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 CBCreporter in relation to a tender call for a beer garden on the Halifax waterfront.

Richard Woodburyasked 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 Corporationsent Woodbury129 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 reasonablybe 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, Tullynoted 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.

Tullysaid WDCfailed to submit justification

When it came to defending its actionsduring the review process, Tullysaid 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.

Tullyexamined the documents for herselfand 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, Tullysimilarly noted, "I find that the WDCLhas 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 orcommercial, 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'sdirector of marketing andcommunications, the Crown corporation will comply with the recommendation.

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

As for not filing a justificationduring 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."