The Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) should be of great interest to contractors bidding on government projects.
It may necessitate disclosure of a good deal of information provided by contractors who bid for municipal contracts, and also with respect to the decision-making process followed by the municipality with respect to the award and administration of contracts.
The MFIPPA applies no matter how that information may be stored, whether on paper, microfilm or computer disk, and the right of disclosure extends to include things like photographs, plans and maps. Municipalities, local boards, agencies and commissions covered by the Municipal Act are required to prepare directories listing the type of information they have available. A growing number are now providing these directories online.
In order to request the disclosure of information under the act, an applicant must complete a written request form or write a letter to the municipality requesting the disclosure of information under the act. Standardized request forms are available from each municipal government. The completed request form or letter must be sent to the freedom of information and privacy co-ordinator for the municipality. A small fee must accompany the request, payable to the municipality.
No fees are charged for the time required to locate and prepare records that contain an applicant’s own personal information, although the applicant may be charged for photocopying costs even for those records.
For all other records, the applicant may be charged for photocopying, shipping costs, the time required to locate and prepare the records request, or any other costs associated with replying to the request.
Once the municipality receives a request and the application fee, the applicant is entitled to a response within 30 calendar days.
If the municipality denies the applicant access to the requested information, it must provide written reasons for so doing and inform the applicant that he or she may appeal that decision to the Office of the Information and Privacy Commissioner. A nominal fee is payable for such an appeal to the provincial minister of finance.
Normally, any appeal must be filed within 30 days of receiving a decision from the municipality. A person dissatisfied with a decision of the privacy commissioner may ask for a reconsideration of the decision of that officer, which is essentially an internal appeal, or may take judicial review.
While all this information may be relevant to the procurement decision of a municipality, it is far from clear what public interest is served from disclosure of this information, other than the oft-repeated adage that disclosure is generally in the public interest.
Doubts may be expressed about this view, at least in the procurement context.
For one thing, widespread disclosure of purchase information facilitates bid rigging, which is hardly in the public interest.
Information about existing costs compromises the ability of a municipality to negotiate a better contract when the existing contract runs out. Moreover, even if the adage is true as a general principle, it certainly is not if the effect is to discourage potential contractors from participating in a competition for a municipal contract.
Oral legend has it that some municipalities seek to limit their exposure under the MFIPPA by allowing applicants to see but not make copies of records relating to municipal procurement.
Unfortunately, such an approach would appear to be inconsistent with section 23 of the act. In particular, subsection 23(1) provides that: “Subject to subsection (2), a person who is given access to a record or a part of a record under the Act shall be given a copy of the record or part unless it would not be reasonably practicable to reproduce it by reason of its length or nature, in which case the person shall be given an opportunity to examine the record or part.”
Stephen Bauld is a government procurement expert and can be reached at swbauld@purchasingci.com. Some of his columns may contain excerpts from The Municipal Procurement Handbook published by Butterworths.
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