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Document
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PO-2152
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File #
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PA-020132-1
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Institution/HIC
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Ministry of Community, Family and Children's Services
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Summary
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NATURE OF THE APPEAL: The Ministry of Community, Family and Children's Services (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: All documents pertaining to dispute between the Ministry of Community and Social Services and [a named leasing company]. The requester explained that the dispute involved leasing agreements for technology equipment. The Ministry identified two responsive records. After notifying a consulting company that authored one of the records (the consultant), pursuant to section 28 of the Act , and considering its position that the records should not be disclosed, the Ministry decided to release both records to the requester. Before doing so, the Ministry advised the consultant, who appealed the Ministry's decision on the basis that the records qualify for exemption under section 17(1)(a) and (c) of the Act . Mediation did not resolve the appeal and the matter was transferred to the adjudication stage of the appeal process. I initiated my inquiry by seeking representations from: the consultant, as the appellant resisting disclosure; the leasing company identified in the request (the leasing company), as an affected party with a potential interest in the records; and the Ministry, in order to determine its position on the impact that disclosing the records would have on the leasing company's interest. I received representations from the consultant and the leasing company, but not from the Ministry. I then provided the requester with a copy of the non-confidential portions of these representations, and he responded. In his representations, the requester raised the potential application of the public interest override in section 23 of the Act . I provided the requester's representations to the consultant and the leasing company in order to given them an opportunity to respond to this new issue, and they both made reply representations. RECORDS: Record 1 is a one-page letter, dated November 25, 1999, from the leasing company to the Ministry. It outlines the results of negotiations between these two parties on the terms of their leasing agreements. Record 2 is a two-page cover letter from the consultant to the Ministry, dated November 3, 1999, and an attached report. The report is titled "Computing Equipment Lease Portfolio Review" and reflects the results of the consultant's review of the Ministry's "Caseworker Project". DISCUSSION: THIRD PARTY INFORMATION: Sections 17(1)(a) and (c) read as follows: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; In order for a record to qualify for exemption under sections 17(1)(a) and/or (c), the parties resisting disclosure (in this case the consultant and the leasing company) must satisfy the following three-part test: The record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information. The information must have been supplied to the Ministry in confidence, either implicitly or explicitly. The prospect of the disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paragraphs (a) and/or (c) will occur. The Court of Appeal for Ontario approved this three-part test. In its decision upholding my Order P-373, 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 have 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 474 (C.A.), reversing (1995), 23 O.R. (3d) 31 (Div. Ct.)] ( Workers' Compensation Board) ) Part 1: Type of Information Representations The consultant submits that the records contain "business trade secrets" and that disclosing them would reveal "specific expertise, accounting processes, analytical skills and tactics" that the consultant has developed to perform evaluations. The leasing company also submits that the records contain "trade secrets", as well as "financial" and "commercial" information about its leasing agreements with the Ministry. The leasing company also points to Order PO-2027, which involved the consultant, the leasing company and a different ministry. In the leasing company's view, Adjudicator Donald Hale in that case found that records containing information that was "virtually identical" to the information at issue here were "clearly of a commercial nature as it addresses agreements for the supply of goods and services by the leasing company to the [other ministry]." The requester argues that it is unlikely that the records would contain trade secrets unique to the consultant, since there are many competitors in the field of forensic consulting. He also points out that the cities of Toronto, Waterloo, and Guelph, as well as the Union Water System and the Essex-Windsor Waste Management Authority have provided him with access to the same type information in response to access requests for information relating to their agreements with the leasing company. The terms "trade secret" and "commercial" and "financial" informatio
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jun 05, 2003
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Type
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Order
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