determine if information in the record is the result of product or environmental testing and, therefore, may not be withheld under section 17, unless performed for a fee as a service or for developing methods of testing.

3. Exercising Discretion

4. Severance

Interpretation

Interpretation Note 1 (Section 17(1)):

The government of British Columbia is responsible for managing many aspects of the province's economic activities in the interests of the people of British Columbia, by ensuring that an appropriate economic infrastructure is in place and by facilitating and regulating the activities of the marketplace.

Financial or economic interests

"Financial interests" refers to the financial position of a public body or the government of British Columbia.  It includes the management of assets and liabilities, and the ability of the public body or the government to protect its own interests in financial transactions with third parties and public/private partnership agreements.  The financial interests of the government of British Columbia include the ability to collect taxes and generate revenues.

Harm to the financial interests of a public body or the government of British Columbia could involve monetary loss, or loss of assets with a monetary value.

Information from completed negotiations would not normally be excepted from disclosure for harming financial or economic interests; however, there may be limited circumstances in a particularly competitive environment where such information could be excepted.  In each case, the public body must be able to provide facts to support a claim that it is reasonable to expect harm.

Examples of financial interests harm:

• Release of information on the government's investment strategies which affects the government's interests or future position in the financial market.

• Premature disclosure of information about a bond issue which affects the viability of this means of generating revenue.

• Release of information about a negotiated contract for services that, if provided to the public, might lead other potential contractors to adjust unit pricing accordingly.

"Economic interests" refers to the broader interests of the public body or the government of British Columbia in managing the production, distribution and consumption of goods and services.

Harm to the economic interests of a public body would damage or cause detriment to the economic policies or activities for which the public body is responsible.  The government of British Columbia is responsible for policies and programs which affect the overall economy of the province.

Examples of economic interests harm:

• Information in budget preparation documents which could result in segments of the private sector taking actions affecting government's ability to meet economic goals.  (Note:  Approved budgets are not covered by this exception; they are tabled in the Legislature as public documents.)

• Background material to be used in establishing stumpage rates which if released would affect stumpage revenue.

Ability of that government to manage the economy

The government of British Columbia is responsible for managing many aspects of the province's economic activities in the interests of the people of British Columbia, by ensuring that an appropriate economic infrastructure is in place and by facilitating and regulating the activities of the marketplace.

The ability of the government of British Columbia to manage the economy depends on a range of activities, including fiscal and economic policies, taxation, and economic and business development initiatives.

Example:

• Draft plans to discontinue a small business development grants program.

The use of "including" means that the list which follows (paragraphs 17(1)(a) through (e)), provides examples of the types of information, the release of which is presumed to be harmful to the financial or economic interests of a public body.

The list does not cover every type of information which could reasonably be expected to cause such harm.  Information not explicitly listed but which is similar in type to the information listed and meets the harm test set out in subsection 17(1), would be covered by this exception.

The fact that information belongs to one of the categories listed is not sufficient in itself to establish that it meets the harm test set out in subsection 17(1).  Although there is a presumption that the disclosure of information in these categories would harm the financial or economic interests of a public body, the head of the public body must have reasonable grounds to expect harm in order to apply the exception.

Interpretation Note 2 (Section 17(1)(a)):

Section 17(1)(a) does not apply to trade secrets of a third party.  Trade secrets of third parties may be covered by the exception for disclosure harmful to business interests of a third party (section 21(1)(a)(i)).

Example:

• A bid received by a public body in response to a Request for Proposal containing details on a proprietary technique of a private sector company is not covered by this exception.  Although this trade secret information is contained in a record which is in the custody and under the control of the public body which received the bid, it belongs to the third party which submitted the bid.  The head of the public body would consider the applicability of section 21 (Disclosure harmful to business interests of a third party) rather than section 17.

Interpretation Note 3 (Section 17(1)(b)):

This paragraph is a three-part test.  In order for this section to apply, all of the following conditions must be met.  The information must:

1. be financial, commercial, technical or scientific;

2. belong to a public body or to the government of British Columbia; and

3. have, or be reasonably likely to have, monetary value.

Belongs to a public body or to the government of British Columbia

Information must be owned by the public body or the government of British Columbia, or the public body or the government must be capable of proving a claim of legal right to the information (such as under a license agreement).

Example:

• Information created by an officer or employee of the public body as part of their job, or by a contractor as part of a contract with the public body.

Financial, commercial, technical, or scientific information which belongs to any person, group of persons or organization other than a public body is not covered by this exception.  The head of the public body would consider the applicability of section 21 (Disclosure harmful to business interests of a third party)

Has, or is reasonably likely to have, monetary value

This may include information that the public body wishes to sell, patent or licence.

Examples:

• Specification for a piece of laboratory equipment which could be sold by the public body.
• A geographical information system design which could be licensed by the public body.

Interpretation Note 4 (Section 17(1)(c)):

This paragraph is a two-part test.  In order for this paragraph to apply, both of the following conditions must be met.  The plans must:

1. relate to the management of personnel or administration of a public body; and,

2. have not been implemented or made public.

A "plan" is a formulated and especially detailed method by which a thing is to be done; a design or scheme [OED].  A plan relates to ongoing or future events.

A plan to introduce new practices, to change current practice, or to continue with current practice would be a plan within the meaning of this exception.

Example:

• A memo to the senior financial officer proposing that a public body adopt a decentralized financial management system.

Management of personnel of or the administration of a public body

The first part of the test is the "Management of personnel of a public body" and comprises all aspects of the management of the human resources of a public body.  This includes staffing requirements, job classification, recruitment and selection, employee salary and benefits, hours and conditions of work, leave management, performance planning and review, training, and separation and layoff.

Personnel management does not include the management of consultant, professional, or other personal service contracts.  These are included under administration of a public body.

"Administration of a public body" comprises all aspects of a public body's internal management (other than personnel management), necessary to support the delivery of programs and services.  Administration includes financial management, material management, contract management, property management, information management, and risk management.

Have not yet been implemented or made public

This represents the second part of the test within the paragraph.

"Implemented" means that the decision to implement the plan has been communicated to the official(s) in the public body who are responsible for carrying out the plan.  It is not necessary for implementation activities to have been completed.

"Made public" means that the plan was made public by a conscious decision of the government.  The fact that information about the proposal or project has been leaked through unofficial sources does not constitute making public by government.

Examples:

• A minute of a meeting of the board of directors of a public body at which a change to contract management policies is planned, is covered by this exception up to the point at which implementation has begun.  This would normally be the point at which the decision is communicated to line management within the public body.

• A ministry's response to a corporate government survey on leave management policies, stating that the ministry intends to continue with current practices, is a "plan relating to personnel management", but it would not meet the second part of the test, because the plan has already been implemented.

Interpretation Note 5 (Section 17(1)(d)):

Paragraph 17(1)(d) allows the head to except from disclosure information which could result either in premature disclosure of a proposal or project of a public body, or in undue financial loss or gain to a third party.

This exception is time-limited; it applies only to proposed plans and projects of a public body, not to those which are already in place.

It is not necessary to demonstrate that actual harm will result, or that actual harm did result from a similar disclosure in the past, although such past experience could be part of the factual considerations upon which the expectation of harm is based.

"Premature disclosure" means disclosure before the proposal or project has been made public by government.  The fact that information about the proposal or project has been leaked through unofficial sources does not constitute making public by government.  This paragraph of section 17 is time limited; it applies only to proposed plans and projects of a public body, not to those already in place.

Examples:

• A memo describing a new system development project not officially announced.

• Portions of the Victoria Strategic Plan recommend the creation of one or more major suburban office complexes for ministries which do not have to be in the legislative precinct or downtown.  Information in the plan that reveals the proposed actual locations of these complexes would not be released until the sites themselves had been secured.

 Undue financial loss or gain to a third party

"Undue" means excessive or disproportionate [OED].

There must be objective grounds for believing that releasing the information would result in "undue financial loss or gain" to a third party.

The loss or gain under this paragraph must be monetary, or have a monetary value (e.g., loss of revenue or loss of corporate reputation or goodwill by a private sector company).

"To a third party" means that the undue loss or gain contemplated by this paragraph is loss or gain to a third party, not to the public body that holds the information.  This third party could be a person, group of persons or an organization.

Examples:

• The government plans to construct a new road through a part of the province where purchases of land for the right of way will be necessary.  Premature disclosure of this project might result in third parties buying up parcels of land in anticipation of profits on the subsequent sale to the government and in the government paying more for land held by speculators.

• Premature disclosure of information about a change in revenue services, such as taxes, duties or tariff rates could result in undue benefit to a third party.

Interpretation Note 6 (Section 17(1)(e)):

This paragraph is intended to protect the public body’s or the government’s ability to negotiate effectively with other parties.  This section normally applies to ongoing or future negotiations.  Information from completed negotiations is not covered unless, for instance, the same strategy will be used again and it has not been publicly disclosed.  Information about negotiations would include positions, options, instructions, and criteria to be used in negotiations.

This paragraph may be applied even though negotiations have not yet commenced at the time of the request for access to information, including where there has not been any direct contact with the other party or their agent.

This paragraph does not cover information relating to negotiations to which a public body is not a party.

This paragraph covers negotiations either conducted directly by employees or officers of a public body or the government of British Columbia, or conducted by a third party acting as an agent of the public body or the government.

Example:

• Land expropriation negotiations carried out by an arbitrator appointed by the government and acting on the authority of the government.

Interpretation Note 7 (Section 17(2)):

"Researcher" includes researchers who are employees of public bodies, as well as researchers in organizations not covered by the Act.

Example:

• Research notes compiled by an employee of the Royal British Columbia Museum in preparation for a journal article.

Interpretation Note 8 (Section 17(3)):

If part or all of a record falls within the parameters of subsection 17(3), then the head cannot withhold the information on the results of certain types of product or environmental testing under subsection 17(1).

Other exceptions may apply to this information.

"Results of product or environmental testing" means information recording the results of product or environmental testing.

Examples:

• Water quality reports.
• Results of routine testing of food served in BC Ferries cafeterias.
• Testing of a hospital's air conditioning.

Carried out by or for that public body

The public body referred to in this subsection is the public body that commissioned the testing.  If a public body other than the one which commissioned the testing has custody or control of copies of the product or environmental test results, it consults with the public body which commissioned the testing before exercising discretion in favour of disclosure.

"Unless the testing was done" means that subsection 17(3) does not apply to information of the following two types:

• Fee-for-service tests (paragraph 17(3)(a)); and,
• Tests used to develop test methodology (paragraph 17(3)(b)).

Information of these two types may be withheld under section 17, provided that the harm test of subsection 17(1) is met.

Examples:

• A commercial product test.
• A soil test conducted at the request of an individual, for which a fee is charged.
• A test intended to develop a new drug testing technique.

Sectional Index of Commissioner's Orders

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Last updated: August 22, 2007