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Document
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PO-1924
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File #
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PA-000101-1
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Institution/HIC
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Ministry of Labour
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request to the Ministry of Labour (the Ministry) under the Freedom of Information and Protection of Privacy Act ( the Act ) for access to copies of engineering drawings which illustrate two mobile work stations for International Bridge Authority that were submitted to the Ministry's Sault Ste. Marie office in 1999 by a named construction company (the company) and/or a named engineering firm (the engineering firm). By way of background, the appellant states that the two work stations were originally designed and drawn by his company and that his company "holds title to the copyright of these drawings". Before making its decision respecting access, the Ministry notified the engineering firm of the request for the specified drawings it submitted to the Ministry on behalf of the company and asked for its views regarding disclosure. The engineering firm informed the Ministry that the company had a greater interest in the issue of disclosure of these records. Consequently, the Ministry notified the company of the request. The company objected to disclosure of the drawings and stated that it holds U.S. and Canadian patents for the mobile workstation. The company stated further that the technical details of the mobile workstation and in the patent protecting it are apparent from the detailed drawings submitted to the Ministry. The company explained, in considerable detail, the harms it believed could reasonably be expected to occur should the records be disclosed. As a result, the Ministry denied access to the records pursuant to sections 17(1)(a) and (c) of the Act on the basis that they contain technical information that was supplied implicitly in confidence and that their disclosure could reasonably be expected to result in competitive harm or undue benefit to another party. In addition, the Ministry advised the appellant that, since ownership of the drawings is an issue between the parties, alternative access to the records may be available to him by way of civil litigation. The appellant appealed the Ministry's decision. In his letter of appeal, the appellant re-iterated his claim that he should have access to the records at issue on the basis that the drawings are his. He stated that "[the company] paid for the right to use our work but not keep it exclusively". He claimed that the company did not have the right to submit the drawings to the Ministry under their title block because engineering drawings are copyrighted to the author. The appellant explained that the drawings were created in electronic files and electronically transferred from the appellant's office to the company. In support of his position, the appellant provided this office with a document containing the Professional Engineers Society (the PEO) position on copyright and a copy of a confidentiality agreement between it and the company dated December 2, 1995 and signed by the President of the company and the appellant. This agreement indicates that the company holds the patent for "a method and apparatus for shrouding and painting a bridge (the invention)" and that it retains all rights in relation to this invention, including patent, trademark, industrial design and knowhow, but excludes copyright (this term has been struck out and initialled by both parties). Clause two of the agreement provides that the appellant will not use or disclose confidential information relating to the invention for a period of five years from the date of execution of the agreement. The agreement also contains the following two clauses (one typed and one handwritten): 4. All prototypes, photographs, drawings and documents relating to the invention forthwith are the property of the patentee and must be returned upon the request of the patentee. (the words drawings and documents have been struck out and initialled by both parties). 5. Copyrights for the engineering design and drawings are the property of [the appellant] (this clause is handwritten and is also initialled by both parties). Mediation of this appeal could not be effected and the matter was moved into inquiry. The usual practice of this office is to send a Notice of Inquiry to one or more parties first, usually the party or parties who bear the onus, who then make submissions. After reviewing these submissions, the Adjudicator may decide to seek representations from the other party or parties. In the circumstances of this appeal, it appeared to me that the issues relating to ownership of the drawings may be relevant to the application of section 17(1) to the records at issue. I therefore decided to vary this procedure, and sent a Notice of Inquiry to the Ministry, the company and the appellant at the same time. I provided the background to the issues (as set out above) and set out a number of specific questions directed at obtaining certain factual information that I required in order to proceed with the inquiry. The parties were asked to carefully review these questions and to provide detailed submissions and evidence in responding to them. In addition, the appellant was requested to provide a copy of the drawings that were made by his company and in which it holds copyright, evidence relating to copyright, such as registration or other documentation that supports the copyright, and evidence that these drawing were provided to the company. All three parties submitted representations in response. The appellant submitted a copy of three sets of drawings that were prepared by his company in 1995 and 1997. The company provided its representations in affidavit form. After reviewing all of the submissions, I decided to seek further representations from the appellant only. I provided the appellant with the Ministry's representations in their entirety and the non-confidential portions of the company's submissions. The only portion of these submissions which I withheld contains the personal information of an identifiable individual, the disclosure of which may constitute an unjustified invasion of his personal privacy. The appellant was asked to review these submissions (particularly those of the company), to provide further submissions on the application of section 17(1), and to refer to the submissions of the other parties where appropriate. The appellant was also requested to provide detailed evidence to support the factual allegations underlying his position relating to the question of
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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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Jul 11, 2001
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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