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7. On September 10,2010 the Office of the Information and Privacy Commissioner("OIPC") issued a Notice ofInquiry under the Act, Case File #4695.

8. The issues for consideration are as set out in the Notice of Inquiry, namely:(1) Does section 16 of the Act (disclosure harmful to business interests of a thirdparty) apply to the records/information?(2) Does section 17 of the Act (disclosure harmful to personal privacy) apply to therecords/information?(3) Did the Public Body properly apply section 24 of the Act (advice, etc.) to therecords/information?(4) Did the Public Body properly apply section 25 of the Act (disclosure harmful toeconomic and other interests of a public body) to the records/ information?(5) Did the Public Body properly apply section 27 (privileged information, etc.) to therecords/information?(6) Should the Applicant be excused from paying all or part of a fee, as provided by

section 93(4) of the Act?

9. This Affected Party will make submissions only with respect to the request for alist of donors and invoices, receipts, cheques and letters related thereto. As this AffectedParty is a corporation, these submissions will only address Issue 1 above.

Does section 16 of the Act apply to the records/information of this Affected Party?Legislation10. Section 16 of the Act contains an exception to the disclosure of information heldby a Public Body, which information would normally be disclosed under section 4 of theAct. Section 16 states the following:

Disclosure harmful to business interests of a third party16(1) The head of a public body must refuse to disclose to an applicantinformation

(a) that would reveal

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(i) trade secrets of a third party, or(ii) commercial, financial, labour relations, scientific ortechnical information of a third party,

(b) that is supplied, explicitly or implicitly, in confidence, and(c) the disclosure of which could reasonably be expected to

(i) harm significantly the competitive position or interferesignificantly with the negotiating position ofthe third party,

(ii) result in similar information no longer being supplied to thepublic body when it is in the public interest that similarinformation continue to be supplied,

(iii) result in undue financial loss or gain to any person ororganization, or(iv) reveal information supplied to, or the report of, an

arbitrator, mediator, labour relations officer or other personor body appointed to resolve or inquire into a labourrelations dispute.(2) The head of a public body must refuse to disclose to an applicant

information about a third party that was collected on a tax return orcollected for the purpose of determining tax liability or collecting a tax.(3) Subsections (1) and (2) do not apply if

(a) the third party consents to the disclosure,(b) an enactment of Alberta or Canada authorizes or requires theinformation to be disclosed,(c) the information relates to a non-arm's length transaction between apublic body and another party, or(d) the information is in a record that is in the custody or control of the

Provincial Archives of Alberta or the archives of a public body andhas been in existence for 50 years or more.

11. The provision of subsection (3) do not apply to this Affected Party, and thereforethe U of C is required to refuse disclosure of the requested information (in this particularcase the identity of a donor to the Project and information regarding the donations

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themselves) if the pre-conditions of section 16 are met. In other words, the public bodymust satisfy a 3-part test:1. Would disclosure of the information reveal trade secrets of a third party,or commercial, financial, labour relations, scientific or technical

information of a third party?2. Is the information supplied, explicitly or implicitly, in confidence? and3. Could disclosure be reasonably expected to bring about one of theoutcomes set out in section 16(1)(c)? [Order F2004-013]

Would disclosure of the information reveal trade secrets of a third party, orcommercial, financial, labour relations, scientific or technical information of a thirdparty'?12. It is admitted that the requested third party information in this particular case doesnot relate to trade secrets of this Affected Party, nor to labour relations, scientific ortechnical information. It is submitted, however, that the information sought, namely theidentity of the Affected Party as well as information relative to the amount of itscontribution and its banking information, constitutes commercial or financialinformation.13. The words "commercial" and "financial" are to be given their ordinary dictionarymeanings. "Financial" information has been held to include information regarding themonetary resources or financial capabilities of a third party (Orders 96-018). Similarly,bank account information of third parties can be considered to be financial information(Order 2007-032).14. The information requested by the Applicant relative to this Affected Partyincludes a copy of the cheque, which would reveal bank account information of theAffected Party, including its banking institution, account number and individuals withsigning authority, amongst other things. Further, the disclosure of the identity of thisAffected Party, when related to the amount of the donation itself, would reveal thefinancial capabilities and monetary resources of the Affected Party. This information isclearly fmancial information and, as such, the first test for non-disclosure under s. 16 ismet.Was the information supplied, explicitly or implicitly, in confidence?15. In Order No. 01-36 the Privacy Commissioner for British Columbia indicated thatcircumstances to be considered in determining whether information was provided inconfidence include whether the information was:

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e communicated to the public body on the basis that it was confidential and thatit was to be kept confidential;f) treated consistently in a manner that indicates a concern for its protection fromdisclosure by the affected person prior to being communicated to the public

body;e not otherwise disclosed or available from sources to which the public has

access; ando prepared for a purpose which would not entail disclosure.

16. This Affected Party, as part of its corporate mandate, contributes to philanthropicendeavours, including research projects undertaken by educational institutions on topicalsubjects. It is the expectation of this Affected Party that all donations made tophilanthropic projects will remain confidential, unless such information is voluntarilydisclosed by the Affected Party and express consent is provided to the recipient to permitdisclosure of its identity or other information, including banking information, regardingits donation. It is the position of this Affected Party that the fact that the U of C did notdisclose the identity of this Affected Party when the request for disclosure was made byMr. De Souza supports its position that the identity of the donor in this case was subjectto implicit confidentiality. Further, this information is not otherwise available to thepublic.17. While it is admitted that there was no explicit discussion between this AffectedParty and the U of C regarding the confidentiality of its contribution to the Project, it isclear by that acts of the U of C and the Affected Party that the expectation orunderstanding between the parties was that the identity of the Affected Party, and theamount of its donation, was not to be revealed or publicized. The donation was made ingood faith on the understanding that the name of the Affected Party would be kept privateand that the Affected Party would have the option to disclose its identity if it chose to doso. There is no evidence to suggest that the Affected Party gave any such consent orwaived the implied confidentiality as to its identity and banking information. As such,the second step of the s. 16 test has been met.

Could disclosure be reasonably expected to bring about one of the outcomes set outin section 16(1)(c)?18. It is the position of this Affected Party that the disclosure of its identity andbanking information could reasonably be expected to (a) result in undue financial loss orgain to any person or organization, specifically the shareholders of this Affected Partyand (b) result in similar information no longer being supplied to the public body when itis in the public interest that similar information continue to be supplied.

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19. The University Audit Services Special Investigation into the Project and the twotrust funds set up in support of same concluded that some of the funds contributed were"funneled" through the Calgary Foundation to the Friends of Science, which were thenused for unauthorized political purposes. The U of C Summary of Donations to AccountsRT1732153 and RT732028 clearly show that the sums contributed by the CalgaryFoundation were separate and apart from the donation made by this Affected Party(document 1). Further, the cover letter accompanying the cheque from this AffectedParty confirms that the donation was being made directly to the U of C specifically withrespect to the Project and not for any other purpose. As such, there was no connectionbetween the donation of this Affected Party and the donations called into question by theAudit.20. Unfortunately, it is reasonable to assume and to expect that should this AffectedParty's identity be revealed, it could result in an unjustified and unsubstantiated "guilt byassociation" with the Calgary Foundation and the Friends of Science, and consequentialreputational damage to this Affected Party that is unwarranted and unjust. Thisunjustified reputational harm will likely have a negative adverse affect on the share valueof this Affected Party, thereby harming not only this Affected Party but moreimportantly, its shareholders. There is nothing in the Audit that would suggest that thisAffected Party had any awareness or knowledge that some of the funds from the Projectbeing used for political purposes, yet the revelation of its identity will inevitably result innegative repercussions to this Affected Party.20. Secondly, the disclosure of this information, in light of this Affected Party'sexpectation that the information would not be disclosed, would negatively affect the U ofC's ability to raise funding for research and other projects in the public good, as potentialdonors will reconsider making donations to potentially controversial projects if they areat risk of being identified or their contributions and banking information otherwisedisclosed without their consent upon any third party making such a request. This wouldadversely impact upon the ability of the U of C to fulfill its public mandate, whichincludes conducting research funded by corporate and other donations.Conclusion21. Based upon the foregoing, the information relative to this Affected Party wasproperly severed by the University of Calgary pursuant to section 16 of the Act.

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