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Document
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PO-2027
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File #
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PA-020011-2
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Institution/HIC
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Ministry of Natural Resources
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Summary
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BACKGROUND: In 1997, the Ministry of Natural Resources (the Ministry) entered into two leasing agreements relating to the supply of computer servers and workstations. The agreements were the subject of some discussion by the Provincial Auditor in 1997 and the Ministry then undertook a review of its financial and contractual obligations with the leasing company. As part of this review, the Ministry engaged the services of an external leasing consultant to examine and comment on the Ministry's existing lease portfolio. In 1998, the review by the consultant was completed and a report prepared for submission to the Ministry. As a result of the study undertaken by the consultant, the Ministry took certain steps to address the concerns and recommendations for the leasing of its computer equipment identified by the consultant. NATURE OF THE APPEAL: Management Board Secretariat (MBS) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to "copies of any documents concerning the findings of a consultant who was hired by Management Board to review its contracts with [a named leasing company]." The requester identified both the consultant and the leasing company, as well as the time period of the consultant's retainer. As it appeared that the responsive record was in the custody and under the control of the Ministry of Natural Resources (the Ministry), MBS transferred the request to the Ministry pursuant to section 25 of the Act . The consultant was notified of the request by the Ministry under section 28 of the Act . The consultant objected to the disclosure of portions of the report and consented to the disclosure of others to the requester. The Ministry decided to grant the requester access to those portions of the record which were not objected to by the consultant. Access to the remaining portions of the responsive consultant's report was denied under section 17(1) of the Act. The requester, now the appellant, appealed the Ministry's decision. Mediation of the appeal was not successful and the matter was moved to the adjudication stage of the appeal process. I decided to seek the representations of the Ministry and the consultant, initially, as they were resisting disclosure of the information remaining at issue and, accordingly, bear the onus of demonstrating the application of the section 17(1) exemption. I also decided to seek the representations of the leasing company as its interests may be affected by the disclosure of the information contained in the record. All three parties provided me with representations in response to the Notice of Inquiry. I shared the non-confidential portions of the Ministry's representations, along with the complete submissions of both affected parties, with the appellant, who then made representations. The submissions of the appellant were then shared with the Ministry, the consultant and the leasing company, who all made representations by way of reply. The records remaining at issue consist of those portions of the consultant's report comprising Pages 3 to 8 of Record A0013997.TIF, Pages 9 to 13 of Record A0013998.TIF, Pages 14-16 of Record A0013999.TIF and Pages 17 to 24 of Record A00114000.TIF. DISCUSSION: THIRD PARTY INFORMATION For a record to qualify for exemption under sections 17(1)(a), (b) or (c), the Ministry and/or the leasing company and consultant, all of whom are resisting disclosure, 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. [Orders 36, P-373, M-29 and M-37] The Court of Appeal for Ontario, in upholding Assistant Commissioner Tom Mitchinson's Order P-373 stated: 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 confidence to the WCB by the employers. Lastly, as to Part 3, the use of the words " detailed and convincing" do not modify the interpretation of the exemption or change the standard of proof. These words simply describe the quality and cogency of the evidence required to satisfy the onus of establishing reasonable expectation of harm. Similar expressions have been used by the Supreme Court of Canada to describe the quality of evidence required to satisfy the burden of proof in civil cases. If the evidence lacks detail and is unconvincing, it fails to satisfy the onus and the information would have to be disclosed. It was the Commissioner's function to weigh the material. Again it cannot be said that the Commissioner acted unreasonably. Nor was it unreasonable for him to conclude that the submissions amounted, at most, to speculation of possible harm. [emphasis added] [ Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.)] Part 1: Type of Information The Ministry submits that the undisclosed portions of the record contain information which qualifies as "commercial" and "technical" information as those terms have been defined in previous orders of the Commissioner's office. The consultant takes the position that the record contains "trade secrets" as their disclosure would reveal "specific expertise, accounting processes, analytical skills and tactics" which it has developed in order to perform evaluations of this sort. The leasing company also argues that the undisclosed portions of the record contain trade secrets belonging to it and financial and commercial information about its leasing agreements with the Ministry. The appellant suggests that the records are not likely to contain trade secrets as there are many competitors in the field of forensic consulting. It also indicates that the type of technical, commercial and financial information contained in the record is routinely disclosed, as was the case following similar requests made to the cities of Toronto, Waterloo and Guelph, as well as another provincial Ministry, the Union Water System (in southwestern Ontario) and the Essex-Windsor Waste Management Authority for their leasing agreements with the leasing company. In its reply submission, the Ministry points out that while other institutions may choose to disclose their leasing agreements, the record at issue consists of the consultant's evalu
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Jun 28, 2002
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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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