Waterfront beer garden bids should be disclosed, says privacy commissioner

Catherine Tully, Nova Scotia's information and privacy commissioner, has recommended the Waterfront Development Corporation hand over all information requested by a CBC reporter in relation to a tender call for a beer garden on the Halifax waterfront.

Richard Woodbury asked almost three years ago for the information used to evaluate the bids from five companies interested in running the business.

Stubborn Goat Gastropub beat out the other competitors, including Stillwell, which had run the operation the previous year.

Information heavily redacted

The Waterfront Development Corporation sent Woodbury 129 pages of heavily redacted or blank documents citing two sections of the province's Freedom of Information and Protection of Privacy Act as justification for withholding the information.

The corporation relied on sections which state disclosing the information "could reasonably be expected to harm the economic interests of the public body" or "be harmful to the business interests of a third party."

In her ruling released Nov. 13, Tully noted the corporation initially cited the wrong section of the law in justifying the decision to withhold information, then it failed to properly detail which exemptions it was applying to the information it was refusing to release.

Tully said WDC failed to submit justification

When it came to defending its actions during the review process, Tully said the WDC, which was recently rebranded as Develop Nova Scotia, failed to submit any justification.

The five companies involved, four of which objected to the release of their information, also failed to contact Tully's office during the process.

"This is not a case of inadequate proof, it is a case of no proof at all," wrote Tully.

Tully examined the documents for herself and noted, "I have carefully reviewed all of the records provided and it is certainly not apparent what information could have attracted [Section] 17 severing." Section 17 deals with possible harm to the WDC.

When it comes to possible harm to the bidders, Tully similarly noted, "I find that the WDCL has failed to establish that the three-part test set out in [Section] 21 applies to any of the withheld information."

To satisfy the law the corporation would have had to prove:

• The information would reveal trade secrets or commercial, financial, labour relations or technical information.
• The information in question was supplied in confidence.
• The disclosure of the information could harm significantly the competitive position of the third party or result in undue financial loss. 

According to Deborah Page, WDC's director of marketing and communications, the Crown corporation will comply with the recommendation.

"We have reviewed the report and intend to disclose," she wrote in an email to CBC News. 

As for not filing a justification during the review, Page said that was due to the corporation's belief in disclosure.

"We did not file a defence to the Privacy Commissioner because we do support disclosure, (we) were interested to receive further advice in this regard, and as the report indicates, the onus in on the 3rd parties to protect commercially sensitive information," she wrote.

"Develop Nova Scotia supports full disclosure wherever possible while also recognizing the requirement to protect commercially sensitive material."