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PO-2029

Document		PO-2029


File #		PA-010410-1


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 any report or correspondence by the Ontario Securities Commission since June 1998 regarding the operations of the Investment Dealers' Association (the IDA) and its members." The requester later narrowed the request to "a recent report or audit conducted by the OSC of the IDA … and any correspondence relating directly to [the report] between the OSC and the IDA." The OSC responded to the requester as follows: Access is denied to the [records] under section 67(1) of the Act concerning conflicts with other legislation. This provision applies because section 153 of the Securities Act may exempt from disclosure under the [ Act ], information received from self-regulatory bodies if the OSC determines that such information should be maintained in confidence. 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. And section 153 of the Securities Act reads: 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. The requester (now the appellant) appealed the OSC's decision. During the course of mediation, the appellant withdrew the portion of her request relating to correspondence, thereby restricting the scope of this appeal to the audit report. Also during mediation, the OSC provided this office with a copy of an OSC "Determination" dated October 6, 2001. In it, the OSC "determines" that the OCS should hold the audit report in confidence. The sole issue to be determined in this appeal is whether, in the circumstances, the OSC's decision that section 153 of the Securities Act applies and prevails over the Act should be upheld. After the appeal was transferred to the adjudication stage, I sent a Notice of Inquiry to the OSC, outlining the facts and issues and seeking written representations. The OSC submitted representations and, after reviewing them, I determined that it was not necessary to hear from the appellant prior to making my decision on the issues raised in this appeal. RECORD: The record remaining at issue in this appeal is an undated 25-page Audit Report prepared by the OSC on the operation of the IDA. DISCUSSION: PRELIMINARY ISSUE: As a preliminary issue, the OSC questions whether I have jurisdiction to hear this appeal. It states: It is respectfully submitted that section 153 of the Securities Act , and section 67(1) of the [ Act ] operate to deprive the Information and Privacy Commissioner of jurisdiction to hear this appeal. Section 67(1) of the Act limits the jurisdiction of the [ Act ] in those circumstances where another Act contains a confidentiality provision that specifically references the [ Act ]… … The Notice of Inquiry dated May 21, 2002 indicated that the IPC [Information and Privacy Commissioner] was satisfied that section 153 of the Securities Act was a confidentiality provision which takes precedence over the [ Act ]. The IPC specifically recognized this interrelationship in its Order PO-1930. There the IPC said that: "[t]here 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 [ Act ]." It is respectfully submitted that there is no provision in section 67 or elsewhere in the [ Act ], that suggests that only certain sections of the [ Act ] are overridden by the provisions of the Securities Act when the conditions of section 67 of the [ Act ] are met. In other words, the Securities Act takes precedence over the [ Act ] in its entirety, including the [ Act ]'s appeal provisions found in sections 50 through 54 of that Act . Section 153 states that the [OSC] can share information with certain enumerated entities despite [the Act ]. It also states that, if the [OSC] determines that information so received should be maintained in confidence, then this information is exempt from disclosure under [the Act ]. It is the [OSC]'s determination, under section 153 of the Securities Act that exempts the relevant information from disclosure, not the operation of [the Act ]. In this case, the [OSC] operating under the jurisdiction of the Securities Act , used its discretion to determine that certain information that it has in its possession should remain confidential. It is respectfully submitted that if the appellant wishes to appeal the [OSC]'s Determination, the appropriate recourse is to the appeal provisions of the Securities Act regarding appeals of [OSC] decisions. After referring to section 9(1) of the Securities Act , which provides that entities directly affected by a final decision of the OSC may, in certain circumstances, appeal to the Divisional Court, the OSC states: It is respectfully submitted that the issues at the heart of this appeal, as highlighted by the questions raised in the Notice of Inquiry by the IPC, amount to a review of the OSC's interpretation of its own statute and the appropriate use of it's discretionary authority under the Securities Act . It is respectfully submitted that the Divisional Court, and not the IPC, is the appropriate forum for a review of this nature. I do not accept the OSC's position on this jurisdictional issue. Section 67(1) of the Act specifies that the Act prevails over a confidentiality provision found in any other statute unless section 67(2) of the Act or the other legislation specifically provides otherwise. Section 67(2) lists confidentiality provisions that prevail over the Act and does not apply here. Section 153 of the Securities Act states that "information so received by the Commission shall be exempt from disclosure under [the Act ]" (emphasis added). This wording parallels the language of the Act by referring to information being exempt from disclosure. Therefore, in my view, section 153 does not purport to exclude records from the operation of the Act , including its appeal provisions, but rather to exempt them fro


Legislation		FIPPA 67(1)


Subject Index		Confidentiality Provision in another Act


Signed by		Tom Mitchinson


Published		Jul 24, 2002


Type		Order


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