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Document
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PO-1666
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File #
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PA-980243-1, PA-980246-1, PA-980247-1 and PA-980248-1
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Institution/HIC
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Ministry of the Environment
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Summary
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NATURE OF THE APPEAL:
The requester made a request to the Ministry of the Environment (the Ministry) under the Freedom
of Information and Protection of Privacy Act (the Act). The request was for access to all
correspondence, site evaluation reports, orders and Certificates of Approval for water, waste water
and sewage at 261 named sites. The Ministry treated each site as a separate request and opened
corresponding files.
The Ministry located responsive records and notified a named engineering and contracting company
(the Company) to determine its views regarding the disclosure of records pertaining to it which were
contained in four of the request files. The Company objected to the disclosure of the records
pertaining to it in each of the four files.
After considering the Company's views regarding disclosure, the Ministry issued a decision to the
requester in which it granted full access to the requested records. The Company appealed the
Ministry's decision in each of the four files. This office opened four appeal files to correspond to the
Ministry's files. As the parties are the same and the records are similar, the four appeal files will be
dealt with together.
I sent a Notice of Inquiry to the Ministry, the requester and the Company. Representations were
received from the Ministry and the Company. The requester wrote to this office to advise that she is
no longer appealing the decision regarding Appeal Number PA-980248-1 as she already has a copy
of this record. The decision and record relating to Appeal Number PA-980248-1are, therefore, no
longer at issue. The requester also indicates that she will not be providing representations with
respect to the remaining appeals. The Company states in its representations that it is only concerned
about disclosure of the site evaluation reports. It indicates that it does not take issue with the
disclosure of the covering letters attached to the site evaluation reports. Therefore, the covering
letters which are attached to each of the documents referred to below are not at issue and should be
disclosed to the requester.
RECORDS:
The records at issue consist of the following:
Appeal PA-980243-1: a document titled "Bioremediation - Six Month Progress Report", for the
period ending June 16, 1997 regarding [a specified address], Niagara Falls.
Appeal PA-980246-1: a document titled "Bioremediation - Six Month Progress Report", for the
period ending September 18, 1996 regarding [a specified address], Orillia.
Appeal PA-980247-1: a document titled "Bioremediation - Six Month Progress Report", for the
period ending September 18, 1995 regarding [a specified address], Sudbury.
[IPC Order PO-1666/April 13, 1999]
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DISCUSSION:
THIRD PARTY INFORMATION
As I indicated above, the Ministry has decided to disclose the records at issue to the requester. For a
record to qualify for exemption under sections 17(1)(a), (b) or (c) the party resisting disclosure, in
this case, the Company, must satisfy each part of the following three-part test:
1. the record must reveal information that is a trade secret or scientific,
technical, commercial, financial or labour relations information; and
2. the information must have been supplied to the institution in confidence,
either implicitly or explicitly; and
3. 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 section 17(1)
will occur.
[Orders 36 and P-373]
The Court of Appeal for Ontario recently overturned the Divisional Court=s decision quashing
Order P-373 and restored Order P-373. In that decision the court 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.), reversing (1995), 23
O.R. (3d) 31 (Div. Ct.)].
[IPC Order PO-1666/April 13, 1999]
- 3 -
The Company relies on all three subsections of section 17(1).
BACKGROUND:
The Ministry provides some background information which outlines the context in which the records
were created and provided to it. In this regard, the Ministry indicates that a named Oil company
notified the Ministry that there had been contamination on several of its sites and that it had retained
the Company to clean up these sites. The Ministry indicates further that the Company submitted to
the Ministry its Certificate of Approval to clean up the sites in accordance with the Environmental
Protection Act (the EPA), and that the Company provided the Ministry with the records at issue as
part of this ongoing clean up process.
Part One
The Company refers to the definition of scientific and technical information as established in Order
P-454. In this order, former Assistant Commissioner Irwin Glasberg examined these two types of
information and found:
In my view, scientific information is information belonging to an organized field of
knowledge in either the natural, biological or social sciences or mathematics. In
addition, for information to be characterized as scientific, it must relate to the
observation and testing of specific hypothesis or conclusions and be undertaken by
an expert in the field. Finally, scientific information must be given a meaning
separate from technical information which also appears in section 17(1)(a) of the
Act.
...
In my view, technical information is information belonging to an organized field of
knowledge which would fall under the general categories of applied sciences or
mechanical arts. Examples of these fields would include architecture, engineering or
electronics. While, admittedly, it is difficult to define technical information in a
precise fashion, it will usually involve information prepared by a professional in the
field and describe the construction, operation or maintenance of a structure, process,
equipment or thing. Finally, technical information must be given a meaning separate
from scientific information which also appears in section 17(1)(a) of the Act.
I adopt these definitions as established by the former Assistant Commissioner.
The Company submits that the records contain scientific information as they relate to the field of
environmental science which involves the testing of soils to determine the absence of pollutants. It
also argues that the records contain technical information as they relate to environmental
engineering, which is a field of applied science.
The Ministry does not dispute that the records contain scientific and technical information.
[IPC Order PO-1666/April 13, 1999]
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Although I accept that the methods employed by the Company are the result of scientific
development, testing and analysis, I find that the information in the records at issue does not relate to
the observation and testing of specific hypothesis or conclusions. Rather, the records contain
information regarding the application of the methods which have been developed by the Company.
Therefore, I find that they do not contain scientific information within the meaning of the above
definition. That being said, however, I am satisfied that they contain technical information as this
information relates to the field of environmental engineering and was prepared by a professional in
the field and describes the operation of a process and equipment.
The Company also argues that the records contain trade secrets as defined by this office in Order M-
29. In that order, former Commissioner Tom Wright defined “trade secrets” as:
"trade secret" means information including but not limited to a formula, pattern,
compilation, programme, method, technique, or process or information contained or
embodied in a product, device or mechanism which
(i) is, or may be used in a trade or business,
(ii) is not generally known in that trade or business,
(iii) has economic value from not being generally known,
and
(iv) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
I adopt this definition of “trade secret” for the purposes of this appeal.
The Company submits that it has developed a unique monitoring process to test soil samples for the
removal of pollutants and that this process is not generally known in the environmental remediation
industry. The Company asserts that it is the only company using this process which, it explains, is
more cost effective than other more traditional methods of soil analysis. Therefore, the Company
submits that this information has economic value to it. Finally, the Company indicates that it has
made every reasonable effort to maintain the secrecy of this process. It indicates further that, in
submitting the documents to the Ministry it attached a warning that they were submitted in
confidence, that they contain a trade secret, and that they should not be released, as to do so could
jeopardise its competitive position.
I accept that the Company has developed a unique monitoring process and its treatment of this
process would lead me to conclude that information about the process would reveal a trade secret.
However, although the records refer to the process which was developed by the Company they do
not provide any detail as to how the process actually works. Rather, they identify the process and
describe its application in testing soil in accordance with a Certificate of Approval. I note, that the
Certificate of Approval contains sufficient information to be able to identify the nature of the
[IPC Order PO-1666/April 13, 1999]
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process. The Ministry indicates that Certificates of Approval are public records in accordance with
section 19 of the EPA and are routinely disclosed.
The Ministry indicates further that its technical staff determined that the information which is
contained in these records could easily be determined by simply going past the site every day to
determine progress and activities.
Finally, in reviewing the records, I note that much of the information in the records pertains to the
results of the testing, and that the actual soil testing was performed by an independent laboratory,
and, therefore, does not actually refer to the process used by the Company.
Based on my review of the information in the records and the Ministry=s representations on this
issue, I find that I am not persuaded by the Company=s arguments in this regard. Consequently, I
find that the records do not contain trade secrets.
Part Two
In order to satisfy Part two of the test, the information must have been supplied to the Ministry in
confidence either implicitly or explicitly. In Order M-169, Adjudicator Holly Big Canoe made the
following comments with respect to the issue of confidentiality in section 10(1) of the municipal Act
(which is the equivalent of section 17(1) of the Act):
In regards to whether the information was supplied in confidence, part two of the test
for exemption under section 10(1) requires the demonstration of a reasonable
expectation of confidentiality on the part of the supplier at the time the information
was provided. It is not sufficient that the business organization had an expectation of
confidentiality with respect to the information supplied to the institution. Such an
expectation must have been reasonable, and must have an objective basis. The
expectation of confidentiality may have arisen implicitly or explicitly.
In determining whether an expectation of confidentiality is based on reasonable and objective
grounds, it is necessary to consider all the circumstances of the case, including whether the
information was:
(1) Communicated to the institution on the basis that it was confidential and that it was to be
kept confidential.
(2) Treated consistently in a manner that indicates a concern for its protection from disclosure
by the affected person prior to being communicated to the government organization.
(3) Not otherwise disclosed or available from sources to which the public has access.
(4) Prepared for a purpose which would not entail disclosure.
[Order P-561]
[IPC Order PO-1666/April 13, 1999]
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I agree with this approach.
The Company states that the records were supplied by it to the Ministry explicitly in confidence. In
this regard, the Company refers to a document which was attached to each of the records at the time
they were submitted to the Ministry. This document specifically notes that the Company=s
expectation of confidentiality is intended to apply to access requests made under the Act.
The Ministry agrees that the records were submitted to it explicitly in confidence.
I am satisfied that the Company submitted the documentation to the Ministry explicitly in
confidence.
Part Three
In order to satisfy the third requirement of this exemption claim, the Company must present evidence
which is detailed and convincing, and must describe a set of facts or circumstances that would lead
to a reasonable expectation that one or more of the harms described in section 17 would occur if the
information was disclosed (Orders P-278 and P-249; (see also, Ontario (Workers Compensation
Board) v. Ontario (Assistant Information and Privacy Commissioner) cited above).
The Company=s position
Section 17(1)(a)
The Company submits that the records make reference to the process developed and used by it to test
soil. The Company points out that this process is not followed in the industry. The Company
acknowledges that the records do not set out the actual procedure to follow to duplicate the process,
however, it argues that the mere disclosure of the reference to the process would prejudice its
competitive position vis-a-vis others in the Bioremediation industry. In this regard, the Company
submits that a competitor could easily derive the process used by it from a review of the information
in the records or from the knowledge that the Company uses this particular method of soil testing.
Section 17(1)(b)
With respect to the harms under this section, the Company notes that, as a regulator in the
environmental engineering industry, the Ministry has an interest in maintaining open and frank
communications with those in the industry in order to keep the Ministry informed and to foster cooperation
with those it oversees, thus ensuring effective regulation of the industry.
The Company indicates that the records were supplied to the Ministry pursuant to a condition in a
Certificate of Approval. It argues that disclosure of this information would create a serious incentive
to those in the industry to resist such conditions and to demand limitations on the scope of
information required to be provided. More generally, the Company submits that disclosure of
“confidential” information would lead those in the industry to be reticent about providing any
[IPC Order PO-1666/April 13, 1999]
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information of this nature to the Ministry. The Company asserts that the Ministry has no statutory
authority to compel production of this information and submits that, in the result, the Ministry would
receive less information regarding those it regulates.
Section 17(1)(c)
The Company states that the process referred to in the records was developed by it at significant cost
and risk. The Company indicates that the development of this process has given it a significant
competitive advantage over those who use the more costly and time-consuming traditional methods
of soil testing. The Company submits that disclosure of the records would remove this competitive
advantage as competitors will learn that effective soil testing is possible by using this process. The
Company believes that competitors will be able to use the information in the records to move in this
direction and attempt to duplicate the process.
The Ministry=s position
The Ministry explains, in considerable detail, its reasons for believing that disclosure of the records
would not result in any of the harms described in section 17.
In this regard, the Ministry indicates that the records contain information which is the result of a
technical study by staff of the Company, which would have entailed conducting a number of tests to
ascertain the amount of pollution on site. The reports set out the Company=s proposal to the Oil
company for the clean-up of the sites to Ministry standards.
In this regard, the Ministry notes that the records outline the Company=s authority under the EPA.
As I noted above, the Ministry indicates that Certificates of Approval are public records in
accordance with section 19 of the EPA and are routinely disclosed. The Ministry states further that,
in accordance with section 168 of the EPA, it has always considered information about contaminants
released to the environment as public information.
The Ministry indicates that sections 13 to 15 of the EPA require that no person shall contaminate the
natural environment, but should such a situation arise, the person is to forthwith notify the Ministry.
The Ministry acknowledges that such records are usually received voluntarily, however, section
18(6) of the EPA authorizes the Director to issue an order for the production of a report (such as the
records at issue).
The Ministry indicates that the information in the records is very general in nature and does not
provide the level of detail that would be included in an application for the initial Certificate of
Approval. The Ministry reiterates that its technical staff determined that the information which is
contained in these records could easily be determined by simply going past the site every day to
determine progress and activities.
The Ministry refers to a number of appeals it has had with this office in which similar records were
at issue and indicates that, on at least two occasions, the Commissioner has ordered the disclosure of
reports of site contamination (see Order P-1235). Further, the Ministry indicates that it releases
[IPC Order PO-1666/April 13, 1999]
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records of this type as a result of approximately 4,000 access requests annually and indicates that it
notified the Company in this case only because of the notation on the records that they were supplied
in confidence.
The Ministry does not make specific submissions on the Company=s expectation of harm under
sections 17(1)(a) and (c), however, it offers a number of general comments.
The Ministry indicates that it has already processed over 300 requests from the requester for this
type of report. The Ministry submits that it is quite possible that, because it was not marked
“confidential”, a similar report relating to another site has already been disclosed. The Ministry
refers to prior dealings with this Company and notes that the Company does not always mark its
reports as “confidential”. The Ministry refers specifically to a report prepared by the Company for
another Oil company regarding its site which was sent by the Oil company to the Ministry. The
Ministry indicates that since this report was not marked “confidential”, it was released to a requester
pursuant to an access request.
I have confirmed with the requester the records which she already has and I find that her possession
of them and the manner in which they were obtained confirms the Ministry=s submissions in this
regard.
The Ministry recognizes that such reports are expensive to produce, but takes the position that the
reports belong to the Oil company rather than the Company, and any such cost could be easily borne
by such a large corporation.
Finally, the Ministry submits that the public has a right to know the extent of contamination and
whether the site has been cleaned up.
With respect to section 17(1)(b), the Ministry acknowledges that it would prefer to work cooperatively
with the industry, however, it submits that the EPA provides the authority for it to obtain
this type of record in any event.
I have considered the arguments raised by both the Ministry and the Company. I would like to point
out that both parties have provided extensive and detailed submissions on this issue. Although the
Company has strenuously objected to the disclosure of the records, I am not persuaded that the
harms which it believes will come to pass should they be disclosed could reasonably be expected to
occur. In particular, I am not convinced that the Company, or any other similar company in the
industry would no longer supply this type of information to the Ministry. The EPA clearly requires
specific types of information and establishes the legal authority to obtain it. Although, as the
Ministry indicates, it would prefer to have this information provided voluntarily, it indicates that it is
prepared to compel its production under the authority of the EPA, if necessary. Consequently, I find
that section 17(1)(b) does not apply.
With respect to the harms in sections 17(1)(a) and (c), I find that the information at issue is
sufficiently general so as not to compromise the Company=s interest in maintaining the unique
aspects of its process. Further, I find that, as some of the information is already publicly available
[IPC Order PO-1666/April 13, 1999]
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Legislation
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Signed by
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Laurel Cropley
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Published
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Apr 13, 1999
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Type
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Order
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Judicial Review
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Application abandoned October 4, 1999
955104 Ontario Limited v. Laurel Cropley, Adjudicator et al, Tor. Doc. 299/99 (Div. Ct.)
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