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Summary
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O R D E R BACKGROUND : The Stadium Corporation of Ontario Ltd. (the "institution") received a request for access to the Board of Directors meeting minutes for the period of October 15, 1989 through May 2, 1990. The institution provided partial access to the records, subject to severances pursuant to sections 17(1)(a), 18(1)(a), (c), (d), (e), (f), and (g), 19, and 22(a) and (b) of the Act . The requester appealed the institution's decision and notice of the appeal was sent to the institution and the appellant. In accordance with our normal practice, the Appeals Officer assigned to the case obtained a copy of the records, which are described as follows: 1. Minutes of a meeting of the Directors of Stadium Corporation of Ontario Limited, December 14, 1989 (Record 1); 2. Minutes of a meeting of the Directors of Stadium Corporation of Ontario Limited, January 18, 1990 (Record 2). During the course of mediation, the Appeals Officer determined that the December meeting was a "quarterly" meeting and the January meeting was a "special" meeting. The Appeals Officer also determined that a quarterly meeting had been held in the spring of 1990, but that formal minutes for that meeting were not prepared until after the request was submitted. The appellant was advised of this fact and has made a separate access request for these minutes. Because mediation was not possible, the matter proceeded to inquiry. Notice that an inquiry was being conducted to review the decision of the head was sent to the appellant and the institution. Enclosed with the Notice of Inquiry was a report prepared by the Appeals Officer, intended to assist the parties in making representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal, and offers the parties an opportunity to provide written representations. Representations were received from the institution, but not the appellant. In its representations, the institution withdrew exemptions claimed under sections 18(1)(f), 19, 22(a) and (b), and raised section 13(1) as a new exemption. During the course of this appeal, the institution released certain severances in Records 1 and 2. The severances which remain at issue in this appeal are: Record 1: 6th paragraph on page 2; 5 sentences on page 3; and first full paragraph on page 5. Record 2: 5 paragraphs on page 4; four words on page 4; last five paragraphs on page 5; pages 6 and 7 in their entirety; and first paragraph on page 8. The institution has relied on all exemptions for each severance. PRELIMINARY ISSUE : In its representations, the institution refers to the possible application to section 17(1)(a) of the Act . Specifically, it states: ...[M]atters such as the [information contained in the severance] are to be kept confidential in order to enable the Institution to conduct its business affairs and negotiate potential settlements with such third parties without the threat that the information may later be revealed and used by such third parties to everyone's detriment. I have reviewed the contents of the severances, together with the representations provided by the institution, and, in my view, section 17(1)(a) is not applicable. The institution maintains that disclosure of the record would result in harm to its own ability to negotiate with third parties and thereby affect its capability to "conduct its business affairs". Potential harm to the institution's own economic or competitive interests is properly addressed in the context of section 18 of the Act , which will be considered in my discussion of Issue B. Therefore, the exemptions at issue in this appeal are sections 13(1) and 18(1)(a), (c), (d), (e) and (g). ISSUES : A. Whether the discretionary exemption provided by section 13(1) applies to any severed parts of the records. B. Whether the discretionary exemptions provided by sections 18(1)(a), (c), (d), (e) or (g) apply to any severed parts of the records. SUBMISSIONS/CONCLUSIONS : ISSUE A : Whether the discretionary exemption provided by section 13(1) applies to any severed parts of the records. Section 13 of the Act provides that: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. "Advice", for the purposes of subsection 13(1) of the Act , must contain more than mere information. Generally speaking, advice pertains to the submission of a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process. [Order 118] I have examined all severances and, in my view, they contain information that is properly characterized as factual information, rather than advice. The severances describe decisions taken by the Board, not suggested courses of action. Accordingly, I find that the severances do not qualify for exemption under section 13(1) of the Act . ISSUE B : Whether the discretionary exemptions provided by sections 18(1)(a), (c), (d), (e) or (g) apply to any severed parts of the records. The relevant provisions of section 18 read as follows: A head may refuse to disclose a record that contains, (a) trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Ontario or an institution and has monetary value or potential monetary value; ... (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario; (e) positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution or the Government of Ontario; ...
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