Transparency in P3s: disclosure v. confidentiality

Elizabeth Brubaker

Last week, Manitoba’s Standing Committee on Human Resources considered The Public-Private Partnerships Transparency and Accountability Act. Some of the most interesting presentations it heard concerned transparency – both the need for public access to information and the need to protect industry’s confidential information.

In its brief to the committee, the Winnipeg Labour Council and the Manitoba Federation of Labour made a plea for transparency:

Citizens have a right to know what their governments are doing with their power, what they’re doing with public funds, [and] who is benefiting from policy decisions … The citizens of Manitoba need to be able to evaluate their government’s actions based on full and accurate information. They need to know what all the options are. They need be able to form a judgment on whether or not what is being proposed will benefit them and their communities. They need to know that their best interest is the single greatest consideration in the decision-making process. This is so, even when it means a process that is a bit longer to get through with more costs attached to it. That is the reality of transparency and informed population. That is the cost of doing things democratically versus doing them expediently and behind closed doors.

While it also supported transparency, the Manitoba Heavy Construction Association argued that too much transparency can make a public-private partnership (P3) unworkable. Any legislation governing transparency in P3s “must protect from disclosure any and all commercial advantage, financial or intellectual property that allows a public or private sector partner to competitively participate.” The Association warned, “Absent such a restriction, the private sector will stay away in droves and the public sector – and, by extension, the taxpayer – will be disadvantaged by being denied access to innovation in cost-certain, competitive, performance-based contracts.”

The Association’s president later expanded on these concerns:

In the competitive market, why would I participate in a public-private partnership if I have to disclose the technology I use, the labour relations strategies that I use, the financial advantages that I have, the commercial advantages that I can take advantage of, with my competitor? Why would I do that? Why would I come to this province and bare all of my competitive strengths so that my competitors can learn by what I have learned the hard way?

Both positions – labour’s and industry’s – are legitimate and point to the need for balance. The public must have the power to hold decision makers accountable. At the same time, commercially sensitive information must be judiciously protected. The drafting of Manitoba’s Public-Private Partnerships Transparency and Accountability Act would have provided an excellent opportunity to debate the matter. It would have allowed discussion of critical questions, such as: To whom should information be disclosed? (Elected municipal representatives? Economic regulators? The public itself?) Through what mechanism should information be released? (A fairness monitor’s report? Access to information laws? Posting on a web site?) What information should be disclosed? (A summary of the contract? The contract itself?) What constitutes commercially sensitive information?

But there was no such debate. Consultation on the act was minimal. The irony of the province’s introducing, without public consultation, a law requiring public consultation was not lost on those who presented briefs to the Standing Committee. Several complained of the province’s hypocrisy.

Winnipeg Councillor Jeff Browaty complained that the province had not shared the draft legislation with the city before tabling it: “Well, if it’s about transparency and openness, where was that on this particular piece of legislation? Why wasn’t the City of Winnipeg adequately consulted? Where was consultation with the industry groups that are involved in this? … We’ve done P3s. The Province of Manitoba to this point has not.” The Manitoba Heavy Construction Association expressed similar concerns: “First and foremost, we are very disappointed that legislation introduced to enable transparency and accountability was itself crafted and tabled without any apparent prior consultation with Manitoba private sector stakeholders and practitioners who would not only have an interest, but their experience to offer.”

Just two days after the Standing Committee hearing, The Public-Private Partnerships Transparency and Accountability Act passed Third Reading in the Legislative Assembly and received Royal Assent. It will take effect upon proclamation. The regulations to be drafted under the act will determine how the principles behind the act will be put into practice. In drafting the regulations, the province should consult those who have experience with P3s to ensure that the new rules properly balance both access to and protection of information, and help municipalities get the most out of their partnerships. As the Manitoba Heavy Construction Association told the legislative committee, P3s have many advantages over traditional models. “Those advantages should be harnessed, not hindered.”


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