Under the Health and Social Services Delivery Improvement Act, the FHA was permitted to contract our work performed by HEU members. The FHA decided to contract out its security services, and developed a Request for Proposals (“RFP”) which was released to six pre-qualified companies. Five companies submitted bids in response. All bidders were assured their bids would remain confidential and that only the details of the successful bid would be made public.
As part of the bid assessment process, the Director of Protection Services prepared a confidential memorandum evaluating the bids. Appendices to the memorandum contained detailed financial and costing information from the bids. Two days prior to an in camera Board meeting scheduled to discuss awarding the contract, the Authority discovered the HEU had published on its website a copy of the memorandum and attached appendices. The website described the documents as a “secret report” and a “leaked document”.
The FHA brought an action for copyright infringement and breach of confidence. It obtained an ex parte injunction requiring the HEU to remove the documents from its website, to return all copies to the FHA and to refrain from making or distributing any copies of the documents. The HEU applied to set aside or vary the injunction order.
The HEU argued that the documents were merely a compilation of information received from the bidders, and that no copyright applied. The HEU also maintained that the public interest was served by disclosing the documents. The court disagreed, and renewed the injunction order. In doing so, the court concluded that the FHA had a strong claim of breach of copyright, and that there was an arguable case of breach of confidence, since the HEU did not obtain the documents legitimately nor did the HEU receive consent to place the information on its website. Further, HEU’s description of the documents as “secret” and “leaked” indicated the Union understood this. In the result, the court ordered the HEU to refrain from posting the documents on its website and to return any and all copies to the FHA.
(click here for full text of the judgment)