Executive summary: key legal and evidentiary issues

• TPG Technology Consulting Ltd. sought judicial review of PSPC's decision to disclose information obtained through an access to information request, arguing exemptions under paragraphs 20(1)(b), (c), and (d) of the ATIA.

• Pricing references embedded in Task Authorizations were found to be confidential financial information exempt from disclosure, as they could allow competitors to calculate per diem rates within a narrow range.

• Subcontractor and employee information with publicly available profiles failed the confidentiality test under the Air Atonabee framework because a member of the public could connect the individuals to TPG through independent study.

• Non-publicly available subcontractor profiles were exempt under paragraph 20(1)(c), as disclosure would reasonably be expected to prejudice TPG's competitive position in a highly competitive procurement industry.

• No exemption was granted under paragraph 20(1)(d), as TPG referenced only probable future negotiations rather than actual or ongoing negotiations, which jurisprudence requires as a threshold condition.

• Costs of $3,240 were awarded to the Applicant on the lower end of the applicable tariff, reflecting the partially successful outcome.

The parties and the background

TPG Technology Consulting Ltd. is a consulting and professional services company that specializes in service management in the information technology field. The company frequently bids on Government of Canada Requests for Proposals as one of approximately fifty firms qualified for higher-value procurement vehicle contracts. When TPG wins a bid, it signs a Task-Based-Informatic Professional Services Standing Offer and Supply Arrangement (TBIPS), through which the Government of Canada may request specific services with Task Authorizations. TPG relies on subcontractors to perform this work and signs a separate agreement with them to ensure they comply with the terms of work for the procurement process.

The access to information request and PSPC's decision

On January 24, 2024, Public Services and Procurement Canada (PSPC) notified TPG that it had received an access to information request for emails pertaining to Task Authorizations under a TBIPS it held with the company. PSPC included a record of the documents it sought to disclose and noted that the record may contain third-party information subject to an exemption from disclosure obligations under the ATIA. On February 5, 2024, TPG sent a version of the record with its proposed redactions, indicating that the redacted information was exempt under paragraphs 20(1)(b), (c), and (d) of the ATIA. However, on February 29, 2024, PSPC notified TPG that it would redact only some of the information to which TPG had objected. TPG then filed for judicial review, objecting specifically to the disclosure of the dates revealing its price references in the Task Authorizations, and its subcontractors' identities, education, and professional capabilities along with the information regarding one of its employees.

The legal framework and exemptions at issue

The ATIA establishes the framework for individuals' right to access records that the federal government held or controlled while balancing that right against the protection of third-party confidential and commercial information through exemptions in sections 16 to 21. Three specific exemptions were invoked by TPG. Paragraph 20(1)(b) requires government institutions to refuse to disclose confidential records that contain financial, commercial, scientific, or technical information when a third party supplied them to the government institution. Paragraph 20(1)(c) prevents disclosure of information that would reasonably be expected to result in prejudice to a third party's competitive position or result in a third party's material financial loss or gain. Paragraph 20(1)(d) prevents disclosure of information that could reasonably be expected to interfere with a third party's contractual or other negotiations.

The Court's analysis of subcontractor and employee information under paragraph 20(1)(b)

Applying the four-part Air Atonabee test, the Court agreed that the subcontractors and their experience were commercial in the procurement context, noting that in a procurement process for consulting services, the subcontractors and the price are the two most important components. However, the Court found that the information failed the confidentiality requirements. For one employee and one subcontractor, publicly available profiles — including social media and the company's own website — allowed a member of the public to connect the individuals to TPG's work under the TBIPS through independent study. The Court distinguished this from the Cache decision, where only generalized information was available publicly and the connection between the applicant and its subcontractors was not available publicly. The Court also found that although TPG viewed its relationship with its subcontractors as confidential, TPG had not objectively treated this relationship as confidential: the confidentiality and non-solicitation clauses in TPG's standard subcontractor agreement did not limit the disclosure of the relationship in the same way as in Cache, the underlying contract with PSPC was not included in the record nor was any reference to the alleged standardized clauses, and TPG's reliance on redactions in its previous access to information requests did not establish a reasonable expectation of confidentiality.

The Court's analysis of pricing references under paragraph 20(1)(b)

The Respondent conceded that the days of effort in the Task Authorizations reveal TPG's financial information. The Court further found that these pricing references were confidential, as they were not publicly available and TPG provided evidence that it treated its pricing information as confidential internally and expected it to be treated as confidential by the Government of Canada. For example, although the standard confidentiality agreements between TPG and its subcontractors do not limit the disclosure of their work, they do limit the disclosure of TPG's pricing and sales. The Respondent had not cross-examined TPG's affiant on this point and this evidence remained uncontroverted. The Court rejected the Respondent's reliance on Société Gamma, finding it distinguishable because the information at issue in this case revealed specific details of TPG's business operations and strategy, including approximations of per diem pricing.

Competitive prejudice under paragraph 20(1)(c)

The Court found that disclosing a range of per diem rates raised more than a mere possibility of harm. If the days of effort or term for the Task Authorizations were disclosed along with the total price for each Task Authorization, the range of possible per diem rates could be calculated. The Court found this credible given that TPG's competitors are qualified for high-value contracts and likely familiar with the industry and the typical number of working days in the period during which a Task Authorization is active. Allowing competitors to calculate the per diem rate within a narrow range would provide a springboard for competitors to set their prices without investing the same time and resources as TPG. Similarly, the Court found that disclosing non-publicly available subcontractor profiles would reasonably be expected to cause prejudice to TPG's competitive position, as competitors could have access to the actual subcontractors who underpinned TPG's winning proposal, giving competitors an advantage in knowing which subcontractors are the best to attract and ultimately retain. However, releasing information already in the public domain — such as TPG's relationship to its employee and subcontractor who have public profiles — could not be considered to cause a reasonable expectation of probable harm.

No exemption under paragraph 20(1)(d)

The Court rejected TPG's argument under paragraph 20(1)(d), finding that TPG's reference to probable negotiations, as opposed to ongoing or current negotiations, mischaracterized the Court's jurisprudence. The preponderance of the jurisprudence confirms that actual or ongoing negotiations are required as a starting point for an exemption under paragraph 20(1)(d). The Court also found that TPG's argument about subcontractors demanding higher remuneration lacked supporting evidence on the record comparable to the evidence in Calian FC, where the applicant's consultants would pressure the applicant to pay higher rates if aware of the overhead charge. TPG's evidence instead showed that its competitors may seek to retain its subcontractors, which the Court characterized as evidence of increased competition, not evidence of a similar price squeeze.

The ruling and outcome

The application for judicial review was allowed in part. Justice Ahmed of the Federal Court ordered PSPC, under section 51 of the ATIA, to redact the days of effort and date references from the records proposed for release, and also to redact the names and information pertaining to TPG's subcontractors — with the exception of the subcontractor and employee listed in paragraphs 31 and 33 of the Judgment — in substantially the same form as in Exhibit "D" to the affidavit of Donald R. Powell sworn on June 7, 2024. The Respondent was given thirty days to provide the redacted records to TPG for review, with TPG having a further twenty days to submit comments regarding any omissions or incomplete redactions. TPG, as the partially successful party, was awarded $3,240 in costs based on the applicable tariff, assessed on the lower end of the spectrum of the center column in the table in Tariff B of the Federal Courts Rules.