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Document
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PO-1737
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File #
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PA-980327-1
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Institution/HIC
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Ministry of Natural Resources
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Summary
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BACKGROUND: The appellants in this appeal are consulting engineers and environmental planners. They were retained by a named company to provide professional services with respect to the relocation of a stream. The requester is a municipal institution, who is currently involved in litigation with certain named companies, including the appellants' client, arising out of an agreement of purchase and sale of a landfill site. One of the issues in the litigation relates to the obligations of the appellants' client to expand the landfill site which involves the relocation of the stream. NATURE OF THE APPEAL: The requester submitted a request to the Ministry of Natural Resources (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for copies of applications, approvals (including certificates, permits and licences), reports (including design reports) and schematic drawings relating to the stream located at the named waste disposal site. The Ministry located records responsive to the request and notified four parties whose interests might be affected by the disclosure of the records. Two of the affected parties consented to disclosure of records pertaining to them and two objected to disclosure. After considering the responses of the affected parties, the Ministry issued a decision granting access to some records in whole or in part and denying access to other records, in whole or in part, pursuant to sections 13 and 17 of the Act . Counsel for two of the affected parties filed an appeal of the Ministry's decision to grant access to any records related to them pursuant to section 17 of the Act . I will refer to these affected parties as the appellants for the purpose of this appeal. The requester did not appeal the Ministry's decision. During the course of mediation, the requester narrowed the scope of records to which it is seeking access. Further, any duplicates and non-responsive records were removed from the scope of the appeal. Finally, during mediation, the Ministry disclosed to the requester the records which were determined to be not at issue in accordance with its original index. I sent a Notice of Inquiry to the appellants, the Ministry and the requester. Representations were received from the Ministry and the requester. Although the appellants bear the onus of establishing the application of section 17 to the records in the circumstances of this appeal, they have not submitted representations in response to this Notice. I have considered all of the material in the inquiry file, including the appellants' responses to the Ministry's notification as well as the records themselves in determining this issue. RECORDS: The only records at issue in this appeal are the portions of the records of which the appellants object to disclosure. These records comprise the non-severed portions of pages 2-5, 17-20, 25-31, 94-96, 106, 107, 133, 154, 159-162, 164-166 and 178. The records consist of faxes, correspondence, photographs, minutes of a meeting, a telephone message, a map, a memorandum, an application for work permit, and a form titled "Works within a Waterbody". DISCUSSION: THIRD PARTY INFORMATION In the circumstances of this appeal, the Ministry has decided to disclose the records at issue to the requester. The appellants have appealed the Ministry's decision with respect to some of the records, claiming that they qualify for exemption pursuant to sections 17(1)(a), (b) and (c) of the Act . Therefore the onus is on the appellants, as the only parties resisting disclosure, to establish the requirements of this exemption claim. Sections 17(1)(a), (b) and (c) of the Act state: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; For the records to qualify for exemption under sections 17(1)(a), (b) or (c), the appellants must satisfy each part of the following three-part test: the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and the information must have been supplied to the Ministry in confidence, either implicitly or explicitly; and the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of subsection 17(1) will occur. [Order 36] In Ontario (Workers Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464, the Court of Appeal for Ontario upheld this office's decision in Order P-373 in which the above three-part test was applied. In that judgment the Court stated (at page 476) as follows: With respect to Part 1 of the test for exemption, the Commissioner adopted a meaning of the terms which is consistent with his previous orders, previous court decisions and dictionary meaning. His interpretation cannot be said to be unreasonable. With respect to Part 2, the records themselves do not reveal any information supplied by the employers on the various forms provided to the WCB. The records had been generated by the WCB based on data supplied by the employers. The Commissioner acted reasonably and in accordance with the language of the statute in determining that disclosure of the records would not reveal information supplied in confiden
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Legislation
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Dec 07, 1999
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Type
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Order
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