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Document
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P-647
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File #
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P-9300559
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Institution/HIC
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Interim Waste Authority Limited
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Summary
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ORDER BACKGROUND: The Interim Waste Authority Limited (the Authority) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to all correspondence, minutes of meetings or memoranda to file between the Authority, a named consulting firm and two railway companies. The requester is a member of a resident's association which is concerned about the transport of solid waste through its community. The Authority located a number of records that were responsive to the request. The Authority also determined that the release of these documents might affect the interests of the two railway companies and, pursuant to section 28(1) of the Act , notified these parties that an access request had been received. The railway companies were invited to make representations on whether the documents in question should be released. One of the companies consented to the disclosure of the documents which it had provided to the Authority. The second company, however, objected to the release of the documents which it had authored. The Authority then considered the submissions of the second railway company and decided to grant access to the responsive records in their entirety. The railway company (now the third party appellant) appealed the Authority's decision to the Commissioner's office. During the mediation of the appeal, the original requester narrowed her request to three of the records which were originally at issue. Further mediation was not successful and notice that an inquiry was being conducted to review the Authority's decision was sent to the railway company, the Authority and the original requester. Representations were received from the railway company only. The records at issue in this appeal consist of three covering letters to which are attached individual feasibility studies for the transport of solid waste to and from a variety of different locations. PRELIMINARY ISSUE: In its representations, the railway company argues that the costing and related information found in the records should be kept confidential by virtue of section 350 of The Railway Act . This provision reads as follows: Where the information concerning the costs of a railway company or other information that is by its nature confidential is obtained from the company by the [National Transportation] Agency in the course of any investigation under this Act or the National Transportation Act, 1987 , the information shall not be published or revealed in such a manner as to be available for the use of any other person, unless in the opinion of the Agency the publication is necessary in the public interest. At the outset, I find that this section applies exclusively to documentation provided to the National Transportation Agency. The provision, therefore, has no application to records supplied to institutions which are subject to the Act . I accept the point, however, that some of the information which railway companies may supply to government agencies will have an inherent economic value. THIRD PARTY INFORMATION: The sole issue in this appeal is whether the mandatory exemption provided by sections 17(1) (a), (b) and (c) of the Act applies to the third party information contained in the three documents. For a record to qualify for protection under section 17(1), the party resisting disclosure of the record (in this case the railway 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 sections 17(1)(a), (b) or (c) will occur. In addition, where an institution receives a request for access to a record which contains third party information, the institution is required to disclose as much of the record as can reasonably be severed without releasing the information which falls under the section 17(1) exemption. Part One of the Test In its representations, the railway company submits that the records contain information respecting developmental and operational costs, the economics to be derived from capital investments and information about prospective routes. I have carefully reviewed the contents of these documents and am satisfied that they contain both financial and commercial information for the purposes of part one of the section 17(1) test. Part Two of the Test To satisfy this component of the test, the railway company must establish that the information contained in the records was supplied to the Authority and secondly that such information was supplied in confidence either implicitly or explicitly. Based upon my review of the records, I am satisfied that the contents of these documents were supplied to the Authority (through its consultants) by the railway company. I must now determine whether this information was supplied in confidence. In its representations, the railway company states that the documents were provided with the explicit understanding that these materials were being tendered in confidence. The company submits that this expectation of confidentiality is confirmed by the language found on the covering letters which are attached to Records 1 and 3. The company also states that this expectation was confirmed in subsequent correspondence exchanged between the two parties. I have carefully reviewed the records and the representations provided to me. I am satisfied that the information contained in the three documents was supplied by the railway company explicitly in confidence. Accordingly, I find that the second part of the section 17(1) test has been satisfied. Part Three of the Test To satisfy part three of the test, the railway company must present evidence that is detailed and convincing, and must describe a set of facts and circumstances that would lead to a reasonable expectation that the harms described in sections 17(1)(a), (b), or (c) of the Act would occur if the information was disclosed (Order 36). To sup
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Legislation
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Subject Index
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Signed by
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Irwin Glasberg
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Published
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Mar 18, 1994
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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