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PO-1930

Document		PO-1930


File #		PA-010039-1


Institution/HIC		Ontario Securities Commission


Summary		NATURE OF THE APPEAL: The Ontario Securities Commission (the OSC), received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: … copies of the annual report(s) for the past 4 years which the Investment Dealers Association of Canada (IDA) prepares and submits to the Ontario Securities Commission. These reports, titles unknown, are comprised of the self-assessment of the IDA with respect to the IDA's self-regulatory responsibilities and their recommendations for improvements. The document(s) entitled "Guidelines for Investigations of Supervisory Practices" dated May 1992, and any updates are also requested. The OSC identified four responsive records, and denied access to them under section 67(1) of the Act . The OSC advised the requester that section 153 of the Securities Act constitutes a confidentiality provision that prevails over the Act , pursuant to section 67(1). The requester (now the appellant) appealed the OSC's decision. Mediation was not successful in resolving the appeal, so it proceeded to the adjudication stage. I sent a Notice of Inquiry to the OSC initially, asking for representations. I invited the OSC to consult with the IDA on the issues raised in the Notice. The OSC provided representations in response to the Notice, which I included with the copy of the Notice sent to the appellant. The appellant submitted representations in response. RECORDS: The records at issue in this appeal are: $ the 1999 IDA self-assessment $ the 1998 IDA self-assessment $ the 1997 IDA self-assessment $ the IDA Guidelines for Investigation of Supervisory Practices, dated May, 1992 DISCUSSION: SECTION 153 OF THE SECURITIES ACT The OSC claims that section 67(1) of the Act , in combination with section 153 of the Securities Act , gives authority to the OSC to exclude the records from the access provisions of the Act . Section 67(1) of the Act states: This Act prevails over a confidentiality provision in any other Act unless subsection (2) or the other Act specifically provides otherwise. Section 153 of the Securities Act reads as follows: Despite the Freedom of Information and Protection of Privacy Act , the [Ontario Securities] Commission may provide information to and receive information from other securities or financial regulatory authorities, stock exchanges, self-regulatory bodies or organizations, law enforcement agencies and other governmental or regulatory authorities, both in Canada and elsewhere, and any information so received by the Commission shall be exempt from disclosure under that Act if the Commission determines that the information should be maintained in confidence. In its representations, the OSC sets out its position as follows: It is respectfully submitted that from a plain reading of section 153 of the Securities Act , it is clear that 1) the section specifically addresses and overrides the provisions of the Act ; and 2) the section calls for the preservation of secrecy, thereby qualifying it as a confidentiality provision. Section 153 of the Securities Act (Ontario) in effect overrides the right to request access to records under the Act . Relationship between section 153 of the Securities Act and section 67(1) of the Act Section 67(1) makes it clear that the Act prevails "over a confidentiality provision in any other Act unless … the other Act specifically provides otherwise". The OSC submits that section 153 is one confidentiality provision that "specifically provides otherwise". I concur. There is no ambiguity in the wording of section 153 in this regard. If the requirements of this section apply to the records at issue in this appeal, it is clear from the plain wording of section 153 that the OSC may withhold the records "despite the Freedom of Information and Protection of Privacy Act ." The application of section 153 of the Securities Act to the records at issue in this appeal In the circumstances, in order to fall within the scope of section 153, the OSC must establish that: the IDA is a self-regulatory body or organization; the information in the records at issue in this appeal was received by the OSC from the IDA; and the OSC has determined that the information in the records should be maintained in confidence. Is the IDA a self-regulating body or organization? Sections 1(1) and 21.1 of the Securities Act provide: 1(1) "Self regulatory organization" means a person or company that represents registrants and is organized for the purpose of regulating the operations and the standards of practice and business conduct of its members and their representatives with a view to promoting the protection of investors and the public interest; 21.1 (1) The Commission may, on application of a self-regulatory organization, recognize the self-regulatory organization if the Commission is satisfied that to do so would be in the public interest. (2) A recognition under this section shall be made in writing and shall be subject to such terms and conditions as the Commission may impose. (3) A recognized self-regulatory organization shall regulate the operations and the standards of practice and business conduct of its members and their representatives in accordance with its by-laws, rules, regulations, policies, procedures, interpretations and practices. (4) The Commission may, if it is satisfied that to do so would be in the public interest, make any decision with respect to any by-law, rule, regulation, policy, procedure, interpretation or practice of a self regulatory organization. The OSC's


Legislation		FIPPA 67(1)


Subject Index		Securities Act


Signed by		Tom Mitchinson


Published		Jul 27, 2001


Type		Order


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